State v. Edwards

• Decision Date: 31 October 2000
• Citation: 30 S.W.3d 226
• Parties: (Mo.App. E.D. 2000) State of Missouri, Respondent, v. Gerald Edwards, Appellant. ED77103
• Court: Missouri Court of Appeals

30 S.W.3d 226 (Mo.App. E.D. 2000)

State of Missouri, Respondent, v. Gerald Edwards, Appellant.

ED77103

Missouri Court of Appeals Eastern District

10/31/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Jimmie M. Edwards

Counsel for Appellant: Lisa M. Stroup

Counsel for Respondent: John M. Morris, III and Krista D. Boston

Opinion Summary: Gerald Edwards appeals convictions for second-degree murder, two counts of first-degree assault, and three counts of armed criminal action. He challenges the admission of oral statements given to police without a suppression hearing outside the presence of the jury, the sufficiency of the evidence, and improper comments made by the prosecutor during closing argument.

Division Three holds: (1) The trial court erred in not holding a suppression hearing outside the presence of the jury, requiring remand to the trial court for an evidentiary hearing as to the voluntariness of Edwards' statements. (2) Assuming his statements are voluntary, there was sufficient evidence to convict him under a theory of accomplice liability for second-degree murder and first-degree assault. (3) There was no plain error found as to the prosecutor's comments during closing argument.

George W. Draper III, Judge

Gerald Edwards (hereinafter, "Appellant") appeals from his convictions of second-degree murder, two counts of first-degree assault, and three counts of armed criminal action. Appellant challenges the admission of oral statements given to police, the sufficiency of the evidence, and comments made by the prosecutor during closing argument. The judgment is remanded for an evidentiary hearing on the issue of whether Appellant's oral statements were voluntary.

On May 18, 1998, Edward Harris (hereinafter, "Harris") and Jahmel Luster (hereinafter, "Luster") picked up Appellant in a dark colored car. When Appellant got into the car, he saw Harris possessed an assault rifle. Appellant did not know who owned the car, but asked if he (Appellant) could drive. Harris was riding in the rear passenger seat and Luster was riding in the front passenger seat. When Appellant began to drive too fast, Harris told him to slow down because he had a "strap"¹ on him. Luster had a semiautomatic pistol as well.

Appellant drove around until spotting a friend on the corner of Wren Avenue and Thekla Avenue speaking to Anthony Atkins. The group continued to drive around the neighborhood, ultimately returning to the corner of Wren and Thekla. They saw Anthony Atkins again on the corner speaking to a group of teenage girls. As Appellant approached the stop sign at the corner, Harris and Luster opened fire on the group. After shots were fired, Appellant sped away from the scene. Anthony Atkins was wounded fatally by a gunshot to the head. Two of the teenage girls were injured by gunshot wounds to their legs. Another escaped injury.

On June 2, 1998, Appellant was arrested in his home at approximately 11:30 p.m. and taken to the homicide office where Detective Bryan McGlynn (hereinafter, "McGlynn") interviewed him. McGlynn read Appellant his Miranda rights, which he waived, and Appellant initially gave an oral statement denying any involvement in the shootings. Later, Appellant gave a tape recorded statement implicating himself, Harris, and Luster in the shootings. That statement was taken at approximately 2:48 a.m. on the morning of June 3rd after Appellant signed a warning and waiver form.

When McGlynn requested Appellant to submit to a computerized voice stress test to determine whether he was being truthful, he refused. Appellant admitted that he had not been completely truthful about the chain of events, and informed the police that he knew the location of the assault rifle used in the shootings. Appellant explained he instructed his girlfriend to get rid of the rifle. Appellant spoke with his girlfriend via telephone, and the police recovered the rifle. Thereafter, Appellant signed another warning and waiver form and made a second tape recorded statement giving more details about his involvement in the shootings.

At the conclusion of a jury trial on September 29, 1999, the jury returned a verdict finding Appellant guilty of second-degree murder, two counts of first degree assault, and three counts of armed criminal action. Appellant appeals these convictions. Appellant, in his oral motion to suppress asserts that his confessions were involuntarily obtained. Appellant also alleges that the trial court erred in "taking the motion with the case, " instead of holding a suppression hearing outside the presence of the jury. The State challenges the form and procedure of Appellant's motion to suppress and contends that the trial court properly heard the motion to suppress by "taking the motion with the case."

On the morning of trial, defense counsel made an oral motion to suppress Appellant's statements. The trial judge indicated that he would not hear the motion before the case, and defense counsel objected. When the State offered Appellant's statements into evidence, defense counsel objected again. At the close of all of the evidence, the trial judge stated that he had considered all of the evidence, considered Appellant's statements, and overruled the motion to suppress in its entirety. Appellant properly preserved this point for appeal.

Appellant contends that since the trial court did not conduct a suppression hearing outside the presence of the jury, it was unaware of all the surrounding circumstances as to how the police secured his statements. Appellant points out that the trial court was unable to hear Appellant's recitation of the events since he chose not to testify at his trial. In his brief, Appellant notes several circumstances surrounding his arrest and confession that the court might have construed as coercive and/or sufficient to render his confession involuntary².

When an accused challenges the admission of a confession on the grounds of involuntariness at the trial level in conformity with 542.296 RSMo (1994)³ it is normally accomplished by the filing of a written motion to suppress pursuant to Rule 24.04(b)1⁴, and heard before trial "unless the court orders that the hearing and determination thereof be deferred until the trial." Rule 24.04(b)4.⁵ As well, Rule 24.05 states:

Requests that evidence be suppressed shall be raised by motion before trial; however, the court may in its discretion entertain a motion to suppress evidence at any time during trial.⁶ (Emphasis added).

In State v Williams, 654 S.W.2d 215 (Mo. App. E.D. 1983) the defendant complained that his written statement was admitted into evidence without the benefit of a hearing outside the presence of the jury, resulting in a conviction for rape and sodomy. In that case, defense counsel made his oral motion to suppress prior to recalling the state's last witness to the stand and complained that his (defendant's) witnesses couldn't afford to return to court another day. Id. "[I]t [was] evident from the discussion in chambers that the trial court's decision not to hold a hearing outside the presence of the jury was to accommodate defendant so as not to delay the trial." Id.

The court stated "Rule 24.05 expressly provides that motions for the suppression of evidence shall be filed before trial but that the court may in its discretion entertain a motion to suppress evidence at any time during the trial." Id. at 217. The court recognized the Williams "circumstances" as an exception to the rule in Missouri, and found no error in the trial court's failure to hold a hearing outside the presence of the jury on defendant's untimely motion. When the trial court hears such a motion with the trial, as opposed to before or during the trial when the jury is not present, it is operating under a narrow exception. Cases allowing motions to suppress to be heard with the case, in the presence of the jury, general address the suppression of physical evidence and identification evidence. See, State v. Taylor, 456 S.W.2d 9 (Mo. 1970); State v. Rains, 537 S.W.2d 219 (Mo. St. L. Dist. 1976); State v. Davis, 627 S.W.2d 308 (Mo. App. W.D. 1981); State v. Martin, 643 S.W.2d 63 (Mo. App. E.D. 1982); State v. Collins, 816 S.W.2d 257 (Mo. App. E.D. 1991).

Clearly, "the requirement of a preliminary hearing outside the presence of the jury to determine the voluntariness of a statement given by a defendant has received a myriad of expressions and refinements. The basic rule has been stated as follows in Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205 (1964), which holds that a defendant's constitutional rights are violated when his challenged confession is introduced without a determination by the trial judge of its voluntariness after an adequate hearing. Pinto v. Pierce, 389 U.S. 31, 32, 88 S.Ct. 192, 193, 19 L.Ed.2d 31, 33 (1967). The Missouri practice contemplates a preliminary or voir dire examination to determine the competency of a confession before it is presented to the jury. This is a full hearing on the voluntariness of a confession out of the presence of the jury and a finding by the court that the confession was voluntary before it is admitted in evidence." State v. Wise, 745 S.W.2d 776, 780 (Mo. App. S.D. 1988).

In the present case defense counsel objected to the court's decision to take the motion with the case. Defense counsel's oral motion could have properly been denied, heard out of the presence of the jury at the convenience of the parties sometime during the trial but before use by the State in its case in chief, or taken with the case had counsel not objected. Since Appellant made a motion to suppress his statements given to the police, which was accepted by the trial court, the trial court must make a clear-cut determination of voluntariness before the statement can be considered by the finder of fact. Jackson v. Denno, supra; State v. Hunter, 456 S.W.2d 314, 316 (Mo. banc 1970). Missouri...