State v. Perkins, 52599

• Decision Date: 10 May 1988
• Docket Number: No. 52599,52599
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kurt Alan PERKINS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 567

753 S.W.2d 567

STATE of Missouri, Plaintiff-Respondent, v. Kurt Alan PERKINS, Defendant-Appellant.

No. 52599.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 10, 1988.

S. Lee Patton, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

Kurt Alan Perkins appeals from a jury conviction of first degree murder, § 565.020 RSMo 1986; armed criminal action, § 571.015 RSMo 1986; and stealing, § 570.030 RSMo 1986. He was sentenced for these offenses, respectively, to life imprisonment without possibility of parole, life imprisonment, and seven years imprisonment.

The state's evidence showed that on June 9, 1985, the body of the victim, Harold Messler, 75, was found brutally beaten in his home located in St. Charles, Missouri. Mr. Messler died of "multiple blunt force injuries." The autopsy report showed that Mr. Messler's death was caused by a fracture to the skull, bruises and lacerations to the face, multiple wounds to the front of the neck severing the trachea and windpipe; fractures of several ribs; and a sharp cutting wound to the abdominal area. His throat had been cut and the tip of his left index finger was missing. Mr. Messler had also suffered bruises and lacerations to the back of his hands and arms which the pathologist described as defensive wounds, incurred when he used his hands and arms to deflect blows. The pathologist further testified that when he examined the victim's face, he found an impression in the skin which resulted from one of the impact wounds. The impression reflected the pattern of the object with which he was struck. The imprint on the victim's face resembled a diamond pattern on the sole of a cleated shoe. A piece of bloodcovered mud was found at the scene of the crime beneath the body of the victim. This evidence was turned over to the crime lab for analysis. The analysis showed that the piece of mud came from a size 4 or 5 vibram sole hiking boot. Appellant owned a pair of red-stringed hiking boots which had a waffle sole that left an imprint similar to that found on the face of the victim. Mr. Messler owned a handgun which was missing following his murder.

On June 10, 1985, two days following the murder, appellant confessed to his brother that he and Bryan McBenge had been harassing Mr. Messler. Karl Perkins, appellant's brother, testified to the facts surrounding the murder. He testified that Bryan and the appellant started beating Mr. Messler with a club. When Mr. Messler fought back, they stabbed him. The two continued to beat Mr. Messler while he begged, "let me live." Appellant began to get worried and told McBenge "let's go." At that point Bryan McBenge said, "Hold up a minute" and cut Mr. Messler's throat.

On June 11, 1985, appellant's brother found a handgun in a K-Mart bag in the door of the freezer. The gun was later identified as belonging to Mr. Messler.

Appellant asked his brother to get rid of a pair of red-stringed hiking boots and a knife.

Appellant also talked about the murder to Terry Lynn Merk, a fellow inmate. Appellant was bragging that he and Bryan McBenge had murdered an old man. Appellant also told Merk that he had taken some money and a gun out of the house, and that he had placed the gun in a freezer.

We reverse and remand for a new trial because of the admission in evidence of a taped conversation between appellant and his brother. Appellant's other assignments of error include: (1) the trial court's failure to grant a mistrial after state's witness Terry Lynn Merk referred to "another murder" during his direct testimony; and (2) the trial court's refusal to allow appellant to recall a witness, the victim's daughter, and in disallowing the testimony of a criminologist. We will address the remaining two points in the event that these matters will recur on retrial.

The appellant contends that the trial court erred by admitting into evidence the tape recorded conversation and alleges three errors, which we paraphrase:

1. Appellant's Fifth Amendment rights were violated because:

a. appellant's brother was an agent of the police when he telephoned appellant; and

b. the taped conversation between appellant and his brother constituted a custodial interrogation;

2. Appellant's Sixth Amendment rights were violated because appellant's brother acted on behalf of the police department to elicit incriminating responses although the police were aware that appellant was represented by an attorney and that he did not intend to make a statement.

3. The trial court erred in admitting the taped conversation between appellant and his brother because the prejudicial impact upon the appellant was far greater than any probative value to the state.

We need not reach appellant's Sixth Amendment claim because we hold that use of the tape recorded conversation as substantive evidence against him is barred by the exclusionary rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On August 19, 1985, appellant was incarcerated for burglary and stealing charges. The record reveals that on August 19, four days prior to the August 23rd telephone conversation, St. Charles City Police Detective Mark Erhardt interviewed appellant concerning the murder of Harold Messler. It cannot be clearly ascertained from the record whether the appellant was advised of his Miranda rights before the interview. However, it is clear that appellant indicated to Detective Erhardt that he was represented by a public defender and that he would not make any statements unless his attorney was present or his attorney authorized him to make statements. At this point, Detective Erhardt terminated the interview. Appellant informed the police to contact his attorney. Appellant's attorney told the police his client would not make any statements.

Also on August 19, 1985, Detective Erhardt picked up and questioned appellant's brother, Karl Perkins, for four or five hours at the police station regarding a burglary and a leaving the scene of an accident. The record reveals that those two charges were subsequently dropped.

Sometime after the murder, Karl found out that there was a $10,000 reward for information leading to the arrest and conviction of anyone in connection with Harold Messler's death. During a conversation with St. Charles police on August 22, 1985, Karl implicated his brother in the murder of Harold Messler. Karl told police that he did not wish to testify against his brother at trial. He then suggested that he call his brother and discuss the murder over the telephone. The police made arrangements to record the telephone conversation, and Karl Perkins called his brother on August 23, 1985, from police headquarters. In December of 1985, the St. Charles Police Department paid Karl in return for his telephone conversation with his brother in August, 1985.

Assuming the state is correct in its contention that the telephone conversation contained probative value, we must determine if appellant's Fifth Amendment rights were violated by the manner in which the statement was taken. Resolution of this issue involves the question of whether Karl Perkins acted as an agent of the state when he questioned appellant about the murder. Karl, upon agreeing to foster police efforts to inculpate appellant, became an agent of the police. The record indicates that Detective Harvey spoke with Karl Perkins on three occassions in August, 1985. In response to the police offer of money, Karl, functioning as a conduit, agreed to call his brother to discuss the murder over the telephone. Sometime after making the taped conversation, he was subsequently paid by the police in accordance with their agreement. The police expected that a conversation between appellant and his brother was reasonably likely to elicit an incriminating response from appellant. Because he acted as a police instrumentality, and was paid to elicit incriminating information from appellant, we find that Karl Perkins was, in fact, an agent of the police.

We must next determine whether appellant was "in custody" for purposes of Miranda when he made the allegedly incriminating statements to his brother. In Mathis v. United States 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), the court found the Miranda principle applicable to questioning which takes place in a prison setting during a suspect's term of imprisonment on a separate offense. 88 S.Ct. at 1505.

In Mathis, the defendant's conviction rested partially on incriminating statements and documents obtained from him during a tax investigation conducted while defendant was in a Florida state prison serving a state sentence. The Internal Revenue agents had failed to give the Miranda warnings. In reversing Mathis' conviction of knowingly filing false claims for tax refunds against the government, the Supreme Court rejected the government's argument that Miranda was inapplicable on the grounds that (1) the questions asked were part of a routine tax investigation and (2) defendant had not been put in jail by the agents questioning him, but was there for an entirely separate offense.

In disposing of these contentions the Supreme Court stated:

These differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody. 390 U.S. at 5, 88 S.Ct. at 1505. (emphasis added).

It is clear from the following language that the in-custody status of Mathis was the controlling factor of the Court's opinion We reject the contention that tax investigations are immune from the Miranda requirements for warnings to be given a person in custody.

The Government also seeks to narrow the scope of the Miranda holding by making it applicable only to questioning one who is 'in custody' in connection with the very case under investigation. There is no...