768 S.W.2d 197 (Mo.App. E.D. 1989), 53265, State v. Buss

Docket Nº:53265.
Citation:768 S.W.2d 197
Party Name:STATE of Missouri, Respondent, v. Stephen A. BUSS, Appellant.
Case Date:February 28, 1989
Court:Court of Appeals of Missouri
 
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Page 197

768 S.W.2d 197 (Mo.App. E.D. 1989)

STATE of Missouri, Respondent,

v.

Stephen A. BUSS, Appellant.

No. 53265.

Court of Appeals of Missouri, Eastern District, Second Division.

February 28, 1989

Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1989.

Application to Transfer Denied May 16, 1989.

Page 198

Irl B. Baris, St. Louis, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

GRIMM, Presiding Judge.

Defendant was indicted and tried for murder in the first degree. The jury found him guilty of murder in the second degree, a class A felony under § 565.021, RSMo 1986.

Defendant raises seven allegations of error. [*] First, the trial court erred in admitting evidence seized pursuant to a search warrant, because the search warrant was based on a false, incomplete, and misleading affidavit made with reckless disregard for the truth. We disagree, because the point was not preserved and is not properly reviewable; further there was no plain error since the search warrant was based on probable cause. Second, the trial court erred in permitting the State to introduce defendant's incriminating statements made while in police custody. We disagree, because defendant voluntarily waived his Miranda rights. Third, the trial court erred in allowing the prosecutor to inform prospective jurors during voir dire that the co-defendant had entered into a plea arrangement. Although error was committed, defendant was not prejudiced.

Fourth, the trial court erred in failing to declare a mistrial or strike testimony regarding information contained in the investigating officers' notes. We disagree, because the State had no duty to produce the destroyed notes. Fifth, the trial court erred in permitting the State to make statements and present evidence that defendant had been engaged in homosexual activities and possessed pornographic material. We disagree, because the statements and evidence were not "evidence of other crimes," and they were relevant to the State's theory of motive. Sixth, the trial court erred in overruling defendant's motion for judgment of acquittal. We disagree, because the State presented sufficient evidence to make a submissible case. Seventh, the trial court erred in denying defendant's new trial motion on newly discovered evidence. We disagree, because the evidence was cumulative and of an impeaching nature. We affirm.

As required, we examine the evidence in the light most favorable to the verdict and disregard all adverse inferences and evidence. State v. Allen, 684 S.W.2d 417, 423-424 (Mo.App.E.D.1984). Defendant owned and rehabilitated properties in South St. Louis. The co-defendant, Michael Reed, had known the defendant for ten or eleven years and, for the last five years, worked for him in this business. Reed, along with others in that area, knew defendant as

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"Mike" or "Mike Anderson." In 1984 or 1985, when Reed learned defendant's real name was Stephen Buss, defendant told him not to disclose it. When another employee learned defendant's real name, defendant told the employee that it was top secret and the penalty for disclosing it would be death.

In 1984, when the Reed family lived in the same South St. Louis apartment house as the victim and her family, defendant occasionally came to the house to see the Reeds. In 1985, there was apparent animosity between the victim and defendant. The victim's daughter witnessed arguments between her mother and defendant on four occasions. The victim would refer to defendant as "Fag Mike," and he would get angry; he threatened to "get her back" later. When the victim told defendant she could get something from the police to keep him away, he replied, "Well, if you come down the street I could kill you anyway." One week before her disappearance, the victim told Reed that she knew defendant's name was Steve Buss.

On the night of April 4, 1986, Reed, at defendant's direction, asked the victim to go with him to burglarize defendant's Creve Coeur home. She went with Reed to defendant's home. Reed and the victim entered the house; defendant appeared and asked her, "Why did you have to go that far?" When Reed turned around, she was lying on the floor and defendant was standing over her.

Defendant tied her hands and feet with rope; then with handcuffs and chains. When she asked defendant why he was doing this, he replied, "You shouldn't have been nosing in my business this far, and you wouldn't have to worry about something like this." Defendant then used a screwdriver to force rags into her mouth. Defendant put her in a sleeping bag and, with Reed's assistance, placed her in the trunk of his car. Defendant told Reed he could leave, and that he (defendant) was going to take care of it from there.

Later, defendant told Reed that he took the victim to the Mississippi River, held her under water for about ten minutes until the bubbles stopped, swam out into the currents, and pushed...

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