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State v. Joseph

Court of Appeals of Missouri, Eastern District, Second Division

December 6, 2016

STATE OF MISSOURI, Respondent,
v.
GEORGE EDWIN JOSEPH, Appellant.

         Appeal from the Circuit Court of Cape Girardeau County Cause No. 13CG-CR00918-01 Honorable Benjamin Frederick Lewis

          Colleen Dolan, Judge.

         I. Introduction

         George Edwin Joseph ("Defendant") appeals his conviction for two counts of first-degree murder in violation of § 565.020 RSMo 2000 and one count of armed criminal action in violation of § 571.015 RSMo 2000.[1] Defendant argues in his first two points that the trial court erred in admitting his incriminating statements because they were the product of custodial interrogation, involuntary, and in violation of Defendant's right against self-incrimination and right to counsel. Defendant argues in his third point that the trial court abused its discretion in overruling his objection to the State's question to a witness about the validity of Ferrotrace testing and he was prejudiced by the State's unsworn testimony. In his fourth point on appeal, Defendant claims he was prejudiced by the State's comments regarding deliberation during closing arguments. In his fifth point, Defendant alleges that he was prejudiced and the trial court erred in refusing to instruct the jury on how to evaluate the evidence of Defendant's investment practices. Finally, in points six and seven, Defendant argues that the trial court erred in refusing to instruct the jury on involuntary manslaughter. We affirm the decision of the trial court.

         II. Factual and Procedural Background

         On the morning of May 30, 2013, at Defendant's home in Cape Girardeau, the bodies of Defendant's wife (Mary Joseph) and son (Matthew Joseph) were found in their beds, wrapped in sheets and covered by pillows, with rosaries placed on top of them. They were both shot in the back of their heads three times with bullets fired from a .22 caliber gun. There was no sign of forced entry into the home and the forensic pathologist who performed the autopsies on the victims opined they died while sleeping. Defendant was found sitting by the pool, covered in blood. He later made statements to medical personnel and police officers that he had shot himself in the pool. He sustained serious injuries to his head and was taken immediately to a local hospital. He was then flown to Barnes Jewish hospital ("the hospital"), where he underwent two surgeries and was placed on a ventilator in the Intensive Care Unit. Police recovered a .22 caliber gun from the pool alongside a spent casing.[2]

         On June 4, 2013, the hospital called Sergeant Don Perry ("Officer Perry")[3] to inform him that Defendant had been removed from the ventilator and was able to speak. Officer Perry and Sergeant Jeff Bonham ("Officer Bonham") drove to St. Louis to interview Defendant about what occurred at his home on May 30 and collect DNA evidence. In order to visit Defendant, all persons, including the police, had to go through the hospital's security. Pursuant to the hospital's policy for crime victims, Defendant was located on a secure floor with limited outside access. The officers donned protective suits and recorded their interview with a video camera. Before the officers began questioning Defendant, he asked to speak with his attorney. Defendant repeatedly told the officers he did not want to answer any questions without his attorney, and at one point asked them to stop questioning him without his attorney present. However, the officers continued to question Defendant, and after about twenty minutes he stated: "There's nobody else involved. I'm not going to shoot anybody." The officers asked for more details about what happened but Defendant did not answer any more of their questions. He told them at one point he would get out of the hospital soon and he would talk to them with his attorney. Officer Perry stated "I don't know if you didn't want your family to go through the shame of the financial issues" to which Defendant replied, "That's what it was." The officers left Defendant after questioning him for two hours.

         As the officers left, they encountered Defendant's family members and helped them gain access to Defendant's hospital room. The police informed the hospital's security who the family members were and that they needed to obtain Defendant's signature in order to proceed with burying Defendant's wife and son. Defendant's brother, Gerard Joseph, and brother-in-law, David Snell, visited him along with other family members. Mr. Snell testified he was close to Defendant, and he was one of the first people to arrive at Defendant's home on the morning of May 30 and discover the bodies of his nephew and sister-in-law. Mr. Snell testified he visited Defendant in the hospital shortly after the police left, and Defendant told him, "He had to put them in a better place" and he "was so sorry."

         On June 7, 2013, Defendant was arrested when he was discharged from the hospital. He was charged with two counts of murder in the first-degree in violation of § 565.020. Defendant was also charged with one count of armed criminal action under § 571.015 for using a gun to kill Mary Joseph. Prior to trial, Defendant filed a motion to suppress his statements made to the police and recorded at the hospital. Defense counsel argued that Defendant was subjected to a custodial interrogation without being read his Miranda rights in violation of the Fifth Amendment, and that the statements were involuntary under the Fourteenth Amendment. The trial court found Defendant's constitutional rights were not violated and denied the motion.

         On May 14, 2015, in a second pre-trial motion, Defendant again argued the statements he made to the police at the hospital should be suppressed. His counsel presented evidence that Defendant was on amnesiac medication and his brother testified Defendant was very groggy, delirious, and delusional on the day the officers questioned him. The State opposed the motion, claiming the medical records and officers' testimony indicated Defendant was conscious, coherent, and not in any pain while the officers questioned him. The court again denied Defendant's motion.

         Trial was held on July 20-23, 2015, and the jury returned a verdict of guilty on the two counts of first-degree murder (Counts I and II) and the count of armed criminal action (Count III). Defendant filed motions for judgment of acquittal at the close of the State's evidence and at the close of all the evidence, which the trial judge denied. Defendant filed a motion for new trial on August 12, 2015. On September 18, 2015, the trial court denied this motion and sentenced Defendant to life without parole on Counts I and II and to 50 years on Count III, with all three sentences to run consecutively. Defendant filed his notice of appeal on September 24, 2015.

         III. Discussion

         In Defendant's first and second points on appeal, he argues the trial court clearly erred in admitting his statements made at the hospital because (a) they were the product of an un- Mirandized custodial interrogation and violated Defendant's Fifth Amendment rights; (b) they were involuntary under the Fourteenth Amendment; and (c) admitting them violated Defendant's Fifth Amendment privilege against self-incrimination.

         a. The trial court did not clearly err in admitting Defendant's statements because they were not the product of custodial interrogation.

         In his first point on appeal, Defendant argues the trial court clearly erred in admitting his statements made at the hospital because the police did not Mirandize him prior to subjecting him to a custodial interrogation, thus admitting the statements violated Defendant's Fifth Amendment rights under Miranda v. Arizona. 384 U.S. 436, 444 (1966).

         An appellate court will not reverse a trial court's ruling on a motion to suppress unless the court's decision was clearly erroneous. State v. Ivy, 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). On appeal, this Court is limited to determining whether there was sufficient evidence to support the trial court's ruling. State v. Brown, 18 S.W.3d 482, 484 (Mo. App. E.D. 2000). We consider the facts and evidence in the light most favorable to the trial court's ruling and disregard any contrary evidence and adverse inferences. Ivy, 455 S.W.3d at 18. When the issue concerns an individual's constitutional rights, this Court defers to the trial court's findings of fact, but we review the conclusions of law de novo. State v. Williams, 163 S.W.3d 522, 525 (Mo. App. E.D. 2005). Whether a suspect was in custody at the time of questioning is an issue of law we review de novo. State v. Little, 473 S.W.3d 662, 667 (Mo. App. E.D. 2015).

         A criminal suspect is entitled to Miranda warnings to protect his Fifth Amendment right against self-incrimination, but only when the suspect is subjected to a "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444 (1966); State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000).[4] "A custodial interrogation occurs only when the suspect is formally arrested or is subject to arrest-like restraints." State v. Glass, 136 S.W.3d 496, 508-09 (Mo. banc 2004). "In Missouri, custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 511. "In the absence of arrest or restraint of freedom of movement, questioning that takes place in a coercive environment does not require Miranda warnings." Id. Because we find the officers "interrogated" Defendant in his hospital room, this point hinges on whether he was in custody at the time of the interview.

         "Custody is determined by an examination of the totality of the circumstances." Werner, 9 S.W.3d at 595. The Supreme Court of Missouri noted, "an accused's freedom to leave the scene and the purpose, place, and length of an interrogation are factors to be considered in making a determination of custody." Id. (citing United States v. Griffin, 922 F.2d 1343, 1348 (8th Cir. 1990)). "In examining the totality of the circumstances, courts may also consider an individual's personal background, experience, familiarity with police questioning, maturity, education, and intelligence." Id. at 595-596. The Court went on to enumerate six additional factors[5] for courts to take into consideration when determining custody:

(1)Whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest;
(2)Whether the suspect possessed unrestrained freedom of movement during questioning;
(3)Whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to answer questions;
(4)Whether strong arm tactics or deceptive stratagems were employed during questioning;
(5)Whether the atmosphere was police dominated;
(6)Whether the suspect was placed under arrest at the termination of questioning.

Id. (citing Griffin, 922 F.2d at 1349).

         This Court has held the ultimate inquiry in determining custody is whether the restraint on the suspect's movement rose to the degree associated with a formal arrest. State v. Hill, 247 S.W.3d 34, 47 (Mo. App. E.D. 2008) (citing California v. Beheler, 463 U.S. 1121, 1125 (1983)). Courts must make two discrete inquiries in order to make this determination: "[F]irst what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." Hill, 247 S.W.3d at 47. (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

         On appeal, the State argues Defendant was not in custody at the hospital when the police questioned him on June 4, 2013. In support, it highlights that Defendant was not physically restrained by the police, was informed he could end the interview and had the right to speak to his attorney, was conscious and alert throughout the interview, and was not arrested at the conclusion of the interview.[6] The officers asked Defendant several times how he felt and told him he had the right not to speak with them. At the beginning of the interrogation, Defendant affirmatively expressed his desire to not talk to the police. Defendant then gave the officers permission to take pictures of his head and take his fingerprints and DNA, and the officers questioned him about the events on May 30. Defendant did not ask the officers to leave after they began questioning him. Instead, Defendant stated that he did not want to answer any questions without his attorney present and told the officers to stop asking him questions.

         In State v. Schnick, the defendant claimed that police questioning him in the hospital constituted custodial interrogation because his medical condition confined him to his hospital room, effectively depriving him of his freedom. 819 S.W.2d 330, 334-35 (Mo. banc 1991). In Schnick, a deputy sheriff and his wife visited the defendant in the hospital on the day after the defendant's wife, her sister and brother-in-law, and their four children (defendant's nephews) had been found shot to death. Id. at 333-34. The defendant was found with minor wounds to his abdomen and leg. Id. at 333. The officer told the defendant "I'm your friend, but I'm here as a deputy sheriff." Id. at 334. The defendant did not confess to committing the crimes but made some incriminating statements that were introduced at trial. Id. The defendant claimed on appeal he was deprived of his freedom because he was restricted to his hospital room and was thus in custody and required to be Mirandized. Id. The Supreme Court of Missouri held Miranda warnings were not required "[b]ecause the defendant was free to terminate the interview and require [the officer] to leave, [and therefore] the coercive aspects of a custodial interrogation were not present." Id.; see also United States v. New, 491 F.3d 369, 373 (8th Cir. 2007) (holding when a suspect is hospitalized and cannot leave, the inquiry for custody is whether a reasonable person would have felt like he was at liberty to terminate the interrogation); see also State v. Seibert, 103 S.W.3d 295, 301 (Mo. App. S.D. 2003) (holding because "defendant was free to terminate the interview and require the officers to leave" he was not in custody).

         Defendant argues his case is distinguishable from Schnick and New because Defendant continuously invoked his right to counsel.[7] However, the Fifth Amendment right to counsel is not triggered during non-custodial interrogations. Seibert, 103 S.W.3d at 300 (citing State v. Brown, 18 S.W.3d 482, 483 (Mo. App. E.D. 2000)) (holding the rule set forth in Miranda that questioning must cease if an accused requests counsel does not apply to non-custodial requests for counsel). Therefore, the officers did not violate Defendant's Fifth Amendment right to counsel by remaining and asking questions.

         Defendant asks this Court to construe his requests for counsel as implying Defendant wanted to end the interview. However, the issue on appeal is whether Defendant felt free to end the interview. Seibert, 103 S.W.3d at 301 (citing Schnick, 819 S.W.2d at 334). The record demonstrates Defendant never told the officers to leave after giving them permission to stay to collect evidence, even though the officers informed him they would in fact leave if that is what he wanted. The officers asked Defendant if he felt pressured by them and whether he was in any pain, to which the Defendant responded "no." They asked him how he felt multiple times throughout the interview and Defendant stated he felt fine. Defendant also told the nurse he felt fine when she checked on him halfway through the interview.

         We are mindful of the factors that Defendant brings to our attention, including the fact that Defendant stated at the beginning of the interview that he did not want to answer any questions without his attorney present and he repeated this throughout the first half of the interview. Additionally, Officer Perry was called by the hospital after Defendant was able to speak for the first time since his hospitalization. Defendant's family was not present when the officers interviewed him.[8] Defendant told the officers at one point that he could not think clearly, and Defendant's brother testified Defendant was not coherent. The officers kept Defendant lying down, even though he asked them to raise him up early in the interview. Finally, the trial court noted Defendant was not likely to leave the room given his medical state.

         However, in circumstances similar to those here, the Southern District found a defendant was not in custody when police questioned him at the hospital and therefore defendant's Fifth Amendment rights were not violated. State v. Seibert, 103 S.W.3d at 301. In Seibert, Defendant was questioned by police at the hospital while receiving treatment for severe burns sustained from setting his mother's trailer on fire, resulting in the death of victim. Id. at 298. The defendant was Mirandized by the interviewing officer, even though he was not placed under arrest, and he immediately invoked his right to speak with an attorney. Id. at 300. However, the court found that "[t]he Miranda right to counsel is not triggered…during non-custodial interrogations." Id. On appeal, the defendant argued several factors supported a finding he was in custody including: "he was physically unable to leave the burn unit of the hospital where he was interrogated; he was only at the hospital for the time necessary to treat his injuries; it was clear when Officer Hanrahan interrogated him that he would be charged…; he was not free to leave on his own at the time of the interview; and he was transported to the county jail upon his release from the hospital." Id. at 301. The court held the fact that defendant was in the hospital did not mean, by itself, he was in a custodial setting. Id. ("As in Schnick, the record here does not indicate Defendant was prevented from halting the interview at any time and directing [Officer] Hanrahan to leave the hospital room"). The court also noted that the fact a person is a suspect at the time of the interview does not make it a custodial interrogation under Miranda. Id. Finally, the court stated "[d]efendant was not arrested until sometime after the…interview when he was released from the hospital, and there is nothing in the record indicating that he could not have terminated the…interview at any time." Id. The Southern District concluded the record did not support a finding that the defendant was subjected to a custodial interrogation and therefore "his request for counsel did not trigger a Miranda right to counsel during that interview." Id. (citing State v. Brown, 18 S.W.3d 482, 483 (Mo. App. E.D. 2000)). Similarly, in the present case, the fact that Defendant's interview took place in a hospital does not automatically make it custodial. The proper question before this Court is whether Defendant felt free to terminate the interview. There are additional factors here that support the trial court's ruling which were not present in Seibert: (1) in Seibert, the defendant's hospital interview took place immediately after he sustained his injuries; here Defendant's interview took place six days later, after the hospital determined he was medically stable, and (2) here the officers told Defendant that he had the right to end the interview and ask them to leave; the defendant in Seibert was not told this information. These factors support a finding that Defendant was not in custody at the time of his interview.

         After reviewing the record as a whole, it is apparent that Defendant was not deprived of his freedom of action in any significant way or restrained to an equivalent degree of a formal arrest. When the police first entered Defendant's hospital room they were accompanied by two nurses who asked Defendant if it was alright if the police asked him questions and assured Defendant they would be right outside the room if he needed them. Defendant selectively answered their questions throughout the interview, telling them he shot himself, he was the only person involved in the deaths of his wife and son, and that he did it in order to spare them from the "financial shame". Defendant's answers were consistent, rational, and coherent throughout the interview. Defendant was not crying or visibly upset during the interview. There were breaks in questioning and the nurses checked on Defendant after approximately one hour. The nurses and officers asked Defendant how he felt to which he responded he felt fine. After a twenty minute break in questioning, the officers resumed collecting evidence by photographing Defendant's injuries. They did not persistently ask him questions about what happened. Often times, the officers spoke conversationally with Defendant, asking him questions unrelated to the deaths of his wife and son, and they left after another 30 minutes.

         These circumstances did not amount to a coercive environment that restrained Defendant's freedom to the same degree as a formal arrest. Based on the foregoing, we find Defendant was not in custody at the time of his hospital interview. Accordingly, Defendant was not entitled to invoke his Miranda rights, and his ...


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