State v. Sleeth, 575 S.W.3d 291 (2019)

April 4, 2019 · Missouri Court of Appeals, Southern District, Division Two · No. SD 35474
575 S.W.3d 291

STATE of Missouri, Respondent,
v.
Kearstain N. SLEETH, Appellant.

No. SD 35474

Missouri Court of Appeals, Southern District, Division Two.

FILED: April 4, 2019
Motion for Rehearing and/or Transfer to Supreme Court Denied April 24, 2019
Application for Transfer Denied June 25, 2019

Appellant's attorney: William J. Swift, Columbia.

Respondent's attorneys: Eric S. Schmitt, Atty. Gen., and Nathan J. Aquino, Asst. Atty. Gen.

DANIEL E. SCOTT, J.

*294A jury found Kearstain Sleeth guilty of burglary and felony murder. Sufficiency of the evidence is not in dispute.

Sleeth was mad at the victim and told three male friends a story to make them mad too. She gave one young man a handgun, drove the others to get guns of their own, then drove them all to the victim's home and pointed out his bedroom. She waited as the young men went to the front door, kicked it in, forced entry into the victim's room, shot him to death, and returned to the car. Sleeth drove everyone to a remote area to dispose of the murder weapons. Sleeth later gave police a video-recorded interview, after which she was charged and ultimately convicted as stated above.

On appeal, Sleeth's three points challenge evidentiary rulings regarding her interview. We review such claims for abuse of discretion. State v. Blurton , 484 S.W.3d 758, 769 (Mo. banc 2016). A trial court abuses its broad discretion to admit or exclude evidence only if its ruling is so clearly illogical, unreasonable, arbitrary, and ill-considered that it shocks the sense of justice. See id . None of Sleeth's points make this showing, so we affirm and remand to correct an error in the written judgment.

Point 1

Sleeth moved to suppress her interview on two grounds relevant to this appeal:

1. that "cognitive deficiencies due to not being allowed to take her medication ... clearly establish an inability on her part to either understand questions made to her or to be able to verbalize reliable responses," and
2. at one point, she "was told by one of the interrogators that it was a crime for her not to tell him what happened."

After a motion hearing at which Sleeth and her mother testified, the state agreed to suppression of everything from and after Sleeth was told it was a crime not to inform. The court took the rest under advisement, viewed the video twice, found Sleeth "was coherent and mentally stable throughout the interview," and overruled the motion "up to the point when [Sleeth] was told it was a crime not to talk to the police."1 After editing to remove the suppressed portion, the video was admitted at trial and shown to the jury.

Point 1 charges error in not suppressing the whole interview, alleging that Sleeth's cognitive functioning was so impaired by a lack of medication that her statements were involuntary, unreliable, and should not have been admitted.

As relevant here, we review a suppression ruling only for whether substantial evidence supports it, viewing all facts and reasonable inferences most favorably to the ruling. State v. Little , 473 S.W.3d 662, 666 (Mo. App. 2015). We disregard contrary evidence and inferences. State v. Selvy , 462 S.W.3d 756, 764 (Mo. App. 2015). Unless the trial court indicates otherwise, we presume it found all facts and made all credibility determinations consistent with its ruling ( Little , 473 S.W.3d at 666-67 ), and "deem that the trial court implicitly found not credible, or entitled to little to no weight, any testimony or other evidence that does not support its ruling." Selvy , 462 S.W.3d at 764. At bottom, "the weight of the evidence and the credibility of the witnesses are for the trial court's determination." Id . "If the trial court's ruling is plausible, in light of the *295record viewed in its entirety, we will not reverse." Id .

These principles doom Point 1, which leans heavily on hearing testimony by Sleeth and her mother that we must disregard as contrary to the court's ruling. Little , 473 S.W.3d at 666-67 ; Selvy , 462 S.W.3d at 764. Although Sleeth also cites the interview video, it offers substantial evidence supporting the trial-court finding that Sleeth "was coherent and mentally stable."2

These effectively end our inquiry. Little , 473 S.W.3d at 666-67. The trial court's *296ruling is plausible, given the record viewed in its entirety, so we will not reverse. Selvy , 462 S.W.3d at 764. We need not address other grounds for affirmance argued by the state. We deny Point 1.

Point 2

Point 2 urges that the trial court abused its discretion in refusing - despite suppression - to still let the jury hear that Sleeth asked, "Is it a crime for me to not tell you?" and that Det. Shipley replied, "Yeah." Sleeth's reasoning, to quote her brief, is the state's case "turned on casting [Sleeth] as a liar during her video statement. Had the jurors learned of Shipley's blatant conceded Miranda violation[3 ] that would have called into doubt the reliability of all of [Sleeth's] statements as having been unreliable and coerced by Shipley."

This is a non sequitur. Whether Det. Shipley later misstated the law cannot prove or disprove Sleeth's earlier honesty about her factual knowledge; likewise for whether a latter misstatement creates an earlier coercion.

The trial court's ruling was well within its broad discretion. Point 2's fallacious argument does not prove otherwise.4 Point denied.

Point 3

Point 3 complains that the trial court erred in not letting defense counsel question Det. Shipley about Sleeth "requiring emergency ambulance medical treatment for passing out."5 This claim is not preserved.

The state sought and obtained a pretrial ruling in limine precluding such evidence, but "a ruling on a motion in limine is interlocutory and subject to modification at trial." Blurton , 484 S.W.3d at 775. The trial court indicated this when it ruled - "I'm going to sustain this for now and before we get [into the recording] in the trial, we'll have a conference on it if you think you still want to get into it depending on how the trial goes."

Such pretrial ruling in and of itself preserves nothing for appeal. State v. Marshall , 131 S.W.3d 375, 377 (Mo. App. 2004). "To preserve the matter for appeal, the proponent of the evidence must *297attempt to present the excluded evidence at trial, and if an objection to the proposed evidence is raised and sustained, the proponent must then make an offer of proof." Id . Sleeth did neither. As for Sleeth's alternate request for plain-error review, when neither cross-examination nor offer of proof was even attempted, we cannot possibly find evident, obvious, or clear error, much less manifest injustice. Finally, Sleeth's appeal to the rule of completeness fails for the same reasons as in Point 2. Point 3 fails.

Remand Necessary

Sleeth initially was charged with three counts: (I) second-degree murder, (II) armed criminal action, and (III) first-degree burglary. Later, an amended information had second-degree murder as Count I, no Count II, and first-degree burglary as Count III. Before voir dire, the court confirmed that only murder and burglary were being tried, and jurors received instructions and returned verdicts as to those crimes only. At sentencing, the defense noted that Sleeth had not been convicted of armed criminal action, after which the court orally pronounced sentence as "15 years in the Missouri Department of Corrections on Count 1, 15 years on Count 3, to run concurrent to each other." The record is clear that Sleeth was tried, convicted, and orally sentenced for felony murder and first-degree burglary. Neither party claims otherwise.

Unfortunately, the court entered an incorrect written judgment that lists first-degree burglary as Count II; states that Count II, originally charged as armed criminal action, was amended to first-degree burglary; and states that original Count III, first-degree burglary, was "Dismissed by Prosec/Nolle Pros." Failure to accurately record Sleeth's convictions was a clerical error correctable nunc pro tunc for which remand is appropriate. State v. Henderson , 468 S.W.3d 422, 426 (Mo. App. 2015).

Conclusion

Sleeth's points fail. We remand with directions to enter a corrected judgment reflecting that Sleeth was found guilty of felony murder and sentenced to 15 years on Count I, and found guilty of first-degree burglary and sentenced to 15 years on Count III, with both sentences to run concurrently, and that Count II (armed criminal action) was dismissed/nolle pros. In all other respects, the judgment and convictions are affirmed.

JEFFREY W. BATES, J. - CONCURS

MARY W. SHEFFIELD, J. - CONCURS