Rice claims he was assaulted by Durham and Strotkamp, acting together, when he arrived at their home. Sudden passion must arise out of provocation by the victim or another acting with the victim. Section 565.002(7). The State argues there is no evidence Strotkamp and Durham were acting together, but there was evidence that the victims, who lived together, simultaneously approached or attacked Rice. This evidence gives rise to an inference the victims were acting together. Viewing the evidence in the light most favorable to the defendant, Thomas , 161 S.W.3d at 380, there is sufficient evidence of Strotkamp and Durham acting together.
Further, though much time passed between when Durham initially told Rice he would not see his son and when Rice killed the victims, she again informed him when he arrived at the home, which the jury could find reignited his anger, as the threat of not being allowed to see ones child ever again could provide adequate provocation to a parent. This provocation, combined with the alleged physical assault giving rise to an inference of sudden passion, is sufficient evidence from which a jury could find sudden passion. Creighton , 52 S.W.2d at 562 ; see also Fears , 803 S.W.2d at 608. Because there was a basis in the evidence supporting a finding of sudden passion arising from adequate cause, Rice was entitled to an instruction on voluntary manslaughter. The trial court erred in refusing to submit Rices Instruction E.
D. Instruction D: Second-Degree Murder
Rice also argues the circuit court erred when it refused to submit to the jury his version of a second-degree murder instruction, Instruction D. Rices proposed instruction mirrored the Missouri Approved Instructions in that it included language requiring the jury to find Rice had not acted out of sudden passion arising from adequate cause to convict him of second-degree murder. The second-degree murder instruction actually submitted to the jury omitted this language.
The additional sudden passion language requested by Rice must be given [i]f there is evidence supporting sudden passion from adequate cause. MAI-CR 3d 314.04 Notes on Use 4; see also MAI-CR 3d 314.08 Notes on Use 3 (explaining that when there is evidence of sudden passion and adequate cause, the instruction on voluntary manslaughter will be identical to MAI-CR 3d 314.04 [the second-degree murder instruction] as to the elements of the offense except that MAI-CR 3d 314.04 will include the paragraph on negating sudden passion arising from adequate cause). Because there was a basis in the evidence supporting a finding of sudden passion arising from adequate cause, as set out above, the circuit court was required to submit Rices proposed Instruction D.
Rice was prejudiced when the circuit court failed to give Rices proposed Instructions D and E. Jackson , 433 S.W.3d at 395 n.4. The judgment as to second-degree murder for the death of Strotkamp is reversed, and the case is remanded.
II. Miranda
As to the conviction for the first-degree murder of Durham, Rice argues the circuit court erred in overruling his motion to suppress statements he made during his police interrogation because the statements were made after he invoked his right to silence and the police failed to scrupulously honor his invocation.
A. Standard of Review
This Court reviews a trial courts ruling on a motion to suppress in the light most favorable to the ruling and defers to the trial courts determinations of credibility. State v. Edwards , 116 S.W.3d 511, 530 (Mo. banc 2003). The circuit courts ruling on a motion to suppress will not be reversed unless the decision was clearly erroneous. State v. Holman , 502 S.W.3d 621, 624 (Mo. banc 2016). A ruling is clearly erroneous if the Court is left with a definite and firm belief a mistake has been made. Id.
Whether conduct violates the Fifth Amendment is a question of law and is given de novo review. Id. This Court will indulge every reasonable presumption against waiver of fundamental constitutional rights. State v. Bucklew , 973 S.W.2d 83, 90 (Mo. banc 1998). A properly preserved federal constitutional error in a criminal trial does not require reversal and remand for a new trial if the reviewing court determines the error was harmless beyond a reasonable doubt. State v. Minner , 256 S.W.3d 92, 96 (Mo. banc 2008).
B. Analysis
Rice argues he unequivocally invoked his right to silence several times during the police interrogation and the statements he made after he invoked that right should not have been admitted at trial. After a person receives Miranda warnings, [i]f the individual indicates in any manner, at any time prior to or during the questioning , that he wishes to remain silent, the interrogation must cease. Miranda , 384 U.S. at 473-74, 86 S.Ct. 1602 (emphasis added). The accuseds Fifth Amendment right to cease police questioning must be scrupulously honored. State v. Simmons , 944 S.W.2d 165, 173 (Mo. banc 1997).
[N]o ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination. Emspak v. United States , 349 U.S. 190, 194, 75 S.Ct. 687, 99 L.Ed. 997 (1955). But to invoke this right, the individual must give a clear, consistent expression of a desire to remain silent. Simmons , 944 S.W.2d at 173-74 (quoting United States v. Thompson , 866 F.2d 268, 272 (8th Cir. 1989) ). If the invocation is ambiguous or equivocal, the police are not required to end the interrogation and are not required to ask questions to clarify whether the accused is invoking his right to silence. See Berghuis v. Thompkins , 560 U.S. 370, 381-82, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). To determine whether an individual has unambiguously invoked his right to remain silent, [t]he individuals statements are viewed in their entirety. State v. Cannon , 469 S.W.3d 887, 892 (Mo. App. E.D. 2015).
1. Interrogation Part One: I dont wanna talk no more.
At the outset of the hospital interrogation, the detective read Rice his Miranda rights. Rice stated he understood his rights and had no questions. Rice began describing the events that had taken place at the hotel but did not answer any questions about what had occurred at the victims residence. Not long into the interrogation, Rice indicated he no longer wished to speak.
DETECTIVE: Marvin, what happened before you came, before you were coming to the V.A. tonight?
RICE: My mouth is so dry.
DETECTIVE: Yeah. Marvin, what, what happened before you came, before you came to the V.A. tonight?
RICE: Im sorry, sir, I dont wanna talk no more.
DETECTIVE: You dont wanna talk? You hurting too much?
RICE: Yes.
DETECTIVE: Okay, well give you, give you a few minutes so they can take care of you, okay.
The recording then ended. The detective resumed questioning 20 to 30 minutes later but did not reread Rice his Miranda warnings. As the detective questioned Rice, attempting to solicit information about the events of that night, Rice answered almost no questions substantively. After detailing his history working for the Dent County sheriffs office, he answered the detectives question why he was headed to the Columbia hospital after the homicides by stating that was the only place [he] could think of to try and get help and remarked that he had been having psychological problems for a long time. Another break in the interrogation then occurred because Rice needed to use the bathroom.
After this break, which lasted another 20 to 30 minutes, the interrogation resumed once again. The detective reminded Rice of his Miranda rights, and Rice confirmed he understood those rights and had no questions about them. The detective immediately asked again about what had happened earlier that night.
Rice argues his statement that he [did not] wanna talk no more was a clear and unequivocal invocation of his right to silence and that the States continued attempts at interrogation violated his Miranda rights. Other states have found similar defendant statements sufficiently clear to invoke an individuals right to silence. See Commonwealth v. Lukach , --- Pa. ----, 195 A.3d 176, 190 (2018) (Im done talking. I dont have nothing to talk about was unequivocal despite defendant prefacing statement with I dont know); see also Commonwealth v. Smith , 473 Mass. 798, 46 N.E.3d 984, 992 (2016) (Im done talking. I dont wanna talk no more was clear invocation of right to silence); see also McGraw v. Holland , 257 F.3d 513, 518 (6th Cir. 2001) (I dont wanna talk about it was clear invocation).
Rices statement that he did not want to talk anymore closely tracks the statements made in these cases from other jurisdictions. It was not immediately followed by continued statements, and it was not qualified by any equivocal language. Rather, it was a clear indication Rice no longer wanted to talk.
The State argues Rice did not invoke his right to silence because his statements were made in the context of the significant pain he was experiencing and his willingness to generally speak with the detective. But Rices pain does not make his statement any less unambiguous. Even if the pain was a motivating factor in Rices decision to invoke his right to silence, he clearly and unequivocally stated he did not wish to talk anymore. And further, even if Rice had indicated a willingness to speak with police by responding to questions, the right to silence may be invoked at any time during police questioning. Miranda , 384 U.S. at 473-74, 86 S.Ct. 1602. The waiver of this right [to silence] may be revoked at any time, at which point a defendants silence is again protected. State v. Tims , 865 S.W.2d 881, 885 (Mo. App. E.D. 1993).
The State also argues Rice continued to participate in the interrogation after the invocation, which serves as further confirmation that no invocation in fact occurred under ONeal , 392 S.W.3d at 571. But this case differs from ONeal , in which there was no clear request to remain silent at the outset. Id. Indeed, the court of appeals explained it referred to the defendants continued answers to questions not to undermine an unambiguous invocation ONeal had previously made, but only as further confirmation that no invocation in fact occurred. Id. Unlike ONeal , Rice made a clear invocation of his right to remain silent, and the State cannot use later-occurring facts to inject ambiguity where none exists. See Smith v. Illinois , 469 U.S. 91, 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) ([A]n accuseds postrequest responses to further interrogation may not be used to cast doubt on the clarity of his initial request for counsel.).
Because Rice invoked his right to silence, the police had a duty to scrupulously honor that invocation. Bucklew , 973 S.W.2d at 88. To determine whether Rices invocation was scrupulously honored, courts will consider five factors: (1) whether the interrogation ceased; (2) whether the interrogation was resumed only after the passage of a significant period of time with new Miranda warnings; (3) whether the object of any subsequent interrogation was to wear down the suspect and cause him to change his mind; (4) how many subsequent interrogations were undertaken; and (5) whether subsequent questioning involved the same crime. Id. at 89 (citing Michigan v. Mosley , 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) ).
The interrogation did cease - briefly - after Rice stated he did not want to talk anymore. But not more than 20 to 30 minutes later, the detective resumed questioning Rice without new Miranda warnings and continued to ask questions about the same crime. A mere 30 minutes is not passage of a significant period of time in which to take a break from interrogation. See ONeal , 392 S.W.3d at 567 (citing cases for the proposition that intervals of one-to-four hours between interrogations are consistent with the polices duty to scrupulously honor a suspects invocation). And though Rice was reminded of his Miranda rights, he was not reread them. Although Miranda warnings do not constitute a ritualistic formula which must be repeated verbatim, ... the whole substance of the warning, and not merely part of it, must be given. State v. Neal , 476 S.W.2d 547, 555 (Mo. banc 1972). Rices invocation was not scrupulously honored here. For this reason, the admission of any statements made after Rices invocation - including his statements about wanting to get help at the Columbia hospital and having had psychological problems for a long time - violated Rices Miranda rights.
2. Interrogation Part Two: I got nothing to say, I dont wanna talk.
As stated above, the detective began questioning Rice after his bathroom break and after reminding Rice of his Miranda rights. Rice stated he understood his rights and had no questions about them before the following exchange occurred:
DETECTIVE: ... Earlier before, down in the emergency room you, I asked you what happened and you told me about coming into Jeff City and you remember seeing the lights and uh, uh, getting shot [and] whatnot and you said you were on your way to the V.A. where you had been treated for some psychiatric problems. Do you remember telling me that?
RICE: Mm hmm. [Yes.]
DETECTIVE: Okay. What I need for you to tell me about here, you know the reason this whole thing started. What happened tonight at [the victims home] that kind of kicked this whole thing off? I need you to be honest with me.
RICE: I got nothing to say, sir.
DETECTIVE: Okay, you got nothing to say about at [Strotkamps] or ... obviously youre upset with what happened down there with, with [Durham] but I want you to understand being, being a cop. Youre a cop and Im a cop. Im not gonna play games with you. ... Im not gonna jerk you around, but you understand, you know, we got folks down there that worked [the crime]. We got, you know, a seven-year-old who saw what occurred. Id like to be able to give your side of the story because as you know ... if you dont have a voice in this somebody else is gonna give you one and that voice probably isnt gonna say what you want it to say.... Its not gonna give your side of the story as far as what led up to this.... You understand where Im coming from, Marvin?
RICE: Mm hmm. [Yes.]
DETECTIVE: I mean if, if you dont give some kind of reason as to why, people are gonna assume the worst in you, and especially coming from law enforcement, you know we, we sure dont need people to say that youre some, some lunatic crazy cop who had this all planned out and went on a shooting spree intending to hurt all these people.... I cant put words in your mouth. I need to hear from your side of the story as far as what happened.
RICE: My heart doesnt like this. I dont wanna talk.
DETECTIVE: Okay, I understand that. Can you tell me anything about what happened before I go?
RICE: Mm mmm. [No.]
DETECTIVE: Okay. Will you visit with me here in a little bit when they get your pain under control? I mean, can you tell me something about ...
RICE: Well see.
DETECTIVE: ... why this happened with [Durham]?
RICE: If they actually get my pain under control, well see.
DETECTIVE: Alright, well give you some time and try to get your pain under control, alright. Im gonna go ahead and turn off the recorder.
Rice made two statements purportedly invoking his right to silence: I got nothing to say and I dont wanna talk. Even if Rices first statement was ambiguous, any ambiguity disappeared when, almost immediately thereafter, Rice again stated he did not want to talk. This statement - which mirrors his first invocation of his right to silence - was a clear invocation of his right to silence. And when the detective continued to prod Rice and again asked if he had anything to say before the detective left, Rice answered no.
The State did not immediately cease its interrogation, which alone is sufficient to determine Rices invocation was not scrupulously honored. Miranda , 384 U.S. at 473-74, 86 S.Ct. 1602. And not only did the questioning persist, the questions were arguably intended to wear down Rice and cause him to change his mind about participating in the interrogation, as the detective made numerous emotional appeals to Rice:
Youre a cop and Im a cop. Im not gonna play games with you. ... Im not gonna jerk you around.... We got, you know, a seven-year-old who saw what occurred. Id like to be able to give your side of the story because as you know if you dont have, if you dont have a voice in this somebody else is gonna give you one and that voice probably isnt gonna say what you want it to say.
This line of questioning is clearly designed to elicit a response from Rice, mentioning that a seven-year-old witnessed the crimes and encouraging Rice to answer the detectives questions because if Rice did not have a voice in the matter, someone else was gonna give [him] one. But it was not until Rice again invoked his right to silence that his invocation was taken seriously. After Rices second invocation, his invocation was basically honored (after the detective asked again about future questioning), but the State did not scrupulously honor Rices first invocation of his right to silence, which violated his Miranda rights. Importantly, though, Rice made no substantive statements during this portion of the interrogation - he mainly answered in affirmatives and negatives - and the State received no evidentiary benefit from its violation of Rices Miranda rights.
3. Interrogation Part Three: Rices waiver and rereading Miranda warnings
Shortly after Rices second and final invocation of his right to silence, Rice reinitiated conversation with police and made several statements he contends were confessional in nature. For example, he stated he had been depressed for some time and apologized for putting the police in the position [he] put [them] in that night. The interrogation then stopped for an unknown period of time, but the break lasted at least until the next morning. (Tr. 53). When it resumed later that morning, Rice was reread his Miranda rights. He then made the bulk of the statements admitted at trial about the night of the homicides, describing in detail what had happened before, during, and after his time at the victims home.
This third part of the interrogation did not violate Rices Miranda rights. Rices first statements regarding his mental state and his apologies were made only after he reinitiated conversation with the police. And his statements made about what happened on the night of the homicides were made only after he was reread his Miranda rights. At no point after he was reread his rights did he attempt to invoke his right to silence again. There was no Miranda violation here.
4. The Miranda violations were harmless beyond a reasonable doubt
[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. State v. Ramirez , 447 S.W.3d 792, 797 (Mo. App. W.D. 2014). The harmless error standard recognizes the relative harm improper evidence may inject depending on its strength, its relevance, and the presence of other evidence of guilt. Id. The State must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Id. The State does not need to prove the evidence had no possible effect on the jury, as this would be tantamount to requiring automatic reversal of a conviction. Id.
Here, if the wrongly admitted evidence had been suppressed, the verdict would have remained the same. The statements Rice made in violation of his Miranda rights were that he went to the Columbia hospital to get help and that he had been having psychological problems for some time. But these statements are duplicative of other statements Rice made later in the interrogation after he had waived his Miranda right to silence. It was not until later in the interrogation, after Rice had either voluntarily initiated conversation with the police or had been reread his Miranda rights, that Rice made confessional statements. The statements admitted in violation of Miranda had little evidentiary value and, given the abundance of evidence of guilt, did not bear heavily on the determination of his guilt. Accordingly, the Miranda violations were harmless beyond a reasonable doubt. Rice is not entitled to relief on this ground.
III. Doyle
In addition, Rice argues his conviction for first-degree murder should be overturned because his due process rights were violated when the State repeatedly referenced his decision to stay silent during police interrogations. The Fifth Amendment provides, No person ... shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. In Doyle v. Ohio , the United States Supreme Court stated it was a violation of a defendants due process rights to allow his or her post- Miranda silence to be used to impeach the defendant at trial. 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Breaching the implied assurances of the Miranda warning is an affront to the fundamental fairness required by the Due Process Clause. State v. Brooks , 304 S.W.3d 130, 133 (Mo. banc 2010). The holding in Doyle rests on the view that it is fundamentally unfair to implicitly assure a person his silence will not be used against him and then breach that promise by using that silence against him. Id. As such, post- Miranda silence cannot be used as evidence to incriminate a defendant. Id.
A. Standard of Review
Doyle violations are reviewed to determine whether they are harmless beyond a reasonable doubt. Brooks , 304 S.W.3d at 137. The State bears the burden of demonstrating no reasonable doubt exists that the admitted evidence failed to contribute to the jurys verdict. Id.
B. Preservation
To preserve a Doyle violation for appellate review, the defendant must have objected to the violation at trial. Id. at 136. But this Court has discretion to review all Doyle errors - preserved and unpreserved - in the context of the entire record to evaluate whether the violations were harmless beyond a reasonable doubt. Id. at 137.
Rice points to several instances at trial he argues were Doyle violations. First, a recording of Rices hospital interrogation was played for the jury. The recording included select parts of the detectives questioning of Rice the night of the murders and through the next morning, including portions in which Rice refused to answer the detectives questions. Though Rice filed a motion to suppress this evidence, it was not based on the theory that the evidence wrongly commented on his right to silence. Rather, he argued the statements he made were not voluntary and he was not properly informed of his rights. Accordingly, this argument is not preserved for appeal. Johnson , 207 S.W.3d at 43.
After playing the taped interview for the jury, the State examined the interrogating detective about his conversation with Rice. Rice argues this testimony describing his interrogation contained inadmissible evidence.
THE STATE: And did you ask him several times about what happened down in Dent County at his home in regard to [Durham]?
DETECTIVE: Yes, I did.
THE STATE: And did he answer any of those questions?
DETECTIVE: No, he did not.
THE STATE: Judge, could I begin the tape again?
Rice then objected and moved for a mistrial on the basis this line of questioning violated his Fifth Amendment right to silence. Typically, an objection made after a question has been asked and answered is untimely. State v. Blurton , 484 S.W.3d 758, 774 (Mo. banc 2016). Exceptions to this rule exist if the witness answers so quickly that it is impossible to object or if the grounds for objection become apparent only when the answer is given. Id.
When the State asked the detective if Rice had answered questions when he was interrogated at the hospital, the grounds for any potential objection from Rice were evident. Rice failed to object at that time. Even if the detectives answer was made too quickly for Rice to immediately object, Rices objection was not made until after the State continued questioning by seeking the courts permission to resume playing the recording. Because Rices objection was not timely made, it was not preserved for appeal. See id.
Further, Rice failed to ask for a curative instruction. In fact, defense counsel stated she did not believe there was any curative instruction that could have been given, as it would only draw more attention to the fact ... that [Rice] did not answer questions regarding Dent County and the implication being that he is guilty. The objection and the motion for mistrial were overruled.
Later in the direct examination, the State once again solicited testimony about Rices silence:
THE STATE: And just prior to the end of that or to that break, you brought up again what happened to [Durham], correct?
DETECTIVE: I did.
THE STATE: And his reaction was what?
Over Rices overruled objection, the detective continued:
DETECTIVE: He appeared to have more pain at that point and began groaning is what happened.
THE STATE: Well, let me ask you this. When you brought up [Durham] and down there and asked him about that, did his demeanor change?
DETECTIVE: To me, every, you know, when I brought up [Durham] and asked him about what happened last night, as you heard, it seemed that his pain increased and he began moaning more and complaining.
THE STATE: Does that sort of happen later on in these interviews?
DETECTIVE: It does consistently throughout the interview.
Though the detective did not expressly state Rice was silent during this line of interrogation questioning, he implied Rice refused to answer questions about Durham, perhaps by feigning pain and discomfort. These questions posed by the State were comments about Rices post- Miranda silence. This issue was included in Rices motion for new trial and is preserved for this Courts review.
The State urges this Court to deny even plain error review of Rices unpreserved arguments, as Rice did not ask for plain error review. This Court always has the discretion to engage in plain error review of issues concerning substantial rights, especially constitutional rights such as the one at issue here. Brooks , 304 S.W.3d at 136 n.2. Each of these errors, preserved and unpreserved, will be considered for purposes of determining whether the State has met its burden to show that these constitutional violations were harmless beyond a reasonable doubt. Id.
C. Analysis
The Court considers four factors in evaluating the effect of a Doyle violation on a jurys verdict: (1) whether the government made repeated Doyle violations; (2) whether the trial court made any curative effort; (3) whether the defendants exculpatory evidence is transparently frivolous; and (4) whether the other evidence of the defendants guilt is otherwise overwhelming. Id. at 137.
The State made at least three Doyle violations. It played a taped interview for the jury referencing Rices silence, both through the detectives comments and Rices assertions that he did not want to speak any longer, and twice referenced Rices silence during the detectives trial testimony. [S]ilence does not mean only muteness; it includes the statement of a desire to remain silent[.] Wainwright v. Greenfield , 474 U.S. 284, 295 n.13, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Though Rices silence was not a substantial part of the States case-in-chief, any reference to Rices post- Miranda silence is improper and an unlawful Doyle violation.
Rice argues the fact that the circuit court took no curative efforts cuts in favor of this Court finding the impermissible Doyle testimony had an effect on the jurys verdict. But Rice specifically requested that no curative instruction be given to the jury, believing such an instruction to be futile. Instead, he moved immediately for a mistrial. Under most circumstances, a trial court acts within its discretion and cures error in the admission of evidence by withdrawing the improper evidence and instructing the jury to disregard it, rather than declaring a mistrial. State v. Carter , 71 S.W.3d 267, 271 (Mo. App. S.D. 2002). [T]he fact that the defendant sought no relief other than a mistrial cannot aid him. Id. In a case such as this, where the Doyle violations had little impact on the States case, a curative instruction would have been sufficient to cure any evidentiary defects. Rice cannot benefit from the circuit court not taking curative efforts when he expressly stated he did not want the court to do so.
As far as the remaining two factors go, Rices exculpatory evidence was not transparently frivolous, as he primarily presented evidence he did not act with knowing deliberation for the purpose of mitigating his mental state. But the evidence of guilt presented in this case, which Rice concedes was substantial, was otherwise overwhelming. Overwhelming evidence of guilt means there is, at a minimum, sufficient evidence to support a conviction without consideration of the inadmissible evidence, in this case the inadmissible references to [the defendants] silence. State v. Dexter , 954 S.W.2d 332, 342 (Mo. banc 1997). Indeed, the evidence of Rices silence or refusal to answer questions had little inculpatory value in the context of the evidence as a whole, and this impermissible evidence played such a minor role in the States case-in-chief that the other evidence of guilt would have been sufficient to support a conviction without any of the inadmissible evidence.
Balancing these four factors, the Doyle violations were harmless beyond a reasonable doubt. Rice is not entitled to a reversal of his first-degree murder conviction on this ground.
The Penalty Phase
Finally, Rice argues he is entitled to a new penalty phase with respect to the Durham murder because, during the States closing arguments, it impermissibly drew attention to his decision not to testify at trial in violation of his constitutional rights. Specifically, he argues the State wrongly commented to the jury about his decision not to testify at trial, violating his right against self-incrimination. In its closing argument, the State commented:
But when you go back there and when you do this [deliberate on punishment], I hope you remember only 12 of you are going to do it, [but] theres a 13th juror in this room. The 13th juror is sitting behind you, we often call them the defendants, but hes the 13th juror and if Id been allowed to ask him those questions last week, he would have told us....
Rice objected on the grounds that this was commenting on his right not to testify, noting the State had also mentioned at least three times that Rice had not apologized for the homicides. Rice argued this was not an argument but a running theme designed to bring attention to Rices decision not to testify. The objection was overruled.
A. Standard of Review
This Court reviews a circuit courts rulings during closing arguments for an abuse of discretion. State v. Forrest , 183 S.W.3d 218, 226 (Mo. banc 2006). This Court will find an abuse of discretion if the circuit courts ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. State v. Clark , 364 S.W.3d 540, 544 (Mo. banc 2012).
B. Analysis
The Fifth Amendment to the United States Constitution [and] article I, section 19 of the Missouri Constitution ... grant criminal defendants the right not to testify and forbid comments by others on the exercise of that right. State v. Neff , 978 S.W.2d 341, 344 (Mo. banc 1998). A comment on a defendants decision not to testify can be either direct or indirect. A direct reference occurs when the prosecutor uses explicit, plain references - such as the words defendant, accused, testify, or their equivalent. Id. On the other hand, an indirect reference is one reasonably apt to direct the jurys attention to the defendants failure to testify. Id.
When examining whether an improper reference to the defendants right to remain silent has a prejudicial effect, an appellate court must consider the comment in the context in which it appears. Id. at 345. The prejudicial impact of such a statement is a matter within the sound discretion of the trial court and a prompt instruction by the trial court to the jury to disregard the comment may cure any error in a particular case. Id. But [w]here an objection is made and overruled, a direct reference to the failure of the defendant to testify will almost invariably require reversal of the conviction. Id. at 344. [A]n indirect reference requires reversal only if there is a calculated intent to magnify that decision so as to call it to the jurys attention." Id.
A prosecutor vocalizing his desire to question a defendant who had declined to testify at trial has been found to be an impermissible comment about the defendants right against self-incrimination. State v. Nelson , 719 S.W.2d 13, 17 (Mo. App. W.D. 1986) (Prosecutors closing argument was an impermissible reference to defendants right not to testify when prosecutor stated, we want to ask you, [Defendant], we want to ask you what you were doing with these guys). The same type of comment occurred here. The State referred directly to Rice (The 13th juror is sitting behind you, we often call them the defendants) and referenced the States inability to question him (if Id been allowed to ask him those questions last week ...). This language is the functional equivalent of using the words defendant, accused, and testify, and it was an impermissible comment about Rices refusal to testify.
The State argues this was a mere rhetorical device and, considered in its full context, the circuit court understood the comment to refer to the States inability to question Rice during voir dire , not to Rices failure to testify during the trial. But the relevant inquiry is not how the court interpreted the comment. Rather, this Court must focus on how the jury interpreted the comment and whether the comment invited the jury to consider the defendants failure to testify.
To expect the jury to infer from the closing argument that the State was referring to its inability to question Rice during voir dire is a bit far-fetched. A defendant is never questioned during voir dire , and a defendant may never sit on the jury in his own criminal trial. For the State to argue that it wanted to know the answers it would receive if [it] had been allowed to ask [Rice] those questions ... is disingenuous, as the State is well aware it has never been, and will never be, allowed to question the defendant during voir dire. The States comment drew attention to the fact that the jury had not heard from Rice during the trial, which was in part because he had declined to testify.
If the State intended to draw an inference that Rice must be a proponent of the death penalty because he had committed these homicides, it could have explicitly drawn that inference. Instead, the State referenced Rices silence and focused on what Rice did not say. This was an impermissible comment about Rices decision not to testify and a violation of his right against self-incrimination.
The circuit court abused its discretion when it overruled Rices objection to the States closing argument. For this reason, a new sentencing trial is warranted for the first-degree murder conviction of Durham. Neff , 978 S.W.2d at 347.
Conclusion
The circuit court erred in refusing to submit Rices proposed jury instructions, and for this reason, the judgment for the second-degree murder of Strotkamp is reversed. Further, because the circuit court erred when it overruled Rices objection to the States penalty phase closing argument, the judgment for the first-degree murder of Durham is reversed with respect to the penalty phase of the trial. In all other respects, the judgment is affirmed. The case is remanded.
All concur.
Compare these cases with State v. Perdomo-Paz , 471 S.W.3d 749, 758 (Mo. App. W.D. 2015) (Defendants response that he did not for real, man, no but ... want to answer a detectives questions was not a clear and unequivocal assertion of his right to silence) and State v. ONeal , 392 S.W.3d 556, 569 (Mo. App. W.D. 2013) (Defendants statement that he [did not] feel like talking was not unequivocal invocation of right to remain silent because it was immediately followed with the equivocation but and defendants continued speaking).
Although Rice did answer some non-substantive questions after the first time he invoked his right to silence, he did so 20 to 30 minutes after his initial invocation and not immediately after. These later-given answers cannot be used to inject ambiguity into his original invocation.
When an accused invokes his right to silence, the interrogation must cease. Miranda , 384 U.S. at 473-74, 86 S.Ct. 1602 (emphasis added).
To the extent the State argues Rice continued to participate in the interrogation after this invocation, he did not do so. After Rices last refusal to answer questions, the detective asked, Okay. Will you visit me with here in a little bit when you get your pain under control? This statement indicates the detective had - finally - agreed to end the interrogation and had shifted toward obtaining a commitment from Rice to be questioned later. Rice never agreed, stating, well see, which further indicates Rice was unwilling to participate in the interrogation. These statements cannot be considered Rices continued participation in the interrogation.
Having found Rice is entitled to a new trial as to the murder of Strotkamp and a new penalty phase as to the murder of Durham, this Court need not address Rices other arguments.