State v. Zindel, 78084
| Decision Date | 23 January 1996 |
| Docket Number | No. 78084,78084 |
| Citation | 918 S.W.2d 239 |
| Parties | STATE of Missouri, Respondent, v. John ZINDEL, Appellant. John ZINDEL, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Appeal from the Circuit Court of the City of St. Louis; Anna C. Forder, Judge.
Deborah B. Wafer, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.
John Zindel appeals his conviction for first degree murder and armed criminal action and his sentence of life in prison without parole. The Court of Appeals, Eastern District, affirmed his conviction by order, without opinion, pursuant to Rules 30.25(b) and 84.16(b). This Court granted transfer. Rules 30.27 and 83.03. We now reverse and remand for a new trial.
On Wednesday, February 20, 1991, John Zindel shot and killed Clarice Jablonski as she walked out of her house to her car on her way to church. This fact was not disputed by Zindel at trial. The only issue was Zindel's sanity.
Zindel and his wife resided with Zindel's mother in her home directly across the street from the Jablonski residence. They had moved there approximately five years earlier, shortly after the death of Zindel's father. Prior to the move, Jablonski and Zindel's mother maintained a friendship, but after the move, the relationship soured because of Zindel's increasing hostility toward the Jablonski family. No evidence exists that anyone in the Jablonski family ever did anything to provoke Zindel's hostility.
For several years prior to the shooting, Zindel manifested his hostility by directing profanity-laden diatribes at Jablonski or her son, Joel. These episodes were frequent, although unpredictable, and occurred only when both Zindel and one of the Jablonskis happened to be outside at the same time. In the months immediately preceding the killing, Zindel's conduct seemed to change for the worse. For example, late in the summer of 1990, Zindel confronted Joel and a visiting friend and accused the friend of "looking at him funny" and "trying to start a fight." During this same time period, Joel once looked out of his window to discover Zindel outside staring in at him. Finally, during the fall prior to the shooting, Zindel constructed a tower with a spotlight on it, which he would shine into the Jablonski house at night. The spotlight was so powerful that it reflected off the Jablonski's house and into the windows of a neighbor's house. Again, no evidence exists that anyone in the Jablonski family did anything to provoke this behavior.
The offense in question took place while Jablonski was approaching her car with her ice scraping tools in hand. Zindel fired three shots from his garage. After being hit by the first shot, Jablonski began running towards her house. She was then hit by the other two shots and collapsed and died before reaching the door.
Two persons, Cindy Heede, a teenager on her way to school, and Joan Schlechtig, a neighbor of both Zindel and Jablonski, saw Zindel fire the shots from a rifle. After the shooting, witness Schlechtig saw Zindel put the rifle in the corner of the garage and close the garage door. At some point between the killing and the subsequent arrest, Zindel hid the murder weapon, a .22 caliber rifle, in an air-conditioning duct in the laundry room of his mother's house. When the police arrived at Zindel's house, they found him sitting in his living room with his wife and mother. They informed him that he was a suspect in the killing, handcuffed him, removed him from the house, took him to the patrol car and gave him Miranda warnings. At this point, Zindel refused to say anything to the police officers.
Zindel was then taken to the police station where the police again gave him the Miranda warnings and began to question him once he indicated a willingness to talk. Initially, Zindel denied his involvement in the murder. However, when police informed him about the existence of the witnesses, Zindel muttered some derogatory comments about the victim, and said he did not want to talk anymore and wished to have an attorney present. The police then stopped the questioning.
As stated, at trial Zindel did not dispute that he caused the death of Jablonski. He claimed, however, that he was not responsible for his conduct under § 552.030.1, RSMo 1986, which states:
A person is not responsible for criminal conduct if, at the time of such conduct, as a result of a mental disease or defect he did not know or appreciate the nature, quality, or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of the law. 1
Two psychiatrists and a psychologist testified at trial about Zindel's mental condition at the time of the killing. The court-appointed psychiatrist, Dr. Sam Parwatikar, testified that Zindel suffered from cortical atrophy, which was not consistent with his age, as well as two different types of organic brain disorder: dementia, meaning a general impairment of memory; and delusional disorder, meaning beliefs that are not amenable to reason. Dr. Parwatikar concluded, therefore, that at the time of the offense Zindel was unable to conform his conduct to the requirements of the law, although he did know that it was wrong to shoot someone.
The defense expert, Dr. William O'Connor, a psychologist, testified that Zindel was brain damaged and suffered from primary degenerative dementia with psychotic features. Dr. O'Connor concluded that Zindel would have had "serious impairments in his capacity to appreciate the offense" and that he could not conform his actions to the requirements of the law.
On the other hand, the state's expert, Dr. Stephen Dinwiddie, a psychiatrist, testified that Zindel suffered from delusional disorder of the paranoid type, meaning that he held odd beliefs that were not based on reality, but that the disorder was not associated with social deterioration or loss of function. Dr. Dinwiddie found no organic component to the disorder and found that Zindel could both appreciate the nature and quality of his action and conform his conduct to the requirements of the law.
The jury found Zindel responsible for his conduct and found him guilty of first degree murder and armed criminal action. On appeal Zindel raises three points: (1) whether plain error occurred because of the prosecutor's use of the defendant's post-arrest silence; (2) whether plain error occurred when the prosecutor contended during closing arguments that Zindel "needed to go to jail for the rest of his life;" and (3) whether Zindel's counsel was ineffective for failing to object to the prosecutor's statements during closing argument. Because we find the first point persuasive, we need not reach either of the last two points.
A key element of the prosecutor's theory of the case was the inference from Zindel's post-Miranda silence that Zindel understood the nature and quality of his actions and could, when he wanted to, conform his conduct to the requirements of the law. In short, the prosecutor equated silence to sanity. In Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1985), the United States Supreme Court held that it is "fundamentally unfair" and thus a violation of due process to use the accused's post-Miranda silence as evidence of sanity. Id. at 295, 106 S.Ct. at 640-41. This prohibition includes "the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted." Id. at 295 n. 13, 106 S.Ct. at 640 n. 13. In view of Wainwright, the state has conceded that the admission of evidence of Zindel's post-Miranda silence violated his due process rights. However, the state, noting that no objection was made to the evidence, disagrees that the violations constitute plain error. A claim of plain error lies only where there are "substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted'." State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995); Rule 30.20. Manifest injustice is dependent upon the facts and circumstances of the particular case. State v. Nolan, 872 S.W.2d 99, 103 (Mo. banc 1994). The party asserting plain error has the burden to show manifest injustice. State v. Wise, 879 S.W.2d 494, 520 (Mo. banc 1994). There is ample authority that improper use of post-Miranda silence may constitute manifest injustice and therefore, plain error. See e.g. State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970); State v. Flynn, 875 S.W.2d 931, 934 (Mo.App.1994); State v. Mabie, 770 S.W.2d 331, 335 (Mo.App.1989).
To determine whether manifest injustice exists, it is necessary to review in some detail the manner and extent to which the improper evidence was used. In this regard the record reflects that the prosecutor emphasized this evidence at every point, from opening statement through the testimony of the witnesses and, finally, in closing argument.
In opening statement the prosecutor said:
And they take him into custody and advised him of his rights and he indicated at that point in time he did not choose to make a statement. He was subsequently taken down ... to Homicide where he was again advised of his rights. And he indicated he knows nothing about ay [sic] shooting that he had nothing to do with any shooting and when confronted with the facts he was identified by two people who saw him shooting, he said some comment about that.... And then he declined to make any further statement and requested an attorney which is his right to do.
In his case-in-chief, the prosecutor questioned Officer Joseph Brauer, one of the first officers on the scene, as follows:
Q. When you removed him from the police unit, was he informed by you or someone else in your presence what he was being arrested for?
A. He was.
Q. And what was he told and who told him?
A. My partner did it, Detective Nickerson and in my presence...
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