State v. Hunter
| Decision Date | 13 July 1970 |
| Docket Number | No. 1,No. 54769,54769,1 |
| Citation | 456 S.W.2d 314 |
| Parties | STATE of Missouri, Respondent, v. Bert Leroy HUNTER, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, St. Louis, for respondent.
Fred H. Maughmer, Jr., John W. Newhart, Savannah, for appellant.
HOUSER, Commissioner.
Bert Leroy Hunter was convicted by a jury of murder in the first degree and sentenced to life imprisonment. No eyewitness to the killing testified. Defendant's connection with the affair was established only by his confession. Hunter has appealed on the sole ground that the court erred in admitting his confession because it was not given voluntarily.
First, it is said to have been involuntary because it was coerced by the police by repeated and protracted custodial interrogation without counsel and by repeated false promises by police that defendant would receive help and a reduced charge for his cooperation.
It is clear that interrogations persisted in to an unreasonable extent, thereby producing mental anguish, or leading the suspect to believe that he must make a statement to secure a surcease therefrom, State v. Thomas, 250 Mo. 189, 157 S.W. 330, or amounting to mental punishment, State v. Williams, Mo.Sup., 369 S.W.2d 408; State v. Ellis, 354 Mo. 998, 193 S.W.2d 31, should be rejected as involuntary. Likewise, confessions induced by the influence of hope of leniency, State v. Ball, Mo.Sup., 262 S.W. 1043, hope of clemency, State v. Hart, 292 Mo. 74, 237 S.W. 473, or hope of mitigation of punishment for the crime charged, or of 'worldly advantage,' State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, are not voluntary and are not admissible in evidence.
When the voluntary character of a confession is challenged (but not otherwise, State v. Jackson, Mo.Sup., 448 S.W.2d 895; State v. Gray, Mo.Sup., 432 S.W.2d 593) it is the duty of the trial court to conduct a preliminary hearing outside the hearing of the jury to determine whether the confession is admissible in evidence, that is, whether it was free of inducement and was voluntarily given. This rule runs through our law from Hector v. State (1829), 2 Mo. 166, to the present time. State v. Glenn, Mo.Sup., 429 S.W.2d 225. The court hears the evidence on the mixed question of law and fact and weighs the evidence. State v. Di Stefano, Mo.Sup., 152 S.W.2d 20. If the evidence shows that the confession is voluntary the trial court admits the confession in evidence, first making the finding of voluntariness in accordance with the rule of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 and Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593, as set forth in State v. Glenn, supra, 429 S.W.2d, l.c. 237(29). If the evidence shows that the confession is involuntary the trial court must exclude the confession. The burden of proof of voluntariness is upon the State when the confession is obtained while the suspect is in custody. State v. Williams, supra; State v. Bradford, Mo.Sup., 262 S.W.2d 584, 586, and cases cited. The State meets the burden of proof by presenting a prima facie showing of voluntariness. State v. Nolan, Mo.Sup., 423 S.W.2d 815, 818(9). The controlling standard which the Supreme Court applies in the making of that determination is whether the evidence conclusively shows that the confession is involuntary. State v. Statler, Mo.Sup., 331 S.W.2d 526, 530(9); State v. Cochran, 356 Mo. 778, 203 S.W.2d 707(1); State v. Pughe, Mo.Sup., 403 S.W.2d 635, 641(10).
When the confession was sought to be introduced in evidence Hunter's attorney objected on the ground of coercion. The court conducted a preliminary hearing outside the hearing of the jury, at the conclusion of which, while expressing concern and 'considerable doubt' about certain testimony given by Sgt. Shirley of the Missouri State Highway Patrol, the trial court made a finding of record that defendant was adequately advised of his constitutional rights; that defendant's statements were made voluntarily and were not procured by coercion, threats or fear and were not induced by promises of leniency, and that they were admissible in evidence. The trial was resumed before the jury; the confession used against Hunter; and while Hunter did not testify before the jury the officers testified to substantially the same facts as in the preliminary hearing and the court properly instructed the jury that before they could consider any alleged statement of Hunter it must have been made voluntarily.
The charges made by Hunter on this appeal require a full and complete review of the evidence of the circumstances surrounding the giving of the confession.
The killing occurred in Andrew County on June 16, 1968. In the early hours of the morning of June 18 Hunter was interrogated for about an hour at the Atchison, Kansas jail with respect to the killing. The city police had stopped Hunter and one Carl Paxton as they were driving in that city, and Hunter had been arrested. Apparently the city authorities notified the Missouri authorities that Hunter was in custody. Sergeant Rhodes of the Missouri State Highway Patrol and the city chief of police questioned him. At that brief session Hunter made no incriminating statements. At the request of the sergeant Hunter promised to appear personally at state highway patrol headquarters at St. Joseph, Missouri the next morning for further questioning. Hunter voluntarily appeared there the next day and was questioned by Sgt. Shirley. Hunter appeared there again on the 19th or 20th of June, voluntarily, and further discussion was had with the officers about the killing. Hunter was warned as to his constitutional rights each day before questioning began. He was not charged, restrained or under arrest on either of these occasions and he made no incriminating statements, maintaining that he was elsewhere at the time of the killing. The Prosecuting Attorney of Andrew County was present on one of these occasions. Hunter, who was hostile to the prosecuting attorney, called the latter an S.O.B., told him to 'get out' and refused to talk further in his presence. The prosecuting attorney withdrew and the talks continued. There is no indication that the interviews at St. Joseph lasted over an hour or two. A few days later Hunter was arrested in Kansas on a charge of illegal possession of a pistol, and from July 13 to September 12 he was in jail in Atchison, Kansas. On July 15 and 16 Missouri highway patrol officers interviewed Hunter in the Atchison jail. These interviews, which lasted about 2 hours each, were conducted at the request of the Prosecuting Attorney of Andrew County. Hunter was again warned of his constitutional rights before each of these interviews took place. On July 15 the officers told Hunter that Carl Paxton had made a statement, a partial admission implicating Hunter. Hunter orally admitted some knowledge of the affair but claimed that he was not inside the tavern where the killing occurred; that he was let out of the car south of town and was picked up later by Paxton and another person, whom he would not identify. Hunter was most concerned about the charge pending against him in Kansas, because he had four previous felony convictions in that state. On July 16 Sgts. Shirley and Rhodes again interviewed Hunter at the jail, this time for the purpose of taking a statement. They were joined by Lois Sowards, a secretary in the patrol office, who took shorthand notes on the conversation between Hunter and the officers. Hunter did not want to make a statement until he talked to the prosecuting attorney. He wanted the latter to come see him to talk about the charges. There was discussion as to what charges would be filed against Hunter. The officers explained that it was the place of the prosecuting attorney to file charges; that it was not 'up to the patrol officers what charges would be filed.' Several times Hunter requested that Sgt. Shirley confer with the prosecuting attorney 'regarding having the charges reduced,' and he wanted to see if the prosecuting attorney could get the Kansas charges dropped. Hunter said the only thing he was worried about was 'the Kansas law'; that if the prosecuting attorney would get the Kansas charges dropped he would give a statement 'in making a deal'; that he was not inside the place where the killing occurred and was not worried about any charge of murder against him 'unless they catch me as an accessory.' Hunter also said,
Sgt. Shirley testified that he relayed Hunter's message to the prosecuting attorney, who told Sgt. Shirley that when he was satisfied that Hunter would cooperate and give a truthful statement he would consider coming to Atchison, and that the prosecuting attorney said to tell Hunter that if he would cooperate 'it's possible, very possible, that they would consider a lesser charge'; that Sgt. Shirley went back to the Atchison jail and told Hunter that 'it's possible that (the prosecuting attorney) would consider a lesser charge if he would cooperate.'
Sergeants Shirley and Rhodes, accompanied by Lois Sowards, the secretary, returned to the Atchison jail on August 5 at the request of Hunter, who had asked that Sgt. Shirley come to Atchison. Before any questioning began Sgt. Rhodes read to Hunter from a sheet of paper containing the warnings about his constitutional rights, and he signed a written waiver, as follows
'Place Atchison, Kansas
Date 8--5--68
Time 1:37 P.M.
'YOUR RIGHTS
'Before we ask you any questions, you must understand your rights....
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