Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Cape Girardeau County Cause No.
13CG-CR00918-01 Honorable Benjamin Frederick Lewis
Colleen Dolan, Judge.
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. 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
Factual and Procedural Background
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.
4, 2013, the hospital called Sergeant Don Perry
("Officer Perry") 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.
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."
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.
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.
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.
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
The trial court did not clearly err in admitting
Defendant's statements because they were not the product
of custodial interrogation.
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
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.
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). "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.
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 for courts to take into consideration when
(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
(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).
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)).
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. 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
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
argues his case is distinguishable from Schnick and
New because Defendant continuously invoked his right
to counsel. 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.
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.
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. 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
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.
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.
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 ...