State v. Mouser

• Decision Date: 15 July 1986
• Docket Number: No. WD,WD
• Citation: 714 S.W.2d 851
• Parties: STATE of Missouri, Respondent, v. Dennis Lee MOUSER, Appellant. 37022.
• Court: Missouri Court of Appeals

Page 851

714 S.W.2d 851

STATE of Missouri, Respondent, v. Dennis Lee MOUSER, Appellant.

No. WD 37022.

Missouri Court of Appeals,

Western District.

July 15, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 28, 1986.

Kathleen Murphy Markie, Columbia, for appellant.

Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, C.J., and NUGENT and GAITAN, JJ.

GAITAN, Judge.

Appellant, Dennis Lee Mouser, after being certified to be tried as an adult by the juvenile court, § 211.071 RSMo Cum.Supp.1984, was charged with capital murder, § 565.001 RSMo Cum.Supp.1984, for the death of Errol Foster in Platte County, Missouri. He was convicted by a jury of manslaughter, § 565.023 RSMo Cum.Supp.1984. The defendant appeals alleging trial court error on the following points: the denial of motions to suppress three different statements attributed to appellant; the submission to the jury of MAI-CR2d 2.20 (definition of reasonable doubt); the admission of photographic slides of the victim's skull as it appeared during the autopsy the refusal to sustain appellant's motion to strike a venireman for cause; and finally, the failure to sustain appellant's motion to dismiss the information and remand to the juvenile court jurisdiction. The judgment of the trial court is affirmed.

In order to address the numerous points raised by appellant, the facts in this case need to be discussed in some detail.

On December 29, 1983, Errol Foster, the victim, went outside to begin work on his farm as was his early morning routine. At approximately 9:00 a.m. a neighbor came by the home of Errol Foster's father and told him that he had seen his son's pickup in a ditch. At approximately 10:30 a.m., the father and a neighbor went to pull the pickup out of the ditch and then went in search of Errol Foster. They were joined in their search by the victim's son, Kendall. The victim's son eventually investigated an old house used as a hay barn where he found his dead father buried under some hay.

The Platte County Sheriff's Department was immediately notified and an investigation of the death began. Detective William Zerbe was in charge of the investigation. Detective Zerbe was acting coroner on that day and pronounced Errol Foster dead. The detectives followed footprints that led from the victim's truck to the appellant's mobile home. Appellant Mouser let Zerbe and two other officers, Burdiss and Thurman, inside the home.

In his response to general questions by Detective Zerbe, appellant stated to the police officers that he had been squirrel hunting with a .22 rifle in the woods earlier that morning. He showed the rifle to the detectives and appellant's mother gave her consent to the removal of the rifle by the officers.

At that point the officers took the rifle and departed, leaving Detective Zerbe at the trailer. Appellant's mother then stated she had to leave the room. Before she left, however, she gave permission to Zerbe to ask appellant a few more questions about being in the woods. Zerbe asked whether appellant had seen anything unusual while he was out in the woods. At that point, Mr. Mouser replied, "I did not mean to shoot that man." Then Zerbe told appellant that he didn't want him to answer any more questions until his parents and the Platte County Juvenile Officer were present. Appellant was driven to the police station by Deputy Steve Johnson who was instructed not to question Mouser but to make a mental note of anything he said. On the way, they stopped near the crime scene to let Detective Zerbe out of the car. As they were leaving the scene appellant blurted out, "The keys are over there." He then indicated a northeasterly direction.

When they reached the police station, appellant was officially advised of his constitutional rights, both verbally and in writing. Detective Zerbe, appellant, Mr. Collins, (appellant's step-father) and Kate Dowd of the Platte County Juvenile Office were present. Appellant wrote in his own words what happened on that date and answered Detective Zerbe's questions in writing. In this statement, appellant admitted to the shooting and claimed it was an accident. He also admitted to dragging the body to a hay house and burying it there. He claimed he did not know if the victim was alive or dead.

Prior to impaneling the jury for trial, appellant moved to strike for cause venireman number 16, Charlie Jones, because of a response he believed showed bias. The thrust of the challenge concerns the fact that Mr. Jones was formerly a security guard and that his brother, at the time of trial, was a police officer. Appellant also alleges that Jones did not answer "unequivocably" that he would not automatically believe the testimony of a police officer over that of a non-police officer witness.

An autopsy was performed on the morning of December 30, 1983 by a Doctor Bridgens, the pathologist in the case. Dr. Bridgens testified at the trial using certain slides of the victim which defense counsel objected to as overly explicit and distasteful. This objection was also made in a motion in limine. Doctor Bridgens testified there were three gunshot wounds to the body of the victim; one of which was a contact wound to the head. He testified that a "contact" wound occurs when a gun is placed directly against the head and discharged.

Appellant's evidence included testimony from Doctor Francis Cubbage, a pathologist at Kansas University Medical Center. Dr. Cubbage stated that if there was no gunshot residue found in the tissue of the brain it would be nearly impossible to determine whether or not the wound was a contact wound.

The appellant's first point on appeal concerns three different incriminating statements. Appellant asserts that his spontaneous admission, "I did not mean to shoot that man," should have been suppressed because it was obtained before Miranda warnings were given and because it was in violation of the Juvenile Code outlined in § 211.061.

The Supreme Court stated in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966):

Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. ... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. 384 U.S. at 478, 87 S.Ct. at 1629.

In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court re-examined the meaning of "interrogation" and stated the following:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.... [T]he term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." 446 U.S. at 300-02, 100 S.Ct. at 1689-90.

The state must prove that a juvenile's confession was given voluntarily for it to be admitted at trial. State v. Jones, 699 S.W.2d 525, 527 (Mo.App.1985). Whether a confession is voluntary is to be judged by the totality of the circumstances. In Interest of A.D.R., 603 S.W.2d 575, 584 (Mo. banc 1980). A child taken into custody "must be accorded all of the rights to which he would be entitled if he were an adult, including full advice as to his constitutional rights in compliance with the Miranda decision." State v. Larson, 623 S.W.2d 69, 71 (Mo.App.1981).

The pertinent facts adduced both at trial and in the motion to suppress showed that on December 29, 1983 Detective Zerbe was investigating an incident involving a victim whose cause of death was, at that point, unknown. Zerbe was not even sure it was a homicide at that point. Footprints from the victim's truck led to appellant's residence, and appellant and his mother gave Zerbe and two uniformed officers permission to enter. Zerbe asked some general investigatory questions (name, age, etc.) and he testified that at that time he still did not suspect appellant of the crime.

In response to the detective's question about whether he had heard or seen anything unusual, appellant suddenly blurted out "I didn't mean to shoot that man." Only at this point did Zerbe determine he had probable cause to arrest appellant, which he did, and thereafter ceased all questioning.

In this first statement as in the statements which will be analyzed hereafter, the crucial issues to be considered are whether the two key elements of custody and interrogation were present when those statements were made. If they were, appellant was entitled to have his constitutional rights read to him. If those rights were not read to him, he would be entitled to have those statements suppressed. Miranda, 384 U.S. 436, 86 S.Ct. 1602; State v. O'Toole, 619 S.W.2d 804, 810 (Mo.App.1981). "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.

Appellant contends that once he told Zerbe that he had been out in the woods squirrel hunting he was in effect, "in custody", and should have been immediately taken before the juvenile authorities. However, a person is not in custody when he is simply being asked investigatory questions by the police. State v. Calmese, 628 S.W.2d 382, 387 (Mo.App.1982). Custodial interrogation does not exist where the person is not a suspect in the crime. State v....