State v. Mudgett, 59009

• Decision Date: 25 November 1975
• Docket Number: No. 59009,59009
• Citation: 531 S.W.2d 275
• Parties: STATE of Missouri, Respondent, v. Fred MUDGETT, Appellant.
• Court: Missouri Supreme Court

Page 275

531 S.W.2d 275

STATE of Missouri, Respondent, v. Fred MUDGETT, Appellant.

No. 59009.

Supreme Court of Missouri, En Banc.

Nov. 25, 1975.

Rehearing Denied Jan. 12, 1976.

M. Randall Vanet, North Kansas City, for appellant.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., for respondent.

DONNELLY, Judge.

Appellant, Fred Mudgett, was convicted of murder in the second degree by a jury in the Circuit Court of Boone County, and his punishment was assessed at 75 years imprisonment. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Kansas City District of the Court of Appeals. The appeal was transferred here on the certification of a dissenting judge.

On September 20, 1971, appellant, together with two other inmates, attempted to escape from Fulton State Hospital. The parties stipulated that at that time appellant was in lawful confinement in that hospital, so that his action was violative of Section 202.435, RSMo 1969. Shortly after the beginning of working hours in the Psychology Department, appellant appeared in one of the offices with a drawn knife and accosted a woman employee. He told her to 'Be quiet and you won't be hurt' or 'Be quiet or I'll kill you' or some words of like import. The woman employee then screamed 'George!', thereby seeking the aid of a fellow employee, George Chase. Chase responded to that call, at which point appellant yelled for one of his accomplices 'to get him off.' Appellant's fellow escapee, Williams, then hit Chase repeatedly with a metal mop bucket handle, causing a fatal skull fracture.

The three escapees then took the woman employee as hostage, with appellant and Herron barricading themselves with the hostage in one room, while Williams barricaded himself in a second room. Negotiations ensued between appellant and the hospital superintendent, in which appellant demanded unimpeded release from the hospital together with the furnishing of an automobile, on threat that if this was not done, the woman hostage would be raped and killed. During this period of negotiation, Williams shouted repeatedly, 'I killed mine, why don't you kill the bitch, why don't you kill the bitch.' After approximately an hour of talking back and forth, appellant yielded and all three escapees surrendered.

Much later that same day, deputy sheriffs were summoned to the hospital, and appellant was brought into their presence at about 5:00 p.m. One of the deputies had a tape recorder. Appellant immediately demanded that the tape recorder not be used, and the officers complied with that request. One of the deputies then began to read the Miranda warning, but after only a few words was interrupted by appellant. Appellant stated that he would not sign any waiver or give any statement so long as he was at the hospital, but that he might possibly talk later if he were removed to either the police or sheriff's department. Deputy Lee said he would see if the transfer could be arranged.

Later that same evening, officers again came to the hospital for the purpose of removing appellant from the hospital premises to the local jail. During this transportation, Deputy Lee again took out a 'Miranda card' and read appellant his 'right.' While en route from the hospital to the jail, appellant told the officers he would like to talk to the Sheriff's brother, Bob Salmons, whom appellant considered to be a friend.

Very soon after appellant arrived at the police station, Salmons came in and after some brief exchange of pleasantries, appellant began a narrative statement to Salmons of what had happened that morning. Essentially appellant talked and Salmons, asking few if any questions, listened.

After Salmons left, the officers again read the Miranda warning and appellant was handed a waiver of rights form. In connection with his right to consult an attorney, appellant indicated that he did have an attorney in Kansas City, but that he did not want to bother him at that time. He proceeded to sign a waiver form and to give an oral statement, which was then reduced to written form at about 9:30 p.m. The next morning appellant amplified his written statement of the evening before by a second statement. This second statement was preceded by an additional Miranda warning by Deputy Lee.

About 1:30 p.m. on September 21, appellant was arraigned, and a local lawyer was appointed as his counsel by the court. That night appellant summoned Deputy Lee to the police station for another consultation. Lee once again read him the Miranda warning, and appellant signed still another rights waiver. Appellant then proceeded to give a third statement which differed in substantial parts from the first two. In the most damaging portions of these three statements, appellant admitted that the escape had been planned for a period of approximately a month by Williams, Herron and himself; that they had discussed the possibility of resistance; that '(a)s the person leading the escape plan I instructed the others to stop the male employee in any way possible'; and that he had always planned from the beginning to kill the female employee whom he had taken as hostage.

The information on which this case was tried charged appellant with murder in conventional form. The instructions submitted the case to the jury both on murder first degree in conventional form and also on felony-murder in the second degree based upon commission of a homicide during the course of an attempt to escape. Appellant specifically requested a manslaughter instruction, which the trial court refused to give. The jury returned a verdict of not guilty of murder in the first degree; but did find appellant guilty of murder in the second degree, with the jury being unable to agree upon a sentence. Sentence was thereafter imposed by the court.

Appellant raises six points on appeal in essence as follows: (1) that the information failed to allege an offense under § 559.020, RSMo 1969; (2) that the trial court improperly restricted voir dire examination of the jury; (3) that the evidence did not warrant a submission of murder in the first degree; (4) that an instruction on manslaughter should have been submitted; (5) that appellant's statements should have been excluded as involuntary; and (6) that his statements should have been excluded for the reason that he did not understandingly and knowingly waive his constitutional rights.

The facts of this case, as they appear in the principal opinion written in the Kansas City District of the Court of Appeals (Wasserstrom, J.), are set forth above without quotation marks. Those portions of this opinion which deal with Appellant's Points (1), (2), (3), (5) and (6) were also written by Judge Wasserstrom and are adopted here, with minor changes, without quotation marks.

I. Sufficiency of the Facts to Constitute Felony-Murder

Appellant argues that in order for an accused to be convicted of felony-murder under § 559.020, RSMo 1969, 'the underlying felony should as a matter of logic be a felony at common law. . . .' Although appellant has cited no authority for that proposition, his concept has been adopted in some other jurisdictions. LaFave and Scott, Criminal Law, Section 71, p. 547.

However, this concept has been rejected in Missouri. In State v. Robinett, 279 S.W. 696 (Mo.1926), this court held that if a homicide is committed in the course of committing any of the felonies enumerated in what is now § 559.010, RSMo 1969, that becomes murder in the first degree; while if the intention is to commit any other felony, then the act becomes murder in the second degree under what is now § 559.020. Furthermore, this court quoted with approval from Wharton on Homicide which states that a felony-murder may be based upon an underlying act which has been made into a felony by statute although not such at common law.

The common-law felony-murder rule as developed in Robinett has been applied since to cases involving acts which were not felonies at common law. In State v. Shuler, 486 S.W.2d 505 (Mo.1972), the court applied the felony-murder doctrine to a homicide occurring during the felonious discharge of a firearm into a motor vehicle. The court in Shuler expressly rejected a contention there made 'that the crime of shooting into a motor vehicle is not statutorily defined as a felony and was not a felony at common law, and therefore the felony-murder doctrine was improperly applied.' In rejecting that contention the court held that shooting into a motor vehicle is a felony in violation of § 562.070, RSMo 1969; and that since it is neither a felony listed in § 559.010, nor manslaughter, it must be considered murder in the second degree under § 559.020.

II. Fairness of the Voir Dire Examination

During the early stages of the voir dire examination of the jury, appellant's counsel addressed the following question to the court: 'We have general questions and then individual questions after the general questions?' To this the court responded; 'That's normally the way we do it.' Immediately prior thereto the court had asked general questions of the jury panel and whenever a venireman responded to one of those general questions, the court pursed the matter with additional specific questions. The prosecuting attorney proceeded to follow essentially the same procedure. When defense counsel undertook his questioning of the panel, he adopted the same pattern.

When this procedure had been completed, and the discussion between the court and counsel turned to the matter of challenges, defense counsel discovered that the court and prosecuting attorney considered the voir dire examination completed. Defense counsel protested, stating that in his home county the customary procedure was to have general questioning of the jurymen as a whole, just as had just been completed in this case, but then to permit counsel to interrogate each venireman individually. Appellant's counsel stated that he had...