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DIVISION TWO
STATE OF MISSOURI, ) ED101198
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. ) 1122-CR07352-01
)
RUFUS LITTLE, ) Honorable Mark H. Neill
)
Appellant. ) FILED: September 1, 2015

Introduction
Rufus Little (Defendant) appeals from the sentence and judgment entered following a
jury trial convicting him of assault in the second degree and child abuse. On appeal he asserts
the trial court erred in denying his motion to suppress, failing to quash the entire venire panel,
and ﬁnding him to be a prior and persistent offender. We affirm.
Background
The State charged Defendant as a prior and persistent offender with the class A felony of
assault in the first degree (Count I) and the class C felony of abuse of a child (Count II),
stemming from an incident when Defendant caused serious physical injury to his three-month-
old son (KL) by shaking him. Before trial, Defendant ﬁled a motion to suppress his statements

made before and aﬁer his arrest, asserting his statements were not voluntary in that the

interrogation was coercive and he was not advised of his m rights.1 The trial court heard
arguments on the motion to suppress where the following evidence was adduced.

Sergeant Jason Albers (Sergeant Albers) and Ofﬁcer William Stevenson (Ofﬁcer
Stevenson) of the St. Louis Metropolitan Police Department testiﬁed that on December ll, 2011,
they came to Defendant’s home after medics had called to report possible child abuse. Ofﬁcer
Stevenson secured the scene and Sergeant Albers told Defendant about the report of abuse and
asked Defendant “some questions about what happened.” Sergeant Albers did not Mirandize
Defendant before asking the questions. He did not handcuff Defendant because he “had no
reason to,” noting that he “didn’t really know what was going on, other than  just [wanting] to
contain the scene, if there was a scene.” He did not tell Defendant he could not leave but he told
Defendant that some detectives would want to speak with him. While they waited for the
detectives, Defendant made phone calls and moved about his home.

Also at the suppression hearing, Detective Daniel Fox (Detective Fox) testiﬁed to the
following. He was a homicide detective for the St. Louis Metropolitan Police Department, and
on December 11, 2011, he received a request for a homicide detective following an injury to a
child. He and Detective Joseph Lankford went to the hospital to assess K.L.’s condition, and the
doctor attending K.L. told the detectives that K.L. had serious bleeding in his brain and was not
expected to survive. The doctor also told the detectives he suspected KL. had fractured ribs2
and that K.L.’s injuries might be the result of abuse. No one suggested shaken baby syndrome

speciﬁcally.

I Miranda v. Arizona, 384 US. 436, 444 (1966) (holding that custodial interrogation by police must not occur prior
to suspect being informed of his or her right to counsel and against self—incrimination).

2 While initial x-rays showed fractured ribs, a second examination of the x-rays the following morning reveals that
K.L. did not in fact have broken ribs.

 

 

render confession involuntary). The evidence here demonstrates that Defendant knowingly and
voluntarily waived his Miranda rights and confessed to losing control and shaking his son,
causing grave injury.

Accordingly, we ﬁnd that substantial evidence supported the trial court’s ruling denying
the motion to suppress Defendant’s incriminating statements to the police. Point denied.

Point Three

In his third point, Defendant argues the trial court erred in failing to quash the entire
venire panel when Frazier identiﬁed herself as a Children’s Division caseworker and then stated
she believed Defendant’s children were on her caseload. He argues this suggested that a State
agency had already made a ﬁnding of guilt, thus prejudicing the entire venire panel against
Defendant. We disagree.

We review for an abuse of discretion the trial court’s determination of whether an entire
venire panel should be dismissed. State v. Polk, 415 S.W.3d 692, 695 (Mo. App. ED. 2013).
To justify striking an entire venire panel, the trial court must decide if the venire person’s
comments were “so inﬂammatory and prejudicial” as to taint the entire jury panel and thus
deprive the defendant of a fair trial. State v. Sprinkle, 122 S.W.3d 652, 668-69 (Mo. App. W.D.
2003). The trial court is in the best position to determine the effect of the comments on the jury.
Id. at 669.

Initially, we note that although Defendant argues on appeal that the private sidebar
conversation was broadcast to the entire venire panel, that assertion is not supported by the
record. Rather, the record shows that during voir dire counsel objected to Frazier’s public
statement made prior to the sidebar discussion and did not allege that the private sidebar

conversation was accidentally broadcast to the panel. Here, the prosecutor read a list of names of

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potential witnesses, including D.L. and KL, and asked if any venire members recognized the
names. Frazier said she recognized the name D.L. and believed she had the children on her
caseload. The subsequent sidebar conversation revealed that she was not sure it was the same
D.L. or whether the children were even in foster care. Counsel for Defendant requested a new
panel based on Frazier’s initial statement before the sidebar discussion “that [D.L.] and {R.L.]
are in care.”

The trial court quite rightly pointed out that Frazier did not say the children were in care
but said they were on her caseload, which was different. This comment was on its face not “so
inﬂammatory and prejudicial” to deprive Defendant of a fair trial. Defendant was charged with
abuse of a child, and so the jury could naturally infer the Children’s Division was investigating
the situation. & State v. Johnson, 461 S.W.3d 842, 845 (Mo. App. ED. 2015) (recognizing
that jurors may exercise common sense when evaluating evidence). Moreover, any statement to
the venire panel that the children were receiving services from the State was cumulative to the
evidence presented at trial that the children were in fact receiving services from the State.
Thus, Frazier’s statement would not have so prejudiced the venire panel against Defendant as to
deny him a fair trial. & M, 338 S.W.3d at 379 (no prejudice results from admission of
statements that were cumulative to other evidence presented at trial).

The trial court did not abuse its discretion in declining to quash the entire venire panel.
Point denied.

Point Four

In his fourth point on appeal, Defendant claims the trial court erred in ﬁnding him to be a

prior and persistent offender because the State did not prove beyond a reasonable doubt that his

two prior convictions were for crimes that occurred at different times. We find no error.

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Defendant did not object to the trial court ﬁnding he was a prior and persistent offender at
trial or in his motion for new trial, and thus his point is not properly preserved. State v. Page,
309 S.W.3d 368, 372 (Mo. App. ED. 2010). We have, however, the discretion to review
unpreserved claims of error for plain error. Mo. R. Crim. P. 30.20 (2015). Under plain-error
review, we will reverse only if a plain error affecting substantial rights results in manifest
injustice or a miscarriage of justice. State v. Floyd, 347 S.W.3d 115, 123-24 (Mo. App. ED.
2011). We review for plain error using a two-step analysis. First, we determine whether the
record facialiy establishes substantial grounds to believe plain error occurred, which is error that
is evident, obvious, and clear. If so, we then consider whether the error resulted in manifest
injustice or a miscarriage of justice. Li. Plain error review requires that the alleged error have a
decisive effect on the jury’s determination. S_eg State v. White, 247 S.W.3d 557, 563 (Mo. App.
ED. 2007). If it appears the trial court improperly sentenced a defendant as a prior and
persistent offender, plain—error review is appropriate, because a court may not impose a sentence
exceeding the sentence authorized by law. Egg, 309 S.W.3d at 372.

A prior and persistent offender is one who has previously pleaded guilty to or been found
guilty of two or more felony offenses committed at different times. Section 558.016.2-3. Here,
during the prior and persistent offender hearing, Defendant admitted to having pleaded guilty to
(1) felony possession of cocaine in Cause Number CR01002327-00 in the Circuit Court of the
City of Norfolk, Virginia on July 24, 2001, and (2) felony possession of cocaine in the Circuit
Court of Virginia Beach, Virginia on February 27, 2002. The court confirmed he entered pleas
of guilty in two separate felony charges of possession of cocaine and he had two prior
convictions before entering its ﬁnding that Defendant was a prior and persistent offender.

Although the State admitted the records for the two prior convictions at trial, they are not

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included in the legal ﬁle and neither party on appeal can locate them. The record here does not
include any information about Defendant’s two prior felony convictions, and the similarities
between the charged crimes, the plea dates, and the plea locations do not allow this Court to
clearly infer beyond a reasonable doubt that the felonies were committed at different times. Q
State v. Bourrage, 175 S.W.3d 698, 707 (Mo. App. ED. 2005) (noting appellate court may
sometimes infer by reason of dates, geography, and nature of offenses that crimes were
committed at different times). While Defendant admitted he entered pleas to two separate felony
charges, he did not admit on the record that the underlying crimes were committed at different
times. C_f. Smith v. State, 353 S.W.3d 93, 94, 97 (M0. App. ED. 2011) (admission of two prior
convictions of different crimes under oath sufﬁciently established all facts necessary for plea
court to ﬁnd defendant to be persistent felony offender).

Nevertheless, even if the trial court’s prior-and-persistent-offender ﬁnding was
erroneous, no manifest injustice occurred. Defendant here was convicted of the class C felony of
second~degree assault and the class C felony of abuse of a child, which carry a sentence of up to
seven years in prison. Section 558.011.1(3). The seven-year sentence imposed here was within
that range of punishment. Because Defendant did not receive an enhanced sentence under the
prior and persistent statute, he cannot establish that the alleged error had any effect on his
sentence. & ﬁg, 309 S.W.3d at 372.

Point denied.

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M

The judgment and sentence of the trial court is afﬁrmed.

Philip M. Hess, P.J., concurs.
Angela T. Quigless, J., concurs.

 

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The detectives then went to Defendant’s home where Defendant was with Sergeant
Albers and Ofﬁcer Stevenson. Detective Fox told Defendant that the police were investigating
K.L.’s injury and asked Defendant to reenact briefly on camera what happened, in order to
determine if there was a non-criminal explanation for K.L.’s injuries or if Defendant had been
the only person present when the injury occurred. The Video of the reenactment was 90 seconds
long. Because Defendant revealed he was the only adult home and because his explanation did
not account for K.L.’s injuries, Detective Fox requested that Sergeant Albers and Ofﬁcer
Stevenson place Defendant under arrest and bring him to the station for further questioning.

Once at the station, Detective Fox began the interrogation by reading Defendant his
Miranda rights and asking him to expiain in more detail what happened that night with KL.
Detective Fox testiﬁed that during his interrogation of Defendant, he did not threaten Defendant
with the death penalty, did not make Defendant any promises, and did not knowingly lie to him.
Defendant confessed to shaking KL. and causing his injuries. After the suppression hearing, the
trial court took the matter under advisement and before the start of trial denied Defendant’s
motion to suppress his statements to the police.

During voir dire, venil'eperson Annette Frazier (Frazier) identiﬁed herself as a
caseworker for the Missouri Department of Social Services, Children’s Division (Children’s
Division), and stated she worked with abused and neglected children. She stated she recognized
the name of D.L., a potential witness in the case, and believed the children in the family were on
her caseload. The trial court called Frazier to the bench where she clariﬁed that although she
knew she had a child named D.L. on her caseload, she was not positive that D.L. was the same
D.L. who was a potential witness in this case, and she was not positive the children were in

foster care. Counsel for Defendant then requested that the trial cou1t strike the entire venire

 

 

 

 

panel in light of Frazier’s comment in front of the venire panel that D.L. and R.L. were in foster
care. The trial court denied the request, noting that Frazier did not say the children were in foster
care, but merely that she had them on her caseload.

At trial, the evidence revealed that on the night of December 11, 2015, Defendant called
911 to report that his 3—month-old son, K.L., was unresponsive. The emergency medical
technician (EMT) arriving at the scene noted bruises on K.L.’s head, ligature marks around his
neck, petechial in his eyes, which is a sign of asphyxiation, and that K.L.’s eyes were pointing to
the left, which indicated a brain injury. From these physical indications, the EMT suspected
shaken baby syndrome, which he whispered to his partner and to the ﬁrefighters at the scene.
The EMT took K.L. to the hospital and Defendant remained home with his other children, R.L.
and D.L.3 The pediatric critical care doctor who treated  when he arrived at the hospital
diagnosed K.L. with non-accidental trauma to his brain. The pediatric neurologist who treated
K.L. testified that his injuries were consistent with having been shaken.

After Defendant was arrested and taken to the station for questioning, Detective Fox
videotaped Defendant’s entire four-hour detainment in the interrogation room. Defendant was
handcuffed during the interrogation period by a long chain from one wrist to the ﬂoor. Over a
period of four hours and twenty minutes, Detectives Fox and Lankford interviewed Defendant
three times for approximately an hour totai of interrogation time. Detective Fox gave Defendant
Miranda warnings at the start of the interrogation but not again after each break. Detective Fox
explained to Defendant that he had been arrested because his earlier explanation for what
happened did not match KL. ’3 injuries, which were broken ribs inconsistent with CPR and blood
in his brain. Defendant was surprised by the report of broken ribs and posited that he could have

3 Defendant lived in a duplex above his mother-in-law, and by the time Sergeant Albers and Ofﬁcer Stevenson
arrived, R.L. and D.L. had gone to their grandmother’s home and Defendant was alone.

4

 

 

done that while trying to resuscitate K.L. When the detectives asked Defendant if it was possible
that he squeezed KL. too hard due to the nerve damage in his hands,4 Defendant agreed it was
possible he did so by accident while trying to calm K.L.’s crying before he went to bed.
Defendant denied shaking K.L. or being rough with him. Defendant provided the same
explanation he had before: that K.L. had had vaccinations earlier that day and was fussy, that he
had discovered K.L. unresponsive about an hour and a half after putting him down to sleep, and
that approximately one week earlier, K.L. had fallen off the bed and hit his head.

Detective Fox challenged Defendant that K.L.’s injuries had occurred that night and
Defendant was the only person in the home capable of inﬂicting the injuries. He warned that if
KL. died of his injuries and Defendant had not provided an explanation for his mindset, he
would have to assume the injuries to KL. were intentional, in which case Defendant would be
charged with the highest level of charge, which was ﬁrst-degree murder. When asked if he knew
what the sentence was for ﬁrst-degree murder, Defendant responded that it was the death
penalty. Detective Fox told Defendant he needed to explain if the injuries were an accident
because then they would be “looking at something very different from murder ﬁrst.” Defendant
then acknowledged he shook K.L. “a little” while he was trying to calm him down and that
K.L.’s head was bouncing. Finally, Defendant admitted that he was overwhelmed and had been
frustrated with his older two children, KL. and D.L., and that he lost control and “exploded,”
taking his frustration out on K.L., who had been crying. Defendant was adamant that he did not
mean to shake K.L. or to harm him, and that he did not realize he had injured KL. until he

discovered KL. unresponsive an hour and a half later.

‘ Defendant received disability beneﬁts because of the lasting nerve damage in his hands as a result of chemotherapy
treatment for cancer.

 

 

 

At the prior and persistent hearing, the State entered exhibits 100 and 101, authenticated
copies of court records from Virginia stating Defendant pled guilty to felony possession of
cocaine on July 24, 2001 in the Circuit Court of the City of Norfolk, Virginia, and to felony
possession of cocaine on February 27, 2002 in the Circuit Court of Virginia Beach, Virginia.
Counsel for Defendant did not object to the admission of these records and acknowledged
Defendant was represented by counsel in the records. Defendant agreed he had entered pleas of
guilty to two separate felony charges of possession of cocaine and admitted he had two prior
convictions in Virginia. Accordingly, the trial court found Defendant to be a prior and persistent
offender.

The jury found Defendant guilty of the lesser—included offense of second-degree assault
and abuse of a child. Defendant does not challenge the sufﬁciency of the evidence supporting
his Conviction. The trial court sentenced Defendant to concurrent terms of seven years in the
Missouri Department of Corrections on each count. This appeal follows.

Discussion
Point One

In his first point on appeal, Defendant claims the trial court erred in denying his motion
to suppress all of his statements to the police because the interrogations violated his right against
interrogation without proper Miranda warnings, in that the police did not Mirandize him before
his ﬁrst interrogation and then used statements from the ﬁrst interrogation to get a confession in
his second interrogation. We disagree.

We review a trial court’s decision to grant or deny a motion to suppress only for whether
it was supported by substantial evidence, and we View the facts and any reasonable inferences

from those facts in the light most favorable to the trial court’s ruling. State v. Selvy, 462

 

S.W.3d 756, 764 (Mo. App. ED. 2015). Where the trial court makes no ﬁndings of fact or
credibility determinations, we presume the court found all facts and made all credibility
determinations in accordance with its ruling. Li. We will not reweigh the evidence, and if the
trial court’s ruling is plausible in light of the entire record, we will not reverse. Q Questions of
law, however, we review de novo. State V. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998).
Whether a suspect was in custody is an issue of law that we review de novo. State v. Brooks,
185 S.W.3d 265, 274 (Mo. App. W.D. 2006).

Defendant argues that the questions the police asked him at his home before his arrest
constituted a custodial interrogation for which he was not Mirandized. He further argues that
because the police then used these answers to get a confession in his second interrogation, all of
his statements to the police should have been suppressed. These are separate issues that we
address in order. First, Defendant was not subject to a custodial interview in his home. The
police “are not required to administer Mjgagda warnings to everyone whom they question.”
Oregon v. Mathiason, 429 US. 492, 495 (1977). Rather, m warnings are required only
once a person is subject to a custodial interrogation. See Miranda V. Arizona, 384 US. 436, 444
(1966). A custodial interrogation is where the accused is formally arrested or subjected to arrest-
like restraints. State v. Glass, 136 S.W.3d 496, 508 (Mo. banc 2004). To determine if a person
is in custody, “[w]e look to the totality of the circumstances, including the accused’s actual and

perceived freedom to leave, and the purpose, location, and length of the interrogation.” Brooks,

 

185 S.W.3d at 274.
Here, the police questioning at Defendant’s home did not constitute a custodial
interrogation and thus no Miranda warnings were required. Defendant was not handcuffed, and

he was free to move around the house and make phone calls, which he did. While there was a

 

constant police presence, at no point did the police draw their weapons or make threats, no police
officer told Defendant he could not leave, and it does not appear from the record that there were
ever more than four ofﬁcers present. & m, 136 S.W.3d at 508-09; m, 185 S.W.3d at
274 (in determining if suspect was in custody, courts consider whether suspect possessed
unrestrained freedom, whether strong-arm tactics or deception were employed, and whether
atmosphere of questioning was police dominated). Moreover, Defendant here voluntarily
acquiesced to questioning, which the record shows never went ﬁthher than asking Defendant
what happened and who was there. E Q (considering whether suspect voluntarily acquiesced
to police requests for questioning and whether suspect initiated contact with police). Asking
“what happened” is a preliminary investigatory inquiry that does not fall under Miranda.
mm, 384 US at 477-78 (“General on-the-scene questioning as to facts surrounding a crime
or other general questioning of citizens in the fact-finding process is not affected by our
holding”); w State v. Allred, 338 S.W.3d 375, 379 (Mo. App. SD. 2011). We note that
when an infant is admitted to the hospital with serious injuries, it is unreasonable for the adult in
charge not to expect some basic inquiry by the police about what happened.

While Defendant asserted in oral argument that an EMT told him to stay at home, the
record does not show that Defendant made this assertion to the trial court in his motion to
suppress or at the suppression hearing. At the suppression hearing, three police ofﬁcers testiﬁed
and all denied teiling Defendant that he could not leave, and Defendant did not assert that anyone
told him he could not leave. Issues and evidence not presented to the trial cou1t are not
reviewable on appeal. State v. Jackson, 141 S.W.3d 391, 395 (Mo. App. SD. 2004).

Second, contrary to Defendant’s arguments on appeal, Detective Fox did not perform the

type of two-step interrogation that the US. Supreme Court found impermissible in Missouri V.

m, 542 U.S. 600 (2004). In m, the ofﬁcer testiﬁed at the suppression hearing that
during a custodial interrogation, he made a conscious decision to withhoid Miranda warnings to
get incriminating evidence, after which he gave Miranda warnings and repeated the questions to
elicit the same incriminating response. Id, at 605-06. Here, however, Detective Fox testiﬁed
that his intent in asking Defendant what happened was to determine if there was a non—criminal
explanation for K.L.’s injuries, such as a fall, or if there were other potential suspects to
interview. He did not in fact elicit any incriminating statements from Defendant until aﬁer
issuing Miranda warnings. 539 State v. Wilson, 449 S.W.3d 803, 808-09 (Mo. App. ED. 2014)
(no error in admitting confession when ofﬁcer asked general questions before reading Miranda
warnings and suspect did not actually make incriminating statements until after receiving
warning).

Police gave Miranda warnings here when they were required and there was no error in
admitting Defendant’s statements to the police. There was substantial evidence supporting the
trial court’s decision denying Defendant's motion to suppress, and thus no error occurred. Point
denied.

Point Two

In his second point on appeal, Defendant claims the trial court erred in denying his
motion to suppress all of his statements to police because the interrogation violated his rights
against coercive interrogation, in that the police used improper promises of leniency and threats
of capital punishment to obtain a confession. We disagree.

Again, we review the trial court’s ruling on a motion to suppress only for whether the
ruling was supported by substantial evidence. Se_lvy, 462 S.W.3d at 764. Defendant here argues

his confession was rendered involuntary by the detectives” threats and promises. “The test for

whether a statement is voluntary ‘is whether 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’ and ‘whether the physical and psychological coercion
was of such degree that the defendant’s will was overborne at the time he [made the
statement].”’ State v. Hicks, 408 S.W.3d 90, 95 (Mo. banc 2013) (citations omitted).

We have reviewed the video of Defendant’s custodial interrogation and confession.
Considering the evidence in the light most favorable to the trial court’s decision, we do not ﬁnd,
under the totality of the circumstances, Defendant was deprived of a free choice to admit, deny,

or refuse to answer the detectives’ questions. & Hicks, 408 S.W.3d at 95; Selvy, 462 S.W.3d at

 

764. At the beginning of the interrogation, police Mirandized Defendant and at no point did he
request an attorney or suggest that he wished to stop the questioning. The questioning was not
unduly long: Defendant was in the interrogation room for approximately four hours and twenty
minutes in total and was subject to questioning for approximately one hour. The detectives were
unfailingly polite and sympathetic to Defendant. They did not raise their voices nor threaten him
with physical harm. The detectives stated that if K.L. died and Defendant did not provide an
explanation for how the injuries occurred, they would have to assume the injuries were
intentional and would then constitute ﬁrst-degree murder, which Defendant recognized carried
the death penalty. This statement did not constitute a threat. Observations about the possible
consequences of a crime are not threats. State v. Simmons, 944 S.W.2d 165, 176 (Mo. banc
1997). The detectives then explained that if, as they suspected, Defendant had accidentally
injured K.L., that would not constitute first-degree murder. This statement was not a promise of
leniency but a statement of the law and encouragement to cooperate. 11L at 175 (statements by

officer that cooperation is in defendant’s best interests are not improperly coercive and do not

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