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September 21, 1993


Appeal from the Circuit Court of the County of St. Louis. Hon. Melvyn W. Wiesman, Judge.

Paul J. Simon, Presiding Judge, Albert J. Stephan, Judge - concurs. James A. Pudlowski, Judge - concurs.

The opinion of the court was delivered by: Simon

Appellant, Paul Michael Anderson, appeals his convictions for murder in the first degree, § 565.020.1 R.S.Mo. 1986 (all further statutory references shall be to R.S.Mo. 1986 unless otherwise noted), for which he was sentenced to two consecutive terms of life imprisonment without parole. He also appeals the denial of his post-conviction relief (Rule 29.15) motion without an evidentiary hearing.

On appeal, appellant contends the trial court erred in: (1) denying his motion to suppress and admitting in evidence two audiotaped statements; (2) admitting into evidence and playing for the jury a videotaped reenactment of the crimes; (3) admitting in evidence two autopsy photographs of one of the victims; (4) permitting the prosecutor to elicit certain hearsay testimony; (5) overruling his challenges for cause of two venirepersons; and (6) submitting MAI-CR3d 302.04 defining "reasonable doubt." Appellant also contends the motion court erred in denying his Rule 29.15 motion, based on ineffective assistance of counsel, without an evidentiary hearing. We affirm.

Appellant does not contest the sufficiency of the evidence so we briefly review the evidence in a light most favorable to the verdict. On the evening of December 19, 1989, appellant was at the home of his friend, Tony Brumfield, whom he had known for approximately three weeks. Appellant had brought with him a .22 caliber rifle. Around 10:30 p.m., Brumfield's mother informed Brumfield that appellant would have to leave because she was going to work. Appellant stated that his mother was going to pick him up. When Mrs. Brumfield returned from work the next morning around 5:00 a.m., she checked her sons' room to find her two sons in bed, and appellant and his girlfriend, Dana Ruff, dressed in coats getting ready to leave. Mrs. Brumfield scolded her son about still having company, and appellant stated that his mother had not come to pick him up and that his girlfriend came over to pick him up. Appellant and Ruff then left the apartment together.

Ruff dropped appellant off at a subdivision near the home of James and Armida Frederick, the victims. Appellant cut through some yards and entered the victims' garage around 5:30 a.m. through a side door which he knew to be unlocked. He waited in one of the victims' cars until approximately 11:00 a.m. when he heard the front door of the house open. Appellant exited the car and moments later, Mrs. Frederick entered the garage. Appellant demanded her purse and Mrs. Frederick began to scream. Appellant then shot Mrs. Frederick in the head, causing her to collapse to the floor of the garage. Appellant began going through her purse when he heard someone else coming from the house. He stepped back, and moments later Mr. Frederick came into the garage and attended to his wife. When Mr. Frederick turned around, appellant shot him in the head and face several times. One of the shots transected the brain stem and midbrain, causing Mr. Frederick's virtually instantaneous death. Appellant then entered the house, took Mr. Frederick's wallet and some car keys, and telephoned Brumfield to tell him what he had done and that he was on his way over. Appellant returned to the garage to find the main garage door open and Mrs. Frederick gone. She had managed to seek help from a neighbor, who called the police, but she later died from an epidural hemorrhage as a result of the gunshot wound to the head. Appellant then took one of the victims' cars, and proceeded to Brumfield's apartment. There, appellant changed his pants which were stained with blood, and showed Brumfield the various credit cards he had taken from the victims. Brumfield threw some of the cards under his mattress, and he and appellant walked to Pizza Hut for lunch. After appellant paid for the pizza with money he had taken from the victims, the two of them went back to the victims' car and drove to a clothing store where they used the victims' credit card to buy coats and hats. They then went to another store to buy more clothes, but the clerk there would not honor the credit card without identification. The two then picked up Brumfield's cousin, Jermain Stigler, in Pine Lawn, and the three went to St. Louis Centre to continue their shopping spree. They tried to buy shoes at one store which would not honor the credit card without identification. Next, the three decided they wanted some gold jewelry, so appellant attempted to purchase the jewelry while Brumfield and Stigler went into a department store. When Brumfield and Stigler came out of the department store they saw security officers from St. Louis Centre with appellant, so they left in the victims' car. The clerk at the jewelry store, suspecting the card was stolen, had called the credit card company and was informed that the card was probably stolen. Since this could not be confirmed at the time, appellant was asked by the clerk to leave and come back with proper identification. Eventually the credit card company confirmed that the card was stolen, and the police were called. The police then showed a photo line-up to two clerks at the jewelry store and the two security guards. Three of the four were able to positively identify appellant as the one trying to use the credit card.

After appellant left St. Louis Centre and realized that his friends had left him, he called his girlfriend who gave him a ride to his grandmother's house. Meanwhile, Brumfield and Stigler drove to the apartment of a friend of Brumfield, took the murder weapon, which had been in the back seat of the victims' car the whole time, and buried it in the snow alongside an apartment building. Stigler then dropped Brumfield off near his home, and drove himself home to Pine Lawn where the car was abandoned. During the evening, police learned that Dana Ruff was appellant's girlfriend. Ruff was interviewed by police as a potential witness, for information in order to locate appellant. After being interviewed at the police station, she returned home where she consented to a search of her automobile. During the search police located a live .22 caliber round on the floorboard of her car. During the same time period, police were interviewing Brumfield who implicated Ruff as being involved in the murders. Brumfield also led police to the location of the murder weapon. Ruff was subsequently taken into custody and transported to the police station as a suspect in the murders. Eventually, appellant was arrested at his grandmother's house around 10:30 p.m. that night, made audiotaped incriminating statements, and walked through a videotaped reenactment of the incident. After a five day trial at which these items were admitted in evidence, appellant was convicted. Appellant put on no evidence at the trial. Other facts will be supplied as necessary to resolve appellant's points on appeal.

In his first point, appellant claims the trial court erred in overruling his motion to suppress, and admitting in evidence, the two audiotaped confessions made by appellant while in custody the night he was arrested, because the statements were taken in violation of his privilege against self-incrimination. He claims that, although he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the statements were involuntary under the totality of the circumstances which included his youth, the inherently coercive environment, and that he had been questioned continuously since 11:00 p.m. the night of the murders and taken out into the bitter cold without a coat during that time.

Ordinarily, a ruling on a pre-trial motion to suppress may not be asserted as a ground of error on appeal because the pre-trial motion to suppress and the admission at trial of the challenged evidence are not two distinct procedures. State v. Vinzant, 716 S.W.2d 367, 372 (Mo.App. 1986) The real damage is not done until the evidence is introduced in the trial of the case. Id. Here, however, since objections at trial to the admission of appellant's confessions were based upon the previous motions to suppress, we shall refer to the pre-trial proceedings to determine the propriety of the trial court's admission of appellant's confessions at trial.

Once a defendant properly questions the voluntariness of his pre-trial statement, the state has the burden of proving by a preponderance of the evidence that the statement was voluntary. State v. Hart, 805 S.W.2d 234, 238[8-10] (Mo.App. 1991). The essential determination is whether the evidence was sufficient to sustain the trial court's finding that the statement was voluntarily given. Id. The test for determining 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 made the statements. Id. Absent a showing of special circumstances, the state need only make a prima facie showing of voluntariness. Id.

In reviewing the trial court's ruling on a motion to suppress, the facts and reasonable inferences arising therefrom are to be stated favorably to the order challenged on appeal and we may disregard all contrary evidence and inferences. State v. Smith, 812 S.W.2d 225, 226[1] (Mo.App. 1991). The evidence surrounding appellant's arrest and detention, adduced at the suppression hearing and at trial, reveals that appellant was arrested at his grandmother's house at approximately 10:30 p.m. on December 20, 1989, the evening of the murders. He was then taken to the police station in Clayton. At approximately 11:07 p.m., appellant was contacted in an interview room by Detective Tim Hagerty of the St. Louis County Police. Hagerty asked appellant if he wanted anything to drink or needed to use the rest room, and appellant declined. Appellant was then advised of his Miranda rights through the use of a warning and waiver form. Appellant initialed next to each right on the form as it was read to him to indicate that he understood it, and he also signed the form acknowledging that he understood his rights, that he was willing to make a statement, that he did not want a lawyer, that he knew what he was doing, that no promise or threats had been made to him, and that no pressure or coercion of any kind had been used against him. Appellant then indicated he wished to make a statement, during which he implicated himself in the murders. Detective Hagerty testified that during this statement appellant's attitude was very calm, that he talked very matter-of-factly, very soft-spoken, and that he was very cooperative.

Hagerty then asked appellant if he would be willing to make a tape recorded statement explaining in detail what he had done and what they had talked about verbally. The taped statement began at approximately 12:20 a.m. on December 21, 1989. Appellant was again advised of his Miranda rights on the tape and indicated a willingness to make a statement, which lasted about nineteen minutes.

After completing this statement, appellant agreed to go back to the victims' home and be videotaped reenacting the event as it occurred. Before going to the victims' home, around 2:00 a.m., Hagerty had appellant stand for a photograph next to the victims' car which had been found in Pine Lawn. Appellant was then taken to the victims' home where he was again advised of his Miranda rights, and asked to explain what happened. After walking through the events of the murder, appellant was given food and drink and taken back to the police station in Clayton around 4:00 a.m. Hagerty interviewed appellant again at 5:30 a.m., after orally advising him of his rights, during which appellant stated that he had planned for a week to kill the victims and then rob them. Hagerty then went home and realized that he had not had appellant's 5:30 a.m. statement committed to audiotape, so he called Sergeant Ted Zinselmeyer and asked him to interview appellant and record his statement. Sgt. Zinselmeyer entered the interview room where appellant was sleeping, advised appellant of his rights, asked him if he understood his rights, and asked appellant to make a statement. Appellant then gave an audiotaped statement to the effect that the murders were pre-planned. Both audiotaped confessions were played for the jury over appellant's objections.

Appellant claims that under the totality of the circumstances, his confession was not voluntary. One of these circumstances is the fact that he was taken out in the cold for several hours dressed only in an orange jail jump suit and a sweater. However, the record reveals that appellant was in a car the whole time except for the amount of time it took to photograph him standing next to the victims' car and the time it took to do the videotaped reenactment. The videotape is approximately eight minutes long. The record reveals that appellant was back in the police station at approximately 4:00 a.m.. Appellant makes no assertions as to how his being out in the cold was a factor in coercing him to make the 5:30 a.m. or 8:30 a.m. statements.

Other factors appellant cites include the fact that he was only eighteen years old and the fact that he was awake all night. He does not explain, however, how his age bears on his ability to decline to give a statement. Appellant is a high school graduate, with the ability to read and write, and was advised numerous times of his right not to speak. There is no claim that he suffered from any disability nor that he does not have the intelligence requisite with his age. See, State v. Bailey, 714 S.W.2d 590, 594[8] (Mo.App. 1986).

The record also reveals no evidence to suggest that appellant was so tired that his will was overborne at the time he gave his statement. Appellant was not continuously questioned throughout the night, but rather, was interviewed in a series of sessions and read his Miranda rights prior to each. No evidence suggested that appellant requested an opportunity to sleep, or that he ever requested the interview be terminated. No evidence suggests that such requests would have been denied had they been made.

The record reflects that appellant was not handcuffed while in the interview room at the police station, that he was given food and drink, and that he was given an opportunity to use the rest room. In short, the record reflects no evidence of coercive activity on the part of the police to indicate appellant's statements were less than voluntary. Coercive police activity is a necessary predicate to the finding that a statement is not voluntary. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473, 484 (1986). Further, the jury was instructed, pursuant to MAI-CR3d 310.06, that if they did not find and believe that the statements were freely and voluntarily made under all the circumstances surrounding and attending them, that they must disregard them and give them no weight in their deliberations. Point denied.

Appellant's second point is that the trial court erred in admitting in evidence and playing for the jury exhibit 137, a videotape of appellant reenacting the crimes. Appellant claims the videotape was irrelevant, cumulative and prejudicial since it would have affected the jury out of proportion to its value as evidence. The video consisted of appellant explaining and demonstrating his actions at the crime scene as they occurred, with two police officers standing in as the victims.

While appellant initially objected to admission of the videotape at trial, the objection was withdrawn and appellant requested that the tape be shown to the jury. No claim of error was contained in his motion for new trial. Our review, therefore, is for plain error. Rule 30.20. Under plain error review appellant bears the burden of demonstrating the trial court committed an error which so substantially affected his rights that manifest inJustice or a miscarriage of Justice will result if the error is left uncorrected. State v. Lewis, 809 S.W.2d 878, 879[1] (Mo.App. 1991).

In support of his point, appellant relies mainly on State v. Caudill, 789 S.W.2d 213 (Mo.App. 1990). In Caudill, the court held that videotape of a crime scene is admissible, within the trial court's discretion, upon weighing the probative value against the prejudicial effect, Id., at 215[7,8], and that deference should be given to the trial court's discretion in admitting a videotape of a crime scene in evidence. Id. However, the court also held that a videotaped reenactment of a crime, where the victim reenacts the crime with a third party playing the role of the defendant, is inadmissible. Id., at 216[9]. The Caudill court, relying heavily on Lopez v. State, 651 S.W.2d 413 (Tex.App. 2 Dist. 1983), stated:

In Lopez it was held that a videotape reenactment of a crime is inadmissible. In Lopez, at 414-15, the court stated that "the concept of recreating human events with the use of actors is a course of conduct that is fraught with danger. The general appearance of an actor, his facial expression or slightest gesture, whether intended or not, may sway a juror who has listened to lengthy testimony. The danger of jurors branded with television images of actors, not testimony is too great to ascertain."

The court found, however, that since the evidence of guilt was overwhelming, the error in admission of the videotape was harmless. Caudill, at 217[12]. Thus, in Caudill it is clear that we are concerned with the dangers associated with actors playing the part of the defendant. Here, defendant himself reenacted the events and this concern is not present. Informative in our particular situation is People v. Dabb, 32 Cal. 2d 491, 197 P.2d 1, 5[7] (Cal. 1948), where the court stated:

A motion picture of the artificial re-creation of an event may unduly accentuate certain phases of the happening, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution. As pointed out by Wigmore, such a portrayal of an event is apt to cause a person to forget that "it is merely what certain witnesses say was the thing that happened" and may "impress the jury with the convincing impartiality of Nature herself." (3 Wigmore, Evidence [3rd ed.], § 798a, p. 203) However, when the events which are being photographed consist of a voluntary reenactment by the accused of what occurred, there is little, if any, danger of misleading emphasis which is unfavorable to him. Moreover, as a method of presenting confessions, sound motion pictures appear to have a unique advantage in that, while presenting the admission of guilt, they simultaneously testify to facts relevant to the issue of volition.

Accord, Grant v. State, 171 So. 2d 361, 363-5[4] (Fla. 1965); cert. denied, 384 U.S. 1014, 86 S. Ct. 1933, 16 L. Ed. 2d 1035 (1966); and State v. Palmer, 227 La. 691, 80 So. 2d 374, 383 (La. 1955). See generally, Annot., 41 ALR4th 812, 858-863.

The fact that two police officers were used to represent the victims does not render this videotape inadmissible. The officers did not attempt any dramatization or recreation of the victims' actions, but merely assumed the positions in the garage which appellant stated the victims were in before and after he shot them. They were not "actors" as that term is used in Caudill.

Appellant argues that the videotape was prejudicial because deliberation was a highly contested fact issue, and he appeared calm and collected in the videotape. In State v. Garrett, 595 S.W.2d 422, 434 [29] (Mo.App. 1980), the defendant claimed that his videotaped confession showed him in a less than favorable light, encouraged by police, smoking and laughing while relating his confession. The court found that the defendant could not claim error because the tape accurately portrayed the manner in which he chose to present himself. Id. Here, if appellant's demeanor as shown on the videotape is probative on the issue of deliberation, and is thus prejudicial to him, this alone is no basis for holding the videotape inadmissible. The very nature of evidence which has probative value as to an element of the offense charged is necessarily prejudicial. See, State v. Shaw, 636 S.W.2d 667, 672 (Mo.banc 1982); cert. denied, 459 U.S. 928, 103 S. Ct. 239, 74 L. Ed. 2d 188 (1982) ("Any incriminating evidence is by definition prejudicial."). The decision whether potentially prejudicial or inflammatory evidence should be admitted lies within the sound discretion of the trial court which is in a better position to balance the probative value and danger of the evidence. Id. Here, the trial court did not abuse its discretion. Point denied.

Appellant's third point is that the trial court erred in admitting in evidence exhibits 65 and 67, autopsy photographs of James Frederick, because he claims any probative value the photographs may have had was outweighed by their prejudicial effect. Appellant contends the photographs were cumulative, repetitious, gruesome and unduly inflammatory. While objection to admission of these exhibits was made at trial, the issue was not contained in the motion for new trial and therefore not preserved for appellate review. State v. Jennings, 649 S.W.2d 448, 452 (Mo.App. 1983). Therefore, we review only for plain error.

A trial court has broad discretion regarding the admission of photographic evidence, and as long as the photograph has potential value to assist in the jury's understanding of verbal testimony or to corroborate such testimony, the appellate court may not overturn its admission by the trial court. Even though gruesome, photographs may be admitted to show the nature and location of wounds, depict the location and condition of the body, or to establish any other element of the state's case. State v. Mease, 842 S.W.2d 98, 108 [13,14] (Mo.banc 1992); cert. denied, ___ U.S. ___, 113 S. Ct. 2363, 124 L. Ed. 2d 269 (1993).

Here, the photographs were described by the state's pathologist as showing the nature and location of the wounds which caused the death of James Frederick. Also, the pathologist used the photographs to assist him in explaining to the jury his testimony regarding the nature, location and extent of the victims' wounds. As such, the photographs had potential to assist the jury in understanding the pathologist's testimony. The trial court did not plainly err in the admission of the photographs.

In his next point, appellant claims the trial court erred in allowing the prosecutor to elicit testimony from Detective Tim Hagerty to the effect that Jeffrey McCullogh, a friend of appellant, had seen appellant driving the victims' car out of their driveway. Detective Hagerty testified that the police were unable to locate McCullogh for trial. Appellant contends that the testimony was inadmissible hearsay and deprived him of his rights under the United States and Missouri Constitutions. No objection to this testimony was made at trial, nor was the issue included in appellant's motion for new trial. Thus, the issue is not preserved and our review is only for plain error.

Hearsay which goes in the record without objection may be considered by the jury. State v. Wallace, 825 S.W.2d 626, 632[10] (Mo.App. 1992). Further, where no objection is made, the admission of hearsay evidence is not plain error. State v. Lewis, 809 S.W.2d 878, 879[2,3] (Mo.App. 1991). In any event, the statement here was admissible for the non-hearsay purpose of showing why Detective Hagerty's investigation focused on appellant. The record shows that on cross-examination, defense counsel elicited from Detective Hagerty that neither of the neighbor witnesses, Michael Lewis or Kevin Lewis, had told him that it was appellant in the car that backed out of the victim's driveway. Defense counsel was also able to get Detective Hagerty to agree that no one had told him appellant was the one in the victims' car until Detective Albert honed in on appellant. On redirect, the prosecutor elicited from Detective Hagerty that neither Kevin Lewis nor Michael Lewis had told him that appellant drove away in the victims' car, but that that information had come to him as part of the investigation from Jeffrey McCullough. Detective Hagerty was further questioned on redirect when the prosecutor elicited from him that he was incorrect in stating on cross-examination that no one had told him appellant was driving away from the victims' house in their car. Thus, this testimony was nonhearsay, admissible to rebut the implication that the police began suspecting appellant without probable cause. We find no manifest inJustice. Point denied.

Appellant's next point is that the trial court erred in overruling two of his challenges for cause of two venirepersons, denying him his right to a full panel of qualified jurors from which to make his peremptory challenges, in that the two venirepersons gave answers on voir dire indicating they would give more weight to police officers' testimony and be unable to evaluate their credibility without reference to their profession.

On voir dire, defense counsel questioned venireperson Jeffrey Hockert as follows:

[DEFENSE COUNSEL]: You would give--if there were conflicting testimony, you would give more weight to the police officer's testimony because he's a police officer?

Yes, sir, and that is Mr. Hockert?

VENIREPERSON HOCKERT: Conflicting testimony, I would believe the -- leaning more towards a police officer.

[DEFENSE COUNSEL]: Well, leaning is something different than giving them more weight to this testimony. Let me ask you this: If there's conflicting testimony, as a number of people have indicated in this jury room, would you be more likely--would you give more weight to the police officer's testimony just because he's a police officer?

VENIREPERSON HOCKERT: I believe so, yes.

[DEFENSE COUNSEL]: All right. Would you give--if a lay witness should testify and a police officer should testify, would you automatically give more weight to the police ...

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