State v. Miller, 13368

• Decision Date: 01 July 1986
• Docket Number: No. 13368,13368
• Citation: 714 S.W.2d 815
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Verdia MILLER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 815

714 S.W.2d 815

STATE of Missouri, Plaintiff-Respondent, v. Verdia MILLER, Defendant-Appellant.

No. 13368.

Missouri Court of Appeals,

Southern District,

Division Two.

July 1, 1986.

Motion for Rehearing or Transfer

Denied July 21, 1986.

Application to Transfer Denied Sept. 16, 1986.

T. Patrick Deaton, Public Defender, James D. McNabb, Asst. Public Defender, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Presiding Judge.

A jury has found defendant Verdia Miller guilty of capital murder as defined by § 565.001, RSMo 1978, now repealed. Her punishment was assessed at imprisonment for and during the term of her natural life, as authorized by former § 565.008.1. The defendant appeals.

On October 20, 1978, one Larry Dean Smiddy was shot to death in Newton County. Shortly before he was killed, Smiddy had gone to the defendant's residence in the company of two other men, Edward "Shyster" Jackson and Bobby Joe Mingo. The defendant was well acquainted with Jackson and Mingo. It was fairly inferable that Jackson and Mingo were drug addicts, in street parlance "users" or "junkies."

The victim, Jackson and Mingo went to the defendant's residence about 4 a.m. to "mainline" some cocaine which the victim had in his possession. Mingo testified that Smiddy had a considerable quantity of cocaine on his person; it was in a "little box" and there were "little vials, eight to nine of them." While the "firing" (intravenous injection) of cocaine was being prepared, Jackson suggested to Mingo that he, Jackson, intended to kill the victim to obtain a supply of cocaine. Mingo refused to assist Jackson.

Jackson and the defendant then contrived a plan to do away with the victim and obtain the cocaine. Jackson asked the defendant for her handgun and for a pair of gloves. She furnished both. The two decided that when the victim, Mingo and Jackson left the defendant's premises, she would ask to go along. At some point defendant would ask the driver to stop the car so she could relieve herself. At that time, Jackson would kill Smiddy. Jackson and the defendant also prepared for other contingencies. Defendant gave Jackson a pair of rubber gloves; she also put on two sets of clothes. If she got blood on the first set of gloves and clothes, she could remove and discard them. Defendant also took along a white cloth to be used to clean up any blood and to obliterate fingerprints.

When Smiddy, Jackson and Mingo decided to leave the defendant's residence, defendant got in Smiddy's automobile. Mingo was taken to his apartment. Defendant, Jackson and their victim then drove to an area south of Joplin known as "the Falls area" in the victim's automobile. Defendant asked the victim to stop so she could relieve herself. While the defendant was out of the car, but nearby, she saw Jackson shoot Smiddy in the head. Jackson shot Smiddy four times in the head. There was positive testimony from a pathologist that the four "gunshot wounds," as he described them, were the direct cause of Smiddy's death.

Defendant and Jackson then pulled their victim's body from the automobile and left it in a ditch alongside the road. Jackson and the defendant appropriated their victim's personal effects, including his watch. Jackson "got rid" of the victim's car, which had been "wiped down" to remove blood and fingerprints.

A Newton County deputy sheriff discovered Smiddy's corpse lying in the ditch where it had been left. This officer testified that Smiddy's body "was up against a fence row, up in the brush." This officer also found a white piece of cloth, a woman's white glove and a rubber glove, all bloodstained, at the same place.

The investigation of this cause took some time; Smiddy was killed in late 1978, and a formal accusation was not filed until 1981. In the spring of 1981, Jackson was charged with the crime. Defendant Miller testified at Jackson's preliminary hearing as a witness for the State. Jackson thereafter pled guilty. At all times prior to January 1982, the defendant maintained she either had not participated in Smiddy's murder, or that Jackson had forced her to participate. On January 14, 1982, the defendant sought asylum in the Jasper County jail because some threats had been made against her life. She was accommodated. On January 15, 17 and 18 defendant admitted she had participated in the murder of Larry Dean Smiddy. This appeal is focussed on the admissibility of those incriminating statements.

In this court, counsel for defendant has briefed five assignments of error. The first two assignments of error are focussed on the admissibility of defendant's inculpatory statements made after she asked to be placed in protective custody. They overlap, but will be considered separately to the extent possible. As a threshold observation, we note that prior to trial, defendant moved to suppress any inculpatory statements made while she was in custody. She specifically claimed that her statements were inadmissible because they had been obtained in violation of the Fifth Amendment rights developed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), rehearing denied, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). During the hearing, defendant also presented some evidence tending to show she was suffering from a mental illness at the time she admitted participation in the crime charged.

When the appeal was first submitted, it became apparent that the record did not show "with unmistakable clarity" that the defendant's admissions were voluntarily made, as required by Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Following the practice suggested in State v. Glenn, 429 S.W.2d 225, 237-38[29-30] (Mo. banc 1968), and State v. Auger, 434 S.W.2d 1, 6-7 (Mo.1968), we requested the trial court to make express findings on the record evidence whether the defendant's inculpatory statements were, in light of her history of mental illness, voluntary, and whether defendant knowingly and intelligently waived her Miranda rights, either expressly or implicitly. No evidence except that already in the record was to be considered by the trial court in making its findings. In due course, those findings were filed here and made part of the record. Copies of the findings were furnished to counsel. The findings will not be set out at length here but will be quoted in the course of the opinion.

As we have said, the appeal is focused upon the admissibility of three inculpatory statements which were undoubtedly the basis for defendant's conviction. The admissibility vel non of those statements is tendered by counsel's assignments I and II primarily in terms of "voluntariness." After an opinion had been prepared and filed, defendant's counsel filed a vigorous motion for rehearing, contending that we had overlooked a material matter of fact. We believed we had, and in consequence withdrew our opinion to give the salient points entirely fresh consideration. Further study of the record only confirms our original conclusion that the inculpatory statements were admissible.

One or two preliminary observations are appropriate. First, a general discussion of the "voluntariness" doctrine as applied to admissions and confessions--assuming there is a difference--is well beyond the scope of this opinion. It has been more than adequately discussed elsewhere. ¹ The only aspects of the "voluntariness" doctrine we undertake to examine in connection with this case are: (1) whether the evidence of defendant's mental illness was such as to preclude her making a voluntary confession of her participation in the crime charged, and (2) whether the defendant received a warning of her constitutional rights as elucidated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, ² and thereafter knowingly and intelligently waived those rights.

I

The aspect of this appeal which has caused this court the most concern is whether the defendant's admitted chronic mental illness was such as to render her inculpatory statements "invalid." The defendant moved to suppress her admissions of guilt before trial, as provided by Rule 24.05, and renewed her objection on the ground of mental incapacity at the time of trial. Such being the case, the trial court was required to put the issue of voluntariness to the jury. State v. Mitchell, 611 S.W.2d 211, 214 (Mo. banc 1981); State v. Washington, 399 S.W.2d 109, 113-14 (Mo.1966). Upon trial, the court allowed the defendant to make proof of her mental condition at the time she admitted her criminal agency, and submitted the issue of voluntariness to the jury by giving MAI-Cr 2d 3.44 as Instruction No. 15. The trial court also submitted the statutory defense of not guilty by reason of mental disease or defect excluding responsibility to the jury under proper instruction. In the course of presenting this defense, the defendant presented all the proof of "voluntariness" for a second time.

The trial court made the following findings concerning the defendant's mental illness as it affected the "voluntariness" of the defendant's incriminating admissions:

"(4) Verdia Miller for a period of time, commencing at least as early as 1978, has been treated and hospitalized for mental disorders variously described as Borderline Personality, Borderline Schizophrenia, Pseudoneurotic Schizophrenia, Hysterical Personality, Schizophrenia Cronic Undifferentiated. Since 1978, she has had periods when professionals treating her have felt that she has been free of mental disease on the one hand all the way to mental disease or defect within the meaning of Chapter 522, R.S.Mo. on the other hand. Stress induced by personal and family problems, use of alcohol and drugs, and criminal charges have adversely affected her mental condition at the time of the particular stressful event.

(5) Dr. Paul L. Barone, M.D. of the ...