State v. Sweet, 70174

• Decision Date: 11 September 1990
• Docket Number: No. 70174,70174
• Citation: 796 S.W.2d 607
• Parties: STATE of Missouri, Respondent, v. Glennon Paul SWEET, Appellant.
• Court: Missouri Supreme Court

Page 607

796 S.W.2d 607

STATE of Missouri, Respondent, v. Glennon Paul SWEET, Appellant.

No. 70174.

Supreme Court of Missouri,

En Banc.

Sept. 11, 1990.

As Modified on Denial of Rehearing

Oct. 16, 1990.

Nancy A. McKerrow, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Finding defendant guilty of murder in the first degree for the slaying of highway patrolman Russell Harper, the jury assessed punishment at death, hence the appeal falls within this Court's exclusive appellate jurisdiction. Mo. Const. art. V, § 3. Further, defendant's motion for postconviction relief pursuant to Rule 29.15 was denied by the court after evidentiary hearing and that ruling will also be reviewed in this proceeding. Both judgments are affirmed.

The evidence favorable to the verdict abundantly supports the conviction. At approximately 4:30 p.m. on February 8, 1987, Trooper Russell Harper, of the Missouri State Highway Patrol, was parked on Highway 60 near Springfield operating a radar device when a mid 1960's red and white Chevrolet pickup truck passed at an excessive rate of speed. Harper, activating the warning lights, gave chase for approximately one and one-half miles when the truck turned onto a farm road and drove for a short distance before stopping. Trooper Harper followed the car onto the farm road and pulled up behind it. Before the trooper could dismount, defendant leapt from the truck, stepped toward the patrol car and fired several bursts of gunfire. A bullet struck Harper's head, causing massive skull fractures, brain damage and death. Twenty-nine bullet holes or indentations were found in the car, and one shot pierced the trooper's leg. The patrol car rolled into a ditch and defendant fled in the truck.

Defendant drove to the home of Donald Bills, where the two began the arduous task of disguising the truck by dismantling and refurbishing it. Working in the garage, they replaced tires, stripped the paint, removed the gun racks, and painted the cab black, while defendant, preoccupied with reports on the police scanner, shaved the moustache he had worn for several years. At approximately 8:45 p.m. the following evening, troopers arrived at the Bills residence on a tip that defendant had lived in an old bus parked on the property. Bills' girlfriend, who stayed at the residence occasionally, answered the door and stated that no one else was there but the troopers were welcome to look around the property. Trooper Middleton, fearful for his safety, cautiously examined a junked vehicle about 100 yards from the house, and in so doing noticed the trunk lid was slightly ajar. Raising the lid further, Middleton saw defendant's H.K. 93 semi-automatic assault rifle, later determined to be the murder weapon. Bills arrived shortly thereafter and signed a consent to search; nevertheless, a warrant was obtained and on a search of the house, defendant was discovered hiding in the attic with a copy of the newspaper pertaining to the murder of Trooper Harper.

Witnesses to the slaying identified defendant as the assailant and gun cartridges found at the murder scene were found to have been fired from defendant's rifle. In spite of the overwhelming evidence against him, defendant testified that he did not shoot Harper. The jury found him guilty of first degree murder and fixed his punishment at death, finding as aggravating circumstances the murder was committed against a peace officer engaged in the performance of his official duty, and because of the outstanding warrant for defendant's arrest, that it was committed for the purpose of avoiding a lawful arrest.

I. Direct Appeal

Defendant first complains the trial court erred in overruling his motion to suppress evidence of the H.K. 93 semi-automatic rifle found in the trunk of the abandoned car. The trial court ruled "that defendant had no reasonable expectation of privacy on the premises of Donald Bills." In reviewing this finding, "the facts and reasonable inferences arising therefrom are to be stated favorably to the order challenged on appeal." State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), cert. denied, 480 U.S. 698, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987). This Court "is free to disregard contrary evidence and inferences and is to affirm the trial court's ruling on a motion to suppress if the evidence is sufficient to sustain its finding." Id. Defendant bears the burden of demonstrating that he had a "reasonable expectation of privacy" in the property searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Rawlings v. Kentucky, 448 U.S. 98, 104-5, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980). Regarding automobiles, the United States Supreme Court has stated: "warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not." South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); see also State v. Achter, 512 S.W.2d 894, 901 (Mo.App.1974). One reason for this, in addition to the inherent mobility of automobiles, is "because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." Opperman, 428 U.S. at 367, 96 S.Ct. at 3096 (emphasis added). Furthermore, the Supreme Court has held that intrusion into "open fields" is not an unreasonable search proscribed by the Fourth Amendment, for there is no reasonable expectation of privacy in such areas. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984). Four factors are to be considered in determining the extent of a home's curtilage, which enjoys a higher expectation of privacy: (1) the proximity of the area claimed to be the curtilage of the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passers-by. United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987).

This case bears a remarkable similarity to United States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir.1980), in which the court held the defendant had no reasonable expectation of privacy in the contents of the trunk of a "junker" car in an open field. There police searched a vehicle parked on a farm approximately 150 to 200 feet from the road. The car was plainly an abandoned "junker," the doors were unlocked, and there was no lock on the trunk. Police opened the trunk and discovered 88 sticks of stolen dynamite. In the present case the car was left in a rural area, approximately 300 feet from Bills' residence, which was not within the curtilage of the dwelling. Further, in Ramapuram defendant "failed to secure the trunk of the 'junker,' " id. at 1156, and here because the lid was left ajar, defendant could not be said to have a reasonable expectation of privacy rendering a search thereof unreasonable. ¹

Also instructive is United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), involving a barn near the house. There the barn was fifty yards from the fence surrounding the house and sixty yards from the house itself, and it was held permissible for the police to cross the fence and look inside the barn. See also State v. Supinski, 779 S.W.2d 258 (Mo.App.1989), where officers scaled fences in order to search a shed 45 to 50 yards from the road. If defendants in those cases had no reasonable expectation of privacy in storage areas located in open fields secured by fences, a fortiori it cannot be said defendant had a reasonable expectation of privacy in an abandoned wrecked vehicle with windows broken, the hood and at least one wheel missing, and the trunk left ajar in an area well removed from the house. Further, the car was parked with its trunk toward the south property line abutting a scrub wooded area in a position not visible from the main house. The officer stated he did not recall if there was a fence on the east side of the land; however, a photographic exhibit shows what appears to be a four-strand barbed wire fence south of the car. Nevertheless, nothing barred access to the car from any other direction. The contention is denied. ²

Defendant maintains the trial court erred in striking venireman Charlene Gill, who expressed reservations concerning the death penalty, thus denying him a fair and impartial jury. This strike, defendant argues, in effect gave the state an extra peremptory challenge. Gill was ambivalent regarding whether she could listen to the evidence, for her son was having a birthday and a program at school and she would be unable to share those experiences with him, and further, her husband was attending night school. Though the trial court stated a general policy that a "court strike" would be made of any person who had a personal problem in serving on the jury, ³ the record demonstrates that Gill was not actually removed from the venire panel:

Mr. Gaither: I thought you were going to place some people towards the end of the panel, is that correct?

* * * * * *

The Court: That's what I just did was to place them near the end when I took them off, I called them a court strike, but I'm really taking them off and placing them at the end.

Mr. Gaither: I see.

The Court: That's what I did with Charlene Gill, in fact.

Defendant's point, assuming it was properly preserved for appeal, is without merit.

Defendant next charges error in the prosecutor's questioning during voir dire whether the members of the array could vote for the death penalty. Though it is error to ask prospective jurors to commit to a particular course of future conduct, State v. Norton, 681 S.W.2d 497, 499 (Mo.App.1984), such is not this case. The questioning merely sought to determine whether the jurors would be able to consider the full range of...