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07/18/95 STATE MISSOURI v. MATTHEW V. FUNKE

July 18, 1995

STATE OF MISSOURI, RESPONDENT,
v.
MATTHEW V. FUNKE, APPELLANT. MATTHEW V. FUNKE, APPELLANT, V. STATE OF MISSOURI, RESPONDENT.



Appeal from the Circuit Court of St. Louis County. Hon. Margaret M. Nolan.

Clifford H. Ahrens, Presiding Judge, Paul J. Simon, J., concur. Kent E. Karohl, J., concur.

The opinion of the court was delivered by: Ahrens

In this jury-tried case, defendant was convicted of murder in the second degree, in violation of § 565.029 RSMo 1994, and forcible rape under § 566.030. Defendant was sentenced to two consecutive life terms imprisonment. Defendant appeals the judgment and sentence and the denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We affirm.

Defendant does not challenge the sufficiency of the evidence which is viewed in the light most favorable to the verdict. On September 17, 1990, twelve-year-old Che Sims (the victim), her sister and a friend decided to go to Schnucks to buy some candy and soda. The victim went home to get some money around 7:00 p.m., and met the other girls at the store where they bought soda. While they were in the store, a bicycle one of the girls, borrowed from her brother, was stolen. The girls went back to where the brother and his friends were playing football near Holt Electrical Supplies to tell him of the theft. The boys and girls went to look for the bike, splitting up to go behind a strip mall. The victim became separated from the others.

Around 8:15 p.m., Christopher Johnson saw a friend, Jeff Grice, and defendant standing near a car located on the parking lot of Holt Electrical Supplies. When Johnson approached, Grice asked him if he wanted to party with them. After they drank some alcohol, the three headed towards the creek between Holt Electrical Supplies and the strip mall. Defendant alone crossed the creek, went up towards the strip mall, and returned with the victim, pushing her to the ground. The victim tried to scream, but Grice covered her mouth with his hand. Johnson and Grice held her down while defendant cut and pulled off her pants. While defendant was having sex with the victim, she tried to break free and Grice put his hand around her throat and told her to stop trying to scream. At various times, defendant and Grice hit the victim.

During the attack, Johnson removed his shirt, and Grice wrapped it around the victim's throat, twisting it and threatening to kill her. By the time defendant finished having sex, the victim had stopped moving. Grice also had sex with the victim, who did not move.

After Grice finished, defendant said that they should make a pact of silence by cutting the victim. Johnson cut the victim's left arm three times, defendant cut her right arm three times, and Grice made two cuts and two scratches on the left arm. They then threw the body into some brush down the creek bank.

When the victim was found, she had hemorrhages in her eyes, had bitten her tongue, and had injuries around her neck consistent with a shirt being twisted around her neck. The cause of death was strangulation. The wounds on her arms had been inflicted with a knife after the victim expired. A pelvic examination revealed injuries consistent with forcible rape. DNA tests were performed on material on a swab taken from the victim's vagina. Defendant's genetic profile matched that of the material on the swab. Christopher Johnson contacted the police after the victim was found and eventually confessed his and defendant's involvement in the crime. After a jury trial, defendant was found guilty of second degree murder and forcible rape.

In his first point on direct appeal, defendant contends the trial court plainly erred in denying his motion to proceed pro se at trial. *fn1 Defendant asserts that because the trial court found him competent to stand trial and that competency standard is the same to waive counsel, he was denied his constitutional right to conduct his own defense. In reviewing for plain error, we will grant relief only if defendant shows that a miscarriage of Justice or manifest inJustice would occur if the error is left uncorrected. Rule 30.20.

It is well established that a defendant in a criminal trial is entitled to be represented by counsel at trial. State v. Watson, 716 S.W.2d 398, 402 (Mo. App. 1986). A defendant has an equally protected right to represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 835-36, 95 S.Ct. 2525, 2541-42, 45 L. Ed. 2d 562, (1975). However, the right to self-representation is not unconditional. State v. Herron, 736 S.W.2d 447, 449 (Mo. App. 1987). For a defendant to effectively waive his right to counsel and proceed pro se, the record must show he was offered counsel but he voluntarily, knowingly, and intelligently rejected the offer and waived that right. State v. Watson, 687 S.W.2d 667, 669 (Mo. App. 1985). "To be valid such waiver must be made with an apprehension of the nature of the charges; the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." Id., quoting Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). (Emphasis omitted.) "The test for determining if the waiver is made intelligently and knowingly depends on the 'particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.'" State v. Hunter, 840 S.W.2d 850, 858 (Mo. banc 1992), cert. denied, 113 S.Ct. 3047, 125 L. Ed. 2d 732 (1993).

At the hearing on defendant's motion to proceed pro se, the trial court questioned defendant on his educational background and his knowledge of science and the law. Defendant had already been found competent to stand trial at a prior hearing. The record shows that defendant understood the charges, the range of punishment, and his rights to representation and a jury trial. However, defendant had no prior contact with the criminal Justice system and possessed a rudimentary understanding of the law. Defendant displayed little knowledge or understanding of the technical nature of the evidence to be presented at his trial.

TRIAL COURT: Do you understand the highly technical aspect of this trial? That is all based on scientific evidence? Do you understand that?

DEFENDANT: That's what it would be based on, I guess.

Q: That's right. Do you feel capable of handling this highly technical scientific evidence?

A: Yes, because there is none.

In addition, defendant had not been aware that he could not claim ineffective assistance of counsel after proceeding pro se. Finally, defendant did not ...


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