In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED103554
)
Respondent, )
) Appeal from the Circuit Court
) of Cape Girardeau County
vs. ) Cause No. 13CG-CR00918-01
)
GEORGE EDWIN JOSEPH, ) Honorable Benjamin Frederick Lewis
)
Appellant. ) Filed: December 6, 2016
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
1
All references are to Mo. Rev. Stat. 2000 unless otherwise specified.
1
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
2
Police also recovered a second gun from the living room of Defendant’s home. The State presented evidence at
trial showing Defendant had borrowed both of these guns shortly before May 30.
3
Because the officers involved in this case have differing titles at different points in time, we will refer to them as
“Officer” for clarity and ease of reading. No disrespect is intended.
2
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
3
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-
4
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
5
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
factors5 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;
4
Our analysis focuses on whether Defendant was in custody when interviewed by the police, but we feel it is
important to note that the officers clearly interrogated him. According to the United States Supreme Court
“interrogation” includes any “words or actions on the part of the police…that the police should know are reasonably
likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980).
Officers Perry and Bonham asked Defendant numerous questions throughout their interview that were reasonably
likely to elicit an incriminating statement from the Defendant. Thus, the two-hour “interview” was an interrogation.
See id.
5
However, this list is not exhaustive. Werner, 9 S.W.3d at 595.
6
(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
6
The officers stated at the second hearing on the motion to suppress that Defendant was not arrested on the day of
the interview for medical reasons.
7
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
7
Defendant also argues his case is distinguishable because he was questioned by two officers instead of one but we
find this argument unpersuasive.
8
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,
8
Officer Perry testified that he contacted hospital security shortly after Defendant arrived and gave them an
understanding of what the situation at the Joseph home was but he never told the hospital Defendant needed to be
restrained. Officer Perry additionally testified that the hospital placed Defendant on “silent status” which meant that
the hospital would not confirm to anyone whether Defendant was at the hospital. Officer Perry stated this was part
of the hospital’s security measures and policies, and they did not do this at his request. He and Officer Bonham had
to go through the hospital’s security to see Defendant.
9
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
10
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
11
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 Fifth Amendment rights were not abridged by
admitting his incriminating statements into evidence.
b. The trial court did not clearly err in admitting Defendant’s statements
because they were voluntary.
We now address Defendant’s argument that his statements at the hospital were
involuntary and the trial court erred in admitting them in violation of the Fourteenth
Amendment. The Due Process Clause of the Fourteenth Amendment bars involuntarily obtained
confessions from being admitted at trial. State v. Faruqi, 344 S.W.3d 193, 203 (Mo. banc 2011)
(citing Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944)). A confession is involuntary only when
“the totality of the circumstances created a physical or psychological coercion sufficient to
deprive the defendant of a free choice to admit, deny, or refuse to answer the examiner’s
questions.” Faruqi, 344 S.W.3d at 203. Coercive police activity is necessary to find any
statement involuntary and inadmissible. Colorado v. Connelly, 479 U.S. 157, 167 (1986). “In
order for a defendant’s statements to be considered involuntary due to coercive tactics by the
police, it must be demonstrated that the defendant’s will was overborne as a result of said
tactics.” State v. Harris, 477 S.W.3d 131, 140 (Mo. App. E.D. 2015).
12
Defendant relies on Mincey v. Arizona, where the United States Supreme Court held that
the defendant’s incriminating statements made to police at the hospital were inadmissible. 437
U.S. 385, 402 (1978). In Mincey, a detective questioned defendant in the emergency room, hours
after his involvement in a shoot-out in which defendant was severely injured. Id. at 397. The
defendant was unable to speak and communicated by writing on paper. Id. The detective
Mirandized him prior to asking questions, and although defendant wrote that he wanted an
attorney, the detective continued to interrogate him for approximately four hours. Id. The
defendant communicated that he was in unbearable pain, lost consciousness multiple times
during the interrogation, and gave nonsensical answers. Id. at 398-401. The United States
Supreme Court found his statements were involuntary because they were the product of
continuous questioning of “a seriously and painfully wounded man on the edge of
consciousness,” whose will was overborne by the officer’s questions and whose responses were
not “the product of [the defendant’s] free and rational choice.” Id. at 401-02.
The circumstances of this case are distinguishable from those in Mincey. Defendant was
able to speak to the officers clearly and did not have to communicate by writing on paper. The
officers and nursing staff asked Defendant how he felt and whether he was in any pain to which
Defendant consistently responded “no” or “I’m fine.” Defendant never lost consciousness or
gave illogical answers to the officers’ questions. Unlike the defendant in Mincey, who was
questioned immediately after arriving at the emergency room Defendant was interviewed after
six days of recuperating and the police were contacted once the hospital determined Defendant
was medically stable and able to speak to them. Moreover, in Mincey, the police subjected the
defendant to “virtually continuous questioning” for four hours; in the present case, Defendant
told the officers he was the only one involved in the deaths of his wife and son just twenty
13
minutes into the two-hour interview, and he was only questioned intermittently. Although later in
the interview, he told the officers he shot his wife and son to spare them from the shame of his
debts, Defendant elected not to answer the majority of the officers’ questions about what
happened at his home on May 30th. The fact that Defendant chose to answer certain questions
and not to answer others shows his will was not “overborne” and he had the ability to make
rational choices.
The video of the interview shows Defendant was conscious, coherent, and medically
stable. At the second suppression hearing, the officers testified they did not believe Defendant
was heavily medicated because his speech was not slurred, he never lost consciousness during
the interview, and he never changed topic midsentence. Officer Perry testified Defendant was
“very alert, very attentive to our questions, us being there, what was going on.” He stated
Defendant’s answers made sense and Defendant said he was not in pain. Defendant argues his
will was overborne because he had the hiccups throughout the two-hour interview due to internal
bleeding. He told police at one point he “could not think straight” and his brother testified
Defendant was “groggy, delirious and delusional” when he spoke to him soon after the interview.
Despite this, Defendant was able to provide the officers with correct answers when they asked
him his birthdate, social security number, his home address and what year he graduated high
school. Defendant demonstrated that his cognitive abilities were not greatly affected by his
condition. For example, he corrected the officers toward the end of the interview on the current
month. Defendant appeared to understand all of the officers’ questions, and he chose not to
answer the majority of them. Based on the foregoing, the trial court did not clearly err in finding
the statements were voluntary and admissible.
c. The trial court did not violate Defendant’s Fifth Amendment rights by
admitting the recording of the Defendant’s hospital statements into evidence.
14
Defendant alternatively argues that admitting his responses to the officers’ questions
violated his Fifth Amendment privilege against self-incrimination. U.S. Const. amend. V; Mo.
Const. Art. I, Section 19. The Fifth Amendment provides that “no person… shall be compelled
in any criminal case to be a witness against himself[.]” Id. The Missouri Constitution provides
the same level of protection against self-incrimination as the federal Constitution. State v. Tally,
153 S.W.3d 888, 892 (Mo. App. S.D. 2005). Indeed, Miranda is based on this fundamental
notion that:
[T]here can be no doubt that the Fifth Amendment privilege is available outside
of criminal court proceedings and serves to protect persons in all settings in which
their freedom of action is curtailed in any significant way from being compelled
to incriminate themselves. We have concluded that without proper safeguards the
process of in-custody interrogation of persons suspected or accused of crime
contains inherently compelling pressures which work to undermine the
individual’s will to resist and to compel him to speak where he would not
otherwise do so freely. In order to combat these pressures and to permit a full
opportunity to exercise the privilege against self-incrimination, the accused must
be adequately and effectively apprised of his rights and the exercise of those
rights must be fully honored.
Miranda v. Arizona, 384 U.S. at 467 (emphasis added).
However, in a pre-custodial setting, a defendant’s invocation of his Fifth Amendment
rights does not mandate that police must cease questioning. State v. Brown, 18 S.W.3d 482, 484-
485 (Mo. App. E.D. 2000) (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3 (1991)). This is
different from custodial interrogation where “an accused’s request for an attorney is per se an
invocation of his Fifth Amendment rights, requiring that all interrogation must cease.” Fare v.
Michael C., 442 U.S. 707, 719 (1979). Defendant cites United States v. Okatan to support his
argument that admission of the video recording violated his Fifth Amendment right against self-
incrimination. 728 F.3d 111 (2d Cir. N.Y. 2013). In Okatan, the government used defendant’s
pre-arrest request for an attorney and refusal to answer questions without one as substantive
evidence of guilt. Id. at 116. The Second Circuit held an individual’s “invocation of the privilege
15
against self-incrimination and his subsequent silence cannot be used by the government in its
case in chief as substantive evidence of guilt.” Id. at 120. (emphasis added).
The present case is distinguishable because Defendant did not invoke his privilege and
then remain silent. Instead, he made affirmative admissions of his guilt. The Fifth Amendment
does not prevent the government from using these affirmative statements against Defendant
when they were made outside the context of a custodial interrogation. See McNeil v. Wisconsin,
501 U.S. at 182 n. 3 (“We have in fact never held that a person can invoke his Miranda rights
anticipatorily, in a context other than ‘custodial interrogation’”). We do not find that admitting
the incriminating statements into evidence violated the Defendant’s Fifth Amendment privilege
against self-incrimination. Defendant’s first and second points on appeal are therefore denied.
d. The trial court did not abuse its discretion in overruling defense counsel’s
objection to the prosecutor’s question to Officer Wehrle about the acceptance
of Ferrotrace testing and Defendant was not prejudiced.
In his third point on appeal, Defendant argues the trial court abused its discretion in
overruling defense counsel’s objection to the prosecutor’s question to Officer Kevin Wehrle
(“Officer Wehrle”) about the acceptance and accuracy of Ferrotrace testing in the scientific
community. “Trial courts have great latitude in allowing and forbidding leading questions.” State
v. Miller, 208 S.W.3d 284, 289 (Mo. App. W.D. 2006). An appellate court will only reverse such
a decision if it was an abuse of discretion that resulted in prejudice to the defendant. Id. “An
abuse of discretion will be found only where the ruling in question clearly offends the logic of
the circumstances or appears arbitrary and unreasonable.” Id. at 287.
During direct examination of Officer Wehrle the State asked:
Prosecutor: One of the other tests you did at the hospital on [Defendant’s]__
hands was something called a [Ferrotrace] test, is that correct?
A: Yes.
Prosecutor: And what’s that, sir?
16
A: [Ferrotrace] is a presumptive field test to try to find the presence of
iron.
Prosecutor: And is that done typically on people who you thought maybe have
handled a gun?
A: Yes.
Prosecutor: And what were the [Ferrotrace] results for [Defendant] that you did
that day?
A: To my observations, I couldn’t locate anything. I didn’t observe
anything that showed there was any iron deposits on his hands so –
Prosecutor: So you did the test and it was negative?
A: For me, yes.
On redirect examination, the State questioned Officer Wehrle about Ferrotrace testing:
Prosecutor: Now [defense counsel] asked you about using [Ferrotrace]?
A: Yes.
Prosecutor: Sprayed that on [Defendant’s] hands at the hospital, right?
A: Yes.
Prosecutor: And you know that [Ferrotrace] isn’t accepted in the scientific
community as being completely accurate, right?
A: Okay.
Prosecutor: You don’t know that, do you?
A: I don’t know that.
Prosecutor: It’s a spray and you spray on people’s hands?
Def. Counsel: Your Honor, I’m going to object. He says he doesn’t know and she’s
testifying now.
The court: Overruled.
Prosecutor: He doesn’t know about the scientific community.
The court: He says he didn’t know one way or the other so the objection is
overruled. Ask your next question.
Defendant argues on appeal that this was an attempt by the prosecutor to provide her own
testimony instead of eliciting the opinion of the witness. Defendant alleges this statement was
“very prejudicial.” However, the testimony submitted to the jury was that Officer Wehrle did not
know whether Ferrotrace testing was accepted in the scientific community as accurate or not.
Alternatively, the jury could have found Officer Wehrle’s response meant he did not agree with
the prosecutor’s statement. Regardless, the jury was instructed that they “must not assume as true
any fact solely because it is included in or suggested by a question asked a witness. A question is
17
not evidence, and may be considered only as it supplies meaning to the answer.” Instruction No.
2. MAI-CR3d 302.02.
“It is well-established the jurors are presumed to follow the instructions provided.” State
v. Dominguez-Rodriguez, 471 S.W.3d 337, 344 (Mo. App. E.D. 2015). Because the jury was
instructed not to consider any of the prosecutor’s questions as evidence unless they supplied
meaning to a witness’s answer, and Defendant failed to provide any evidence to rebut the
presumption, the trial court did not abuse its discretion in overruling Defendant’s objection.
Defendant’s third point is denied.
e. The Defendant was not prejudiced by the prosecutor’s statements regarding
deliberation during closing arguments.
Defendant argues in his fourth point on appeal, that he was prejudiced by the State’s
comments during closing argument about the meaning of deliberation. A trial court “has broad
discretion in controlling closing argument and counsel is afforded wide latitude during
summations.” State v. Thompson, 390 S.W.3d 171, 174 (Mo. App. E.D. 2012). We review
rulings made during closing argument for abuse of discretion. State v. Smith, 422 S.W.3d 411,
415 (Mo. App. W.D. 2013). “Unless that discretion has been clearly abused to the prejudice of
the accused, the trial court’s ruling should not be disturbed on appeal.” Id. In order to establish
prejudice, the burden is on the defendant to show there is a reasonable probability the verdict
would have been different absent the trial court’s abuse. Id. at 18.
During the State’s closing argument, the prosecutor argued as follows:
Something else I don’t want to spend a lot of time on is murder first versus
murder second. The only difference between those two degrees is deliberation.
The Judge read you that instruction and in it deliberation means cool reflection
upon the matter for any length of time no matter how brief. Mary and Matthew
were murdered in their sleep. They were shot three times in the head apiece.
That’s a pretty deliberate thing. This isn’t a question of whether Mr. Joseph is
18
guilty of murder in the first or murder in the second degree because clearly
shooting someone three times in the head is deliberate. There’s deliberation.
Defense counsel: Your Honor, I’m going to object at that point in time. That does
not meet the definition of deliberation just pulling the -- that’s incorrect.
The court: This is argument. The objection is overruled.
Prosecutor: When you shoot somebody three times in the head as they lay sleeping,
that’s pretty deliberate so this isn’t a question of murder first versus murder second.
In Defendant’s closing argument, defense counsel argued:
So let’s talk a little bit about what [the prosecutor] just said. The instructions will
tell you[,] you must find that [Defendant] did this with deliberation. It’s a mental
state, not that he did anything deliberately. I am deliberately walking. You can
deliberately talk. You can deliberately do many[,] many things, but that’s not
deliberation. Deliberation, the instructions will tell you, is a cool reflection upon
the matter for a period of time no matter how brief.
In rebuttal, the prosecutor argued:
I’m going to go back to deliberation. The Judge has read you the instructions. You
can read it for yourself. I’m not going to try to get some tortured definition out of
it. You can read it yourself. Your common sense will tell you what it means. Just
read the instruction.
On appeal, the State argues the prosecutor did not misstate the law and made a
permissible inference in her closing argument because deliberate conduct can be indicative of
deliberation. See State v. Baker, 422 S.W.3d 508, 515 (Mo. App. E.D. 2014) (holding the State
has a right to argue reasonable inferences from the evidence and conclusions fairly drawn from
the evidence). The instructions submitted to the jury on first-degree murder stated if they found
the Defendant purposely caused the deaths of the victims “after deliberation, which means cool
reflection upon the matter for any length of time no matter how brief” then they must find the
defendant guilty. (emphasis added). “It is well-established the jurors are presumed to follow the
instructions provided.” Dominguez-Rodriguez, 471 S.W.3d at 344. Because the jury was properly
instructed and the prosecutor told the jury they should read and refer to the instructions for the
19
definition of deliberation we do not find Defendant suffered prejudice from the trial court’s
ruling on this issue.
Additionally, in the present case, there was an extensive body of evidence that was both
relevant and probative of Defendant’s guilt. The evidence favorable to the State included the
testimony of the criminal investigators and emergency responders to Defendant’s house that
there was no sign of forced entry or robbery. Both victims were shot with bullets from the same
gun, and the gun used on the victims was the same caliber as the gun found in the pool where
Defendant stated he shot himself. Defendant had previously owned this gun and borrowed it
from a client shortly before May 30. Its case and holster were found in the top drawer of a
dresser in the spare bedroom of Defendant’s home. Prior to borrowing this gun, Defendant also
borrowed another gun from his brother-in-law, which was found on the couch next to
Defendant’s normal seat. Officer Perry testified that during Defendant’s interview at the hospital,
a nurse came in to perform a “neuro check” on Defendant. The nurse asked Defendant if he knew
where he was and why he was there and he stated he was at Barnes-Jewish because he shot
himself. Finally, there are Defendant’s incriminating statements to his brother-in-law that “he
had to put them in a better place” and to police that “there was no one else involved, I’m not
going to shoot anybody.” He confessed to Officer Perry that he killed his wife and son to spare
them from the shame of his financial failures.
Based on the foregoing there is not a reasonable probability that the prosecutor’s
statements affected the outcome of the trial. Therefore they did not result in prejudice to the
Defendant. Defendant’s fourth point is denied.
f. The trial court’s alleged error in refusing to instruct the jury on how to
consider the evidence of Defendant’s investment practices was not prejudicial
to Defendant.
20
In Defendant’s fifth point on appeal, he alleges the trial court erred in refusing to give the
jury his modified MAI proposed instruction on how the jury should consider the evidence of his
investment practices. We review a trial court’s decision to give a requested jury instruction de
novo under § 556.046 RSMo Supp. 2001. State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc
2014). “It is within the trial court’s discretion to decide whether a tendered jury instruction
should be submitted. However, a court is presumed to commit prejudicial error if it fails to use
an applicable [Missouri Approved Instruction (MAI)].” State v. Davis, 318 S.W.3d 618, 630
(Mo. banc 2010). Appellate courts determine whether the error was prejudicial to the defendant.
See Rule 28.02(f).9 “Prejudice exists where there is a reasonable probability that the trial court’s
error affected the outcome at trial.” State v. Plunkett, 473 S.W.3d 166, 172 (Mo. App. W.D.
2015).
Courts should give MAI-CR3d 310.12 when the defendant “does not testify and if there
is evidence that defendant was involved in but not ‘convicted, etc.’ of a ‘related crime[.]’” MAI-
CR3d 310.10 Notes on Use Paragraph 4 (emphasis in original). MAI-CR3d 310.12 instructs the
jury how to consider evidence of a defendant’s related crimes for purposes of identification,
motive, intent, absence of mistake or accident, or presence of common scheme or plan. “Error,
which in a close case might call for reversal, may be disregarded as harmless when the evidence
of guilt is strong.” State v. Banks, 215 S.W.3d 118, 122 (Mo. banc 2007). The modified
instruction submitted by Defendant read: “If you find and believe from the evidence that the
defendant was involved in fraudulent investing practices, you may consider that evidence on the
issue of motive of the defendant. You may not consider such evidence for any other purpose.”
MAI-CR3d 310.12 (Modified). The court rejected this instruction and it was not read to the jury.
9
Missouri Supreme Court Rules 2015.
21
It is undisputed that the Defendant was in financial trouble on May 30, 2013. Testimony
at trial demonstrated he had lost over a million dollars of his clients’ money and in the month
leading up to May 30 had written 52 bad checks to his clients totaling five hundred thousand
dollars. The State characterized Defendant’s investment practices during a certain time period as
a Ponzi scheme. Several witnesses testified that, after 2011, Defendant used incoming funds
from new clients to repay older clients. The defense characterized this investment activity as a
temporary measure by Defendant, stating he was trying to stay financially afloat after his
investments in the futures market continually lost money.
On appeal, Defendant claims he was prejudiced by the court’s failure to read his
proposed instruction to the jury, because the jury was free to consider the evidence as evidence
of his character generally and not just for motive. Nothing in the record indicates that the jury
was more inclined to convict Defendant because the State alleged he engaged in fraudulent
investment practices. It is just as likely that the jury properly considered this evidence for motive
alone, particularly in light of Defendant’s statements to Officer Perry that he shot his wife and
son to spare them from the financial shame. As laid out in Section III(e) above, there was an
overwhelming body of evidence of Defendant’s guilt. Therefore, the trial court’s refusal to give
the jury Defendant’s proposed jury instruction was not prejudicial. Defendant’s fifth point is
denied.
g. The Defendant was not prejudiced by the trial court’s refusal to instruct the
jury on involuntary manslaughter when it instructed the jury on both first and
second-degree murder and the jury found Defendant guilty of the greater
offense.
Defendant argues in his sixth and seventh points on appeal that the trial court abused its
discretion in refusing to instruct the jury on involuntary manslaughter for Counts I and II (first-
degree murder of Mary and Matthew Joseph). We review a trial court’s decision to give a
22
requested jury instruction de novo. State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014). “The
trial court is obligated to give an instruction 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.” State v. Meine, 469 S.W.3d 491,
495 (Mo. App. E.D. 2015) (quoting Jackson, 433 S.W.3d at 396). We have held “[t]here is
almost always a basis in the evidence for acquitting a defendant of the immediately higher-
included offense because the jury has a right to disbelieve all, some, or none of the evidence
presented in a particular case.” Meine, 469 S.W.3d at 495 (citing Jackson, 433 S.W.3d at 399).
In State v. Meine, we held that the trial court’s failure to instruct the jury on second-
degree involuntary manslaughter was not prejudicial to the defendant. Id. at 496. “The failure to
give a different lesser-included offense instruction is neither erroneous nor prejudicial when
instructions for the greater offense and one lesser-included offense are given and the defendant is
found guilty of the greater offense.” Id. (emphasis in original) (quoting State v. Johnson, 284
S.W.3d 561, 575-76 (Mo. banc 2009)) (holding there was no error when the trial court instructed
the jury on first-degree murder and second-degree murder, but refused the defendant’s requested
instruction on two lesser-included offenses when the jury found the defendant guilty of first-
degree murder).
In State v. Glass, the Supreme Court of Missouri held that when a jury has been given
instructions on first and second-degree murder and finds the defendant guilty of the former “no
reasonable basis exists to suggest that the jury would have reduced the conviction had they been
presented with a different lesser-included offense instruction…there is no error in failing to give
23
a different lesser offense instruction because the jury has already been given an opportunity to
reject the element of deliberation and did not do so.” 136 S.W.3d 496, 515 (Mo. banc 2004).
Like Meine and Glass, in the present case, the court instructed the jury on first and
second-degree murder and the jury found Defendant guilty of the greater offense. The jury
determined that Defendant acted with deliberation, accordingly, instructing them on involuntary
manslaughter would have been inconsequential. Therefore, there was no prejudicial error in the
court’s failure to give a second lesser-included instruction on involuntary manslaughter.
Defendant’s sixth and seventh points are denied.
IV. Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
_______________________________
Colleen Dolan, Judge
Sherri B. Sullivan, P.J., concur.
Roy L. Richter, J., concur.
24