State v. Williams

• Decision Date: 31 July 1997
• Docket Number: No. 20990,20990
• Citation: 951 S.W.2d 332
• Parties: STATE of Missouri, Respondent, v. Gale Wayne WILLIAMS, Appellant.
• Court: Missouri Court of Appeals

Page 332

951 S.W.2d 332

STATE of Missouri, Respondent, v. Gale Wayne WILLIAMS, Appellant.

No. 20990.

Missouri Court of Appeals,

Southern District,

Division One.

July 31, 1997.

Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa A. Fischer, Asst. Atty. Gen., Jefferson City, for Respondent.

Before GARRISON, P.J., and PREWITT and CROW, JJ.

PER CURIAM.

Gale Wayne Williams (Defendant) appeals his convictions of second degree murder and armed criminal action, in violation of §§ 565.021 and 571.015, RSMo 1994, respectively. We affirm.

"Defendant does not challenge the sufficiency of the evidence to support the verdict, hence we recount only the evidence necessary to address the claims of error, viewing it in the light most favorable to the verdict." State v. Crews, 923 S.W.2d 477, 478 (Mo.App. S.D.1996). Viewed in that manner, the evidence indicated the following.

On June 20, 1993, Defendant and his friends were target shooting at Defendant's cabin when they were approached by James Quinton and three others. An altercation ensued after one of Quinton's friends asked to see one of the guns that was present. Following a fight between the opposing groups, Quinton and his friends left, vowing to return. Defendant's girlfriend called Defendant's brother, Darryl Williams (Darryl), to notify him of the situation. Darryl and two of his friends arrived at Defendant's cabin, but left a few minutes later.

As Darryl and his friends were driving toward "town," they met Quinton and his friends driving back toward Defendant's cabin. Although the testimony was varied concerning how it occurred, the two vehicles stopped and another fight broke out and eventually gunfire was exchanged. Defendant's girlfriend was in another car going toward town when she witnessed the fight in progress, and returned to Defendant's cabin to notify the others. Defendant arrived at the scene of the fight armed with a .22 caliber pistol, and ultimately fired two shots into the back of Quinton's head, killing him.

Defendant was arrested the following day at his mother's house, and was charged with first degree murder and armed criminal action. A jury found Defendant guilty of second degree murder and armed criminal action in March, 1996, and he was sentenced to concurrent terms of life imprisonment for the second degree murder charge and fifteen years for the armed criminal action charge. This appeal followed.

After Defendant's attorney filed his brief, this court granted Defendant leave to file a pro se supplemental brief. The pro se brief which he filed contains four points. We will initially address the two points raised in Defendant's attorney's brief (Points I and II), and then proceed to the points raised in Defendant's pro se brief (Pro Se Points I-IV).

POINT I

Defendant's first point makes the following contention:

The trial court erred in overruling [Defendant's] motion to suppress his statements to Deputy Squires regarding the location of guns on his mother's property, and to suppress the guns recovered from that location, and admitting the statements and guns into evidence, in violation of [Defendant's] privilege against self-incrimination guaranteed by the Fifth and Fourteenth Amendments ..., in that [Defendant's] statement was involuntary under the totality of the circumstances including the inherently coercive environment in which the statements were made because Deputy Squires threatened to tear [Defendant's] mother's house apart to find the guns.

Following Defendant's arrest, his girlfriend informed law enforcement officers that Defendant had hidden two weapons allegedly used in the shooting on his mother's property. Deputy Squires of the Crawford County Sheriff's Department obtained a warrant to search the property of Defendant's mother, but before executing it, approached Defendant who was in the Sheriff's office with his attorney. Squires testified at the suppression hearing about that conversation:

Q: All right. At the time you asked the Defendant, we're going back now to the time when the Defendant told you where the guns were, was he under arrest at that time?

A: Yes, he was.

Q: All right. That was after he was arrested, and when you asked the Defendant to tell you the locations of the pistol--

A: I didn't ask the Defendant to tell me the location of any weapons.... I told him that we were going to find the weapons if we had to take his mother's house apart board by board.

Q: All right. Well, didn't you say, I'll tear the f____ place apart?

A: I could very well have said that.

After consulting with his attorney, Defendant told Squires the location on his mother's property where the weapons could be found. Based on that information, the police recovered a .22 caliber pistol, a .20 gauge shotgun, and a box of .22 caliber ammunition.

Defendant moved to suppress his statement to Deputy Squires regarding the location of the weapons, as well as the weapons themselves as "fruits of the poisonous tree." Defendant alleges that his statement to Deputy Squires was a result of police coercion and was therefore involuntary.

Before addressing the substance of Defendant's claim, we must first consider whether the question was adequately preserved for appellate review. "In order to preserve for appellate review a claim regarding the admissibility of questioned evidence, a timely specific motion to suppress must be filed and, if such motion is denied, the issue must be kept alive by a timely specific objection at trial. In addition, the specific issue must be included in the motion for new trial." State v. King, 873 S.W.2d 905, 908 (Mo.App. S.D.1994) (citations omitted).

Following the trial court's denial of his motion to suppress, Defendant preserved the issue by making a timely objection at trial. However, Defendant's motion for new trial did not allege that his statement to Deputy Squires, and the fruits of that statement, should have been excluded as a result of police coercion. ¹ Consequently, the issue was not properly preserved. See State v. Hunn, 821 S.W.2d 866, 869 (Mo.App. E.D.1991). Our review is therefore limited to plain error. "Relief will be granted under the plain error rule only when the error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected." State v. Watts, 813 S.W.2d 940, 944 (Mo.App. E.D.1991); see also Rule 30.20.

"The test for 'voluntariness' is whether under the totality of the circumstances defendant was deprived of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that defendant's will was overborne at the time he confessed." State v. Feltrop, 803 S.W.2d 1, 12 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991)(quoting State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986)). "[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986).

The record before us does not reveal that kind of coercive activity which would make Defendant's statement involuntary. Even if Deputy Squires, with search warrant in hand, told Defendant that he would "tear the f____ place apart" in search of the weapons, this alone was not sufficient to make Defendant's resulting statement involuntary. Under the totality of the circumstances there is no indication that Defendant's will was overborne at the time he revealed the location of the weapons to Deputy Squires. His attorney was present with him when Squires approached Defendant, and he even consulted privately with his attorney before telling Squires the exact location of the weapons. Under these circumstances, we hold that the necessary predicate to an involuntary confession--police coercion--was not present. Defendant's first point is denied.

POINT II

In Defendant's second point relied on, he argues the following:

The trial court erred and abused its discretion when it overruled [Defendant's] objection during the State's closing argument analogizing [Defendant's] actions to Nazi genocide because the argument injected matters wholly inappropriate for the jurors' consideration and deprived [Defendant] of his right to due process of law and a fair trial before a fair and impartial jury, ... in that the argument inflamed the passions and prejudices of the jurors against [Defendant] by vile epithets associating his actions with the atrocities of the Nazis.

"When argument goes beyond bounds so as to excite and inflame passion or prejudice, the argument is error." State v. Long, 768 S.W.2d 664, 666 (Mo.App. E.D.1989) Defendant challenges the following comments made by the prosecution during the rebuttal portion of its closing argument.

. "It is however, equally well settled that the trial court has wide discretion in ruling on closing argument and in determining whether a comment is prejudicial." Id. "Absent abuse of discretion resulting in prejudice to the defendant, trial court rulings on such issues should not be overturned on appeal." State v. Mahurin, 799 S.W.2d 840, 844 (Mo. banc 1990), cert. denied, 502 U.S. 825, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991). "A prosecuting attorney's statements must be plainly unwarranted and clearly injurious to the accused to constitute an abuse of discretion." Id. "A conviction will only be reversed on the basis of improper argument if it is established that counsel's improper comments had a decisive effect on the jury's verdict." State v. Lumpkin, 850 S.W.2d 388, 393 (Mo.App. W.D.1993).

[PROSECUTOR]: ... Now, there's an old saying about how--a person who was living in the times of the second world war and the Nazi invasion said that "When they came to take the Jews, I did nothing. Wh...