State of Missouri v. John M. Ramirez ( 2014 )

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
)
Respondent, ) WD75566
)
v. ) OPINION FILED:
) November 12, 2014
JOHN M. RAMIREZ, )
)
Appellant. )
Appeal from the Circuit Court of Johnson County, Missouri
The Honorable Jacqueline A. Cook, Judge
Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
and Gary D. Witt, Judge
John M. Ramirez ("Ramirez") appeals his convictions of second-degree murder
and second-degree arson following a jury trial. Ramirez argues that the trial court erred
by denying his motion to suppress a statement he claims was obtained in violation of his
Fifth Amendment privilege against self-incrimination. Ramirez also argues that the trial
court committed plain error by failing to sua sponte instruct the jury to disregard a
portion of the State's closing argument that Ramirez claims improperly vouched for the
credibility of a witness.
We affirm.
Factual and Procedural History1
Ramirez was seen talking to 91-year-old Maxine Ballew ("victim") on the evening
of September 16, 2009, outside her home in Warrensburg. The victim did not place her
garage can outside her home that night, as per her normal routine, and her neighbors
noticed that her house was on fire the following morning. Firefighters extinguished the
blaze and found the victim's body on top of her bed. She was fully clothed with her skin
and clothes charred from the fire. The cause of death was manual strangulation. The
State Fire Marshal's Office determined that the fire had been deliberately set in two
places, one in the victim's bedroom where she was found and the other in the dining
room. The house appeared to be ransacked before the fires were set.
A few days after the fire, Ramirez went to the home of two acquaintances to try
and sell them some jewelry. Ramirez pulled the jewelry from a plastic bag out of his
backpack. Among the pieces were bobby pins, broaches, beaded necklaces, and fake
rings, items that one of the acquaintances described as jewelry that an older woman
would own. One of the rings contained the initials "MJB" and another had a name tag
with the name "Ballew" on it. One of the acquaintances, who noticed scratches on
Ramirez's arm, bought the jewelry and eventually turned it over to police. The victim's
niece testified that a green necklace sold by Ramirez resembled a necklace owned by the
victim.
1
We view the facts in the light most favorable to the jury's verdict. State v. Rinehart, 383 S.W.3d 95, 98 n.
3 (Mo. App. W.D. 2012).
2
Police contacted Ramirez after they learned that he had been seen by a neighbor
talking to the victim the day before the fire. Ramirez voluntarily went to the
Warrensburg Police Department to talk to police investigators on September 22, 2009,
and brought a backpack with him. Ramirez was given his Miranda2 warnings and
waived them. Ramirez initially denied being on the street where the victim lived the day
before the fire but later admitted to being on the street when told he was seen there by
one of the victim's neighbors. Ramirez denied talking to anyone. Police found wind
chimes in Ramirez's backpack, and Ramirez said he bought them at a consignment store,
though the consignment store owner said they did not come from his store. Toward the
end of the interview, Ramirez invoked his right to counsel after investigators asked him a
second time to submit to a voice stress test. Ramirez was taken into custody at the end of
the interview and transferred to the booking room.
While in the booking room, Ramirez was approached by a detective who arrived
to collect DNA evidence from Ramirez's fingernails. The detective told Ramirez, who
was uncooperative and belligerent, that she knew he had invoked his right to counsel and
was not there to ask him incriminating questions. She asked whether Ramirez recalled
signing probation papers from a prior charge that included a consent to search provision.
Ramirez did not think he had consented to a search, so the detective read the provision
from the probation papers that she brought with her to the booking room. Ramirez did
not understand what searching his "person" meant, so the detective tried to explain that
term to him. After that discussion, Ramirez did not give the detective consent to take the
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
fingernail scrapings. As a result of the lack of consent, the detective put gloves on
Ramirez in order to secure the potential DNA evidence from his fingernails and was
going to handcuff Ramirez to the wall of the booking room while she sought a search
warrant. Once the detective put the gloves on Ramirez, he said "fine, take it," took the
gloves off, and threw them on a counter, saying "it's just prison time." The detective
proceeded to collect a DNA sample.
Ramirez was later held in the Lafayette County Jail and got into a verbal
altercation with another inmate in which Ramirez said "why don't you catch a real case
like a murder charge." Following the altercation, Brandon Freid ("Freid"), another
inmate in the jail with Ramirez, asked Ramirez how he could kill an old woman.
Ramirez answered that she "was going to call the cops." A third inmate asked Ramirez if
he thought he was tough because he killed an old woman and Ramirez said "everybody
has something coming to them." When another inmate asked Ramirez how he could burn
an old woman inside her house, Ramirez shrugged his shoulders and walked away. Freid
testified to all of these comments at trial.
Ramirez filed a motion to suppress the statement "it's just prison time" because he
said it was obtained in violation of his Fifth Amendment privilege against self-
incrimination.3 After a pre-trial hearing on the motion to suppress, the trial court denied
the motion to suppress. During the trial, Ramirez again objected to the detective's
3
Ramirez did not move to suppress the collected DNA evidence or the results of the collected DNA sample
which did not exclude Ramirez as a suspect.
4
testimony that Ramirez said "it's just prison time" after taking the gloves off. The trial
court overruled the objection, and Ramirez's statement was admitted into evidence.
During its closing argument, the State recalled for the jury the witnesses it had
called and reviewed their testimony. In referring to Freid, the State said he "sat right
there and was totally honest with you," specifically referencing Freid's testimony about
his prior drug charges and prior cooperation with the police. Ramirez did not object to
the State's characterization of Freid as "honest."
The jury convicted Ramirez of both counts, and a judgment of conviction and
sentence was entered.
Ramirez timely filed this appeal, setting forth two points of error.
I. Point One
In his first point, Ramirez argues that the trial court erred by denying his motion to
suppress his statement "it's just prison time" and by allowing the statement to be admitted
into evidence. Ramirez contends that the detective's actions in attempting to collect DNA
evidence from him after he invoked his right to counsel were the functional equivalent of
interrogation and, therefore, his statement could not be admitted into evidence because it
was obtained in violation of his Fifth Amendment privilege against self-incrimination.
A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, there must be
"substantial evidence" to support the ruling. State v. Gaw, 285 S.W.3d 318, 319 (Mo.
banc 2009) (internal quotations omitted). The trial court's ruling "will be reversed only if
it is clearly erroneous." State v. Irvin, 210 S.W.3d 360, 361 (Mo. App. W.D. 2006).
5
"The ruling is clearly erroneous if we are left with a definite and firm belief a mistake has
been made." Id. at 361-62. We consider both the evidence presented at the suppression
hearing and at trial to determine whether substantial evidence exists to support the trial
court's ruling. Gaw, 285 S.W.3d at 319. We give "deference to the trial court's factual
findings and credibility determinations, but review[] questions of law de novo." State v.
Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998).
B. Analysis
Miranda safeguards against self-incrimination apply whenever an individual is in
custody and subject to interrogation. Rhode Island v. Innis, 446 U.S. 291 (1980).
Interrogation under Miranda "refers not only to express questioning, but also to any
words or actions on the part of the police . . . that the police should know are reasonably
likely to elicit an incriminating response." Id. at 301. "When the accused requests an
attorney, all interrogation must stop until counsel has been provided." State v. Baldwin,
290 S.W.3d 139, 144 (Mo. App. W.D. 2009).
Ramirez argues that the detective's actions in attempting to collect DNA evidence
from him after he invoked his right to counsel were the functional equivalent of
interrogation because her actions were reasonably likely to elicit an incriminating
response.4 We need not decide if the detective's actions amounted to interrogation in
violation of Ramirez's Fifth Amendment rights because "we conclude that the [trial]
court's refusal to exclude the statement[] would at most constitute 'harmless error.'" State
4
Ramirez did not seek to suppress the DNA sample and has not claimed at any time that his Sixth
Amendment right to counsel was violated by the effort to procure a DNA sample from him after he had invoked his
right to counsel. We express no opinion, therefore, on the propriety of the effort to secure physical evidence from
Ramirez after he had invoked his right to counsel.
6
v. Fuente, 871 S.W.2d 438, 443 (Mo. banc 1994) (quoting Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
The violation of an accused's Fifth Amendment right against self-incrimination
does not require the automatic reversal of a conviction. Chapman, 386 U.S. at 22.
Rather, "there may be some constitutional errors which in the setting of a particular case
are so unimportant and insignificant that they may, consistent with the Federal
Constitution, be deemed harmless, not requiring the automatic reversal of the
conviction." Id. "[B]efore a federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a reasonable doubt."
Chapman, 386 U.S. at 24. "Under this test, the 'beneficiary of a constitutional error,' the
State, must 'prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.'" State v. Whitfield, 107 S.W.3d 253, 262 (Mo. banc
2003) (quoting Chapman, 386 U.S. at 24).
Ramirez and the State disagree about what the State must demonstrate to meet this
burden. Ramirez contends that the State must show that the improperly admitted
evidence obtained in violation of Miranda had no possible influence on the jury's verdict.
To support this proposition, Ramirez relies on Chapman's holding that "[t]he question is
whether there is a reasonable possibility that the evidence complained of might have
contributed to the conviction" and that "[a]n error in admitting plainly relevant evidence
which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as
harmless." Chapman, 386 U.S. at 23-24 (quoting Fahy v. State of Connecticut, 375 U.S.
85, 86-87 (1963)). The State, on the other hand, argues that the harmless error standard is
7
met if the record contains substantial evidence aside from the improperly admitted
evidence that supports the jury's guilty verdict, citing State v. Minner, 256 S.W.3d 92, 96-
97 (Mo. banc 2008).
We do not agree with Ramirez's construction of Chapman. Requiring the State to
prove that improperly admitted evidence had no possible influence on a jury is
tantamount to requiring automatic reversal of a conviction in the face of a constitutional
violation, as it is impossible to conceive how the State would ever be able to prove such a
proposition. Chapman plainly rejects the prospect of automatic reversal, and directs a
harmless error standard that recognizes the relative harm improper evidence may inject
depending on its strength, its relevance, and the presence of other evidence of guilt.
In fashioning a harmless-constitutional-error rule, we must recognize that
harmless-error rules can work very unfair and mischievous results when,
for example, highly important and persuasive evidence, or argument,
though legally forbidden, finds its way into a trial in which the question of
guilt or innocence is a close one. What harmless-error rules all aim at is a
rule that will save the good in harmless-error practices while avoiding the
bad, as far as possible.
Id. at 22-23. This analysis recognizes the existence of a harmless error continuum that is
not subject to absolute application, but along which various factors must be balanced and
weighed to determine whether a court can conclude that the improperly admitted
evidence "was harmless beyond a reasonable doubt." Id. at 24.
Here, the State has met that burden. That is particularly so in light of the fact that
Ramirez's statement to the detective implicating himself was cumulative of other properly
admitted evidence wherein Ramirez implicated himself. "When evidence challenged on
constitutional grounds is cumulative of other properly-admitted evidence, the disputed
8
evidence could not have contributed to the defendant's conviction and is harmless beyond
a reasonable doubt." State v. Sachs, 372 S.W.3d 56, 64 (Mo. App. W.D. 2012) (internal
quotations omitted); see Fuente, 871 S.W.2d at 444 (holding that a defendant's
improperly admitted statement was cumulative to other properly admitted statements
made by defendant and, thus, did not contribute to the defendant's conviction).
Along with Ramirez's statement to the detective, the State also introduced three
other statements made by Ramirez to other inmates while in custody at the Lafayette
County Jail. When asked by another inmate if Ramirez thought he was tough because he
killed an old woman, Ramirez responded: "Everybody has something coming to them."
After another inmate asked Ramirez how he could kill an old woman, Ramirez
responded: "She was going to call the cops." Ramirez also said "Why don't you catch a
real case like a murder charge" to other inmates and just shrugged his shoulders when an
inmate asked him how he could set fire to the old woman's house while she was inside.
These statements were admitted without objection. Any alleged error made by the trial
court in failing to suppress Ramirez's statement to the detective was harmless beyond a
reasonable doubt.
Point one is denied.
I. Point Two
In his second point, Ramirez argues that the trial court erred when it failed to sua
sponte instruct the jury to disregard a portion of the State's closing argument that Ramirez
claims improperly vouched for Freid's credibility. Ramirez acknowledges that an
9
objection to the closing argument was not made at trial, thus limiting this point to plain
error review.
A. Standard of Review
"Issues that were not preserved may be reviewed for plain error only, which
requires the reviewing court to find that manifest injustice or a miscarriage of justice has
resulted from the trial court error." State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc
2009). "Plain error will seldom be found in unobjected to closing argument." State v.
Radley, 904 S.W.2d 520, 524 (Mo. App. W.D. 1995). "[A]ny assertion that the trial court
erred for failure to intervene sua sponte ignores the possibility that an attorney may not
have objected for strategic reasons." State v. Bennett, 201 S.W.3d 86, 88 (Mo. App.
W.D. 2006). "Without an objection, 'the trial court's options are narrowed to uninvited
interference with summation and a corresponding increase of error by such intervention.'"
Id. (quoting State v. Clemmons, 753 S.W.2d 901, 908 (Mo. banc 1988)). "A conviction
will be reversed based on plain error in closing argument only when it is established that
the argument had a decisive effect on the outcome of the trial and amounts to manifest
injustice." State v. Edwards, 116 S.W.3d 511, 536-37 (Mo. banc 2003).
B. Analysis
"Vouching occurs when a prosecutor implies that he or she has facts establishing
the veracity of a state's witness that are not before the jury for their consideration."
Glover v. State, 225 S.W.3d 425, 430 (Mo. banc 2007). "Stating that a witness is telling
the truth does not constitute vouching as long as the prosecutor does not imply that the
statement is based on evidence not before the jury." Id. "The entire record is considered
10
when interpreting a closing argument, not an isolated segment." State v. Johnson, 284
S.W.3d 561, 573 (Mo. banc 2009).
Ramirez argues that the State improperly vouched for Freid during closing
argument by saying Freid sat on the stand and "was totally honest" with the jury.
Ramirez claims that this was plain error that amounted to manifest injustice. Yet
Ramirez's argument ignores that immediately after the allegedly improper statement the
State referenced Freid's testimony about past issues with drugs and past cooperation with
law enforcement in order to receive a benefit for the criminal charges related to that drug
use. The State was not implying that Freid was honest based on facts not before the jury.
Rather, the State stated that Freid was honest because of his specific testimony about past
drug charges and past cooperation with law enforcement. See Glover, 225 S.W.3d at 430
(holding a prosecutor's statements were not improper vouching when the prosecutor
specifically referred to a witness's trial testimony). The State committed no error in its
closing argument, plain or otherwise, requiring the trial court to intervene sua sponte.
Ramirez also argues that the State's use of the word "honest" in and of its self
implies reference to facts not before the jury. Ramirez claims said that the State could
have used the words "candid" or "open" instead of "honest," as those words would have
directly indicated an intent to reference only the testimony provided by Freid at trial. But
this is a distinction without a difference. A jury would not make a distinction between
the words "honest" and "candid" or "open," especially in light of the fact that the
commonly understood meaning of "candid" means "marked by honest sincere
11
expression," and of "open" means "completely free from concealment." WEBSTER'S
THIRD NEW INTERNATIONAL DICTIONARY pg. 325, 1579 (1993).
The State did not improperly vouch for Freid during closing argument. The trial
court, therefore, did not commit plain error in failing to intervene sua sponte during the
State's closing argument.
Point two is denied.
Conclusion
We affirm.
__________________________________
Cynthia L. Martin, Judge
All concur.
12