State v. Jensen, 62464

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation621 S.W.2d 263
PartiesSTATE of Missouri, Respondent, v. Mitchell Allen JENSEN, Appellant
Docket NumberNo. 2,No. 62464,62464,2
Decision Date08 September 1981

Richard W. Dahms, John D. Boeh, St. Joseph, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Appellant, Mitchell Allen Jensen, was found guilty by a jury of the capital murder of Lorna Sue Guess and sentenced to life imprisonment without possibility of probation or parole for fifty years.

On this appeal appellant does not challenge the sufficiency of the evidence to support the conviction. We need only state that a jury reasonably could find that appellant, an employee of Long John Silver's restaurant in St. Joseph, Missouri, went to the restaurant on the morning of January 12, 1980, opened the safe and took some money from it, and while ransacking the place in an attempt to make it appear that a burglary had taken place, he was surprised by the arrival of the manager, Lorna Guess. After an unavailing attempt to persuade her not to call the police, appellant shot and killed her. He then went to his home where he hid the gun under the refrigerator and the money under the mattress on his bed.

Prior to trial appellant filed a Motion to Suppress evidence on which the court conducted a hearing. Appellant was the only witness in support of the motion, and as to some matters there was a substantial variance between his version of what occurred and that of the two police officers who testified. The court overruled the motion, and then expressly found "on the evidence heard" that "the statements made by the defendant were voluntary," that they would be admitted into evidence, and that appellant "voluntarily waived his (constitutional) rights." Subsequently, in ruling on an objection, the court stated that it recalled the testimony of the police officers that leniency was not offered to appellant in an effort to induce a confession and that appellant did not request a lawyer, and it added: "The court believes the officers, does not believe the defendant, (and) that's the basis of the Court's ruling." See State v. Royal, 610 S.W.2d 946 (Mo. banc 1981).

By his only point presented on this appeal appellant does not directly contend that the trial court erred in overruling his motion to suppress. Instead, he asserts the trial court erred in overruling his objection to the admission in evidence during trial of his confession, and he assigns as the reasons therefor that "under the totality of the circumstances surrounding the obtaining of these confessions" various constitutional rights were violated, and "the confessions should therefore be deemed involuntary for the reason that the physical and psychological coercion exerted on (him) was of such degree that (his) will was overborne at the time he confessed." He further asserts that he was of a youthful age and without the advice of counsel, parent or friend during protracted interrogation by a "revolving door" of detectives over an extended length of time during which he was "forced to view gruesome photographs of the deceased," was not permitted adequate sleep or rest and was held in a stark and uncomfortable cell in the brief interims between interrogation, all of which contributed to the mental, emotional and physical exhaustion of appellant, thereby making him extraordinarily susceptible to suggestion, duress, and the psychological ploys of the police."

If we treat this point literally; that is, that it presents no challenge to the ruling of the trial court on the Motion to Suppress, then we have the situation where the issue of voluntariness of the confession was submitted to the jury under unchallenged instructions, and that issue was resolved by the jury contrary to appellant's contention. We also have the situation that most of the page references made by appellant in the argument portion of his brief are to testimony of appellant at the pretrial hearing on the Motion to Suppress, and that testimony was not heard by the jury. We believe that under these circumstances we should treat the issue as being a challenge to the ruling of the court in overruling the Motion to Suppress. But, as previously noted, based on the evidence at that hearing the trial court expressly ruled that the confessions were voluntary. In doing so it had before it all the factual matters which appellant now asserts lead to the conclusion that the confession was not voluntary. As stated in State v. Alewine, 474 S.W.2d 848, 852 (Mo.1971), the question on appeal in circumstances such as this "is whether the evidence was sufficient to sustain the trial court's finding that the statement was voluntarily given."

For the most part the factual matters expressly relied on by appellant in support of his contention are not in dispute; it is only the result to be drawn from those facts. As to a few matters there is a factual dispute. For example, in his testimony at the hearing on the motion to suppress appellant stated that on several occasions he requested an attorney, and also that the police officers told him that if he would cooperate they would talk to the prosecutor and attempt to have the charges against him reduced. However, failure to provide an attorney or stop the interrogation, and promises of leniency are not specifically set forth in appellant's point as constituting grounds for rejecting his confession. If appellant's testimony as to these matters is to be considered it is only on the basis that they are a part of the "totality of the circumstances," and the police officers emphatically denied their occurrence. As previously noted the trial court, who had to judge the credibility of the witnesses, expressly held that as to these matters it "believes the officers" and "does not believe" appellant.

Where there is conflicting evidence on the issue of the voluntariness of a confession, as there is in this case, the admissibility of the confession is a matter of discretion on the part of the trial court which should not be lightly...

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  • State v. Newlon
    • United States
    • United States State Supreme Court of Missouri
    • February 9, 1982
    ...v. Ingram, 607 S.W.2d 438 (Mo.1980); State v. Hudgins, 612 S.W.2d 769 (Mo.1981); State v. White, 621 S.W.2d 287 (Mo.1981); State v. Jensen, 621 S.W.2d 263 (Mo.1981); State v. Chandler, 605 S.W.2d 100 (Mo. banc 1980); and State v. Borden, 605 S.W.2d 88 (Mo. banc 1980). Otherwise, as set fort......
  • State v. Blair
    • United States
    • United States State Supreme Court of Missouri
    • August 31, 1982
    ...State v. Turner, 623 S.W.2d 4 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982); State v. Jensen, 621 S.W.2d 263 (Mo.1981); State v. Baskerville, 616 S.W.2d 839 (Mo.1981); State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981); State v. Williams, 611 S.W.2d 26 (M......
  • State v. Bolder, 62362
    • United States
    • United States State Supreme Court of Missouri
    • July 6, 1982
    ...625 S.W.2d 115 (Mo.1981); State v. Emerson, 623 S.W.2d 252 (Mo.1981); State v. Turner, 623 S.W.2d 4 (Mo. banc 1981); State v. Jensen, 621 S.W.2d 263 (Mo.1981); State v. Baskerville, 616 S.W.2d 839 (Mo.1981); State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981); State v. Williams, 611 S.W.2d 26......
  • State v. Battle, 63436
    • United States
    • United States State Supreme Court of Missouri
    • November 22, 1983
    ...625 S.W.2d 115 (Mo.1981); State v. Emerson, 623 S.W.2d 252 (Mo.1981); State v. Turner, 623 S.W.2d 4 (Mo. banc 1981); State v. Jensen, 621 S.W.2d 263 (Mo.1981); State v. Mercer, 618 S.W.2d 1 (Mo. banc), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981); State v. Baskerville, 6......
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