State v. Mathenia
| Decision Date | 15 January 1986 |
| Docket Number | No. 66734,66734 |
| Citation | 702 S.W.2d 840 |
| Parties | STATE of Missouri, Respondent, v. Charles Lee MATHENIA, a/k/a Chuck Lee Mathenia, Appellant. |
| Court | Missouri Supreme Court |
C.J. Larkin, Columbia, for appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Charles Lee Mathenia, was convicted by a jury of two counts of capital murder and sentenced to death in the Circuit Court of Jefferson County. We have exclusive appellate jurisdiction under Mo. Const. art. V, § 3.
The sufficiency of the evidence being uncontested, a brief rendition of the facts is as follows:
Decedents were Daisy Nash, 72, and her mentally impaired sister Louanna Bailey, aged 70. Appellant had lived with Daisy Nash for some seven years prior to her death. At the time of the killings, appellant was 25 years old and still living with Nash.
In September of 1983 appellant allegedly twice raped Louanna Bailey and in December of that year he was charged for those offenses upon her complaint. However, in February Louanna Bailey dropped the charges, indicating she would refuse to testify against appellant. The evidence indicated that the murders were motivated by appellant's resentment at having been arrested and confined in connection with these charges. Appellant vowed to take revenge on the two sisters.
Sometime after midnight on April 24, 1984, appellant returned home after spending the day with his sister and brother-in-law. An argument began with Daisy Nash as soon as he entered the house. During the course of this argument, appellant hit the 72-year-old woman in the face, knocking her to the floor. He then retrieved a butcher knife from the kitchen and after kicking and beating her savagely, he stabbed her several times.
Shortly thereafter, appellant rode his bicycle the two blocks to Louanna Bailey's home and told her he had killed Daisy. While Louanna tried to call Daisy, appellant procured a butcher knife. When he returned, Louanna attempted in vain to flee. Appellant stabbed her fatally in the back.
Appellant was arrested the following day, April 25th, the same day the bodies were found. He made no statement at that time, but gave an extensive video-taped confession on May 7th, against the advice of his counsel.
For the first point of error, appellant contends that the trial court erred in overruling defense objection to the following colloquy between Prosecutor Reid and Sheriff Asher:
Q. Sheriff, you made the arrest of the defendant on April the 25th, '84, out at his sister's house in Madison County, Missouri?
A. Yes, sir.
Q. And after you arrested him did you advise him of his rights?
A. Yes, sir.
Q. And did he make a statement to you at the time of the arrest?
A. No, sir.
At this point defense counsel objected and moved for a mistrial on the ground that the question and answer were impermissible comment on appellant's exercise of his Fifth Amendment right not to incriminate himself. The court denied the motion and appellant preserved the objection in his motion for new trial.
As stated by this Court in State v. Stuart, 456 S.W.2d 19, 23 (Mo. banc 1970), (Citations omitted.) See also, State v. McLarty, 467 S.W.2d 58 (Mo.1971). Stuart preceded the United States Supreme Court's ruling in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), wherein the Court reasoned as follows:
[I]t does not comport with due process to permit the prosecution during trial to call attention to [an accused's] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time * * * an unfavorable inference might be drawn as to the truth of his trial testimony * * *.
426 U.S. at 619, 96 S.Ct. at 2245, quoting United States v. Hale, 422 U.S. 171, 182-183, 95 S.Ct. 2133, 2139-40, 45 L.Ed.2d 99 (White, J., concurring). In State v. Nolan, 595 S.W.2d 54, 56 (Mo.App.1980), the court delineated the rule as follows: "The state may not use [post-arrest] silence as affirmative proof or to impeach the defendant's testimony."
Our examination of the record in this case does not reveal that this reference to appellant's post-arrest silence was used as "affirmative proof" or "to impeach" the appellant.
The transcript shows that the above-quoted sequence was merely preliminary to the admission into evidence of appellant's video-taped statement. Sheriff Asher's testimony that appellant declined to make a statement at the time of his arrest merely crystalized what was already suggested by the fact that appellant ultimately did make a statement on May 7th.
Regarding the impeachment use of appellant's post-arrest silence, we likewise find no reversible error. Although appellant did not put on any evidence, appellant contends that the prosecution attempted to penalize him for his silence when arguing in rebuttal the incredibility of aspects of appellant's video-taped statement. The gist of the prosecution's argument on this matter was that the appellant made a self-serving confession after he had consulted over a period of two weeks with defense counsel and defense investigators. No objection was interposed by defense counsel, so we review for plain error.
We have reviewed the transcript and find that the prosecutor's argument did not result in manifest injustice.
Appellant next contends that the trial judge erred in refusing to strike for cause veniremember Middleton because of his statements regarding imposition of the death penalty.
The voir dire proceeded as follows:
At this point, the prosecution objected out of the jury's hearing to the form of the question in that it failed to test the veniremember's ability to follow the court's instructions on the law and balance mitigating and aggravating circumstances in assessing punishment. A lengthy discussion followed during which the court sustained the objection stating: The proceedings then returned to open court where the following ensued:
Again the State objected and again the objection was sustained, with the judge amplifying his prior ruling:
If [the prosecutor] comes back and asks him if instructed by the Court to follow certain aggravating circumstances and certain mitigating circumstances and weigh those before they insert the death penalty, but if they would not do that, they'd automatically vote for it, you'd be right. But if you go through and do every one of them like you indicate that you want to do, and he should go back and basically rehabilitate every one of them on following the instructions of the Court in regard to aggravating and mitigating circumstances, could they follow those instructions and if there was brutality involved, vote the death penalty, then basically you would not have made a sustainable challenge on every one of those, even though you think you've made the one perfect challenge to all of them. They would be rehabilitated. We're going through an exercise with them for nothing.
* * *
* * *
[I]f they will not follow the instructions of the Court and would vote for it automatically, then you've got your challenges sustained and I would do so. Otherwise, unless it's phrased in that manner, I'm going to sustain the objection to it.
Defense counsel asked no further questions of veniremember Middleton.
Later on, the prosecutor asked the panel the following question:
MR. REID: Okay. Are there any of you who would not be able to follow the Judge's instructions as to the aggravating and mitigating circumstances? The Judge will give you those for you to weigh. And then determine whether or not the death penalty is proper in this case. That's the second phase of the trial. If the defendant is convicted of capital murder in Count One or Count Two, that will be the second phase of the trial. What I'm asking you is, are there any of you who do not feel like that you can follow the Court's instructions as to what the law is in the State of Missouri before you can render the death penalty? I see no hands, Judge. Thank you.
The gravamen of the court's action in sustaining of the prosecution's objection to the form of defense counsel's question was that the question could not yield an intelligent answer. The court indicated repeatedly that the question was improper unless it referred to the ability of the veniremember to consider the court's instructions on aggravating and mitigating circumstances. Veniremember Middleton never indicated that he would impose death no matter what the court's instructions. To the contrary, he declined to take such a position when the panel was questioned to that effect by the prosecutor. [I]t is well established that the trial court has wide discretion in determining the qualifications of a venireman, and its...
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...claim turns on whether Missouri law permits impeachment with post-arrest, pre-Miranda warning silence. Appellant relies on State v. Mathenia, 702 S.W.2d 840 (Mo. banc 1986), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986), and State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970)......
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