State v. Parker

• Decision Date: 25 October 1994
• Docket Number: No. 74794,74794
• Citation: 886 S.W.2d 908
• Parties: STATE of Missouri, Respondent, v. Jahn Henri PARKER, Appellant.
• Court: Missouri Supreme Court

Page 908

886 S.W.2d 908

STATE of Missouri, Respondent, v. Jahn Henri PARKER, Appellant.

No. 74794.

Supreme Court of Missouri,

En Banc.

Oct. 25, 1994.

As Modified on Denial of Rehearing Nov. 22, 1994.

Melinda K. Pendergraph, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

BENTON, Judge.

A jury convicted Jahn Henri Parker of first degree murder. The trial court sentenced him to death. Parker filed a motion for post-conviction relief under Rule 29.15. On appeal, Parker raises 32 points of error. This Court has jurisdiction. Mo. Const. art. V, § 3. Affirmed.

I.

This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, --- U.S. ----, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).

On March 27, 1990, Parker--then on probation--assaulted Elizabeth Loesch. A hearing to consider revoking his probation due to the assault was scheduled for August 16, 1990. A few hours before that hearing, in the middle of the night, Parker had a friend drop him off at Loesch's house. Parker had been drinking. He had a small caliber gun. Parker told his friend, "I'm going to kill the bitch." At 7:00 a.m., police found Loesch's body. She had been shot four times with a .22 caliber gun.

That same morning, Parker told his girlfriend Lisa Anglo that he tried to shoot Loesch, but did not know if he succeeded. That afternoon, police found the gun that fired the fatal shots in Parker's boots in Anglo's garage. The next day, Parker told the police his prints were on the gun. When police asked whose fault the murder was, he said, "Well, I guess mine, part of it."

II. Disclosure and Suppression Issues

A. Police Personnel Records

Parker first argues that the trial court erred by limiting its review of personnel records of police officer witnesses. The trial court reviewed Officer White's file from March 27, 1990, to August 16, 1990, but declined to examine the rest of his file and denied any production of other officers' files.

Parker asserts that the trial court violated his rights to confrontation, compulsory process, due process, and freedom from cruel and unusual punishment. The compulsory process claim falls under the due process clause, and Parker cites no cruel and unusual punishment clause authority, so only the confrontation and due process claims need be addressed. See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1000-01, 94 L.Ed.2d 40 (1987).

The accused has the right "to be confronted with the witnesses against him." U.S. Const. amend. 6; see also Mo. Const. art. I, § 18(a); State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). The right to confront is satisfied if defense counsel receives wide latitude at trial to cross-examine witnesses; it does not include a right to pretrial disclosure of any and all information that might assist cross-examination. Ritchie, 480 U.S. at 53, 107 S.Ct. at 999. Parker's claim is only for pretrial disclosure of potentially helpful information; he does not assert that the trial court limited cross-examination. Thus, there was no confrontation clause violation.

Parker's due process claim invokes Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government must turn over evidence in its possession that is favorable to the accused and material to guilt or punishment. Id. at 87, 83 S.Ct. at 1197. The defendant is not entitled to information on the mere possibility that it might be helpful, but must make "some plausible showing" how the information would have been material and favorable. Ritchie, 480 U.S. at 58 n. 15, 107 S.Ct. at 1002 n. 15, quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).

Here, Parker has made no showing about the materiality or exculpatory nature of the files of officers, other than White. Of course, a personnel file might include helpful information. This mere possibility--unsupported by any facts--is insufficient under Ritchie to justify production of personnel files of officers other than White.

As to White, Parker grounds materiality in two statements Loesch made to her roommate Julie Niemeyer: (1) Loesch thought Officer White had been disciplined for failing properly to report Loesch's several complaints about Parker, and (2) Loesch had, in May or June 1990, read aloud a newspaper article stating that White was on probation. Given these assertions, the motion court subpoenaed White's personnel records from March 27, 1990 (when Parker assaulted Loesch) to August 16, 1990 (when Loesch was murdered) and reviewed them in chambers.

Parker claims this time window was too narrow. Mainly, he argues that White might have been disciplined for summarizing (after the fact) Loesch's several complaints in a September 5 memo, so the review period should have gone beyond September 5.

Parker's argument fails because it expands the inspection period well beyond his materiality showing. Both of Loesch's statements to Niemeyer asserted that White was already on probation; the motion court made an appropriate inspection, and found, "there have been no disciplinary actions taken against Officer White." This Court's review of the file inspected by the motion court reveals no disciplinary actions. Parker has presented only a theory--but no facts--that White might have been disciplined after Loesch's death. Parker had full opportunity to obtain facts to support his theory when White testified at trial.

The motion court inspected all records within the scope of Parker's materiality showing, with a reasonable margin of time before and after. Ritchie requires no more than that. Point denied.

B. Good-bye Letter

Parker next argues that the trial court erred in not granting a mistrial after Lisa Anglo testified that, on the night of the murder, Parker dictated a good-bye letter to Loesch's father saying he should have raised his daughter better. Parker alleges that the State had the letter before trial and violated Rule 25.03 and constitutional rights by not disclosing it.

When Anglo testified about the letter, Parker's counsel objected on two grounds: hearsay and evidence of uncharged crimes. The hearsay objection was immediately overruled. At a sidebar, the prosecutor told the trial court and Parker's counsel that Anglo would testify that the letter said, "You didn't do a very good job of raising your daughter." Parker's counsel responded, "On that representation, I withdraw the objection." The next day, however, Parker moved for mistrial, due to the letter. Thus, review is for plain error. Rule 30.20. To prevail on plain error review, Parker must show that the trial court's error so substantially violated his rights that manifest injustice or a miscarriage of justice results if the error is not corrected. State v. Hornbuckle, 769 S.W.2d 89, 92-93 (Mo. banc), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989).

The record reveals that the prosecutor did not know about the letter before Anglo testified. When Parker moved for mistrial, the trial court asked the prosecutor if he knew of the letter (before trial). He said he did not. Thus, there was no failure to disclose the letter before trial. Assuming Parker's counsel was surprised at trial and needed time to respond to unexpected testimony, the proper remedy was continuance, not mistrial. State v. Biel, 169 S.W.2d 375, 376 (Mo.1943); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989). The trial court committed no plain error in denying a mistrial.

C. Suppression of Parker's Statements

Parker next argues that the motion court violated his Fifth and Sixth Amendment rights to counsel by failing to suppress statements he made to police.

About two hours after Loesch's body was found, Parker appeared with counsel at the probation revocation hearing concerning the previous assault on Loesch. His probation was revoked; he began serving a 90-day sentence.

The next day, two officers took him from the jail to an interview room. Parker received Miranda rights. He said he understood the rights and wanted to talk to the officers, but refused to sign the waiver form. After making incriminating statements, Parker said he "ought to talk to an attorney." The officers left the room; Parker was alone. Within five minutes, Parker opened the door, walked out, and said he wanted to speak to one of the officers, by name. That officer re-entered the room and repeated the Miranda warnings. Parker again said he understood his rights and wanted to talk. After making more statements, he undisputedly asked for an attorney. The officers ended the interview.

Parker first argues that his Sixth Amendment right to counsel was violated because his lawyer in the probation revocation hearing and underlying assault was not notified before questioning about the murder began.

The Sixth Amendment right to counsel attaches when an adversary judicial proceeding is commenced by, for example, a charge, preliminary hearing, indictment or information. Davis v. United States, 512 U.S. 452, ----, 114 S.Ct. 2350, 2354, 129 L.Ed.2d 362 (1994); State v. Beck, 687 S.W.2d 155, 160 (Mo. banc 1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). Once the right has been invoked, subsequent waiver during a police-initiated custodial interview is invalid. Michigan v. Jackson, 475 U.S. 625, 635, 106 S.Ct. 1404, 1410-11, 89 L.Ed.2d 631 (1986). This Sixth Amendment right is offense-specific; it cannot be invoked for future prosecutions. McNeil v. Wisconsin, 501 U.S. 171, 174-76, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991).

Here, Parker's Sixth Amendment right to counsel for the murder of Loesch had not attached because formal proceedings had not begun. Any right to counsel in the probation revocation proceeding or underlying assault did not transfer to this case. See McNeil, ...