State v. Garner, 15498

• Decision Date: 10 November 1988
• Docket Number: No. 15498,15498
• Parties: STATE of Missouri, Respondent, v. Leon GARNER, Appellant.
• Court: Missouri Court of Appeals

Page 893

760 S.W.2d 893

STATE of Missouri, Respondent, v. Leon GARNER, Appellant.

No. 15498.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 10, 1988.

Motion for Rehearing or Transfer to

Supreme Court Denied Dec. 5, 1988.

Robert D. Rachlin, Gary H. Barnes, Downs Rachlin & Martin, Burlington, Vt., and Lew Kollias, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

A jury found Leon Garner ("appellant") guilty of the class A felony of murder in the first degree, § 565.020, RSMo 1986, and assessed punishment at imprisonment for life without eligibility for probation or parole. The trial court entered judgment per the verdict. This appeal followed.

Appellant briefs two points. The first avers the trial court erred in denying appellant's motion to suppress a written statement and a videotape statement in which appellant implicated himself in the murder. The second asserts the prosecutor improperly argued to the jury that appellant should be convicted "as a response to rampant crime in society." We synopsize only the evidence necessary to adjudicate those points.

The victim was Steve Swofford, a 20-year-old male. About 10:30 p.m., February 4, 1986, Swofford arrived alone, on foot, at the home of Allan Lee Mills and the latter's wife, Laverne, 410 West 13th Street, in Caruthersville. Swofford remained there until shortly before 1:00 a.m., February 5, when he departed on foot going east, a direction that would have taken him toward his sister's residence, the Central Gardens Apartments several blocks distant. Between 1:45 and 2:30 a.m., an acquaintance of Swofford's, John T. Hayes, saw Swofford at the corner of 14th Street and Walker Avenue walking south toward Central Gardens Apartments, a block and a half away. ¹ Hayes, who was in an automobile bound for an apartment in the same complex, offered Swofford a ride but Swofford declined.

At 6:54 a.m., the same day Sergeant Steven R. Evetts of the Caruthersville police department observed Swofford's body in a "grass area" on the east side of Davis Avenue 27 feet from the corner of Davis Avenue and 14th Street. Evetts testified Swofford was "laying with his feet west and his head east, and very very bloody; he had wounds to neck, face and chest." Evetts checked Swofford for signs of life, but found none.

The coroner of Pemiscot County was called to the scene. He observed "stab wounds" on Swofford's chest and neck. The coroner testified: "The main or largest wound in the chest was in the upper left part of the chest, which was about an inch wide, long. Then it had two smaller ones in the lower part of the chest. Then he also had three wounds in the neck; one of them was a fairly size wound; the other two was just superficial." The coroner also saw "head wounds." He testified: "The frontal part of the head was beaten very badly; brain tissue was all over the area where his head was lying, was on his clothing, and his skull was bursted in several places." Furthermore, recalled the coroner, "[T]here was a place around his neck that could of been caused by some object being tied around his neck; also there is ... a thorough cut above his eye that was made with an instrument, and above on his forehead, a jaggard [sic], looked like it would of been made with a hunting knife or something of that type." The coroner, after consultation with a physician who examined the body later at a hospital, concluded that the cause of Swofford's death was "the stab wound in the chest." The coroner added, however, that the head wounds, alone, would have caused death. In the coroner's opinion death occurred between 1:00 and 3:00 a.m.

Appellant was picked up by Caruthersville police for questioning about the homicide on two separate occasions. The first, according to appellant, was around February 13, 1986. Appellant recalled he was held some four hours, then released. The second instance, said appellant, was four days later. On that occasion appellant was released after "less than [an] hour."

On February 21 or 22, 1986, Bobby Walter Hatton, a parolee with convictions for rape and burglary, gave Caruthersville police a statement implicating appellant and Lemon C. Samuels in the Swofford homicide.

Testifying at appellant's trial as a prosecution witness, Hatton recounted that on the evening of February 4, 1986, he, appellant and Samuels were at the Iceberg Club in Caruthersville. After midnight, according to Hatton, he, appellant and Samuels were standing in a parking area by a sign pole in front of the Club "just shootin' the breeze over old times." Samuels, according to Hatton, was carrying a dagger. Hatton explained that Vest Avenue runs in front of the Club, which sits in the block between 12th and 13th Streets. The numbered street nearest the sign pole is 13th. Testimony of another witness indicated that the front of the Club faces "generally east," from which we infer that the Club sits on the west side of Vest Avenue. As we comprehend Hatton's testimony the next street west of, and parallel to, Vest Avenue is Davis Avenue.

Asked what occurred while he, appellant and Samuels were conversing outside the Club, Hatton replied that Samuels mentioned he needed money and wanted to break in something. Then, said Hatton, Samuels saw someone walking on Davis Avenue toward Central Gardens Apartments. Samuels, according to Hatton, asked the pedestrian, "Hey, Man, give me a light," and began walking toward him, followed by appellant. When Samuels and appellant reached the pedestrian they grabbed him and carried him to an alley by the Club.

Then, said Hatton: "[T]hey, when they brought 'im around to the side of the buildin' Lemon C. picked up a stone or a brick or somethin' from the ground and hit the boy up side the head with it. Leon slung 'im up against the buildin' and he fell." Asked what occurred next, Hatton replied: "They went to kickin' the boy.... They was kickin' 'im all over the body, you know, I wasn't lookin' at, you know, the specific place or anything, they were just kickin' 'im." Then, said Hatton, "I seen Leon pull a hammer out from underneath his belt and hit the boy in the head with it." Next, according to Hatton, Samuels stabbed the victim with the dagger. Hatton was unable to say how many times.

At that point, Samuels and appellant ceased the attack and looked at Hatton. Hatton began running, pursued by Samuels and appellant. Hatton eluded the duo by concealing himself behind "some hedges." Hatton heard Samuels say, "We got to get some more clothes." Hatton trailed Samuels and appellant to the latter's residence on Vest Avenue "right across from the Iceberg." Samuels and appellant entered the house, emerging a few minutes later. Hatton noticed that Samuels had changed clothes and was carrying a bag. Samuels and appellant, trailed by Hatton, returned to the scene of the attack where Samuels told appellant, "Look in ... the Dude's pocket, Man, see if he got somethin'." Then, according to Hatton, Samuels and appellant searched the victim's pockets. At that point, said Hatton, "I went home."

Hatton's statement to the police on February 21 or 22, 1986, coincided with his trial testimony, summarized above. Until Hatton's disclosures the police were unaware that the fatal assault had occurred by the Iceberg Club. The attack site, according to a Caruthersville police lieutenant, is 575 feet northeast of the place where Swofford's body was found.

Acting on the information from Hatton, Caruthersville police including Lieutenant Raymond Best and Officer Gary Hilburn arrested appellant in Caruthersville around 7:00 to 7:30 p.m., February 22, 1986, taking him to city hall. Appellant was kept there a few minutes, then he was taken to Hayti, some five miles away, by Assistant Chief Harold Mansfield and Officer James Mills of the Caruthersville police department. At Hayti appellant was placed in the Hayti city jail. The purpose of taking him there, according to Officer Hilburn, was to keep appellant separated from Samuels, who was in custody at the Caruthersville city jail, and from Hatton, who was in "protective custody" at the same facility. The events of the next 30 hours supply the basis for appellant's contention that his incriminatory statements should have been suppressed. We summarize appellant's testimony regarding those events, noting that appellant testified twice about them. The first instance was during a pretrial hearing; the second was at trial.

At the pretrial hearing appellant testified that at the time of his arrest (which he estimated as 5:30 p.m.) he was handcuffed and pushed into a police car, bumping his head on the door. Appellant conceded that at the scene of the arrest an officer advised him of his "Miranda" rights. ² At the Caruthersville city jail, according to appellant, his cap was "snatched off" his head and he was "pushed down in a chair" by Officer Mills. His cigarettes and other "personals" were taken from him. Then, said appellant, he was "snatched back up" and taken to Hayti.

Appellant testified that at the Hayti city jail he was told by Officer Mills to get out of his clothes. Appellant's testimony at the preliminary hearing, coupled with his testimony at trial, establishes he was wearing "a long army coat," a sweater, a blue shirt, a tee shirt, a pair of "painter's jeans," a pair of corduroy slacks, socks and shoes. Mills took appellant's coat, sweater, painter's slacks, socks and shoe laces.

Additionally, said appellant, Mills took appellant's rings and a "leg chain." Appellant recalled that Mills snatched the chain, "almost pullin' me down." Then, said appellant, Mills began questioning him about the murder. Asked whether he was ever threatened, appellant replied that Mills "told me that he would knock my teeth out, knock me through the wall, knock me out of a chair." At trial, appellant quoted Mills as saying ap...