State v. Cutts, WD35928

• Decision Date: 04 June 1985
• Docket Number: No. WD35928,WD35928
• Citation: 694 S.W.2d 804
• Parties: STATE of Missouri, Respondent, v. Curtis Andrew CUTTS, Appellant.
• Court: Missouri Court of Appeals

Page 804

694 S.W.2d 804

STATE of Missouri, Respondent, v. Curtis Andrew CUTTS, Appellant.

No. WD35928.

Missouri Court of Appeals Western District.

June 4, 1985.

Motion for Rehearing and/or Transfer

to Supreme Court Overruled and

Denied July 30, 1985.

Application to Transfer Denied

Sept. 10, 1985.

David Earl Woods, Regional Public Defender, Poplar Bluff, for appellant.

T. Chad Farris, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, P.J., and PRITCHARD and CLARK, JJ.

CLARK, Judge.

Curtis Cutts was convicted in a jury trial of the offenses of murder in the first degree, § 565.003, RSMo.1978 (repealed effective 7/1/84) and armed criminal action and was sentenced to consecutive life terms. Cutts now appeals raising seventeen points of alleged trial error. We find none of the points to have merit and therefore affirm the judgment and sentences.

The facts of the case, recounted with appropriate deference to the verdict, disclosed the following. Cutts had formerly worked as a driver for Midwestern Truck Lines, but in October of 1983 he quit because he was upset over the failure of the company to pay him amounts which he considered to have been due for turnpike tolls and overweight fines. He devised a plan to even accounts by hijacking a Midwestern truck and selling the freight to a salvage yard he had contacted for that purpose.

On November 22, 1983, after previous unsuccessful attempts to hijack a Midwestern truck, Cutts in the company of Ray Bibb and Melissa Wagner left St. Louis in a rented car and drove to Sheffield, Alabama. Cutts knew that Midwestern trucks were dispatched there regularly to pick up loads of aluminum to transport to St. Louis and points north. En route to Sheffield, Cutts and Bibb borrowed a 9 millimeter handgun from an acquaintance because the .22 caliber gun Cutts already had was considered not to be of sufficient size to carry off a truck hijacking. Bibbs bought the special ammunition the gun required at a hardware store near south St. Louis. As later events disclosed, that ammunition purchase was one of the items of evidence leading to apprehension of the suspects.

Cutts and Bibb had concocted a plan to stop the truck they intended to hijack by throwing paint at the windshield. When they reached Sheffield, they stopped at a discount store and bought the paint. Next, they took a position outside the aluminum plant to await a victim. Soon, a Midwestern truck came out of the plant and the hijackers followed. The paint throwing ruse was employed, but the truck did not stop. Instead, the driver sounded his horn and apparently attempted to warn other truckers. The trio of hijackers continued to follow the Midwestern truck to near Memphis, but finally abandoned the effort.

After spending the night in the Memphis area, Cutts, Bibb and Wagner drove back to Sheffield on November 23 to await another truck leaving the aluminum plant. The next truck which departed on the northbound trip was driven by Kenneth Wood, the ultimate victim of the homicide. Cutts and his companions followed Wood's truck and again attempted to splash paint on the windshield. This time they were also unsuccessful because the thrown paint hit the trailer and was evidently unnoticed by the driver. As an alternate means for stopping the truck first Bibb and then Cutts shot at the tires on the trailer with the handgun. This also failed to stop the truck, evidently because of the poor marksmanship of Bibb and Cutts. Wood drove on through the night until he reached a rest area near Cape Girardeau. Despite the previous incidents, Wood seems to have been unaware of the attempted hijacking or that the Cutts group had followed him from Alabama. After spending about three hours at the rest stop under observance by Cutts and the others, Wood resumed his trip north with the hijackers following.

At a point north of Cape Girardeau, Cutts again attempted to bring the Midwestern truck to a stop, this time with success. While following the truck, Cutts flashed his automobile lights and Wood brought his truck to the shoulder. He left the truck cab and was immediately shot three times by Bibb. Cutts and Bibb dragged the body into the woods where more shots were fired. Cutts removed Wood's identification and he and Bibb drove off in the truck. Wagner followed in the rental car. The group went to St. Louis, Cutts parked the truck and the three went to their houses for Thanksgiving. When Cutts returned later to dispose of the aluminum, he found police inspecting the truck. He abandoned any prospect of reaping any benefit from a sale of the salvage and left the scene.

Bibb was arrested December 1, 1983. His statement implicated Cutts and he was arrested the following day. Cutts waived his right to counsel and to remain silent. He gave a statement substantially in agreement with the facts stated above which also conformed to accounts by Bibb and Wagner. Cutts also gave a statement to the F.B.I. which had been investigating interstate truck hijackings. A number of shell casings were recovered at the scene of the killing and these shells were identified as of the rare type of ammunition which Bibb had purchased November 22 on the way to Alabama.

In his first point, Cutts complains that the composition of the panel from which the trial jury was chosen was dominated by women thereby denying him the opportunity for a fair trial by an impartial jury. He cites no authority supporting the point except the Sixth Amendment to the United States Constitution and Article I, § 18(a) of the Constitution of Missouri. We assume the point seeks to contend that the jury was not drawn from a fair and representative cross-section of the community. The oral motion at trial merely asserted that a female dominated jury would be more sympathetic to the victim's widow and that the gender imbalanced panel should thereby be quashed.

This type of jury venire challenge has been ruled on numerous occasions, most recently in State v. Harris, 670 S.W.2d 73, 80 (Mo.App.1984). It was there said that those who bring the charge of an unconstitutionally composed jury panel carry a heavy burden and must present evidence to prove, among other elements, that underrepresentation of a distinctive community group is the product of systematic exclusion of the group in the jury selection process. In this case, appellant offered not a word or line of evidence to show that males were systematically excluded from jury panels in Cole County. The point is devoid of merit and is summarily denied.

Appellant's statement of his second point is verbose in the extreme, but reduced to its essentials, the point contends statements given by Cutts to law officers should have been suppressed because they were the product of threats and coercion.

Cutts was first interrogated for some two hours during the early afternoon on the day of his arrest. He was advised of his rights and waived the right to an attorney and the right to remain silent. The interview resulted in a statement signed by Cutts in which the full details of the crime were recounted. A second statement was obtained three days later when Cutts was questioned by Lummus, an F.B.I. agent. The second interrogation was preceded by another rights waiver. According to the officers, Cutts was eager to talk about the crime and gave no indication of being tired or under the influence of intoxicants or drugs. At the time the statements were obtained from Cutts, he was twenty-three years old and had a high school education and several college course credits.

The principal complaint appellant makes of duress in procurement of the first statement focuses on remarks of officer Keathley. He says Keathley told him Bibb and Wagner had already given statements implicating him in the crime and, at the same time, Keathley described the range of punishment for capital murder as including death in the gas chamber. Cutts argues that he gave the statement in the hope of avoiding the gas chamber. The fact that Cutts' companions had given statements naming Cutts as a co-participant was true as was the description of possible punishment.

In State v. Stubenrauch, 503 S.W.2d 136 (Mo.App.1973), the defendant was told during questioning that other implicated persons had given statements associating defendant with the arson being investigated. The representation was untrue. In response to defendant's claim that the confession thereafter obtained should have been suppressed because defendant's will was overborne by trickery, the court held the artifice used by the police was insufficient to make the statement involuntary if the accused is otherwise fully advised of his rights and makes the statement voluntarily. To like effect was the decision in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). It follows upon these authorities that if the interrogating officer accurately informs the accused of inculpatory statements given by accomplices and also correctly describes the range of punishment, those representations standing alone cannot operate to convert an otherwise voluntary confession into a coercive and inadmissible confession.

In this case, the trial judge heard evidence on Cutts' motion to suppress the confession and concluded that the statement was voluntarily made. The question on this appeal is whether the evidence was sufficient to sustain that finding by the trial judge. State v. Dixon, 655 S.W.2d 547, 554 (Mo.App.1983). There is no single fact which tips the scales in testing voluntariness of a statement given under police questioning. Review is under the totality of the circumstances to discover if improper action had an overbearing effect on the will of the accused. State v. Brydon, 626 S.W.2d 443, 449 (Mo.App.1981). If conflicting evidence bears on the voluntariness of the statement, its admission by the trial court is a matter of discretion not to be lightly disturbed. State v. Flowers, 592 S.W.2d 167, 170 ...