State v. Lopez, 25535.

• Decision Date: 10 March 2004
• Docket Number: No. 25535.,25535.
• Citation: 128 S.W.3d 195
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lester LOPEZ, Defendant-Appellant.
• Court: Missouri Court of Appeals

128 S.W.3d 195

STATE of Missouri, Plaintiff-Respondent, v. Lester LOPEZ, Defendant-Appellant.

No. 25535.

Missouri Court of Appeals, Southern District, Division Two.

March 10, 2004.

Ellen H. Flottman of Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen.; Nicole E. Gorovsky, Assistant Attorney General of Jefferson City, for Respondent.

JEFFREY W. BATES, Judge.

In an amended information, Lester Lopez ("Defendant") was charged with the class A felony of murder in the first degree for killing Sherri Westfall ("Victim") by beating her to death. See § 565.020.¹ A jury found Defendant guilty of committing the lesser-included offense of murder in the second degree and recommended life imprisonment as appropriate punishment for this crime. See § 556.046; § 565.021; § 565.025. In the trial court's judgment, it followed the jury's recommendation and imposed a life sentence upon Defendant.

Defendant filed a timely notice of appeal from the judgment and presents one issue for decision: whether the trial court erred in denying his motion to suppress and admitting in evidence certain statements Defendant made to an investigating officer before Defendant received his Miranda warning.² After reviewing the entire record, however, we conclude that resolution of this issue is unnecessary to the disposition of Defendant's appeal. Even if the trial court's actions were erroneous for the reason Defendant suggests, the alleged errors did not contribute to Defendant's conviction and were harmless beyond a reasonable doubt. Therefore, we affirm the trial court's judgment.

I. Facts and Procedural History

At Defendant's trial, the State presented all of the evidence. Defendant does not challenge the sufficiency of this evidence to sustain his conviction for second degree murder. In this appeal, we consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences. State v. Stanley, 124 S.W.3d 70, 72 (Mo.App.2004); State v. Wright, 941 S.W.2d 877, 879 (Mo.App. 1997). Viewed from that perspective, the favorable evidence supporting the State's case against Defendant is set out below.

Defendant and Victim resided together at 1644 North Hillcrest ("Defendant's house") in Springfield, Missouri. Larry Carver lived in the same neighborhood as Defendant. At about 6:00 p.m. on April 6, 2001, Carver was sitting in the front yard of his home. Carver saw Victim leave Defendant's house and hide behind a shed for about 30 minutes. During that time, Defendant exited his house, walked around it as if he were looking for Victim, and then reentered the house. Ten minutes later, Victim came out from behind the shed and went to another neighbor's house. After spending a few minutes there, Victim left that residence and returned to her hiding place behind the shed. Carver went inside his house for 30 minutes. When he came back outside, Victim had returned to Defendant's house and was lying on the back porch.

Terrie Swineberg also lived in the same neighborhood as Defendant. At about 10:30 or 11:00 p.m. on April 6th, Swineberg observed Victim run past Swineberg's bedroom window. Shortly after 11:00 p.m., she observed Defendant walk past her window. A few moments later, Swineberg observed Defendant returning to his house, dragging Victim behind him. As Defendant was leaving Swineberg's property, she saw him pick up a large stick and hit Victim with it.

At 4:18 a.m. on April 7, 2001, Defendant placed a 911 call asking for a medical response to his house. During this telephone call, Defendant stated that he had just awakened and found Victim unresponsive on the floor. Although Defendant thought Victim was dead, he asked the 911 dispatcher to send an ambulance to his home.

After Defendant made the 911 call, Springfield police officer Nathan Thomas ("Officer Thomas") was dispatched to Defendant's house. Officer Thomas arrived there at 4:21 a.m. At approximately the same time Officer Thomas got there, paramedics in an ambulance and a fire rescue crew also arrived. The paramedics were the first ones to enter Defendant's home, and Officer Thomas followed them inside. The group found Victim lying motionless and pale on the floor of the living room in front of the couch. Officer Thomas observed a laceration on Victim's left leg. Defendant was pacing back and forth near the Victim's feet. Officer Thomas learned from Defendant that there was no one else in the house. After one of the paramedics examined Victim, he pronounced her dead and stated that rigor mortis had already set in.

At this point, Officer Thomas and Defendant left the house and went out onto Defendant's back porch. At Officer Thomas' request, Defendant produced identification. Because Officer Thomas was the only policeman at the scene and Defendant was behaving strangely, Officer Thomas asked Defendant to sit down. Officer Thomas explained to Defendant that the purpose of this request was to get Defendant to calm down so he could supply the information Officer Thomas needed for his report. Defendant twice refused to sit down and then stated, "Go ahead and take me to jail. I don't care." Defendant's remarks and actions made Officer Thomas uncomfortable, so he placed Defendant in handcuffs and helped him sit down. Defendant was not under arrest and was only handcuffed for Officer Thomas' safety so he could obtain a measure of control over the situation.

Defendant quickly calmed down, and the handcuffs were removed within one or two minutes. Officer Thomas examined Defendant's identification and then asked him what had happened. Defendant stated that he had gotten home around 9:30 p.m. the prior evening. He and Victim argued about Defendant coming home late because he usually got home at 6:00 p.m. Defendant and Victim had fallen asleep in the living room about 12:30 a.m. Defendant was on the couch, and Victim was on the floor. When Defendant woke up at 3:30 a.m., he told Victim, "Come on, let's go to bed." Victim didn't answer, so Defendant checked to make sure that she was breathing. After Defendant determined that Victim wasn't breathing and had no pulse, he started CPR.

While Officer Thomas was talking to Defendant, he asked to go inside the house to use the restroom. Officer Thomas refused to let Defendant go back inside because other officers had arrived at the scene by that time, and the house was secured with crime-scene tape so any evidence inside could be collected and preserved. Defendant was permitted to urinate in the back yard. Later, Defendant took a cigarette out of his pocket and asked to go back inside the house to obtain a lighter. After Officer Thomas refused Defendant's request several times, he became upset and stated, "It [doesn't] matter because [I'm] going to jail anyway." When Officer Thomas asked Defendant why he would go to jail, Defendant put his head down and said nothing more.

Officer Thomas and Defendant stayed on the back porch about 45 minutes. During that time, Defendant was not given a Miranda warning. Officer Thomas did not consider Defendant to be a suspect at that point, and he was not under arrest. He was being detained for questioning, which was standard police procedure for an incident of this nature. Shortly after 5:00 a.m., Defendant was transported to the Springfield Police Department police station.

After Defendant arrived at the police station, he was interviewed on two different occasions by Springfield police detective Scott Kamykowski ("Detective Kamykowski"). Detective Kamykowski questioned Defendant in an interview room at the police station, which was equipped with audio and video recording equipment. At the beginning of each interview, Detective Kamykowski orally advised Defendant of his Miranda rights, which Defendant waived. Defendant also signed a document waiving his right to remain silent and his right to advice of counsel before he was asked any questions by Detective Kamykowski.

The first interview took place at approximately 7:20 a.m. on April 7th. An edited version of this videotaped interview, lasting about one hour and 40 minutes, was played for the jury. During the first interview, Defendant made the following incriminating admissions.

Defendant was 5' 11' tall and weighed 220 pounds. Victim was 5' 2" tall and weighed 135 pounds. During the late evening hours of April 6th and the early morning hours of April 7th, Defendant admitted that he and Victim were arguing and that they engaged in two different fights. Defendant was very upset and angry. While arguing with Victim, Defendant slapped her face and neck with his open hand five or six times until she fell to the ground. He struck Victim in the face and in the chest with his fists. He repeatedly hit Victim. He kicked Victim because that is the way he fights. He tore Victim's clothes off while they were fighting. Victim might have hit a shelf with her head while they were fighting. Defendant had sex with Victim after the fighting stopped.

At about 1:00 a.m., Defendant noted that Victim's body was cold. He did not know what to do, so he spent the next 30 to 45 minutes smoking a cigarette and drinking two beers. When he tried to pick Victim up and flip her over, he heard fluids gurgling inside of her. He flipped her on her side to check her breathing, and a large amount of bloody fluid came out of her mouth. He wiped the blood and fluid from her face with a sock. After doing so, he saw that her face was bruised, and she had a black eye. Defendant performed CPR for 30 minutes. He did not call 911 because he knew that if he called, they would put him in jail.

By 2:30 a.m., Defendant knew Victim was dead. He called his sister-in-law, who was a nurse, and asked her what to do. She told him to call 911. During that call, Defendant said that he told his sister-in-law that he would probably go to jail because the police might say that he did this to Victim. After Defendant...