State v. Rogers

• Decision Date: 27 March 1984
• Docket Number: No. WD,WD
• Citation: 686 S.W.2d 472
• Parties: STATE of Missouri, Respondent, v. Mark ROGERS, Appellant. 34596.
• Court: Missouri Court of Appeals

Page 472

686 S.W.2d 472

STATE of Missouri, Respondent, v. Mark ROGERS, Appellant.

No. WD 34596.

Missouri Court of Appeals Western District.

March 27, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 29, 1984.

Application For Transfer Sustained

July 17, 1984.

Retransferred Jan. 29, 1985.

Court of Appeals Opinion Readopted

Feb. 6, 1985.

James W. Fletcher, Public Defender, Sean D. O'Brien, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., and NUGENT and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from a jury conviction for murder, first degree, in violation of § 565.003, RSMo 1978. The judgment is affirmed.

Appellant presents three points, which in summary charge that the trial court erred in (1) admitting, over objection, appellant's statements to police, because said statements were secured after the police failed to scrupulously honor his assertion to remain silent; (2) failing to instruct the jury on murder, second degree; and (3) denying his motion for new trial because of juror misconduct.

There being no direct challenge to the sufficiency of the evidence to sustain appellant's conviction, a summary of the pertinent facts suffices.

The location of this murder was the One Stop Liquor Store at 291 Highway and Courtney Road in Sugar Creek, Missouri. At about 6:30 p.m. on November 27, 1979, one Deborah Ward, a regular customer of the store, purchased some items. As she left, she observed three long-haired white males in a dark blue station wagon. (Later, at trial, she testified that the three acted suspicious, as if they intended to rob the store. Ward thought one of the trio looked like appellant.) The One Stop store was owned and operated by Pat Short and her husband, Marvin "Lou" Short. The store contained a living area in the rear. At about 8:30 p.m. on November 27, 1979, someone entered the store and Marvin "Lou" Short went to the front portion of the store. Moments later, Pat Short heard her husband say, "Don't do it. It's not worth it." Pat Short then heard a young man reply, "I need the bread man." Realizing something was wrong, Pat Short proceeded to look for a weapon in the back room. She heard a "pop", turned, and saw her husband on the floor. She called the police and then ran next door for help. Upon her return, she went to her husband, who died while she was holding him. Marvin "Lou" Short died as a result of a fatal shotgun wound.

On December 1, 1979, a robbery involving the use of a shotgun was reported to police. A Metro Squad Unit homicide detective, Clarence Luther, responded to the call. Luther secured a description of the vehicle used and later stopped this vehicle, then being operated by appellant. When stopped, this vehicle was occupied by appellant, two small children, Steven Johnson Mark Fletcher, and Gaye Handley. The vehicle was heavily damaged, including the trunk area. Because of the damage, Luther could see into the trunk area where he observed a single-barrel .12 gauge shotgun. Inside the vehicle were several live .12 gauge shells and one spent shell casing. At this time, Luther arrested appellant. A search of appellant's person produced additional live .12 gauge shells.

Later, on December 1, 1979, appellant was given his Miranda warning and asked about the Short murder. Appellant denied that he murdered Short. On December 4, 1979, appellant was again given his Miranda warning and again was asked by Luther about the Short murder. In talking with Luther, appellant stated that he did not intend to kill anyone. At this point, appellant stated that he did not want to talk anymore and that he wanted "to take his chances with a jury" or words to that effect. Luther terminated the inquiry.

Two other detectives, Herb Soule and Stanley Love, were assigned to return appellant to the Jackson County jail. While handcuffing appellant, Soule told appellant that he (Soule) had heard that appellant would rather take his chances with a jury than to discuss the matter. Love asked appellant if that was what appellant had previously stated. Appellant responded affirmatively "at the present time." Soule then asked appellant if appellant still felt that way. Appellant appeared to hesitate. Soule then asked appellant if he (appellant) wanted to know "what he was up against." Appellant answered, "Yes, I do", and Soule then read a portion of the Missouri capital murder statute to appellant. Appellant then advised Soule that he wanted to talk to him. Soule told appellant that he (appellant) did not have to talk to him (Soule) and Soule again gave appellant his Miranda warning. After signing a written waiver of his rights, appellant gave Soule a statement about the robbery and murder of Marvin "Lou" Short.

In summary, appellant's written statement disclosed that on November 27, 1979, appellant picked up Steven Johnson in a black two-door Fairlane. Appellant and Johnson drove to a wooded area where Johnson had hidden a .12 gauge shotgun. The two drove around discussing, a robbery to obtain monies to buy drugs. ¹ Johnson mentioned that he had seen "an old man" in a liquor store. The two discussed the robbery of the One Stop Liquor Store. The two entered the One Stop Liquor Store, with appellant pointing a shotgun at Marvin "Lou" Short. Appellant stated to Short, "Give me all your money." Short gave appellant money from his pockets and appellant demanded money from the cash register. At that moment, appellant's attention was directed to his accomplice, Johnson, and as appellant again turned to see the victim Short, the victim was pulling out a handgun. Appellant then murdered Short with the shotgun. Appellant and Johnson fled the scene.

On December 5, 1979, Officer Luther, after learning that appellant had given a written statement to Officer Soule, contacted appellant. Again, Luther gave appellant his Miranda warning and asked appellant about minor discrepancies in his (appellant's) statement.

Appellant's statements, oral and written, were the subject of a pre-trial motion to suppress. After a full hearing, the trial court overruled the pre-trial motion. At trial, both the oral and written statements of appellant were, over objection, admitted into evidence. Appellant testified on his own behalf, denying any involvement in the Short murder, and testified that he gave both the oral and written statements, because he was tired of being transferred from one jail to another and he wanted to contact his family. Appellant's defense was alibi, in being at the home of his parents at the time the murder was committed. The jury returned its verdict. A hearing was held on appellant's motion for new trial and that motion was overruled. Judgment and sentence was entered. This appeal followed.

Turning to appellant's point (1), it is found that appellant charges that the trial court erred in admitting his statements to police, over objection, because said statements were secured after police officers failed to "scrupulously honor" his assertion of his fifth amendment rights.

Appellant's point (1) fails because the record does not support his claim that his fifth amendment rights were not "scrupulously honored." The evidence clearly reveals that appellant "initiated" the second conversation relative to the Short murder. The following evidence reveals this for the court:

"Q. Would you tell the Court what that conversation was?

A. I was preparing to take him out of the cell. As a matter of fact, I did remove him from the detention cell and handcuffed him--or started to handcuff him and told Mr. Rogers that I was of the understanding that he had stated he would rather take his chances with a jury than talk to us. And I asked him if he was sure that was what he wanted to do...

Q. And when you asked him that, what was his reply?

A. Well, he kind of hesitated, first, and didn't make any reply. And then I asked him if he wanted to know what he was up against.

Q. And what did he do when you asked him that question?

A. He said, 'Yes, I do.'

Q. And then what did you do?

A. I instructed one of the officers that was standing there to go and bring me a copy of the Missouri Revised Statutes book.

Q. And did you get that copy?

A. I did, sir.

Q. And what did you do with that statute book?

A. I opened the statute book to the capital murder section and read the criteria in that section to Mr. Rogers and explained to him that that was the very worst classification of crime that he could be charged with, that at a jury's option it could go from there to acquittal or anyplace in between...

Q. And, again, why was it that you read him that statute?

A. Because the man indicated his desire to know what he was up against...

Q. After you read him the statute, did he make any statements to you in regards to whether or not he wanted to make a statement?

A. Yes, sir, he did.

Q. And what did he say?

A. He said he would like to talk to me...

Q. Now, once he told you that he wished to talk with you, what did you do?

A. I took him into the office belonging to the chief of police and advised him of his Miranda warning...

Q. When you went into the office and you read him his rights, did you read that to him orally?

A. I gave him a recitation of it. I didn't read it from anything.

Q. Did you tell him anything else after you read him his rights?

A. Yes, sir. I told him that if he wanted to talk to us about it he would have the option of whether we wrote anything down or whether he just talked to us and we didn't write anything down.

Q. Did you tell him that he didn't have to talk with you?

A. Yes, sir. I told him that several different occasions, at different times during the evening.

Q. Did you ever specifically tell him he didn't have to talk with you, after the situation in the holding area, where you read him the statute?

A. Yes, sir. I told him that at the initial...