State v. Pierce, 68792

• Decision Date: 17 September 1996
• Docket Number: No. 68792,68792
• Citation: 932 S.W.2d 425
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ralph C. PIERCE, Sr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 425

932 S.W.2d 425

STATE of Missouri, Plaintiff-Respondent, v. Ralph C. PIERCE, Sr., Defendant-Appellant.

No. 68792.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 17, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 29, 1996.

Daniel & Fleming, L.C., Eugene O. Howard, Lawrence J. Fleming, St. Louis, for appellant.

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

HOFF, Judge.

Ralph C. Pierce, Sr. (defendant) appeals the judgment entered upon his conviction of involuntary manslaughter, § 565.024 RSMo 1986, and six year sentence imposed following a jury trial. We affirm.

On July 9, 1994, an altercation arose involving defendant, his next door neighbor (neighbor), and his neighbor's friend who formerly lived with neighbor next door to defendant for three years (victim). It is undisputed that defendant struck victim with his pickup truck and victim died as a result of the injuries he sustained. Defendant was charged with and tried for voluntary manslaughter, § 565.023.1(1) RSMo 1986.

In his first point on appeal, defendant asserts the trial court erred in denying his motion for judgment of acquittal because the evidence presented was insufficient as a matter of law to sustain a conviction of involuntary manslaughter. Defendant contends there was no evidence of "recklessness," a required element of involuntary manslaughter under § 565.024.1 RSMo 1986.

When reviewing the sufficiency of the evidence, this Court accepts as true all evidence and inferences favorable to the state and disregards all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). We do not weigh the evidence or determine the reliability or credibility of witnesses. State v. Jennings, 887 S.W.2d 752, 753 (Mo.App.1994). We review the evidence to determine whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Dulany, 781 S.W.2d at 55.

Section 565.024 RSMo 1986 provides, in relevant part:

1. A person commits the crime of involuntary manslaughter if he:

(1) Recklessly causes the death of another person; ...

A person "acts recklessly" or "is reckless" when the person acts in such a manner that there is a substantial and unjustifiable risk that the person will cause the death of another, and such person's conscious disregard of that risk constitutes a gross deviation from what a reasonable person would do under the circumstances. State v. Skinner, 734 S.W.2d 877, 882 (Mo.App.1987); § 562.016.4 RSMo 1986.

At trial, defendant testified that he became very angry after he had been awakened from a nap by prank phone calls. Defendant testified that after being awakened, he looked out the front door and saw neighbor and victim sitting on neighbor's driveway looking towards defendant's house. Defendant testified that neighbor, who was in a wheelchair, had a cordless telephone with him. Defendant also testified that neighbor always carried a cordless telephone with him when he was outside. Defendant speculated the phone calls were made by neighbor. Defendant further testified he saw victim's vehicle parked in front of his property, so he approached the two men to request that the vehicle be moved. After a heated confrontation, defendant admitted he went back to his house, got into his pickup truck, drove down his driveway, and began to push victim's vehicle from in front of his house with his truck. Defendant admitted he pushed victim's vehicle several times, backing up in between attempts.

Viewed in the light most favorable to the verdict, the evidence indicates that victim walked to his vehicle to inspect the damage inflicted by defendant. As victim bent down to look at the damage on the front grill of his vehicle, defendant struck him with his truck forcing victim onto the hood of the truck. As defendant backed up his truck, victim fell off the hood onto the street. Defendant then swung the truck around the corner of victim's vehicle and ran over victim. Victim died of the injuries he sustained.

Defendant maintains the judgment entered on his conviction cannot be upheld because the state presented no evidence of defendant's recklessness. He asserts the only evidence offered by the state concerned voluntary manslaughter.

We note that defendant did not object to the giving of an involuntary manslaughter instruction. We further find there was sufficient evidence to establish that defendant committed the crime of involuntary manslaughter by recklessly causing the death of victim. The jury could have reasonably determined that when defendant drove his truck toward the victim's vehicle while victim was leaning down inspecting the damage, defendant consciously disregarded a substantial and unjustifiable risk of hitting victim. The jury also could have reasonably determined that when defendant continued to accelerate after victim had fallen off the hood of his truck, defendant consciously disregarded a substantial and unjustifiable risk of running over victim.

Additionally, no trial or judgment shall be in any manner affected because the evidence shows or tends to show that the defendant is guilty of a higher degree of the offense than that of which he is convicted. § 545.030.1(17) RSMo 1986.

Therefore, the trial court did not err in denying defendant's motion for judgment of acquittal because the evidence was sufficient to sustain a conviction of involuntary manslaughter. Point denied.

In his second point on appeal, defendant contends the trial court erred in permitting the state to elicit testimony from investigating officers that defendant had asserted his right to remain silent and requested a lawyer at the scene of the incident. Defendant further contends the trial court erred in failing to declare a mistrial because such testimony was a direct violation of his Missouri and United States Constitutional rights to have no comment made on his post arrest silence.

Generally, post arrest silence may not be admitted for use against the defendant. State v. Wilson, 826 S.W.2d 79, 82 (Mo.App.1992). However, post arrest silence is admissible if the defendant waives his right to remain silent by giving a voluntary statement. Id. Although an accused's waiver of his right to remain silent is not irrevocable, it is effective until it is withdrawn and if an accused elects to reassert his right to remain silent, he must manifest that decision in some discernable way. State v. Pulis, 822 S.W.2d 541, 546 (Mo.App.1992).

At trial, the state may not use the fact that the defendant remained silent or claimed his right to remain silent "in the face of accusation." State v. Green, 798 S.W.2d 498, 502 (Mo.App.1990). Additionally, the state may not use post-arrest silence as (1) affirmative proof or (2) to impeach the defendant's testimony. Id.

Here, the uncontradicted testimony was that after Officer Miller advised defendant of his Miranda ¹ rights at the scene, defendant indicated he understood his rights, stated he did not want to talk to Officer Miller, and requested a lawyer. However, defendant did not remain silent. As defendant was being placed in the police car, defendant voluntarily made statements directing the officers to also arrest victim. Additionally, as Officer Miller was going over a written explanation of defendant's Miranda rights at the police station, defendant made several more statements regarding the crime.

The evidence indicates the state did not use defendant's statements regarding his intention to remain silent as evidence that defendant remained silent or claimed his right to remain silent "in the face of accusation." Additionally, the state did not use these statements as evidence of guilt, affirmative proof of any fact, or to impeach any of defendant's testimony. The state merely used defendant's statements to explain that defendant voluntarily gave statements after indicating he had invoked his right to remain silent, thereby waiving his right to remain silent. It was necessary for the state to give the chronological order of the events that took place leading up to defendant's post-arrest statements to show that defendant voluntarily gave statements after waiving his right to remain silent and was not answering questions posed by the police.

Therefore, the trial court did not err in permitting testimony regarding defendant's invocation of his right to remain silent before defendant made voluntary statements. Additionally, the trial court did not err in failing to declare a mistrial. Point denied.

In his third point, defendant argues the trial court erred in denying his motion to suppress a video tape of his booking at the police station. Defendant further argues the trial court erred by allowing the state to play the tape to the jury as rebuttal evidence to demonstrate that defendant had no remorse upon hearing of victim's death. Defendant asserts the tape was improper because it was made after he had asserted his right to remain silent and had requested an attorney. Therefore, defendant argues it violated his Missouri and United States Constitutional rights because it allowed the state to comment on his post arrest silence.

Contrary to defendant's assertion, the state did not offer the video tape to rebut defendant's showing of remorse while testifying. In fact, the state did not even play the portion of video tape showing the defendant remaining silent after being told of victim's death. The state offered very specific portions of the video tape to rebut different statements made by defendant while testifying. Therefore, our review of the video tape is limited to whether it was proper rebuttal evidence.

The state's reasons for offering portions of the video tape were as follows:

[STATE:] State intends on using the videotape for three different incidents that the Defendant has either denied happened or claims...