State v. Thomas

• Decision Date: 27 September 1985
• Docket Number: No. 13587,13587
• Citation: 698 S.W.2d 942
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Mark Anthony THOMAS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 942

698 S.W.2d 942

STATE of Missouri, Plaintiff-Respondent, v. Mark Anthony THOMAS, Defendant-Appellant.

No. 13587.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 27, 1985.

Motion for Rehearing and to Transfer

Denied Oct. 16, 1985.

Application to Transfer Denied

Nov. 21, 1985.

Michael Radosevich, Kathleen Murphy Markie, Columbia, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The appellant was found guilty of felony murder during an attempt to perpetrate a robbery when he was 16 years old. § 565.003, RSMo 1978 (now repealed). Accordingly, he was sentenced to imprisonment for life. § 565.008.2, RSMo 1978 (now repealed). By his two points on appeal, he does not question the sufficiency of the evidence to sustain his conviction. The following is a brief outline of the facts established by viewing the evidence in favor of the state as warranted by the verdict. State v. Ridinger, 589 S.W.2d 110 (Mo.App.1979).

The appellant and his girl friend, Tracy Wallace, wanted to leave Springfield. He wanted to go to South Bend, Indiana, where he formerly lived. He had a child living there. She wanted to go to Chicago where her father lived. They discussed their desires. To carry them out, they decided to rob the Thomas Halberts. The Halberts lived in the same neighborhood in Springfield where the appellant lived with his mother and where Tracy lived with her aunt and grandmother.

On the afternoon of October 20, 1982, they got two handguns from the closet in Tracy's grandmother's bedroom. The appellant test fired each gun. He hid the guns in a building behind his house. At about 7:00 p.m., appellant went to Tracy's. Tracy's aunt and grandmother left to go to church and a jewelry party. The appellant and Tracy left Tracy's house with stocking caps and Halloween masks. They went to appellant's house. There, appellant and his mother argued. Appellant left with suitcases, which he hid in bushes. Appellant and Tracy then got the guns. Tracy placed a gun in the pocket of her red wind breaker. They went to the Halbert home through the backyard, where they dropped the masks. They went to the front door of the Halbert house. As planned, Tracy knocked on the door and asked Mr. Halbert to use the telephone. Then, as she related, "He let me in to use the phone and Mark jumped from around the door." Mr. Halbert grabbed Mark around the throat and started choking him. The appellant had a gun in his hand. It fired, striking Mr. Halbert in the chest. The bullet traversed, or perforated, the heart. Mr. Halbert pushed Tracy out and shut the door. Mr. Halbert died shortly thereafter. A shoe print in the Halbert backyard was identified as having been made by the defendant's tennis shoe. The pattern print of a tennis shoe in the dust on the front porch was consistent with the pattern of defendant's tennis shoe. The examiner did not find sufficient wear characteristics to make a positive identification of that print. The gun, established by ballistics to have killed Mr. Halbert, was later found in the closet from which it had been removed.

Mrs. Halbert testified that on the evening in question she and her husband were in the living room watching the World Series on television. She was lying on the couch and Mr. Halbert was sitting in a chair. At about 8:30 p.m., they heard a knock. Mr. Halbert opened the door. Mrs. Halbert saw a black lady step into the house. She was wearing a dark skirt and a red jacket. Mrs. Halbert also saw hands around the door. The hands were black also, large, like those of a man. She heard a pop and "that was it."

Several days later, the appellant went to South Bend, Indiana, and Tracy went to Chicago. At the behest of her grandmother, Tracy returned to Springfield about October 31, 1982. She was placed under arrest for the homicide. As a result of an agreement, she testified on behalf of the state.

After the arrest of Tracy, an order was issued for the appellant to be taken into custody. He had been arrested in South Bend, Indiana, on an unrelated burglary charge. Proceedings for his return to Greene County, apparently under the interstate compact on juveniles, were completed. On December 7, 1982, Police Detective Stokes and Deputy Juvenile Officer Epperly arrived in South Bend for the purpose of returning the appellant to Greene County. While in South Bend, the detective took a recorded statement from the defendant in the presence of the deputy juvenile officer and the defendant's mother. At his trial as an adult for felony murder, a portion of this statement was used to impeach the defendant.

The defendant's first point is based upon this use of the statement by the state. The defendant offered an alibi for his activities in the late afternoon of the day of the homicide. He attempted to explain his shoe print by saying he played ball on the lot south of the Halbert's home. In his direct testimony, the defendant categorically denied that he shot Thomas Halbert.

On cross-examination, Thomas said that on the evening in question at 8:30 p.m., the approximate time of the homicide, he was at home. Then, upon further cross-examination, the defendant testified that he did recall making the statement to Detective Stokes. He recalled the following questions and answers:

Q. (By Mr. Monroe) And do you recall Detective Stokes asking you or saying to you in the conversation: Let's get back to the night Mr. Halbert got killed. Tell me who you were with, you know, in your own words where you were at and what you were doing?

A. Yes, I do.

Q. And do you remember answering: All right. Well, she had--"she" referring to your mother?--

MR. SANDERS: I object. Read the statement, Your Honor.

THE COURT: Overruled. Go ahead.

Q. (By Mr. Monroe)--had took my suitcase after we got into an argument, and I took the rest of my clothes and laid them on the side of the house. She kept saying: Well, you're not going to get too far because I'll call somebody and tell them not to let you on the bus or something. So I was headed down Chestnut. Tracy was walking with me. I said: Come on. Walk with me down here. I said: I'm going to see who she calls, just like that, and see what she's going to do. So I headed down Chestnut.

And then Stokes said: Which way were you going on Chestnut? And you said: Toward the bus station, out that way. I was going down that way Tracy and I, and then all of a sudden, I said: Hey, forget it, just like that. Let's go back to the house. And we went back to the house, was sitting down, and all of a sudden, the ambulance was down the street. People from across the street--a guy asked me: Hey, what's happening? I said: Hey, man, I'm asking you that. We went down there together, you know. I went down there after the Sterlings. You might tell them they lived across the street. I went down the street after them, you know. Do you remember you saying that?

A. Yes, I do.

Prior to trial, the defendant filed a motion to suppress this statement. In conclusory language he alleged nine reasons why the statement should be suppressed and not used as a part of the state's case in chief or for impeachment. A lengthy suppression hearing was held and the parties submitted written suggestions. Later, by docket entry, the trial court ruled, "Motion to Suppress Statements of Deft sustained, subject, however, to State being permitted to reopen the issue to counter defense case or in rebuttal."

When the state proposed to use the statement at the trial for impeachment, the defendant objected upon the bases in his motion. The state contended the statement could be properly used for impeachment, the prosecutor adding, "I'm relying specifically on State v. Sager, 600 S.W.2d 541 [ (Mo.App.1980) ]." The trial court then acknowledged his prior docket entry and held that under the circumstances the statement was properly admissible for the purpose of impeachment.

In view of the allegations of defendant's motion, the suggestions of the parties, and the state's expressed reliance upon State v. Sager, 600 S.W.2d 541 (Mo.App.1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981), the trial court's conclusion the statement was voluntary might be found from the docket entry and ruling upon cross-examination of the defendant. Cf. State v. Royal, 610 S.W.2d 946 (Mo. banc 1981); State v. O'Toole, 619 S.W.2d 804 (Mo.App.1981); State v. Garrett, 595 S.W.2d 422 (Mo.App.1980); State v. Miller, 593 S.W.2d 895 (Mo.App.1980).

However, to better consider the defendant's contentions, this court by order remanded the case for the trial court to make express findings on issues pertaining to admissibility of that statement, in accordance with the procedure outlined in United States v. Johnson, 529 F.2d 581 (8th Cir.1976), cert. denied, 429 U.S. 909, 96 S.Ct. 2233, 48 L.Ed.2d 835 (1976) and State v. Flenoid, 642 S.W.2d 631 (Mo. banc 1982). The trial court, by the judge who conducted the suppression hearing and trial, made those findings and has certified the same to this court by its order. The appellant has filed suggestions in response to those findings. The findings so certified and the suggestions of the appellant have been considered in this decision.

The defendant in his brief first argues the statement was taken in violation of § 211.271, RSMo 1978. He emphasizes the following portion of that Section: "[A]ll ... statements by the child to the juvenile officer ... are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter." § 211.271.3.

In his suggestions he also makes a general assertion the statement was not voluntary. To support this assertion, he draws an adverse inference from the presence of the deputy juvenile officer. He also intimates it was improper for the deputy juvenile officer to...