State v. Prewitt

• Decision Date: 29 April 1986
• Docket Number: No. WD,WD
• Citation: 714 S.W.2d 544
• Parties: STATE of Missouri, Respondent, v. Patricia Ann PREWITT, Appellant. 37196.
• Court: Missouri Court of Appeals

Page 544

714 S.W.2d 544

STATE of Missouri, Respondent, v. Patricia Ann PREWITT, Appellant.

No. WD 37196.

Missouri Court of Appeals,

Western District.

April 29, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 26, 1986.

Application to Transfer Denied Sept. 16, 1986.

Robert Beaird, Kansas City, for appellant.

William L. Webster, Stephen D. Hawke, Jefferson City, for respondent.

Before CLARK, C.J., and SHANGLER and KENNEDY, JJ.

KENNEDY, Judge.

Defendant-appellant Patricia Ann Prewitt appeals from a conviction of capital murder, § 565.001, RSMo 1978, and a sentence of life imprisonment without eligibility for probation or parole for 50 years.

Judgment affirmed.

Defendant does not challenge the sufficiency of the evidence; therefore, a brief statement of the facts will suffice.

In the early morning hours of February 18, 1984, defendant and her husband Bill returned to their Holden, Missouri, home after an evening of socializing with friends. Defendant testified that at some time after both she and Bill had fallen asleep she was awakened by a sound like thunder. She was grabbed by the hair and pulled from the bed by an unknown assailant who then tried to rape her. Defendant related that after the intruder left she heard her husband making gurgling noises but was unable to see him in the completely dark bedroom because the lights were not working. She stated that she got a flashlight and, after seeing blood on her husband, awakened the children and drove with them to a neighbor's home for help.

Evidence at trial showed that the victim was shot with a .22 caliber repeater rifle which was normally kept unloaded in the Prewitts' bedroom closet behind a chest of drawers. Bullets were stored in a drawer and in defendant's jewelry box. The rifle was found three days later in the Prewitts' pond in 11 inches of water 15 feet from the bank. A footprint made by Patricia's boot was observed on the pond bank and, after the pond was drained, another footprint was found on the pond bottom near the rifle.

Dr. James Bridgens, a forensic pathologist, testified that in his expert opinion William Prewitt was asleep immediately before he was shot twice in the head. The second shot severed the brain stem and caused instant death. Dr. Bridgens also testified that the angle of the second shot indicated the gun would have been held "almost on top" of anyone sleeping in the bed with the victim.

Testimony was adduced as to defendant's numerous extramarital affairs. Two of her lovers testified that defendant had offered them money to kill her husband. A third testified that she told him she wished Bill were dead and had considered shooting him in his sleep.

I

Defendant alleges that the court erred in allowing testimony about statements given by her to the police before she was advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant made four separate statements to the police: two on February 18, 1984, the day of the murder, and two on February 20, 1984, after she had appeared at the Holden police station and had been given the Miranda warnings. Defendant appeals the admission of testimony about the February 18 statements. These statements were made to Deputy Kevin Hughes, an investigator with the Johnson County Sheriff's office. Deputy Hughes testified without objection by defense counsel that he first met with defendant at about 5 a.m. at the neighbor's home where she had fled after the murder. He related defendant's story as to the main events of the evening--the socializing, going to bed, being awakened by two claps of thunder, the attempted rape and the intruder's departure.

Deputy Hughes' second encounter with defendant was about 4 p.m. the afternoon of February 18 at the Holden police station. Defendant had come to the station at Hughes' request. The court granted defense counsel a continuing objection to this testimony based on failure to give defendant her Miranda rights. Deputy Hughes recounted to the jury that in the second February 18 interview defendant provided a more detailed description of the evening's events, including the attempted rape and the physical attributes of her alleged attacker. Defendant also told Hughes about hearing her husband's "rattling" breathing, about checking the children and about finding the lights inoperative. She then told Hughes that after getting a flashlight she saw blood on the bed and on the victim. Hughes recited defendant's description of her efforts to awaken and dress the children, put them in the car and go to the neighbors' house to get help.

Deputy Hughes further stated that defendant told him she and the victim had a good marriage and neither had had extramarital involvements. Defendant also responded to Hughes' inquiry about any guns in the house by explaining that the Prewitts' guns--a single-shot rifle and a repeater rifle--were hidden in the closet for the children's safety. Defendant acknowledged she had previously used the repeater rifle to shoot rats.

Deputy Hughes also related his discussion with defendant about her husband's life insurance policies and the fact she was the beneficiary. Defendant denied knowledge of the policy amounts.

On cross-examination, Hughes admitted that on February 18, between the two interviews with defendant, he had removed two life insurance policies and a number of Alfred Hitchcock murder mysteries from the Prewitt residence. The deputy also stated he was aware of the statistic that 75 percent of all murders are committed by family or friends of the victim.

In the course of the second interview defendant was tested for gunpowder residue. Hughes stated, however, that defendant was neither a suspect nor the focus of his investigation on February 18, and that he therefore did not give her any Miranda warnings.

On February 20 at 12:30 p.m. at the Holden police station defendant was questioned by officers Thomas Charrette and Dale Stewart. Although Officer Charrette testified that defendant was not in custody or under arrest and was free to leave, he nevertheless read to her the Miranda warning form and obtained her signature thereon. Deputy Hughes conducted the second February 20 interview of defendant, commencing at approximately 4:00 p.m. He also advised defendant of her Miranda rights and told her she was a suspect in the case. Defendant does not allege error in admission of the February 20 statements.

The trial court's ruling, if supported by the evidence, will be upheld on appeal. State v. Greathouse, 627 S.W.2d 592, 595 (Mo.1982); State v. Baskerville, 616 S.W.2d 839, 843 (Mo.1981). Miranda warnings must be given when there is a custodial interrogation. United States v. Turpin, 698 F.2d 351, 354-55, appeal after remand, 707 F.2d 332 (8th Cir.1983). The rule in Miranda does not obtain until there is both custody and questioning. State v. Kemper, 629 S.W.2d 624, 626 (Mo.App.1982); State v. Darris, 587 S.W.2d 89, 91 (Mo.App.1979). The Miranda court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612. In State v. Bradley, 670 S.W.2d 123 (Mo.App.1984), the court set out a three-prong test for determining "custody": (1) probable cause to arrest the accused; (2) focus of the investigation on the accused at the time of questioning; and (3) the subjective intent of the police. Custodial interrogation begins when the police have reason to believe a crime has been committed and the defendant committed it. State v. Deloch, 628 S.W.2d 954 (Mo.App.1982); see also State v. Starkey, 536 S.W.2d 858 (Mo.App.1976).

In Greathouse, 627 S.W.2d at 594, the court stated that custodial interrogation does not exist if the person is not in custody because he is not a suspect or, if he is a suspect, when he is not under arrest or otherwise restrained of his liberty. In State v. Swingler, 632 S.W.2d 267, 272 (Mo.App.1982), the court considered noncustodial defendant's interview at a hospital where he had sought treatment for a gunshot wound. The questioning was investigatory, not accusatory; defendant was interviewed as a victim, not a suspect on whom the investigation had focused. See also State v. Overstreet, 551 S.W.2d 621, 628 (Mo. banc 1977). The United States Supreme Court has held that police do not have to warn each person they question, whether the questioning takes place at the police station or because the questioned person is "one whom the police suspect". Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977).

Defendant alleges that she should have been advised of her Miranda rights prior to questioning by Deputy Hughes on February 18. The first interview, at 5 a.m. at the neighbors' home was part of Hughes' initial on the scene investigation. Defendant was neither a suspect nor in custody at that time. She was questioned as a victim, not a perpetrator. Overstreet, 551 S.W.2d at 628; State v. Hayes, 597 S.W.2d 242, 246 (Mo.App.1980). Miranda did not apply. Defendant next alleges that Officer Hughes considered her a suspect when the second Feb. 18 interview took place because Hughes had previously seized the insurance policies and Hitchcock books from defendant's home. He explained to defendant that she was being given the gunpowder residue test because of his belief that 75 percent of all murders were committed by family or friends. Hughes testified, however, that on Feb. 18 he did not consider defendant a suspect; his investigation had not focused upon her. While the interview was conducted at the police station, defendant was not in custody, was free to leave, and did so when the interview was concluded. There was sufficient evidence to support the trial court's ruling that Miranda warnings were not required because defendant was not subjected to...