State v. Lammers

• Decision Date: 31 March 2015
• Docket Number: No. SD33256,SD33256
• Citation: State v. Lammers, No. SD33256 (Mo. App. Mar 31, 2015)
• Parties: STATE OF MISSOURI, Respondent, v. BLAEC JAMES LAMMERS, Appellant.
• Court: Missouri Court of Appeals

STATE OF MISSOURI, Respondent, v. BLAEC JAMES LAMMERS, Appellant.

No. SD33256

Missouri Court of Appeals Southern District Division One

March 31, 2015

APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY

Honorable William J. Roberts, Judge

AFFIRMED

Blaec Lammers, age 20, had a history of self-harm, assault on others, and psychiatric hospitalizations. After he bought two knock-off assault rifles, his mother contacted law enforcement. Police interviewed Lammers, which led to charges that he purchased weapons, practiced with them, and planned to shoot unknown persons at the Bolivar Walmart. He waived a jury and was found guilty of first-degree assault (attempt) and armed criminal action.¹

On appeal, Lammers (1) charges error in not suppressing his police interview, and (2) claims there was insufficient evidence that he intended to shoot anyone or took a substantial step toward doing so. Per our standard of review and deference to the factfinder, we deny both points and affirm the convictions.

Principles of Review

In reviewing sufficiency of evidence, we credit all evidence and inferences favorable to the state and reject all others. State v. Porter, 439 S.W.3d 208, 211 (Mo. banc 2014). We do not re-assess Lammers' guilt ourselves, but decide only "whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation marks omitted).

Similarly, we consider only evidence and inferences that support a trial court's suppression ruling, disregarding all other evidence or inferences. State v. Gaw, 285 S.W.3d 318, 319 (Mo. banc 2009). We review issues of law de novo. Id. at 320.

Accordingly, we frame facts and inferences throughout this opinion as we must view them - one-sided, so to speak, in favor of the state.

Police Interview

Lammers' mother learned by phone call that a man was storing rifles for her son. Worried, she called Lammers to remind him he should not have firearms. He replied, "I know." Mrs. Lammers then found a rifle-purchase receipt while doing her son's laundry that night.

She went to the sheriff's office the next day, showed the receipt, discussed her son's mental illness, and expressed her concerns. She suspected Lammers had been"cheeking" his medication; he was becoming increasingly violent. The sheriff's office contacted the police department and requested a wellbeing check.

Officers found Lammers and his girlfriend at a Sonic drive-in and relayed Mrs. Lammers' concern. Lammers said he was taking his medication and confirmed his purchase of two rifles. When asked if he would come to the police station to talk, Lammers agreed, walked to the police car, and sat in the front passenger seat. He was not restrained or placed under arrest at Sonic or while riding to the police station.

At the station, officers walked Lammers to the interview room and checked him for weapons, but did not handcuff or restrain him or take any of his personal items. An officer told Lammers he was not under arrest, but verbally gave Miranda warnings² that Lammers said he understood. A recorded interview followed which Lammers sought to suppress before trial. The court denied that motion and admitted the interview at trial over Lammers' objection.³

Lammers charges that his interview was "tainted by his unlawful, de facto arrest," citing Supreme Court cases holding that unlawful arrest or detention for interrogation may require suppression of statements despite Miranda warnings.⁴We find these cases inapposite because Lammers fails to convince us he was unlawfully arrested or detained.

"A custodial interrogation occurs only when the suspect is formally arrested or is subjected to arrest-like restraints. A person who voluntarily accompanies officers to the police station for questioning is not subject to arrest-like restraints." State v. Glass, 136 S.W.3d 496, 508-09 (Mo. banc 2004) (citation omitted). See also State v. Hill, 247 S.W.3d 34, 48 (Mo.App. 2008).

Lammers rode un-cuffed in the police car's front seat and kept his phone and personal items during the interview, none of which would have occurred had he been under arrest. "Treatment with the consideration due one who has volunteered to be interviewed is the kind of latitude [that] is clearly inconsistent with custodial interrogation." Id. (internal quotation marks omitted).

That the interview occurred at a police station does not demonstrate custody. Id. at 49. Lammers was told he was not under arrest at the outset of the interview, throughout which his freedom of movement was not restrained by handcuffs or otherwise. See id.

Further, the record does not indicate Lammers was prevented from stopping the interview at any time. See State v. Seibert, 103 S.W.3d 295, 301 (Mo.App. 2003). "Even if a person is a suspect in a crime, there is no custodial interrogation when he is not under arrest or otherwise restrained of his liberty at the time of the questioning." Id.

All in all, the notion that Lammers was "arrested" for interrogation is not supported by the record as we must view it.

Lammers' complaint about "improper, incomplete, and incomprehensible Miranda warnings" fares no better. He was not in custody, so Miranda did not apply. Seibert, 103 S.W.3d at 300. Nonetheless, the trial court found Lammers was advised of those rights, said he understood them, then gave a free and voluntary statement. The record supports this ruling and, in turn, the suppression ruling and admission of the evidence. State v. Schnick, 819 S.W.2d 330, 336 (Mo. banc 1991). Our focus is whether Lammers understood the warnings themselves, which the trial court found, not whether he appreciated all possible consequences of speaking to the police. State v. Powell, 798 S.W.2d 709, 713 (Mo. banc 1990); State v. Duke, 427 S.W.3d 336, 341 (Mo.App. 2014). Point denied.

Sufficiency of Evidence

Lammers contends that the "attempt" evidence cannot support his conviction for first-degree assault, which was predicate to his armed criminal action conviction, so we must reverse both.

The state charged Lammers with "attempting to kill or cause serious physical injury to unknown persons" at Walmart. See § 565.050.⁵ Section 564.011 governs the law of attempt in Missouri, including offenses like first-degree assault that equate attempt with the completed crime. State v. Withrow, 8 S.W.3d 75, 79-80, 82 (Mo. banc 1999). Attempt's only elements are (1) purpose to commit the underlying offense, and (2) some act which is a substantial step toward committing the offense. Id. at 78; State v. Molasky, 765 S.W.2d 597, 601 (Mo. banc 1989).

Purpose

Lammers claims no evidence showed he had a purpose ("conscious object" per State v. Whalen, 49 S.W.3d 181, 187 (Mo. banc 2001)) to kill or seriously injure anyone. We cannot agree if we honor our standard of review. To summarize just three significant statements by Lammers when interviewed:

• He thought about shooting up the Walmart where he bought his guns.

• When asked about his "plan from start to finish," he indicated he would walk in the front door and start shooting. "Just walk in, start shooting, and wait till the police got there," then hand himself over.

• He said a movie theater "crossed my mind. But Walmart was probably the main one because if I ran out of ammo, all I had to do was break the glass."

On appeal, Lammers minimizes such evidence, focusing instead on testimony favorable to his defense. This ignores our standard of review and the trial court's right to believe some, all, or none of witness testimony. J.A.R. v. D.G.R., 426 S.W.3d 624, 631 (Mo. banc 2014); State v. Massa, 410 S.W.3d 645, 659 (Mo.App. 2013). Disregard for our standard of review robs Lammers' arguments of any persuasive force. J.A.R., 426 S.W.3d at 632; Massa, 410 S.W.3d at 660.

Lammers cites first-degree assault reversals in State ex rel. Verweire v. Moore, 211 S.W.3d 89 (Mo. banc 2006), and State v. Dublo, 243 S.W.3d 407 (Mo.App. 2007), but makes no serious effort to align this case with those, which we find distinguishable.⁶ Ours is more like State v. Reese, 436 S.W.3d 738, 741-42(Mo.App. 2014), and other cases where police intervened in time. Verweire distinguished such situations, 211 S.W.3d at 92, and Dublo explicitly followed Verweire. 243 S.W.3d at 410.

The evidence was not insufficient as to attempt's "purpose" prong.

Substantial Step

Lammers baldly asserts "[t]here was no substantial step to carry out any intent to harm anyone." To decide if the record compels this conclusion, we must consider what a "substantial step" may be in these circumstances.

Neither party cites any case remotely like this, where a defendant "purchased weapons, practiced with the weapons, and planned to shoot persons" as this information charged, but had harmed no one yet. Our search outside Missouri yielded only that buying a gun "to use in a planned crime is a substantial step" according to Kash v. U.S., 112 F. App'x 518, 521 (7th Cir. 2004), and scant legal commentary of little practical help.⁷ Thus, we turned back to our statute and historical observations from Molasky.

Section 564.011, effective since 1979 and derived from the Model Penal Code, defines "substantial step" as "conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." Molasky, 765 S.W.2d at 600. Previously, "a tougher test for attempt" had been "couched in terms of preparation and perpetration" and required proof the actor went "beyond mere preparation." Id. (some quotation marks omitted). Prior to 1979, "the defendant [had] to come very close to the actual commission of the offense in order to be convicted of attempt." Id; see also Withrow, 8 S.W.3d at 78 (attempt previously harder to prove; state had to show defendant "nearly approached consummation of the offense, not just a substantial step toward the completed offense").

The 1979 revision, still effective today, lowered the...