State v. Harvey, 61623

• Decision Date: 15 December 1980
• Docket Number: No. 1,No. 61623,61623,1
• Citation: 609 S.W.2d 419
• Parties: STATE of Missouri, Respondent, v. Lewis Farnch HARVEY, Appellant
• Court: Missouri Supreme Court

Page 419

609 S.W.2d 419

STATE of Missouri, Respondent, v. Lewis Farnch HARVEY, Appellant.

No. 61623.

Supreme Court of Missouri, Division No. 1.

Dec. 15, 1980.

Rehearing Denied Jan. 13, 1981.

David M. Strauss, Columbia, for appellant.

Edward F. Downey, Asst. Atty. Gen., Jefferson City, for respondent.

WELBORN, Commissioner.

Appeal from judgment and sentence to life imprisonment for murder in first degree, entered upon jury verdict.

At around 7:00 P.M., September 3, 1978, the body of Della Morlock was discovered in her room at the Everyday People's House in Columbia. She had died from a small caliber gunshot wound to the head. She had been dead some time when her body was discovered.

At around 4:00 P.M., September 10, 1978, Bob Harvey called Columbia police and told them that he believed that his son, Lewis Harvey, the appellant, had stolen his pistol. The father asked that the son be arrested. Police went to the Harvey residence, found Lewis there, and at their request he went with the officers to police headquarters.

There either Officer Ward or Sergeant Duncan read a Miranda warning to Lewis and at 4:23 he signed a copy of the warning, acknowledging that he had been advised of his rights. The officers told Lewis that his father wanted him arrested for stealing his gun. Lewis denied that he had taken the weapon. After repeating his denial several times, Lewis was told by the officers that if he would tell them where the gun was, he would not be arrested for stealing it. Lewis then told the officers where it was. Sergeant Duncan went to where Lewis said the gun was and found a .22 caliber pistol. He returned with the pistol to police headquarters.

Before Sergeant Duncan went for the gun, Lewis told the officers that he thought he should tell them that the gun had been fired. He said that when he was leaving his father's house, he tripped over a fence and the gun accidentally discharged. When Sergeant Duncan returned with the gun which was loaded and had one spent cartridge, Lewis said that his first story was not really how the gun had been fired. He said that he was walking along with the gun in his trousers and it fell down and got caught in his underwear and became cocked. He didn't know how to let the hammer down without firing the weapon. He removed the weapon from his trousers, looked around and seeing no one, fired it into the air.

At approximately 6:00 P.M., the officers, who had, in response to an earlier inquiry by Lewis as to whether they had found the weapon used to kill Morlock, told Lewis that their inquiries did not relate to that case, conferred with each other and decided to question him about the Morlock case. They did not expressly so inform Lewis, but began by asking whether or not he had been to Everyday People's and whether he knew Della Morlock. At first Lewis denied that he knew Morlock. Upon further questioning, he said that he knew a girl named Della and that she invited him to visit her at Everyday People's and he went there. At first he denied that he had a pistol when he went there. Eventually, he admitted that he had the pistol but denied that it had been fired at Everyday People's. Finally, he admitted that the weapon had been fired in Della's room. His final version of the events was that he had removed his clothing in Della's room to have sexual intercourse at her request. He put the pistol under his clothes and, after having intercourse, was putting on his trousers when he tripped and fell. As he fell, he dropped the pistol and it fired. Della screamed, but he thought that he had just scared her and he put on his trousers and left.

Lewis's statement that the gun had fired in Della's room was made at about 7:50. Shortly thereafter, a break was taken in the questioning and food was provided Lewis.

At around 9:30, Sergeant Duncan began writing down the final version of events as Lewis repeated it to him. It took about an hour to do this and at its conclusion, Duncan gave his handwritten copy to a stenographer who copied it by typewriter on a form which included a Miranda warning. The typed copy was read by Lewis and signed by him at approximately 11:28.

Inasmuch as the issues on this appeal relate to the admissibility of Lewis's statement informing the police of the whereabouts of the gun and the subsequent typed statement signed by him, there is no need to detail the evidence from which the jury found that Morlock was shot by appellant in the commission of rape.

Motions to suppress both statements were filed and a hearing held on them. The motions were overruled. The defendant repeated his objections at trial, they were preserved in the motion for new trial and provide the basis for the appeal here.

With respect to the statement telling the police of the gun's whereabouts, appellant contends that his statement was involuntarily given because it was induced by promises of leniency from the police.

Appellant invokes the language in Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186-187, 42 L.Ed. 568 (1897):

"* * * (A) confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence ... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted."

He also cites numerous cases in federal and state courts in which confessions or statements of a defendant have been found involuntary because of promises of leniency or mental coercion. However, with the exception of United States v. Denno, 259 F.Supp. 784 (S.D.N.Y. 1966), none of the cases relied upon presented a factual situation in which the promises or mental coercion were related to one offense and the statement adduced was eventually sought to be employed in prosecution for a different offense. In Denno, the defendant was told that his cooperation was sought as a witness against another defendant in a murder case and that if he would give the officers a statement, he would not be prosecuted for any offense arising from the homicide. The statement was given, but the maker refused to cooperate in the prosecution of the other defendant. Later the statement was used against its maker in a prosecution as an accessory to a felony and for criminally possessing a pistol.

The court, in Denno, held that the use of the statement violated the defendant's privilege against self-incrimination and should have been barred from evidence. "The defendant's incriminating statement was secured in an atmosphere of inducement created by the detective's promise." 259 F.Supp. 791.

In Denno, the prosecution argued that the only promise made to the defendant was not to prosecute him for murder and that such promise was kept and therefore the statement should not be held involuntary. The court rejected the argument, pointing out "* * * the context and broad sweep of all the detective's assurances to petitioner." Id.

There is no contention in this case that the assurance of nonprosecution given by the officers related to other than the possible charge of stealing the weapon. Nor is there any challenge to the testimony of the...