McCrary v. State, No. 36400

CourtMissouri Court of Appeals
Writing for the CourtSIMEONE
Citation529 S.W.2d 467
PartiesRonald McCRARY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division Three
Decision Date23 September 1975
Docket NumberNo. 36400

Page 467

529 S.W.2d 467
Ronald McCRARY, Defendant-Appellant,
v.
STATE of Missouri, Plaintiff-Respondent.
No. 36400.
Missouri Court of Appeals, St. Louis District, Division Three.
Sept. 23, 1975.
Motion for Rehearing or Transfer Denied Oct. 22, 1975.

Page 468

Charles D. Kitchin, Public Defender, and Kent Fanning, Asst. Public Defender, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., and Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., and Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

I

This is an appeal from an order of the circuit court of the City of St. Louis entered July 19, 1974, denying movant-appellant, Ronald McCrary's motion to vacate sentence pursuant to Rule 27.26 imposed after appellant was found guilty of the offense of illegal possession of heroin. For reasons hereinafter stated we affirm the order.

On September 23, 1969, Mr. McCrary was charged with the offense of possessing a certain quantity of heroin. § 195.020, RSMo 1969. 1 The information alleged prior convictions and that on August 18, 1969, the defendant did 'then and there unlawfully and feloniously have in his possession and under his control a certain quantity of a narcotic drug, to wit: 14.71 grams of HEROIN . . ..' He was arraigned and pleaded not guilty. On June 4, 1970, movant filed a motion to suppress the evidence on the ground that 'there existed no probable

Page 469

cause for the arrest and the giving of defendant a ticket was an attempt to render validity to an otherwise unlawful arrest.'

McCrary waived a jury trial and was tried to the court on June 4, 1970. The motion to suppress was taken with the cause.

At the trial, Patrolman Burleigh Howell of the St. Louis Metropolitan Police Department testified that at about 10:45 p.m. McCrary was operating a motor vehicle without taillights, and the officer stopped him. Officer Gus Kolilis was with Officer Howell. 'When he (McCrary) got the automobile to the curb, he got out of the automobile on the left-hand, driver side, he had a piece of paper in his hand and he came back to us and said, here is my license. I (Howell) informed him he was under arrest for no taillights and was starting to write some information down where we were standing there and he started to put his hand in his right rear pocket, at which time I grabbed his arm, put handcuffs on him and I found in his right rear pocket two condums (sic) or prophylactics full of some material and I asked him what it was and he said it was dirt and I said, dirt, and he said, okay, it's heroin. . . .' McCrary was then placed under arrest for possession of heroin. No objection was made to the officer's statement.

On cross-examination, it was brought out by retained defense counsel that at the time the officer stopped McCrary 'for the taillight' he did not know of any other crime the defendant had committed. The officer testified that the defendant was stopped 'to give him a ticket for no taillights' and that he handcuffed the defendant when 'he put his hand into his (rear) pocket.' Defense counsel referred to the statement made by McCrary as the basis for placing him under arrest for heroin.

The only other witness at the original trial was Miss Merilyn Ruemmler, a criminalist with the St. Louis Police Department. She analyzed and identified the two vials taken from the defendant as containing heroin.

The trial court found the defendant guilty of possession. After overruling a motion for new trial, granting allocution and finding prior convictions, the court, on September 18, 1970, sentenced the defendant to ten years in the department of corrections.

McCrary appealed the conviction to the Supreme Court. On appeal, his only contention was that the search was unlawful. He did not appeal on any other ground. He did not raise the issue of the inculpatory statement as being in violation of his Miranda rights. On appeal, the Supreme Court held that the arrest was lawful and that there was probable cause for the search and seizure incident to the arrest, and affirmed the judgment. State v. McCrary, 478 S.W.2d 349 (Mo.1972).

Then on January 30, 1973, McCrary filed this motion to vacate. He alleged some eleven grounds only two of which are preserved and which are in issue on this appeal from the denial of the motion to vacate. In his motion he contends that (1) the search and seizure was unlawful and (2) a 'failure to advise movant of his constitutional right's (sic) prior to interrogating him and obtaining an alleged confession . . . was a violation on the security of movant rights (sic) under the 5th--6th amendments and made applicable to the states . . .' Counsel was appointed. In due time the state moved to dismiss the motion for the reason that movant has failed to state any ground for which the court 'can grant him any relief . . ..'

On July 19, 1974, at a hearing on the motion to dismiss, the trial court stated: 'The State's Motion to Dismiss the Motion to Vacate as to Specifications 1 through 9 (which included the two points above) will be granted on the grounds those points either were raised on direct appeal or should have been. . . .' (emphasis added). On the same date, the trial court entered its order sustaining the state's motion

Page 470

to dismiss and denying the motion to vacate. McCrary appeals that order.
II

On this appeal, he contends that the motion to vacate should have been granted and the sentence vacated because (1) the 'search conducted . . . upon his arrest for a traffic violation was outside the scope of those (searches) permissible under the Fourth and Fifth Amendments to the Constitution of the United States made applicable to the States through the Fourteenth Amendment . . .' and (2) 'the failure to advise the movant of his rights under the Constitution of the United States made the subsequent use of a confession obtained under such circumstances a violation of movant's rights under the Fifth and Sixth Amendments to the Constitution of the United States made applicable to the States . . ..' 2

McCrary argues that the search and seizure was illegal because it was incident to his arrest for a traffic violation. He further alleges that the 'confession' was obtained in violation of the principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and contends that his statement, 'okay, it's heroin,' was used in the trial although no Miranda warnings were given prior to making the statement. He further contends there was no waiver of his rights.

The state, on the other hand, contends that the trial court properly denied the motion to vacate because (1) movant is foreclosed from raising the issue of search and seizure on this 27.26 motion since the issue was raised on direct appeal and decided adversely; (2) McCrary did not preserve the Miranda issue by filing a motion to suppress the inculpatory statement or by objecting to it at trial or by raising the issue by motion for new trial or on direct appeal; (3) the statement, 'okay, it's heroin,' was not rendered inadmissible under Miranda since the statement was not the product of 'custodial interrogation' and (4) the statement could not in any event have been prejudicial since the nature of the substance found on movant's person was properly established by the testimony of the criminalist (chemist), Miss Ruemmler.

We hold (1) that the claim of illegal search and seizure is not cognizable in this 27.26 proceeding; (2) that the admission of the inculpatory statement under the circumstances was not erroneous because Miranda is inapplicable to this situation; no warnings were required to be given; (3) that by not raising the Miranda issue at trial or on direct appeal, movant is foreclosed from raising this issue on his 27.26 motion and (4) that the admission of the statement, even if error, was not, under the circumstances, prejudicial.

A motion filed under Rule 27.26 is an independent civil action, which is governed, so far as applicable, by the Rules of Civil Procedure. Rule 27.26(a). The burden is on the movant to establish relief by a preponderance of the evidence. Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973). In a 27.26 review we are limited to a determination of whether the order of the trial court is clearly erroneous. Rule 27.26(j); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974).

III

As to appellant's point concerning an illegal search and seizure, the trial court was clearly correct in denying the motion to vacate. It has long been the law as expounded by our Supreme Court that a claim of illegal search is not cognizable in 27.26 proceedings. Beach v. State, 488 S.W.2d 652, 655 (Mo.1972); Brodkowicz v. State,

Page 471

474 S.W.2d 822, 827 (Mo.1972); Fields v. State, 468 S.W.2d 31, 32 (Mo.1971) 3; State v. Caffey, 457 S.W.2d 657, 659 (Mo.1970); Lewis v. State, 513 S.W.2d 772, 774 (Mo.App.1974).

Movant's claim must be denied on another ground. Under Rule 27.26(b)(3) a "proceeding under this Rule cannot be used . . . as a substitute for a second appeal.' We have consistently ruled that provision to mean that where an issue is raised and decided on direct appeal, defendant cannot obtain another review thereof in a 27.26 proceeding.' Sweazea v. State, 515 S.W.2d 499, 501 (Mo.banc 1974). " If issues, apparently finally decided, may be reopened and reviewed simply because a litigant has an additional citation to offer or a different theory to suggest there would never be an end to litigation. . . . " Sweazea v. State, supra, 515 S.W.2d at 501, quoting from Gailes v. State, 454 S.W.2d 561, 564 (Mo.1970); see also Caffey v. State, 467 S.W.2d 857, 859 (Mo.1971).

The claim of illegal search and seizure was raised on direct appeal and decided adversely to the movant. State v. McCrary, supra. Therefore, since (1) the validity of the search is not cognizable on a 27.26 motion and (2) the same...

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47 practice notes
  • Jackson v. State, No. 38253
    • United States
    • Missouri Court of Appeals
    • March 8, 1977
    ...404; Ross vs. State (Mo.App.), Page 628 417 (517) S.W.2d 185; Cook vs. State (Mo.App.), 511 S.W.2d 877; McCrary vs. State (Mo.App.), 529 S.W.2d 467; Keller vs. State (Mo.App.), 523 S.W.2d 127; Sherrill vs. State (Mo.App.), 515 S.W.2d 611; Cruz vs. State (Mo.App.), 515 S.W.2d 610; Wright vs.......
  • Thompson v. State, No. 10739
    • United States
    • Court of Appeal of Missouri (US)
    • October 23, 1978
    ...386-387(1, 2)(3, 4) (Mo.1974), and was subsequently discussed in scholarly detail by our colleagues at Saint Louis in McCrary v. State, 529 S.W.2d 467, 472-474(7)(8) and nn. 6, 7 and 8 (Mo.App.1975). 1 We are convinced Page 546 there was a deliberate bypass of petitioner's right of appeal a......
  • State v. Hudson, Nos. 56177
    • United States
    • Missouri Court of Appeals
    • June 12, 1990
    ...fact and conclusions on these assertions. Trial errors are ordinarily not cognizable in a post-conviction proceeding. McCrary v. State, 529 S.W.2d 467, 471 In Rainwater v. State, 770 S.W.2d 368, 370-371 (Mo.App.1989) the court said that: The predecessor rule for post-conviction relief speci......
  • Turley v. State, No. 38788
    • United States
    • Court of Appeal of Missouri (US)
    • August 8, 1978
    ...hearing, because Gamache failed to raise this issue on the direct appeal of his conviction. We affirmed, relying on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). In McCrary this court stated: ". . . an issue which could have been raised on direct appeal, even though it is a constitutional......
  • Request a trial to view additional results
47 cases
  • Jackson v. State, No. 38253
    • United States
    • Missouri Court of Appeals
    • March 8, 1977
    ...404; Ross vs. State (Mo.App.), Page 628 417 (517) S.W.2d 185; Cook vs. State (Mo.App.), 511 S.W.2d 877; McCrary vs. State (Mo.App.), 529 S.W.2d 467; Keller vs. State (Mo.App.), 523 S.W.2d 127; Sherrill vs. State (Mo.App.), 515 S.W.2d 611; Cruz vs. State (Mo.App.), 515 S.W.2d 610; Wright vs.......
  • Thompson v. State, No. 10739
    • United States
    • Court of Appeal of Missouri (US)
    • October 23, 1978
    ...386-387(1, 2)(3, 4) (Mo.1974), and was subsequently discussed in scholarly detail by our colleagues at Saint Louis in McCrary v. State, 529 S.W.2d 467, 472-474(7)(8) and nn. 6, 7 and 8 (Mo.App.1975). 1 We are convinced Page 546 there was a deliberate bypass of petitioner's right of appeal a......
  • State v. Hudson, Nos. 56177
    • United States
    • Missouri Court of Appeals
    • June 12, 1990
    ...fact and conclusions on these assertions. Trial errors are ordinarily not cognizable in a post-conviction proceeding. McCrary v. State, 529 S.W.2d 467, 471 In Rainwater v. State, 770 S.W.2d 368, 370-371 (Mo.App.1989) the court said that: The predecessor rule for post-conviction relief speci......
  • Turley v. State, No. 38788
    • United States
    • Court of Appeal of Missouri (US)
    • August 8, 1978
    ...hearing, because Gamache failed to raise this issue on the direct appeal of his conviction. We affirmed, relying on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). In McCrary this court stated: ". . . an issue which could have been raised on direct appeal, even though it is a constitutional......
  • Request a trial to view additional results

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