State v. Rapheld, 39871

• Decision Date: 03 July 1979
• Docket Number: No. 39871,39871
• Citation: 587 S.W.2d 881
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Joseph RAPHELD, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 881

587 S.W.2d 881

STATE of Missouri, Plaintiff-Respondent, v. John Joseph RAPHELD, Defendant-Appellant.

No. 39871.

Missouri Court of Appeals, Eastern District, Division One.

July 3, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 17, 1979.

Application to Transfer Denied Nov. 14, 1979.

Raymond A. Bruntrager, Sr., Robert J. Thomas, Jr., St. Louis, for defendant-appellant.

Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Presiding Judge.

Appellant was found guilty by a jury of murder in the first degree and robbery in the first degree. On the murder count the court sentenced him to life imprisonment without eligibility for probation or parole until he has served a minimum of fifty years of his sentence as provided by § 559.011, RSMo Cum. Supp. 1975. On the first degree robbery count he was sentenced to serve a concurrent life term. As grounds for reversal, appellant raises twenty-one points of error.

The judgment is affirmed.

No complaint has been raised as to the sufficiency of the evidence to support the conviction. Therefore, the facts will be briefly stated. Additional facts needed to analyze and resolve the points relied on will be discussed with the issues.

On the evening of February 20, 1976, Judith Atchison, age twenty, was working as night cashier at the "7-11" Express Market at 1083 Woodsmill Road in St. Louis County. Appellant entered the grocery store between 11:30 and 11:40 p. m. He knew Ms. Atchison and frequented the store. He remained in the store, browsing and talking with her, until closing time 12:00 o'clock midnight. When he saw Ms. Atchison counting the day's receipts, he decided to rob her. As she prepared for the next day's business, he went out to his car and got a sheathed bayonet or knife which he customarily carried in the car. He returned and walked to the rear of the store with Ms. Atchison where she began to arrange cans of soda and beer in the coolers. Appellant struck her on the side of the head with a soda bottle, which broke, and then he fell on her, stabbing her five times in the throat and seven times in the heart. He took $450 and fled the store.

In the days following the crimes, leads on several possible suspects were developed. One week after the murder and robbery, St. Louis County police officers picked up appellant for questioning, on information that he had been at the store on the night of February 19, 1976. At the police station appellant admitted he had also been at the store on the night of the crimes. After giving statements which conflicted with facts already known to the officers, appellant was placed under arrest, given Miranda warnings and presented with a rights waiver form. Appellant signed the waiver form and, following further questioning, confessed to the murder and robbery. Appellant made an oral statement, a tape recorded confession, a videotaped confession and a videotaped scene-of-the-crime reenactment.

Appellant's first ground for reversal is that the trial court erred in overruling his motion to suppress the tape recorded and videotaped confessions and the videotaped reenactment of the crimes.

Appellant was in custody at the time he gave the challenged statements. At a pretrial hearing on a motion to suppress, the state must show, by the preponderance of the evidence, that the incriminating statements were voluntarily given.

While the burden of proceeding is on defendant, once he has made his allegations regarding the inadmissibility of the statements, the burden of proof is on the State to show compliance with the guidelines set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the voluntariness of the statement. In Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), the Supreme Court held that voluntariness of such confession need be proved by a Preponderance of the evidence, which is the standard we adopt for such cases.

State v. Olds, 569 S.W.2d 745, 751 (Mo. banc 1978).

When the testimony presented at the hearing on the motion to suppress is in conflict, the trial court must weigh the evidence and judge the credibility of the witnesses. State v. Lyle, 511 S.W.2d 817, 818 (Mo.1974); State v. Crowley, 571 S.W.2d 460, 464-465 (Mo.App.1978); State v. Carroll, 562 S.W.2d 772, 773 (Mo.App.1978); State v. Hamell, 561 S.W.2d 357, 363 (Mo.App.1977). "(A) dmission of the confession into evidence by the trial court is a matter of discretion, and we defer to the trial court's ruling on the credibility of witnesses unless manifest error has been committed. (Citing cases.)" State v. Crowley, supra, 464-465.

Miranda warnings were given to appellant before any incriminating statement was made. The warnings were repeated before each taped confession or reenactment. A rights waiver card was given to appellant before the confessions were obtained and was signed by him.

On the issue of voluntariness, appellant contended at the pretrial hearing, at trial, and now, on appeal, that physical force was used to obtain his confessions. The interrogating officers recounted in detail the circumstances surrounding the confessions and repeatedly denied striking, threatening or coercing appellant, or telling him what to include in his confessions. Appellant presented testimony by a correctional officer and jail nurse that his upper body appeared to be bruised following his arrest. As the cases cited above note, when the evidence on voluntariness is in conflict, the trial court weighs the evidence on and judges the credibility of the witnesses. "(W)here the testimony conflicts as to whether the confession was voluntary, admission of the confession into evidence by the trial court is a matter of discretion. (Citing cases.)" State v. Cook, 557 S.W.2d 484, 488 (Mo.App.1977). Further, in meeting its burden of proving that the in-custody statements were voluntarily given, "the State does not have to negate every possible circumstance which could present a fact issue. (Citing cases.)" State v. Hamell, supra, 363. The trial court did not err in determining the state had met its burden of proving by a preponderance of the evidence that the confessions were voluntary. The number, consistency and detail of the statements, the officers' conduct before and after the questioning, the absence of complaint to other officers and an assistant prosecutor who assisted in the videotaping but was not present during the supposed incidents of coercion, and appellant's recorded statements that no threats or promises were made to induce the confessions all support the trial court's finding of voluntariness.

Appellant further contends the confessions were inadmissible because he did not have counsel present. When a defendant has been given full and proper advice as to his rights, and knowingly and intelligently waives them, the fact that he did not have counsel present at the time the statements were given does not render them inadmissible. State v. Williams, 566 S.W.2d 841 (Mo.App.1978).

Appellant also argues the presence of an assistance prosecutor, Gordon Ankney, during the videotapings rendered them inadmissible because the prosecutor questioned him without revealing his position or giving appellant his rights. Appellant's argument completely ignores the testimony of Ankney and Police Officer Neidenberg. Neidenberg, the technician in charge of videotaping equipment, testified appellant asked him who Ankney was. Neidenberg told appellant Ankney was the prosecuting attorney. Ankney testified appellant asked him, before the statements at which he was present were taken, if he was the prosecutor. Ankney told appellant that he was. Neither authority nor logic supports appellant's argument that Ankney was required to give appellant Miranda warnings, in addition to those given by the police, before he could question appellant at the videotaping.

The circumstances surrounding the confessions and reenactment were thoroughly developed at the suppression hearing. At trial, appellant, the interrogators and the jail personnel were examined and cross-examined in exhaustive detail. All of appellant's statements were played for the jury. They could determine for themselves whether appellant's behavior was consistent with a coerced or voluntary confession. They also had the opportunity to view the conduct and demeanor of the witnesses. The jury was properly instructed on the issue of voluntariness (then MAI-CR 3.44) and their verdict confirms the trial court's determination that the confessions were voluntary and appellant's own version of the crimes.

Appellant was charged with capital murder. Before trial he filed a motion to dismiss the indictment on the ground that the capital murder statute (§ § 559.005 and 559.009, RSMo Cum. Supp. 1975) was unconstitutional. The court stated in chambers prior to voir dire that it intended to instruct the jury on murder in the first degree, the penalty for which was life imprisonment with a minimum of 50 years without probation and parole. The motion to dismiss was overruled. At trial the jury was given the murder in the first degree instruction (then MAI-CR 6.02 "Murder: First Degree"). No capital murder instruction was given. The jury returned a verdict of guilty of murder in the first degree. Punishment was set by the court, as the state, after filing an amended information in lieu of indictment, proved two prior felony convictions. Appellant was sentenced to life imprisonment without eligibility for probation or parole until he has served fifty years.

Appellant's argument appears to be that the only penalty for capital murder was death and that the capital murder instruction and possible death penalty should have been submitted to the jury. He also states in his argument that, in view of the fact...