Court of Appeals of Missouri, Western District, Third Division
Appeal from the Circuit Court of Johnson County, Missouri. The Honorable Jacqueline A. Cook, Judge.
Daniel N. McPherson, Jefferson City, MO, for respondent.
Kent Denzel, Columbia, MO, for appellant.
Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.
Cynthia L. Martin, Judge
John M. Ramirez (" Ramirez" ) appeals his convictions of second-degree murder and second-degree arson following a jury trial. Ramirez argues that the trial court erred by denying his motion to suppress a statement he claims was obtained in violation of his Fifth Amendment privilege against self-incrimination. Ramirez also argues that the trial court committed plain error by failing to sua sponte instruct the jury to disregard a portion of the State's closing argument that Ramirez claims improperly vouched for the credibility of a witness.
Factual and Procedural History
Ramirez was seen talking to 91-year-old Maxine Ballew (" victim" ) on the evening of September 16, 2009, outside her home in Warrensburg. The victim did not place her garage can outside her home that night, as per her normal routine, and her neighbors noticed that her house was on fire the following morning. Firefighters extinguished the blaze and found the victim's body on top of her bed. She was fully clothed with her skin and clothes charred from the fire. The cause of death was manual strangulation. The State Fire Marshal's Office determined that the fire had been deliberately set in two places, one in the victim's bedroom where she was found and the other in the dining room. The house appeared to be ransacked before the fires were set.
A few days after the fire, Ramirez went to the home of two acquaintances to try and sell them some jewelry. Ramirez pulled the jewelry from a plastic bag out of his backpack. Among the pieces were bobby pins, broaches, beaded necklaces, and fake rings, items that one of the acquaintances described as jewelry that an older woman would own. One of the rings contained the initials " MJB" and another
had a name tag with the name " Ballew" on it. One of the acquaintances, who noticed scratches on Ramirez's arm, bought the jewelry and eventually turned it over to police. The victim's niece testified that a green necklace sold by Ramirez resembled a necklace owned by the victim.
Police contacted Ramirez after they learned that he had been seen by a neighbor talking to the victim the day before the fire. Ramirez voluntarily went to the Warrensburg Police Department to talk to police investigators on September 22, 2009, and brought a backpack with him. Ramirez was given his Miranda  warnings and waived them. Ramirez initially denied being on the street where the victim lived the day before the fire but later admitted to being on the street when told he was seen there by one of the victim's neighbors. Ramirez denied talking to anyone. Police found wind chimes in Ramirez's backpack, and Ramirez said he bought them at a consignment store, though the consignment store owner said they did not come from his store. Toward the end of the interview, Ramirez invoked his right to counsel after investigators asked him a second time to submit to a voice stress test. Ramirez was taken into custody at the end of the interview and transferred to the booking room.
While in the booking room, Ramirez was approached by a detective who arrived to collect DNA evidence from Ramirez's fingernails. The detective told Ramirez, who was uncooperative and belligerent, that she knew he had invoked his right to counsel and was not there to ask him incriminating questions. She asked whether Ramirez recalled signing probation papers from a prior charge that included a consent to search provision. Ramirez did not think he had consented to a search, so the detective read the provision from the probation papers that she brought with her to the booking room. Ramirez did not understand what searching his " person" meant, so the detective tried to explain that term to him. After that discussion, Ramirez did not give the detective consent to take the fingernail scrapings. As a result of the lack of consent, the detective put gloves on Ramirez in order to secure the potential DNA evidence from his fingernails and was going to handcuff Ramirez to the wall of the booking room while she sought a search warrant. Once the detective put the gloves on Ramirez, he said " fine, take it," took the gloves off, and threw them on a counter, saying " it's just prison time." The detective proceeded to collect a DNA sample.
Ramirez was later held in the Lafayette County Jail and got into a verbal altercation with another inmate in which Ramirez said " why don't you catch a real case like a murder charge." Following the altercation, Brandon Freid (" Freid" ), another inmate in the jail with Ramirez, asked Ramirez how he could kill an old woman. Ramirez answered that she " was going to call the cops." A third inmate asked Ramirez if he thought he was tough because he killed an old woman and Ramirez said " everybody has something coming to them." When another inmate asked Ramirez how he could burn an old woman ...