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State v. Rice

Supreme Court of Missouri, En Banc

April 2, 2019

STATE OF MISSOURI, Respondent,
v.
MARVIN D. RICE, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY The Honorable Kelly Parker

          MARY R. RUSSELL, JUDGE

         Marvin 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 Strotkamp.

         Rice 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.

         As to 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.

         Further, 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.

         Background

         Rice 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.

         Evidence 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 days.

         At some 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.

         Upon 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.

         S.C. 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.

         S.C. 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.

         Meanwhile, 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.

         En 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 treatment.

         While 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.

         Approximately 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 his rights.

         The 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.

         Within 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.

         Rice 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 was overruled.

         During 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.

         Rice 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 juror."

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 ....

         The 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.

         The 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 imprisonment.

         The court sentenced Rice to death for the murder of Durham and to life imprisonment for the murder of Strotkamp. Rice appeals.[1]

         The Guilt Phase

         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.

         I. Instructional Error

         Rice 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 D[2] 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 E[3] 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.[4] Because he timely requested those instructions, he asserts, the circuit court was required to submit these instructions to the jury.

         A. Standard of Review

         This 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 395 n.4.

         B. Preservation

         The 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.

         "[A] 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."

         Rice 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 for review.

         C. Instruction E: Voluntary Manslaughter

         Voluntary 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.

         The 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 voluntary manslaughter.

         "Voluntary 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 565.002(1).

         Rice 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.

         The 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 victims' home.

         Sudden 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.

         Much of 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.

         In 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.

         The 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 engendered thereby."

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.

         Rice 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.

         Further, 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 E.

         D. Instruction D: Second-Degree Murder

         Rice 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.

         The 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.

         Rice 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 ...


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