State v. Payne

• Decision Date: 09 February 2004
• Docket Number: No. 25498.,25498.
• Citation: 126 S.W.3d 431
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jeremy PAYNE, Defendant-Appellant.
• Court: Missouri Court of Appeals

126 S.W.3d 431

STATE of Missouri, Plaintiff-Respondent, v. Jeremy PAYNE, Defendant-Appellant.

No. 25498.

Missouri Court of Appeals, Southern District, Division One.

February 9, 2004.

Irene Karns, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for Respondent.

JAMES K. PREWITT, Judge.

Following jury trial, Jeremy Payne ("Defendant") was convicted of murder in the first degree, in violation of § 565.020, RSMo 1994, and sentenced to life imprisonment without eligibility for probation or parole. With four points relied on, Defendant contends that the trial court erred in denying a motion to suppress Defendant's videotaped statement, abused its discretion in refusing to admit a written statement of a witness and limiting the cross-examination of that same witness, and plainly erred in permitting the State to urge jurors during closing argument to try to imagine how the victim must have felt while being killed.

Facts

Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. Diane Coleman ("Diane") suffered from schizophrenia and lived at the Westwood Care Center ("Westwood") in Crawford County, Missouri, so that she could receive close supervision regarding her medication. Although Diane was allowed the freedom to come and go from Westwood, she would return throughout the day to take her medication and was often back at Westwood by the evening meal. She was allowed to stay out overnight, but she rarely did so.¹

Diane spent time with Richard Payne, Defendant's father. They were "sexually involved." Diane had visited Richard at his or his mother's home, and the two had also gone out to eat together on occasion, after which Richard would return Diane to Westwood. Richard and his children, including Defendant, had also visited Diane at Westwood, and the group had gone swimming in the center's pool.

Diane's mother, Peggy Coleman, spoke to Diane every day by telephone and last spoke with her at approximately 10:30 a.m. on November 11, 1997. Peggy tried to call Diane at Westwood later that day and into the evening, but could not reach her. Diane was last seen at Westwood sometime between 8:00 and 8:30 a.m. on November 11th.

Sometime after 11:30 p.m. on November 11, 1997, eleven year old Kenneth Paul Busse, Jr. ("Kenny"), who lived at the home of his grandmother, was visited by his sister Amanda, who is also known as Mandy. She encouraged Kenny to go out with her and a group of friends to celebrate his twelfth birthday, which she was going to miss and which was ten days away.

Kenny went with the group that, in addition to Amanda, included Amanda's husband Larry DeClue, Defendant, Angela Cody, and Melissa O'Brien. The group was in a van owned by Kenny's father, and Larry was driving. At some point, Amanda gave Kenny a strip of the drug LSD; he put it in his mouth for only a couple of seconds.

Kenny fell asleep and when he awoke, he was alone in the van. He exited the van and saw the others standing in a circle around Diane, who was lying on the ground. As Kenny asked his sister what was happening, Larry went to the van and returned with a souvenir baseball bat and a pipe cutter. Larry then informed the group "that everybody was going to hit [Diane] so that nobody could say nothing to nobody."

Larry was the first to strike Diane, and then others in the group, including Defendant, hit her as well. Diane tried to protect herself from the blows and whenever she attempted to say something, it sounded gargled. Kenny was told to hit Diane, but he ran back to the van.

Once in the van, Kenny saw Larry and Defendant throw Diane's body over a bridge. Diane's foot became stuck in a branch and as Larry was trying to untangle it, a car pulled up and an occupant asked if she could help with anything. Defendant pretended to vomit and Amanda told the person in the car that Defendant had drank too much and was ill. The group then came back to the van and Larry told Kenny that if Kenny "said anything, [Larry'd] take care of it."

The next day, Larry and Defendant picked up Kenny at Kenny's grandmother's home and the three went back to the bridge, retrieved Diane's body, and placed the body, covered by a tarp, in the back of Larry's truck. Once they arrived at Larry's cabin, Larry told Kenny to wait there, and Larry and Defendant left in the truck and went into the woods. Larry returned an hour or so later. Defendant was not with him, but one of Kenny's uncles did return with Larry. Larry asked Kenny to get a bucket and some water, and, while Kenny stayed in the cabin, Larry and Kenny's uncle "scrubb[ed] the truck down" and "burn[ed] the liner." After they finished cleaning the truck, they took Kenny back to his grandmother's house.

Diane's body was discovered on November 15, 1997, in an area of the Meramec River called the "fish trap." Based on the condition of the body, it was determined that Diane had been dead at least twentyfour hours. She had received multiple blows from a blunt object or objects, and the injuries from the blows, which included a laceration at the base of the brain stem that separated the brain from the spinal cord, caused her death. Diane also had numerous injuries consistent with self defense-type wounds, which indicated she was attempting to protect herself. Diane's death was ruled a homicide.

Sometime after the murder, Defendant had a conversation with Candace Barton in which he told her that "they were tripping on acid, and they thought [Diane] was a mailbox .... [a]nd they hit her." Defendant also told Candace that "they took [Diane] to the river and beat her to death."

On November 21, 1997, Darren Dake and Mike Greeley, detectives with the Crawford County Sheriff's department, contacted Defendant, who voluntarily accompanied them to the police station. Defendant was informed that the detectives were interested in talking to him regarding his knowledge of the case involving Diane's death. Defendant was not placed under arrest, but was read his Miranda rights by Detective Greeley after being placed into a vehicle for the trip to the station.²

Once at the station, Defendant was again advised of his Miranda rights prior to questioning by the detectives. Defendant initially denied any knowledge of Diane's murder, but later gave details that led the detectives "to believe that [Defendant] was directly involved." The detectives determined that a more extensive, and recorded, interview was necessary, so they proceeded to videotape their interview with Defendant.

At the beginning of the videotaped interview, Defendant was advised again of his Miranda rights and he indicated that he understood the rights. Defendant is seen signing a form waiving his rights. Within the videotaped interview, Defendant provided details and information that the police had not yet discovered, but that were found to be true after further investigation.

Defendant was charged with one count of murder in the second degree, in violation of § 565.021, RSMo 1994, and one count of armed criminal action, in violation of § 571.015, RSMo 1994, after which the venue was changed from Crawford County to Phelps County. On July 20, 1999, following a hearing on the matter, Defendant's motion to suppress his statements was sustained based on the court's finding that Defendant's mental capacity was below normal and that the detectives failed to make efforts

to assure the reviewing judge 1) that the information given to [Defendant] concerning his constitutional rights adequately advised him as to the existence and nature of those rights, and the consequences of asserting or waiving such rights, and 2) thereafter, [Defendant] demonstrates a clear understanding of those rights and consequences.

The State dismissed the charges on July 26.1999.

On August 8, 2000, Defendant was charged with murder in the first degree, in violation of § 565.020, RSMo 1994. In October 2000, the venue was changed from Crawford County to Pulaski County. A hearing was held on Defendant's motion to suppress his statements on September 24, 2002. The judge hearing the motion, who was not the same judge that heard a similar motion in the first set of proceedings, denied the motion on October 29, 2002. In its order, the court first noted that it was not bound by the decision in the first case and then found that Defendant was advised of his Miranda rights on multiple occasions, "appeared to be reading along as the rights were explained, and signed the waiver form." The judge further stated that Defendant "indicated his understanding of his rights on the [video]tape."

According to the judge's order, although two psychologists testified at the motion hearing that, based on the tests they administered to Defendant, "they would not have expected Defendant to understand," the tape showed that Defendant did understand and the expert witnesses were unable to "point[ ] to any area of the tape which indicated [Defendant's] lack of understanding." Under the totality of the circumstances, the judge determined that Defendant's waiver of his Miranda rights "was knowing, intelligent and voluntary, and no coercion or other undue influence was used in obtaining the statement." The case proceeded to trial and the jury found Defendant guilty of murder in the first degree. He was sentenced to life imprisonment without the possibility of probation or parole. This appeal followed.

Discussion

Defendant raises four points on appeal. Additional facts necessary to the disposition of the case are included below as we address each of Defendant's points.

Point I: Denial of Motion to Suppress and Admission of Defendant's Videotaped Statement

In his first point, Defendant argues that the trial court erred in denying his motion to suppress and in admitting his videotaped statement and testimony related to it. According to Defenda...