State v. O'Neal

• Decision Date: 12 March 2013
• Docket Number: No. WD 74687.,WD 74687.
• Citation: 392 S.W.3d 556
• Parties: STATE of Missouri, Respondent, v. Charles Michael O'NEAL, Appellant.
• Court: Missouri Court of Appeals

392 S.W.3d 556

STATE of Missouri, Respondent,
v.
Charles Michael O'NEAL, Appellant.

No. WD 74687.

Missouri Court of Appeals,
Western District.

March 12, 2013.

[392 S.W.3d 559]

Jessica P. Meredith, Jefferson City, MO, for appellant.

Margaret M. Johnston, Columbia, MO, for respondent.

Before Division One: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

Following a bench trial, Charles O'Neal was found guilty in the Circuit Court of Randolph County of first-degree murder, first-degree assault, and two counts of armed criminal action. The charges arose out of the shooting death of Dawn Kelly in Howard County on February 10, 2007. O'Neal appeals, arguing that statements he made during his third interrogation should not have been admitted into evidence, because he had invoked his right to remain silent before the interrogation began. We affirm.

Factual Background ¹

In February 2007, O'Neal was involved in an on-again, off-again relationship with Amanda Kelly. Amanda ² was 17 years old, and was staying in the same house in Howard County with her mother (Dawn Kelly); her mother's fiancé (Jared Forbes); her sister (Brooke Kelly); O'Neal's sister (Kelly O'Neal); and Kelly O'Neal's boyfriend (Tyrone Jackson).

Amanda had a child with Jeremy Barney. Amanda's ongoing contact with Barney was a source of contention between Amanda and O'Neal. At one point Amanda had broken up with O'Neal and resumed her relationship with Barney, before reconciling with O'Neal. In February of 2007, the relationship between O'Neal and Amanda had deteriorated to the point that Amanda decided she needed to end it. O'Neal had been told he was no longer welcome to stay at Dawn's residence, and Amanda had written him several letters explaining why she no longer wished to see him. She placed the letters with clothing O'Neal had left at Dawn's house. Amanda expected that, when O'Neal returned to retrieve his clothing, he would find the letters.

On the evening of February 9, 2007, Amanda went out with friends. O'Neal appeared at Dawn's house to speak with his sister and to retrieve his clothing. After picking up his clothes and Amanda's letters, O'Neal went to a friend's house and met Milo Carlson. O'Neal informed Carlson that Amanda had broken up with him; the two then left the friend's house, and “just went out driving around on gravel roads drinking beer and stuff.” At

[392 S.W.3d 560]

some point, O'Neal suggested that they “go shoot some beer cans out on a gravel road.” Carlson retrieved a .22–caliber bolt-action rifle and ammunition from his house. The pair proceeded to a gravel road to shoot the rifle. O'Neal fired the gun once or twice, but then became distraught and began talking about Amanda. O'Neal complained that he had been mistreated by both Amanda and her mother Dawn. O'Neal ended the target shooting abruptly, stating “[w]e have to go now.” O'Neal got into his truck, and Carlson followed. When both men were in the truck, O'Neal said “I want to go kill Dawn.” O'Neal began driving to Dawn's house.

O'Neal and Carlson arrived at Dawn's residence in the early morning hours of February 10, 2007. O'Neal exited but told Carlson to wait in the truck. Four people were at the house: Dawn, Forbes, Brooke, and Kelly. Forbes was sleeping in the bedroom he shared with Dawn; Dawn and Kelly were in the living room. Brooke was in her bedroom listening to music on headphones. O'Neal entered the home. From her bedroom, Brooke heard Kelly exclaim, “Bubba, don't shoot me. Don't shoot me.” (“Bubba” was O'Neal's nickname.) Brooke then heard a gunshot and went to her bedroom door. Kelly ran past her in the hallway and jumped out a window. Brooke went to the living room and saw her mother, Dawn, sitting on the couch. Dawn appeared to be sleeping. Brooke attempted to wake her. After slapping Dawn's cheeks and calling her name, Brooke realized that she had blood on her hands, and that Dawn had been shot.

While Brooke was in the living room with Dawn, O'Neal proceeded to Dawn's bedroom and woke Forbes. O'Neal pointed the rifle at Forbes and told him that “I'm going to kill you like I did your wife.” O'Neal ordered Forbes out of the bedroom, and told Forbes to get on his knees. Forbes complied. O'Neal pointed the rifle at Forbes' head.

Brooke saw O'Neal in the doorway of her mother's bedroom with a rifle, and exclaimed “Bubba, you shot my mom.” When O'Neal turned toward Brooke, Forbes grabbed the barrel of the gun and pulled it so that the rifle was no longer pointed at him. O'Neal and Forbes began to struggle, and Forbes yelled for Brooke to call 911. Forbes struck O'Neal in the groin and O'Neal let go of the gun and stood up. O'Neal then left the house, threatening to return with another gun. Forbes barricaded the front door and then checked on Dawn. She had been shot in the eye and was dead. Forbes picked up the rifle and stood against the door in case O'Neal returned with another weapon.

O'Neal returned to his truck. He told Carlson that Forbes had tackled him while he had the rifle pointed at Dawn, and that the gun had gone off accidentally. The two proceeded to O'Neal's parent's house, where O'Neal repeated his account of an accidental shooting. O'Neal remained there until the police arrested him at approximately 2:00 a.m. on the morning of February 10. After being given the Miranda³ warnings, O'Neal told the arresting officer that “[h]e was tired of being fucked with and this time he fucked back.” O'Neal was taken to the Howard County Jail.

Sergeant David Rice of the State Highway Patrol interrogated O'Neal at the jail on three separate occasions on February 10: at approximately 4:00 a.m., 8:00 a.m., and 1:00 p.m. At the beginning of each interview O'Neal was informed of his Miranda rights, and in each of the three

[392 S.W.3d 561]

interviews he signed a Notification of Rights form provided by Sergeant Rice. In the first and second interviews O'Neal repeated the account he had given to Carlson and his parents: that Forbes had unexpectedly tackled him from behind as O'Neal had the rifle pointed at Dawn, and that the gun had accidentally discharged. O'Neal's story changed in the third interrogation, however. In the third interview, O'Neal claimed that, while he held Dawn at gunpoint, she had refused to get Amanda on the telephone or tell O'Neal where Amanda was. O'Neal claimed that he started getting “really mad,” and then “just kind of lost it.” At that point, O'Neal stated that the gun went off. Forbes confronted O'Neal after the shooting. When asked if he pointed the gun at Forbes or threatened to shoot him, O'Neal responded that “it's possible.” O'Neal stated that he had no intention of shooting Amanda or Dawn when he drove to Dawn's house; instead, his intention was to shoot Barney, the father of Amanda's child, and then kill himself.

O'Neal filed a pre-trial motion to suppress any statements made during the third interrogation. O'Neal's suppression motion was denied following an evidentiary hearing.

The case was tried to the court.⁴ O'Neal's statements during all three interviews were admitted into evidence at trial. Following trial, the court found O'Neal guilty of murder in the first degree, assault in the first degree, and two counts of armed criminal action. He was sentenced to life imprisonment without eligibility for probation or parole for murder, and fifteen years' imprisonment for the assault conviction, to be served consecutively to the sentence for murder. O'Neal was also sentenced to twenty years' imprisonment for each of the two counts of armed criminal action, to be served concurrently with the murder and assault sentences. O'Neal appeals.

Standard of Review

The State argues that we should review O'Neal's arguments only for plain error, because O'Neal failed to object to the admission of his pre-trial statements when they were offered at trial. We conclude, to the contrary, that O'Neal properly preserved his objections.

At the pre-trial suppression hearing, the State presented testimony from Sergeant Rice, and the audio recordings and transcripts of all three interviews were admitted into evidence. Sergeant Rice did not testify at trial. Instead, the parties agreed that the testimony and exhibits admitted during the suppression hearing would be treated as trial evidence. When the State offered the record of the suppression hearing into evidence, O'Neal's counsel stated: “[j]ust for the record we have no objection to stipulating to any of the evidence that was admitted and the testimony that the Court heard at the suppression hearing.” After the prosecuting attorney listed the exhibits from the suppression hearing which were subject to the stipulation (which included the recordings and transcripts of O'Neal's interrogations), O'Neal's counsel repeated that “we have no objection.”

The filing of a motion to suppress is insufficient to preserve an issue for appellate review; instead, a defendant

[392 S.W.3d 562]

must object when the challenged evidence is offered at trial:

[w]hen a pretrial motion to suppress evidence is denied, the defendant must renew the objection or make a specific objection at trial when the evidence is presented to preserve the issue [for] appellate review. The trial court must be given the opportunity to reconsider its prior ruling against the backdrop of the evidence adduced at trial. Furthermore, the stating of “no objection” when the evidence is introduced at trial constitutes an affirmative waiver of appellate review of the issue, and, thus, the matter will not be considered under the plain error rule. As opposed to a simple failure to object, which may warrant plain error review, a statement by defendant's counsel that there is no objection to ... a particular piece of evidence precludes a finding that the failure to object was negligent or inadvertent and renders that evidence admissible.

State v. Morrow, 996 S.W.2d 679, 681–82 (Mo.App. W.D.1999) (citations and internal quotation...