State v. Jones

699 S.W.2d 525, 1985 Mo. App. LEXIS 4237
Missouri Court of Appeals·Decided October 15, 1985·No. No. 48041·Published·Cited by 6 cases

Opinion

SNYDER, Judge.

A jury convicted appellant of murder in the second degree, § 565.004 RSMo.1978. He was sentenced to imprisonment for ten [527]*527years in the custody of the Department of Corrections. The judgment is affirmed.

Appellant charges the trial court erred in: (1) overruling appellant’s motion to suppress his oral and written statements; (2) giving Instruction No. 11, the second degree murder verdict director, because it allowed the jury to convict appellant based on his co-participant’s intent; and (3) in denying appellant’s motion for a new trial after refusing to investigate further the identity of one of the witnesses who said she was Gloria Pollard but who appellant said committed perjury because she was in fact Gloria’s sister, Annie Pollard.

Charles Downey, known by the appellant and Alfred Saddler as the rent man, owned real estate at 2330 Dodier Street in St. Louis. He was working in the backyard at that address in the early afternoon of July 14, 1982 when he was shot between the eyes with a .22 caliber handgun. He remained conscious for a time, but expired the next morning in the hospital.

Two witnesses spoke to him at the scene of the shooting. One testified that Mr. Downey said, “Kid jumped over the fence and they told me to get them all this stuff.” The other witness, a paramedic testified as follows:

He said he was up on the ladder and a young boy pulled a gun on him. Told him he was going to rob him. He said he told the boy, ‘Oh, you got to be kidding.’ And the boy shot at him. Said, ‘He didn’t shoot me. He just shot at me. I got nervous and fell off the ladder.’

The pistol used in the murder was in the possession of Alfred Saddler, nicknamed “Frog,” on the day of the crime. Saddler said that it had been given or lent to him by a friend.

The testimony of the appellant and Saddler was in conflict but the jury could have believed that the two of them planned and participated in the robbery and murder. The appellant has not challenged the sufficiency of the evidence.

On July 16,1982, the day after the shooting, two detectives took appellant, a juvenile of fifteen years, to the juvenile court where a juvenile officer advised him of his rights. Appellant voluntarily disclaimed any involvement in the crime. The two detectives who had brought him to the juvenile court remarked that they did not believe him.

The deputy juvenile officer allowed him to deny the crime, but then interrupted and told him his parents would have to be present for any statement. The deputy juvenile officer locked appellant in a cell pending the arrival of his mother, Mrs. Sarah Jones. Upon her arrival, she saw her son in an interrogation room.

The two detectives then questioned appellant, in his mother’s presence, for about an hour. At first appellant denied participating in the crime, but he made inconsistent statements and finally admitted his involvement. He ultimately gave a statement which was written down by the deputy juvenile officer. Appellant, with help from the deputy juvenile officer, read the written statement and then both he and his mother signed it.

Other facts will be related as necessary in the discussion of appellant’s points relied on.

Appellant charges the trial court erred by denying his motion to suppress his oral and written statements, asserting that there was a violation of his constitutional and statutory rights as a juvenile. The point is denied.

The state must prove that a juvenile’s confession was given voluntarily for it to be admitted at trial. In Interest of M_ C_, 504 S.W.2d 641 (Mo.App.1974). Whether a confession is voluntary is to be judged by the totality of circumstances. In Interest of A.D.R., 603 S.W.2d 575, 584 (Mo. banc 1980). M_ C_and A.D.R. apply to the case at bar. Procedures which would yield a constitutional confession from adults may not if the suspect is a juvenile. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).

Because minors may not be able to assess their rights adequately, they must [528]*528be allowed to confer with a friendly adult. Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). Section 211.-131.2 RSMo.1978. Missouri courts have also acknowledged the importance of allowing a juvenile to talk with a friendly adult. State v. Sinderson, 455 S.W.2d 486 (Mo.1970). The court cited In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), for the proposition that the presence and competence of the juvenile’s parents bear on the admissibility of the confession.

Appellant complains that he was subjected to custodial interrogation and led to waive his rights and commit himself to making a statement before any effort was made to contact his mother. The record belies this claim.

The deputy juvenile officer talked to appellant and read him his rights. The appellant repeatedly said that he was not involved in the crime. The officer had taken appellant’s name, address and telephone number, his parents’ names and other information.

After appellant had denied his involvement, the deputy juvenile officer instructed the detectives to get appellant’s mother who arrived about an hour later. When the mother came, the deputy juvenile officer explained why he requested that she come to juvenile court, and introduced her to the detectives. The deputy juvenile officer recalled that he had allowed appellant’s mother to talk to appellant privately, but the officer was not one hundred percent certain.

The deputy juvenile officer then read appellant’s rights from a form to both appellant and his mother, and explained the particular sentences of the rights in very simple terms. Both appellant and his mother indicated that they understood the rights and both signed the form. The authorities sufficiently complied with § 211.-131.2.

There is no merit to the claim that the deputy juvenile officer participated in the police interrogation of appellant. He only tried to calm appellant down when appellant became emotional. The juvenile officer also wrote down appellant’s final statement as he made it. Appellant read the statement with help from the deputy juvenile officer and then signed it on each page. His mother also signed the statement as a witness.

There was no error in denying the motion to suppress his statement. It was given voluntarily and in accordance with constitutional and statutory provisions.

Appellant cites State v. Wright, 515 S.W.2d 421, 423 (Mo. banc 1974), but it does not support appellant’s motion to suppress. He also cites State v. Tolliver, 561 S.W.2d 407, 409 (Mo.App.1977), arguing that the “academic explanation” of rights was insufficient. First, this part of Tolliver is dicta since the case was decided on other grounds. Second, the minor defendant in Tolliver

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State v. Jones, 699 S.W.2d 525, 1985 Mo. App. LEXIS 4237 (Mo. Ct. App. 1985).

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