FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY The Honorable
R. RUSSELL, JUDGE
Rice appeals his convictions for first- and second-degree
murder. The circuit court sentenced him to death for the
first-degree murder of Annette Durham and to life
imprisonment for the second-degree murder of Steven
argues the circuit court erred in refusing to submit his
proposed jury instructions for second-degree murder and
voluntary manslaughter for Strotkamp's murder. He
contends he was entitled to the instructions because there
was evidence from which a jury could find he acted out of
sudden passion arising from adequate cause in the death of
Strotkamp. Rice also asserts the circuit court violated his
right against self-incrimination under Miranda v.
Arizona, 384 U.S. 437 (1966), by admitting at trial
statements he made during a police interrogation after he had
invoked his right to silence. He further alleges his due
process rights were violated when the circuit court allowed
the State to introduce evidence of his post-Miranda
silence. In addition, Rice argues the case should be remanded
for a new penalty phase because the circuit court erred in
overruling his objection to the State's penalty phase
closing argument in which it commented that Rice was the
"13th juror." Rice asserts this impermissibly
referenced his decision not to testify and consequently
violated his right against self-incrimination.
the Strotkamp murder, the judgment is reversed, and the case
is remanded because the circuit court erred when it refused
to submit Rice's proposed jury instructions in that there
was sufficient evidence from which the jury could find that
Rice acted out of sudden passion arising from adequate cause.
As to the Durham murder, the circuit court erred in admitting
statements made in violation of Rice's Miranda
rights. This error, however, was harmless beyond a reasonable
doubt because it did not contribute to the verdict obtained.
Similarly, although Rice's right to due process was
violated when the circuit court admitted evidence of his
post-Miranda silence, these violations were also
harmless beyond a reasonable doubt.
the circuit court erred when it overruled Rice's
objection to the State's penalty phase closing argument
because the State's remark was an impermissible reference
to Rice's decision not to testify. This error requires
the judgment on Durham's murder to be reversed as to the
penalty phase of the trial. The case is remanded.
was charged with two counts of first-degree murder for the
deaths of Durham, his former girlfriend, and Strotkamp,
Durham's boyfriend. Rice and Durham had a son, A.R.
Though there was no formal custody arrangement between Rice
and Durham, Rice had primary custody of A.R., who was born
while Durham was incarcerated.
adduced at trial demonstrated that, on the night of the
homicides, Durham picked up A.R. from Rice. Although Durham
had occasionally visited with A.R., she had yet to have an
unsupervised visit. This was set to be her first. Rice
informed Durham she needed to return A.R. that night, but
Durham had unspoken plans to care for him for the next three
point that evening, Durham called Rice and informed him she
would not be returning A.R. Enraged by this conversation,
Rice grabbed his gun and two extra magazines before setting
out to retrieve A.R. He stopped at an ATM and a gas station
before arriving at the home of Durham's sister-in-law in
search of A.R. Not finding him there, Rice drove to the home
of Durham's father, again having no luck locating A.R. He
then learned A.R. was at the home Strotkamp and Durham shared
in Dent County and drove there.
arriving, he found A.R. with the couple and Durham's
six-year-old daughter, SC Upon hearing Rice arrive, Durham
instructed S.C. to take A.R. into the bedroom and close the
door. S.C. heard Durham and Rice argue about A.R from what
she believed to be the front doorway. At some point,
Strotkamp approached the two as well. During the exchange,
Rice broke the front door down. S.C. then heard what she
believed to be someone banging on the washer and dryer near
the front door, but the sounds were later determined to be
gunshots. Rice then came into the bedroom carrying a gun and,
saying nothing to S.C., he picked up A.R. and left the room.
exited the bedroom and cried out to her mother, who did not
answer. She first discovered Strotkamp, who was lying in the
hallway and groaning. She then found her mother's body
lying on the ground outside.
ran to the nearby home of Strotkamp's parents, Carol
Strotkamp and Stanley Watson. Ms. Strotkamp ran to the scene
of the crime, finding Durham deceased and her son bleeding
profusely. When his mother asked him what happened, Strotkamp
said, "Marvin Rice." Ms. Strotkamp ran back home to
call for help while Watson ran back to Strotkamp's home
to stay with him until help arrived. Strotkamp again
mentioned Rice's name to Watson. Strotkamp died before
emergency personnel arrived.
Rice dropped A.R. off with his wife and started driving
toward a hospital in Columbia. A Dent County sergeant called
Rice and spoke with him over the telephone, encouraging Rice
to turn himself in. Rice spoke about finding a place to
commit suicide and warned the sergeant that everyone must
stay out of his way or he would shoot them.
route to Columbia, Rice was involved in a high-speed chase
with law enforcement officers. Police officers in Jefferson
City closed down the highway and deployed spike strips in an
attempt to stop Rice's speeding car. Eventually, Rice
pulled into a Jefferson City hotel parking lot and entered
the hotel. Engaging in a shootout with an off-duty police
officer, Rice was shot, which caused him to fall to the
ground. He was arrested and was taken to the hospital for
Rice was being treated at the hospital, a highway patrol
sergeant detective began interrogating him. The detective
read Rice his Miranda rights, which Rice indicated
he understood. After Rice made a few comments about what had
happened at the hotel, Rice stated, "I'm sorry, sir,
I don't wanna talk no more." After the detective
confirmed Rice no longer wanted to speak, the interrogation
and the recording ended.
20 to 30 minutes later, the detective reinitiated his
questioning without rereading Rice his Miranda
rights. Rice responded to the detective's questions about
Rice's history working for the Dent County sheriff's
office. The interrogation then stopped so Rice could use the
restroom and resumed 20 to 30 minutes later. The detective
reminded Rice of his Miranda rights but did not
reread them. Rice acknowledged he remembered and understood
detective again attempted to question Rice about what had
happened the night of the shootings. Rice stated, "I got
nothing to say, sir." The detective did not stop
questioning Rice, imploring Rice to cooperate because, if
Rice did not give his side of the story, "somebody else
[was] gonna give [him] one." Rice again indicated he did
not want to be interrogated: "My heart doesn't like
this. I don't wanna talk." But the detective
continued questioning Rice, again asking him if he had
anything else to say. After Rice mumbled a negative answer,
the detective stopped the interrogation.
minutes, Rice voluntarily began talking to the detective
again. He described his recent struggles with depression and
stated he was sorry about what had happened that night.
Another, longer break then occurred in the interrogation,
during which doctors performed medical tests and Rice
received treatment. The interrogation was put on hold until
the next morning. When the detective reread Rice his
Miranda rights and began questioning him again, Rice
answered the detective's questions and explained in
detail his version of the previous night's events.
was charged with two counts of first-degree murder. Before
trial, Rice filed a motion to suppress the statements he made
during the hospital interrogation on the basis he had invoked
his right to remain silent and this invocation was not
honored. The circuit court overruled the motion after a
hearing, and the evidence was admitted at trial over
Rice's continuing objection. At trial, the State also
presented evidence demonstrating that, when Rice was being
interrogated, he refused to answer the detective's
questions. Rice objected and moved for a mistrial. The motion
the instructions conference, Rice submitted two proposed jury
instructions for the murder of Strotkamp. One, Instruction D,
was for second-degree murder and included language requiring
a finding that Rice did not act out of sudden
passion arising from adequate cause. The other, Instruction
E, was for voluntary manslaughter. The State objected to both
instructions, which the circuit court sustained. After
deliberations, the jury found Rice guilty of second-degree
murder for the death of Strotkamp and guilty of first-degree
murder for the death of Durham.
did not testify at either the guilt or penalty phase of
trial. During the State's closing argument during the
penalty phase, it referred to Rice as the "13th
But when you go back there and when you do this [deliberate
on punishment], I hope you remember only 12 of you are going
to do it, [but] there's a 13th juror in this room. The
13th juror is sitting behind you, we often call them the
defendants, but he's the 13th juror and if I'd been
allowed to ask him those questions last week, he would have
told us ....
State's argument was interrupted by defense counsel's
objection that this was an improper reference to Rice's
decision not to testify. The circuit court overruled the
objection after the State insisted it was referring to the
voir dire process, not Rice's general decision
not to testify. The State was permitted to continue its
closing argument in the same manner.
jury was ultimately unable to decide upon a punishment for
the Durham murder but recommended a sentence of life
imprisonment for the Strotkamp murder. After trial, Rice
filed a motion asking the court to impose a sentence of life
without parole for the Durham murder on the basis 11 jurors
preferred a sentence of life. Accompanying the motion were
two signed juror statements indicating the jury was
"deadlocked on punishment 11 to 1 in favor of" life
court sentenced Rice to death for the murder of Durham and to
life imprisonment for the murder of Strotkamp. Rice
argues the circuit court erred when it refused to submit his
proposed jury instructions for second-degree murder - in lieu
of the second-degree murder instruction the court submitted -
and voluntary manslaughter. He also argues the State violated
his right against self-incrimination by continuing to
question him after he had invoked his right to silence and
because the State violated his due process rights by
introducing evidence of his decision to remain silent.
argues the circuit court committed reversible error when it
refused to give his proposed Instructions D and E for the
charged homicide of Strotkamp. Proposed Instruction
mirrored MAI-CR 3d 314.04 in that it included language
requiring, to convict Rice of second-degree murder, the jury
to find that Rice did not act out of sudden passion
arising from adequate cause. Similarly, proposed Instruction
tracked MAI-CR 3d 314.08, a voluntary manslaughter
instruction. He contends these instructions should have been
given because there was a basis in the evidence to acquit him
of second-degree murder and to convict him of voluntary
manslaughter, which occurs when a person "[c]auses the
death of another person under circumstances that would
constitute murder in the second degree ... except that he
caused the death under the influence of sudden passion
arising from adequate cause[.]" Section
565.023.1. Because he timely requested those
instructions, he asserts, the circuit court was required to
submit these instructions to the jury.
Standard of Review
Court reviews de novo the circuit court's
decision whether to give a requested jury instruction for a
lesser-included offense. State v. Jackson, 433
S.W.3d 390, 395 (Mo. banc 2014). The evidence is viewed in
the light most favorable to the defendant and, when in doubt,
the court should instruct on the lesser-included offense.
State v. Thomas, 161 S.W.3d 377, 380 (Mo. banc
2005). If the statutory requirements for giving a requested
jury instruction are met, "a failure to give a requested
instruction is reversible error." Jackson, 433
S.W.3d at 395. When a court fails to give a lesser-included
offense instruction, prejudice is presumed. Id. at
State argues much of Rice's argument is unpreserved for
appeal because, at the instructions conference, the defense
attorneys "did not argue that sudden passion from
adequate cause resulted from the confrontation at [the
victims'] home" and only argued that sudden passion
could have arisen from Durham informing Rice he may never see
A.R. again. According to the State, Rice changed his theory
of sudden passion on appeal and his argument warrants only
plain error review.
point is preserved for appellate review only if it is based
on the same theory presented at trial." State v.
Johnson, 207 S.W.3d 24, 43 (Mo. banc 2006). "An
appellant cannot broaden the scope of his objections on
appeal beyond that made in the trial court."
Id. At the instructions conference, although Rice
did primarily focus on the evidence demonstrating what Durham
had said to Rice before their confrontation, he also argued a
voluntary manslaughter instruction should be given because
"there [was] evidence that the jury could believe or
disbelieve that once he got to that house, that he was
attacked." In Rice's motion for new trial, he
highlighted the evidence that when Rice arrived at the
Strotkamp residence, "he was met with violence from
Annette Durham and Steven Strotkamp" and Rice's
additional statement that "he believed Steven Strotkamp
was reaching for a weapon." He argued this evidence was
"more than adequate to support giving defense
Instruction[s D and] E."
furthered the same theory during the instructions conference,
in his motion for new trial, and his appellate brief: there
was sufficient evidence presented at trial to support giving
the proposed instructions. This argument, on all of the
evidentiary bases asserted by Rice, is sufficiently preserved
Instruction E: Voluntary Manslaughter
manslaughter is a lesser-included offense of both first- and
second-degree murder. Section 565.025. A circuit court must
instruct the jury on a lesser-included offense when (1)
"a party timely requests the instruction;" (2)
"there is a basis in the evidence for acquitting the
defendant of the charged offense;" and (3) "there
is a basis in the evidence for convicting the defendant of
the lesser included offense for which the instruction is
requested." Jackson, 433 S.W.3d at 396; section
556.046.3, RSMo Supp. 2011.
first two requirements are satisfied here. Rice timely
requested Instruction E. Further, there was a basis in the
evidence to acquit Rice of the charged offense of
first-degree murder because the jury is always free to
disbelieve any evidence or refuse to draw any necessary
inference. Jackson, 433 S.W.3d at 399. Rice's
argument, then, depends on whether there is a basis in the
evidence to convict him of the lesser-included offense of
manslaughter is defined as causing the death of another
person under circumstances that would constitute murder in
the second degree, except that the death was caused under the
influence of sudden passion arising from adequate
cause." State v. Clay, 533 S.W.3d 710, 717 (Mo.
banc 2017); section 565.023.1. To warrant a lesser-included
offense instruction on voluntary manslaughter, there must be
a basis in the evidence for the jury to find that Rice acted
out of sudden passion arising from adequate cause.
"Sudden passion" is defined as "passion
directly caused by and arising out of provocation by the
victim or another acting with the victim which passion arises
at the time of the offense and is not solely the result of
former provocation." Section 565.002(7). The provocation
"must be of a nature calculated to inflame the passions
of the ordinary, reasonable, temperate person ….
[T]here must be a sudden, unexpected encounter or provocation
tending to excite the passion beyond control." State
v. Fears, 803 S.W.2d 605, 609 (Mo. banc 1991). Adequate
cause, meanwhile, is "cause that would reasonably
produce a degree of passion in a person of ordinary
temperament sufficient to substantially impair an ordinary
person's capacity for self-control." Section
argues the following evidence supports a finding of sudden
passion arising from adequate cause that would require the
circuit court to instruct the jury on voluntary manslaughter:
(1) after Durham picked up A.R., she called Rice and informed
him he would never see his son again; (2) Rice was afraid he
would be "met with firearms" when he arrived at the
victims' home looking for A.R.; (3) when he arrived at
the victims' home, Rice was again informed he would not
get his son back; (4) the victims "came at" Rice
and "basically assaulted" him; (5) the alleged
assault came in the form of Durham grabbing Rice's left
shoulder and trying to wrestle him to the ground as Strotkamp
"started around the right-hand side" toward Rice;
and (6) Rice could not see Strotkamp's hand and was
unsure if he had a weapon.
State argues the evidence of Durham informing Rice through
the telephone that he may never see his son again is
insufficient to find sudden passion arising from adequate
cause because Rice had time to cool between having this
conversation and committing the homicides. It is unclear from
the record how much time passed between these two events, but
after Rice spoke with Durham, he visited an ATM, a gas
station, and two other homes before arriving at the
passion must "arise at the time of the offense"
and cannot be "solely the result of former
provocation." Section 565.002(7). The defendant must not
have had time for his passions to cool. State v.
Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996). Though
there's no bright-line rule for how long of a period of
time constitutes a sufficient "cooling-off period,"
it has been held that 10 minutes was enough time for
one's passion to cool. State v. Whitley, 408
S.W.3d 305, 308 (Mo. App. 2013). On this evidence, the State
is correct. The telephone conversation between Durham and
Rice cannot legally give rise to sudden passion, as it was
not sufficiently contemporaneous with the offense.
the other evidence that Rice argues supports a finding of
sudden passion came from Rice's own statements during his
police interrogation. The State argues Rice's statements
about his encounter with Durham and Strotkamp were
"vague and conclusory," were "not
evidence," and were not "factual allegations that
could support sudden passion arising from adequate
cause." This Court disagrees. Testimony is evidence.
This evidence may warrant instructing down so long as these
statements support a finding of sudden passion arising from
adequate cause. Thomas, 161 S.W.3d at 381.
addition to the evidence that Durham threatened to keep A.R.
away from Rice forever, Rice also presented evidence that
when he arrived at the victims' home, he feared he would
be met with firearms. He alleged he was once again informed
he would not see his son again before he was "basically
assaulted" by the victims, as Durham grabbed his
shoulder and tried to wrestle him down while Strotkamp, whose
hand was concealed, came around her and approached Rice.
case of State v. Creighton, 52 S.W.2d 556 (Mo.
1932), is instructive. In Creighton, when the
defendant was standing on a sidewalk, the decedent brushed
against him and asked if he was "looking for
trouble" before the two got into an argument.
Id. at 559. The decedent "grabbed" the
defendant by his lapel and slapped his hat off. Id.
The defendant then pulled out his pistol and shot the
decedent. Id. The Court stated, "It is
fundamental that neither the trial court nor
this court can pass on the weight of the evidence in a
criminal case; that function belongs to the jury."
Id. at 562 (emphasis added).
"If there is substantial evidence of lawful provocation,
the defendant is entitled to an instruction on manslaughter.
Proof of an initial assault and battery upon him by
the deceased is such evidence because it measures up
to the standard exacted by the law and in point of fact
warrants an inference that heat of passion was
Id. (emphasis added). Further, in Fears,
this Court found there was evidence from which the jury could
find sudden passion when the victim called the
defendant's children liars, circled around the defendant,
and threw a punch at the defendant. 803 S.W.2d at 608.
"The aggregate of insulting words, offensive gestures
and physical contacts that occurred during this encounter was
… sufficient for reasonable persons to have found that
Fears acted under 'sudden passion.'"
Id. at 609.
claims he was assaulted by Durham and Strotkamp, acting
together, when he arrived at their home. Sudden passion must
arise out of provocation by the victim or another acting with
the victim. Section 565.002(7). The State argues there is
"no evidence" Strotkamp and Durham were
"acting together," but there was evidence that the
victims, who lived together, simultaneously approached or
attacked Rice. This evidence gives rise to an inference the
victims were acting together. Viewing the evidence in the
light most favorable to the defendant, Thomas, 161
S.W.3d at 380, there is sufficient evidence of Strotkamp and
Durham acting together.
though much time passed between when Durham initially told
Rice he would not see his son and when Rice killed the
victims, she again informed him when he arrived at the home,
which the jury could find reignited his anger, as the threat
of not being allowed to see one's child ever again could
provide adequate provocation to a parent. This provocation,
combined with the alleged physical assault giving rise to an
inference of sudden passion, is sufficient evidence from
which a jury could find sudden passion. Creighton,
52 S.W.2d at 562; see also Fears, 803 S.W.2d at 608.
Because there was a basis in the evidence supporting a
finding of sudden passion arising from adequate cause, Rice
was entitled to an instruction on voluntary manslaughter. The
trial court erred in refusing to submit Rice's
Instruction D: Second-Degree Murder
also argues the circuit court erred when it refused to submit
to the jury his version of a second-degree murder
instruction, Instruction D. Rice's proposed instruction
mirrored the Missouri Approved Instructions in that it
included language requiring the jury to find Rice had
not acted out of sudden passion arising from
adequate cause to convict him of second-degree murder. The
second-degree murder instruction actually submitted to the
jury omitted this language.
additional sudden passion language requested by Rice
"must be given" "[i]f there is evidence
supporting sudden passion from adequate cause." MAI-CR
3d 314.04 Notes on Use 4; see also MAI-CR 3d 314.08
Notes on Use 3 (explaining that when there is evidence of
sudden passion and adequate cause, the "instruction on
voluntary manslaughter will be identical to MAI-CR 3d 314.04
[the second-degree murder instruction] as to the elements of
the offense except that MAI-CR 3d 314.04 will include the
paragraph on negating sudden passion arising from adequate
cause"). Because there was a basis in the evidence
supporting a finding of sudden passion arising from adequate
cause, as set out above, the circuit court was required to
submit Rice's proposed Instruction D.
was prejudiced when the circuit court failed to give
Rice's proposed Instructions D and E. Jackson,
433 S.W.3d at 395 n.4. The judgment as to second-degree
murder for the ...