State v. Evans, 51887

• Decision Date: 10 October 1966
• Docket Number: No. 51887,No. 1,51887,1
• Citation: 406 S.W.2d 612
• Parties: STATE of Missouri, Respondent, v. Wille EVANS, Appellant
• Court: Missouri Supreme Court

Page 612

406 S.W.2d 612

STATE of Missouri, Respondent, v. Wille EVANS, Appellant.

No. 51887.

Supreme Court of Missouri, Division No. 1.

Oct. 10, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Bruce Normile, Special Asst. Atty. Gen., Edina, for respondent.

J. Whitfield Moody, Sloan Richard Wilson, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

HOUSER, Commissioner.

Willie Evans has appealed from a judgment of conviction and 10-year sentence on a charge of second degree murder.

In his brief and in oral argument his counsel on appeal makes three points.

First, error is assigned in the admission of State's Exhibit 6, which is a typewritten question and answer statement, prepared by a police detective and signed by appellant with an 'X' mark. In it appellant recited the facts surrounding the shotgun shooting of Earl Carmichael by defendant. Appellant complains that the statement should not have been admitted in evidence because appellant could not read the statement; that he did not know exactly what was in it; that it was not an accurate record of what he intended to communicate to the detective, and that parts of it were inconsistent with his assertion of self-defense. Appellant says the detective who took the statement paraphrased his words. For instance, instead of the word 'drunk,' which appellant used, the detective wrote the word 'intoxicated'; instead of referring to 'the incident' or some such innocuous descriptive term the detective inserted the language 'the aggravated assault,' which words appellant did not use and which contradicted his recital of a set of facts showing that he shot in self-defense. Appellant claims that the detective changed his words around so as to phrase the statement in a manner which was 'appropriate' or 'more fitting' for the benefit of the police department. He says the officer was 'more guided by his own idea of what he wanted the appellant to say than what the appellant was actually trying to convey.' It is further objected that the question 'Have you been advised that you do not have to make a statement and if you do, anything you say can be used against you and you have the right to consult with counsel?' and the answer 'Yes' written in by the detective is not convincing that appellant actually knew what he was doing and understood his rights. Conceding that a 'formal, cursory' statement of his rights was made to appellant, it is urged that the officer told appellant that he would 'have' to sign the statement with the word 'Yes' written in after the waiver of constitutional rights, and that if appellant could not do it the officer himself would do it. Appellant concludes that the statement was not voluntary.

At appellant's request the court conducted a preliminary inquiry on the question of voluntariness, outside the hearing of the jury. Then the detective who took the statement testified in extenso before the jury concerning the method and manner of interviewing appellant and taking the statement, as follows: The interrogation and composition of the statement occupied about 30 minutes. At its inception appellant was informed that the questions to be directed to him related to the shooting of Earl Carmichael (who at that time had not died); that appellant had been booked as a suspect; that the information obtained from appellant, if he was willing to give it, would be used against him in court; that appellant did not have to tell the officer anything, or answer any questions, or make any statement in regard to this charge, and that he had the free use of the telephone to contact counsel if he so desired. No coercion, threats, duress or promises were used to force the making of the statement. Appellant was 'very cooperative' and 'quite willing' to make a statement, saying 'I don't have anything to hide. I shot him and that's all there was to it.' After he heard appellant's version of the facts it appeared to the detective that it was a case of self-defense and he considered that appellant was cooperative 'because he felt that he had acted in self-defense.' The detective would ask appellant a question, get his answer, and then write down question and answer. In preparing the statement the detective was as exact as possible. The statement is the best record of the information obtained from appellant. He did not always use appellant's exact language, and in several instances paraphrased the answers given, but the statement is an accurate statement of the information communicated to the detective by appellant. When the statement was completed it was handed to appellant who stated that he did not have his glasses and could not see. The officer offered to and did read it to appellant, thoroughly and slowly, so that any discrepancies between his actual answers and the written report of them could be corrected and changed. At appellant's request he changed the language from 'I shot him one time' to 'I shot him one time, or at least I shot at him,' with the explanation that he did not know or realize that he had actually struck Carmichael until the latter came back outside and told appellant he did not need to shoot him. He read the statement to appellant twice. Appellant said that it was the truth; that 'that was the way it was.' When asked to sign it defendant again stated that he did not have his glasses and could not see so well. Appellant was then asked to sign it by making an X Mark, which he did.

Appellant took the stand at the trial and testified to a set of facts which, if believed, would have entitled him to an acquittal on the ground of self-defense, as follows: After having remonstrated with appellant for having 'bothered' his girl friend Carmichael, whose hand had been 'shaking' in his jacket packet, drew out a butcher knife, with the blade pointing at appellant, and came toward appellant. Appellant backed up to a door, opened the door, went inside and got a loaded shotgun which was in a corner by a table. When Carmichael jerked the door open appellant told him to turn the door loose and get out, whereupon Carmichael said 'I'm coming in there to get you' and made 'another lunge' at appellant. At that time, as Carmichael was moving toward appellant, the latter shot him. Appellant was frightened, believing that Carmichael intended to stab or cut him. On cross-examination appellant testified that he gave the detective a statement that he shot Carmichael 'to keep him from cutting me,' but claimed that the detective 'didn't writ it that way.' In this claim appellant is mistaken. The statement recited that after the remonstrance about 'bothering' his girl friend Carmichael pulled a butcher knife out of his jacket pocket and started toward appellant, who broke and ran to his apartment, where he picket up the shotgun; that he was trying to save himself; that he had been cut before and was not taking any chances. There was one discrepancy between the statement and appellant's testimony at the trial. The statement recited that when Carmichael saw the shotgun he started to run down the hall towards Carmichael's apartment; that appellant followed Carmichael 'and just as he got into his hallway' he shot him. Those recitals implied that appellant shot Carmichael as the latter was retreating, not as he was advancing upon, appellant. On the stand, however, appellant repeatedly denied that he told the detective that Carmichael started to run when he saw the shotgun. In substantially all other respects appellant confirmed and did not repudiate the statement. He said he signed the statement without fear because he figured he had a right to try to protect and defend himself. Appellant did not claim that he was unable to read or write because of illiteracy, but accounted for his inability to read on the ground that he could not see to read.

If believed, the detective's testimony demonstrates clearly that State's Exhibit 6 was voluntarily given after adequate advice to appellant as to his constitutional rights; that in all substantial particulars the exhibit accurately reported the interview; that appellant was not imposed on by the officer or deceived as to the contents of the statement...