State v. Buss, 53265

• Decision Date: 28 February 1989
• Docket Number: No. 53265,53265
• Citation: 768 S.W.2d 197
• Parties: STATE of Missouri, Respondent, v. Stephen A. BUSS, Appellant.
• Court: Missouri Court of Appeals

Page 197

768 S.W.2d 197

STATE of Missouri, Respondent, v. Stephen A. BUSS, Appellant.

No. 53265.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 28, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 3, 1989.

Application to Transfer Denied May 16, 1989.

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 "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 her away. Defendant added that her bones had probably floated down to Mexico. About a week before Reed was arrested, he told defendant that if he were arrested, he would not take the blame for the victim's death. Defendant told him not to talk, and he would have an attorney for Reed within thirty minutes.

The victim's body was found in the Mississippi River on April 28, 1986. The cause of death was listed as asphyxiation or suffocation due to drowning.

One of the victim's shoes was recovered with the body and had Reed's name hand-printed on the inner sole. The police went to one of defendant's properties looking for Reed, and told defendant and his employees that they wanted to talk to Reed. Later, defendant made a phone call stating that Reed had been arrested and accused of "killing some girl." He wanted to get an attorney for Reed so that the police wouldn't "beat him up and make him confess to something he didn't do."

In his first point, defendant alleges that under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the trial court erred in admitting evidence seized pursuant to a search warrant. He argues that the search warrant was based on a false, incomplete, and misleading affidavit which was made with an intent to deceive or reckless disregard for the truth.

"A constitutional attack on the veracity of a search warrant affidavit, sufficient to void the search warrant and exclude the fruits of the search conducted thereunder, may proceed only on the 'substantial preliminary showing' prescribed in Franks, ..." State v. Skaggs, 650 S.W.2d 23, 25 (Mo.App.E.D.1983). To mandate an evidentiary hearing:

There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

Franks, 438 U.S. at 171, 98 S.Ct. at 2684.

This showing usually must be made by a motion to suppress, Skaggs at 25. Here, defendant failed to raise allegations of deliberate falsehood or reckless disregard for the truth in either of his two motions to suppress evidence. Moreover, the issue was not raised during the trial or in defendant's motion for new trial. Because defendant failed to raise the issue in the trial court, his point was not preserved and, thus, is not reviewable on appeal.

In examining this point for plain error, we find that sufficient probable cause existed for the issuance of the search warrant. Accordingly, there was no plain error resulting in manifest injustice. Point denied.

Defendant next contends that the trial court erred in admitting evidence of incriminating oral and written statements made by him while in police custody.

Defendant filed a motion to suppress alleged statements wherein he claimed: (1) his repeated requests for an attorney were denied; (2) he initialled the Miranda rights listed on the warning and waiver form, but refused to sign it until his attorney was present; (3) notes written by him during the questioning were the product of police coercion and physical abuse; and (4) he made no admissions or confessions as alleged by the police. Defendant and the two interrogating police officers testified at the hearing on this motion.

The trial court overruled the motion without stating its reason for doing so. "Implicit in the trial court's silence and admission of the statements at trial is the conclusion that [defendant's] testimony ... lacked credibility and that the statements were voluntarily given." State v. Royal, 610 S.W.2d 946, 948 (Mo. banc 1981). Where there is conflicting evidence on the existence and voluntariness of defendant's statements, as there is here, the admissibility of the statements by the trial court is "a matter of discretion which is not lightly disturbed." Id. at 949. The trial court's implicit finding of voluntariness is substantially supported by the record.

Defendant maintains that his refusal to sign a Miranda waiver form indicates he desired to remain silent and requested an attorney. However, "[a] refusal to sign a written declaration does not necessarily preclude an oral or implied waiver" of Miranda rights. State v. Evans, 701 S.W.2d 569, 576 (Mo.App.E.D.1985) (quoting State v. Hull, 595 S.W.2d 49, 51 (Mo.App.S.D.1980)). "[T]he question of waiver must be determined on 'the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.' " North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286, 293 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938)). See Evans at 576. "[I]n at least some cases waiver can be clearly inferred from the actions and...