State v. Dixon

• Decision Date: 24 May 1983
• Docket Number: No. 44769,44769
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Thomas DIXON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 547

655 S.W.2d 547

STATE of Missouri, Plaintiff-Respondent, v. Thomas DIXON, Defendant-Appellant.

No. 44769.

Missouri Court of Appeals,

Eastern District,

Division One.

May 24, 1983.

Motion For Rehearing and/or Transfer to

Supreme Court Denied July 15, 1983.

Application to Transfer Denied

Sept. 20, 1983.

Leonard Frankel, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GAERTNER, Judge.

Defendant was found guilty by a jury of the offense of murder in the second degree, § 565.004, RSMo 1978, and sentenced to 50 years imprisonment.

On October 20, 1979, there was a party held in a residence in St. Louis County celebrating the 20th birthday of Cherie Lyn Schmidt. Although not invited to the party, defendant attended with a friend of his who had been invited. The guests consumed a considerable quantity of beer and liquor. At some time between 11:00 p.m. and 11:30 p.m., Cherie left the party with defendant. When they had not returned some time after 11:30 p.m., the host and one of the guests went outside to look for her. Defendant's automobile, a red Mustang, was still parked where it had been earlier. They looked inside the car and it was unoccupied. Cherie's car was also empty. Cherie was never seen alive again.

Investigating her disappearance, the police questioned defendant on November 2, 1979. Defendant informed Detective Dies that they left the party because Cherie wanted to buy cigarettes. She also wanted to see his new car. He said they had driven to a 7-11 Store in the neighborhood where she got out of the car. She soon returned, defendant claimed, stating she had met a friend and was going with the latter to another party. She said she would return to the birthday party later. Thereafter, defendant reported to Detective Dies that he had received several anonymous telephone calls threatening him if he did not "come up with Cherie."

On November 17, 1979, Cherie's purse was discovered under a bush in the front yard of a residence not far from the party. The purse contained Cherie's identification, a small amount of cash, and, among other items, a half-full package of cigarettes. On the same day, her clothing was discovered partially submerged near the bank of a nearby lake. The lake was dredged and later drained but nothing further was found. Early in the morning of November 20, 1979, the police questioned employees of the 7-11 Store. They recognized a photograph of Cherie as she was a regular customer of the store. They were positive Cherie had not been in the store on the night of her disappearance. Later that same morning, Detective Dies received a telephone call from defendant's father reporting that defendant had been the victim of a robbery. It developed that on Monday evening, November 19, 1979, defendant had appeared at the home of a friend. The friend and his parents stated that defendant had an abrasion and swelling on his forehead, was dissheveled, incoherent and appeared to be not completely conscious. They put him to bed and called defendant's parents who brought him home the next morning. Defendant related that he had been assaulted and robbed of his car, wallet and shoes on the night of the 18th. He did not say where he had spent that night or the next day. Detective Dies told defendant's father to bring him to the police station. Accompanied by his father and sister, defendant arrived at the station at about 12:30 p.m. He told Dies his story about the robbery. Defendant was then taken, alone, to an interrogation room while his father and sister remained in a waiting room.

The interview was conducted by Detectives Dies and Reinhardt and was tape recorded. He was read the Miranda warnings and given a waiver of rights form containing the same warnings. He read this form and signed it. He was told that police investigation had revealed discrepancies between his story and what others had said. Defendant was questioned until 2:30 p.m. adamantly repeating his story about leaving Cherie at the 7-11 Store. He was not asked about being the victim of a robbery. He declined offers of food and drink. He did not ask for a lawyer, to see his father or sister, nor for an end to the questioning. He agreed to take a polygraph. One of the two officers left the room to prepare for the administration of the polygraph. The other remained in the interview room with defendant until about 4:00 p.m. Had defendant asked, he would not have been permitted to see his father or sister during that time.

The polygraph examiner was Officer Yarborough. He had been briefed regarding the facts then known by the police including the discrepancies about the location of defendant's car after 11:30 p.m. and the 7-11 Store employees' denial of Cherie's appearance. Yarborough went over these facts with defendant in a pre-test interview. He explained the purpose and function of the polygraph machine. Defendant read, said he understood, and signed a waiver form in which he agreed to voluntarily take the polygraph test. The form also repeated the Miranda warnings.

Yarborough reviewed in advance the twelve questions he proposed to ask in the test. Of the twelve, four were key questions, the other eight only for comparison. He ran the test three times between 5:45 p.m. and 6:05 p.m., asking all twelve questions each time. The tracings showed deception to all four key questions and defendant was so advised. ¹ Yarborough continued to interrogate him. About 7:00 p.m., defendant began to change his story. After about thirty more minutes, defendant admitted that he and Cherie had indulged in kissing and fondling in his car. She disrobed with his assistance. He said she taunted him about his sexual inadequacy, and he blacked out. A few minutes later, he admitted that he choked her while in the car because she was making fun of him. Subsequently, although defendant refused to write his statement or go to the scene with the police, he drew one map showing where he had disposed of her body, and, upon request, a second more detailed map. The police found the body where designated by defendant. It was covered by leaves and so badly decomposed the medical cause of death could not be determined by autopsy. Defendant also told the police that upon learning of the discovery of Cherie's clothes, he drove to Arkansas, but changed his mind and returned to St. Louis. He then fabricated the story of the robbery, and played it out by discarding his possessions in a sewer, and striking himself on the forehead. After defendant gave these statements, he took the police to the location of his belongings.

As his first point on appeal, defendant eloquently asserts that his confession was obtained in violation of the Fourth and Fourteenth Amendments of the United States Constitution. He argues that his detention at the police station constituted an unlawful seizure of his person and therefore his confession made seven hours after arrival at the station should have been excluded. The state counters this argument by contending there was no seizure since defendant's presence at the police station was purely voluntary and because his waiver of his Miranda rights was curative of any taint resulting from an illegal arrest. Although we reject the state's contentions on this point, ² we find no Fourth Amendment violation for the reason that the investigation by police had disclosed information more than sufficient to support a determination of probable cause to arrest the defendant.

An arrest with or without a warrant requires probable cause, which simply means a knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964); State v. Robinson, 484 S.W.2d 186, 189 (Mo.1972). ... While the quantum of information necessary to fashion probable cause means more than mere suspicion, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168 , 4 L.Ed.2d 134 (1959); State v. Hicks, 515 S.W.2d 518, 521 (Mo.1974), its existence must be determined by practical considerations of everyday life on which reasonable persons act and not the hindsight of legal technicians. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302 [1310], 93 L.Ed. 1879 (1949); State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975). All information known to the officers and the reasonable inferences therefrom bear on the determination of that issue.

State v. Heitman, 589 S.W.2d 249, 253 (Mo. banc 1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2164, 64 L.Ed.2d 795 (1980), reh'g denied, 448 U.S. 912, 101 S.Ct. 29, 65 L.Ed.2d 1174.

Prior to the commencement of any interrogation of defendant on November 20, 1979, the investigating officers were in possession of the following information. Cherie Schmidt was last seen thirty-one days before when leaving her birthday party between 11:00 and 11:30 p.m. in the company of defendant. Defendant did not return to the party, leaving his friend without transportation home. Defendant's statement that they drove immediately to the 7-11 Store so Cherie could purchase cigarettes was refuted on three counts: (1) his car was seen where it had earlier been parked by members of the party who went looking for Cherie when she had not returned after 11:30; (2) two employees of the 7-11 Store were certain Cherie had not been there on the night of her disappearance; (3) a half-full package of cigarettes was found in Cherie's purse. Defendant stated he was receiving anonymous telephone calls accusing him of involvement in Cherie's disappearance. Despite intensive investigation and widespread publicity, no information as to Cherie's whereabouts had been discovered or reported. Twenty-eight days after her disappearance, her purse was found under a bush and her clothing was found partially submerged in a lake, both in the general neighborhood of where ...