State v. Scott, 60131

• Court: Missouri Court of Appeals
• Writing for the Court: KAROHL
• Citation: State v. Scott, 841 S.W.2d 787 (Mo. App. 1992)
• Decision Date: 24 November 1992
• Docket Number: No. 60131,60131
• Parties: STATE of Missouri, Respondent, v. Kenneth James SCOTT, Appellant.

Page 787

841 S.W.2d 787

STATE of Missouri, Respondent, v. Kenneth James SCOTT, Appellant.

No. 60131.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Nov. 24, 1992.

Brad D. Baker, Columbia, for appellant.

William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Chief Judge.

Defendant, Kenneth James Scott, appeals conviction of murder in the second degree pursuant to § 565.021 RSMo 1986, after being charged with murder in the first degree. We affirm.

On the night of September 16, 1987, the victim, Kathy Gilstrap, was given a ride from work to the Vocational Technical School in Macon, Missouri. She entered the building to meet her father-in-law. He was to give her a ride home.

Bill Gilstrap, her father-in-law, left class around 9:40 p.m. He was unable to find Kathy inside so he began to look outside. About 10:00 p.m., Sergeant Mark Miller of the Macon Sheriff's Department noticed lights in the school parking lot and proceeded to investigate. After discovering Kathy left her place of employment at approximately 9:00 p.m., two officers and Bill Gilstrap began searching the school. They found her purse in a common area, so they began searching classrooms.

Defendant, the janitor at the school, opened the locked doors in order for the classrooms to be searched. The search party located Kathy in the automotive shop laying on her stomach with her legs extended. Her shoulders and neck were suspended off the ground by a rope that was attached to a jack in the shop. Her arms were tied behind her back.

Further investigation revealed rope similar to that used on the victim in the janitor's closet in the Vo-Tech building. Additionally, the knots used were recognized by defendant's ex-wife as those frequently used by defendant.

The pathologist report revealed Kathy was killed as a result of compression of the neck and possibly manual strangulation. Defendant's former mother-in-law testified defendant had often stated he could strangle someone with his hands. She also verified defendant drove a car like the one seen at the school on the night of the murder.

In four points on appeal, defendant alleges: (1) statements made to police were not knowing and voluntary due to mental illness; (2) without defendant's statements the state failed to prove each element of the crime charged; (3) three jury instruction errors; and (4) error in defining reasonable doubt as firmly convinced.

In his first point on appeal, defendant alleges the trial court erred in overruling his motion to suppress statements he made after his arrest. He claims the statements should have been suppressed because he suffered from "major depression, recurrent, with mood congruent psychotic features." Defendant asserts the mental illness prevented him from making a knowing and intelligent waiver of his Miranda rights. We disagree.

This murder went unsolved for two years until defendant confessed to a minister who notified police. Two Macon County police officers then arrested defendant in Louisiana, Missouri, early in the morning on April 6, 1989. Before transporting defendant, he was advised of his Miranda rights but he was not questioned. In route, however, defendant made an unsolicited statement that he wanted to make things right with God.

Once in Macon, defendant was again read his rights and he signed a waiver. He then confessed to killing Kathy Gilstrap. The statement was recorded on video tape and defendant signed a written statement. Later that day, defendant confessed on video again to the Missouri Highway Patrol. That tape was shown to the jury at trial.

Defendant finds support for a claim that his confession was not knowing and intelligent in the testimony of two psychiatrists. Both doctors diagnosed defendant as "major depression recurrent." They also testified that, in their opinion, defendant was depressed at the time he made the confession. Defendant argues this illness made his confession incompetent.

The doctors, however, also stated defendant "understood that he was making a statement which could be used against him." In order to constitute a constitutionally permissible waiver, defendant must understand he could remain silent and that choosing to waive his rights could result in statements being used against him. State v. Powell, 798 S.W.2d 709, 713 (Mo. banc 1990). All the requirements are met here.

The question of waiver is one of fact, and the trial court's findings of fact concerning waiver will not be overturned unless clearly erroneous. Powell, 798 S.W.2d at 713. In addition to the psychiatrists' testimony, the facts include observation by the officers accepting the confession that defendant appeared calm and understood what he was doing. They allowed him to stop and rest at one point before continuing, giving defendant additional time to reconsider his waiver. Miranda rights were administered more than once and each time defendant chose to speak. We find defendant did understand the consequences of his actions, yet chose to waive his rights. Therefore, the trial court's ruling allowing the statements to be used was not clearly erroneous.

Defendant also claims the trial court erred in not making specific findings of knowing and intelligent waiver as required by the Supreme Court in State v. Bittick, 806 S.W.2d 652 (Mo. banc 1991). We do not find Bittick controlling. It involved a trial court failing to address the issue of knowing and intelligent waiver. Therefore, a remand was necessary for such a determination. Id. at 658.

A judge need not make a particular formal finding. State v. Schnick, 819 S.W.2d 330, 336 (Mo. banc 1991). The only prerequisite is that the trial court's ruling be clear. Id. In the current case, the court did address the issue of knowing and intelligent waiver. A hearing was held on defendant's Motion to Suppress where the issue was whether defendant's confession was the product of a knowing and intelligent waiver of Miranda rights. The trial court took the matter under submission and then issued a ruling denying defendant's motion. Because there was only one issue before the court, the trial court's denial of the motion made clear that it found defendant's waiver knowing and intelligent.

In his next point, defendant...