State v. Epperson, 60308

• Decision Date: 12 September 1978
• Docket Number: No. 60308,60308
• Citation: 571 S.W.2d 260
• Parties: STATE of Missouri, Respondent, v. Russell Lee EPPERSON, Appellant.
• Court: Missouri Supreme Court

Page 260

571 S.W.2d 260

STATE of Missouri, Respondent, v. Russell Lee EPPERSON, Appellant.

No. 60308.

Supreme Court of Missouri, En Banc.

Sept. 12, 1978.

Rehearing Denied Oct. 10, 1978.

David V. Bear, Columbia, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant Russell Lee Epperson was convicted on three counts of murder in the first degree for killing his wife Fern and their two children, Richard and De Ann. The jury assessed punishment on each count at life imprisonment and the court ordered that the sentences run consecutively.

On appeal, defendant contends that evidence used against him in the prosecution of the case was obtained during a warrantless search of his home by members of the municipal police force of the City of Mexico, Missouri, in violation of his rights under the Fourth Amendment to the Constitution of the United States and Art. I, § 15 of the Constitution of the State of Missouri. This contention turns on the answers to the following questions: (1) Was there an emergency situation justifying the warrantless entrance of defendant's house by the police which led to the discovery of the bodies? (2) Can the initial entry and discovery be justified only by the Subjective rationale and beliefs of the searching police officers or may it be based upon the Objective facts known to the police officers and the logical deductions based thereon? (3) Was the additional warrantless search of the defendant's home immediately after the police had found the bodies of the three missing persons and ascertained that the defendant probably was not present, justified by the exigencies of the situation?

Appeal was taken to the Court of Appeals, St. Louis District, which, in an opinion suggesting affirmance, determined that resolution of the issues involved an original construction of the Fourth Amendment to the Constitution of the United States and Art. I, § 15 Mo.Const.1945, and thus fell within the exclusive jurisdiction of this Court under Art. V, § 3, Mo.Const., as amended 1970. See City of St. Louis v. Tinker, 542 S.W.2d 512, 513(1) (Mo.banc 1976). Accordingly the Court of Appeals, without rendering a final decision, ordered the case transferred here. Portions of the well reasoned Court of Appeals' opinion have been utilized without quotation marks.

Defendant Epperson and his wife, Fern, lived with their two small children at 608 West Pearson, Mexico, Missouri. On Monday, March 24, 1975, Fern's mother, Mrs. Mary Ann Smith, attempted unsuccessfully to telephone her daughter at the Epperson home. Mrs. Smith then called defendant at his place of employment and inquired concerning the whereabouts of her daughter. He told her that Fern and the children had gone to Columbia to do some shopping, which Mrs. Smith considered strange as Fern usually left the children with her when shopping.

The next day, March 25, Mrs. Smith again tried calling her daughter at home but received no answer. That evening she and her husband saw Epperson on the town square in Mexico and he told them Fern was with his mother. However, when Mrs. Smith informed him that she knew Fern and the children were not with his mother Epperson said that he did not know where they were. After Mrs. Smith returned home she received a call from Epperson who told her that Fern had telephoned and said she would be home in the morning with the children.

On March 26, at approximately 8:30 a. m., Epperson again called Mrs. Smith and asked her to come to his house. At first she refused but when he told her that Fern would be there about 9:00 a. m. she agreed to go. At 8:45 a. m. appellant picked up Mrs. Smith in his truck and took her to his home. As she and the defendant went into the house he removed something from a cabinet, keeping it behind him while he locked the outside kitchen door. He stood against the door facing Mrs. Smith, keeping his left hand behind him and told her she should go into the front room and sit down. He also told her several times that "I'll sure be glad to get this all over." Mrs. Smith saw her daughter's purse on the clothes dryer in the kitchen and knowing that whenever her daughter left the house she took her purse with her, she became quite suspicious. At that time she also detected an odor in the house which, from prior experience, she associated with death. After making the excuse that she had some food in the oven at her home Mrs. Smith left the Epperson residence and went to the home of a neighbor, Mrs. Mitchell, and placed a call to the Police Department of the City of Mexico. Officer Schnidler, responding to that call, met Mrs. Smith at the Mitchell house where she related the matters that had occurred. Schindler promptly summoned Sergeant Duffner and relayed this information to him.

Both officers immediately went to the Epperson home and finding all of the windows were covered with drapes or blinds, knocked on the doors without response. Ordering Schindler to remain near the house to observe if anyone left or entered, Sergeant Duffner walked next door to the home of Epperson's neighbor and through a series of calls obtained information as to Epperson's place of employment and that of his wife, as well as the school in which Richard was enrolled. He learned that Fern Epperson had been on vacation that week but had not kept her usual Tuesday evening bowling date. From defendant's employer he found that defendant had stated the day before that he had taken his wife to the hospital for x-rays but a call to the family doctor revealed that he had not seen Mrs. Epperson since December of 1974 and Mrs. Smith had informed him that the hospital had no record of Fern reporting for x-rays. School personnel where Richard was enrolled told Sergeant Duffner that Epperson had called the school the day before and told them that his son Richard would be absent because of illness. Following a conference with the Chief of Police, Duffner was ordered to determine from Epperson's parents whether they had seen him and request that the parents come to the house.

The parents agreed to this suggestion and met the officers at the Epperson home where, again, knocking on the doors produced no response. Epperson's father pointed out that his son's motorcycle was not there and surmised he might be elsewhere riding it. However, the motorcycle was located at Epperson's place of employment but he could not be found. The parents then told the officers they would not break into their son's house and they then went to the home of the neighbor where Mrs. Smith was waiting. Nevertheless the father, accompanied by the two officers, again went to the home and the officers told the father that he should be the one to enter the house. He eventually agreed to assist and after unsuccessfully trying to open the doors, a storm window was removed and an unlocked bedroom window opened. Duffner assisted the father in raising the window and a ladder was placed against the side of the building, the blinds were pulled back and the father and two police officers entered a bedroom of the house.

When they pulled back the blinds they saw what was apparently a human form lying under a sheet on the bed. While Schindler and Epperson's father went to the other parts of the house to see if anyone else was there Sergeant Duffner removed the sheet and discovered the bodies of Mrs. Epperson and the two children. The children had plastic bags over their heads and the son had a cord around his neck. Each showed signs of violent mistreatment. There was a sock in the bag over the daughter's head and another sock was near the wife's face. When the others returned to the room where the bodies were found, Duffner called his superior officers and then made an investigation of the house. As he walked through the house he saw a five gallon can of gasoline in the hallway near the bedroom, a chisel for an air hammer partially wrapped in towels in a chair in the living room and a bottle of chloroform on the top of the sewing cabinet in the kitchen. Later during an autopsy it was determined that blows by a blunt instrument had been inflicted on the victims and chloroform was found in their vital organs. Epperson, who could not be found, became the subject of an intensive manhunt and was apprehended ten days later.

I.

Defendant contends that facts known to the police when they broke into the defendant's house were not sufficient to justify the warrantless entry and original search. It first should be noted that by objective standards sufficient facts had been made known to the police to establish probable cause that a crime had been committed. These facts include (1) the defendant's wife and children had been missing several days; (2) defendant had given false and inconsistent explanations for their absence; (3) defendant's unusual, suspicious and nervous manner in the days following the disappearance of his family; (4) an odor of decomposing flesh had been detected in the house, and (5) defendant's unexplained disappearance, though he had been in the house with Mrs. Smith shortly before the police arrived.

The question we first must decide is whether the facts were sufficient to establish exigent circumstances justifying a warrantless entry of the house. In general, an entry and search without a warrant are deemed unreasonable under the Fourth Amendment to the Constitution of the United States unless the action falls within certain carefully delineated exceptions. United States v. U. S. District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The burden is on the State to show an exception exists. Coolidge v. New Hampshire, supra, 403 U.S. at 455, 91 S.Ct. 2022; Vale v. Louisiana, supra, 399 U.S. at 34, 90 S.Ct. 1969. Among...