Newman v. State, 13371
Decision Date | 20 April 1984 |
Docket Number | No. 13371,13371 |
Citation | 669 S.W.2d 617 |
Parties | Jack Edward NEWMAN, Movant-Appellant, v. STATE of Missouri, Respondent. |
Court | Missouri Court of Appeals |
R.J. Gordon, Public Defender, Joplin, for movant-appellant.
John D. Ashcroft, Atty. Gen., Dan Crawford, Asst. Atty. Gen., Jefferson City, for respondent.
Jack Newman was jury-convicted of murder in the first degree in the death of Burnal Ray Brown in the perpetration of a robbery which occurred on October 16, 1978. The conviction was affirmed upon appeal. State v. Newman, 605 S.W.2d 781 (Mo.1980). He now appeals from the trial court's denial of his Rule 27.26 1 motion following an evidentiary hearing.
Newman was charged only with capital murder in respect to the killing of Brown. The criminal cause was submitted to the jury under instructions which permitted a finding of guilty of capital murder, first degree murder, second degree murder or manslaughter. State v. Newman, supra, 605 S.W.2d at 785. Newman's first point relied on in this court is that the court nisi erred in denying his 27.26 motion because in the criminal case he was convicted of an offense (first degree murder) for which he had not been charged.
Under § 565.003, L.1977 eff. 5-26-77, a person who unlawfully killed another "in the perpetration of or in attempt to perpetrate arson, rape, robbery, burglary, or kidnapping" was guilty of first degree murder. In § 565.006-1, L.1977 eff. 5-26-77, it was provided that at the conclusion of all jury trials where commission of capital murder was charged, "the jury shall ... by their verdict ascertain, whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, manslaughter, or is not guilty of any offense." State v. Gardner, 618 S.W.2d 40, 41 (Mo.1981), involved a conviction of capital murder committed August 31, 1978. State v. Baker, 636 S.W.2d 902, 904 (Mo. banc 1982). Gardner held it reversible error for the trial court to fail to instruct on first-degree murder in the commission of rape. The crime in Gardner, so said the court in Baker, supra at 904, was committed August 31, 1978, or before the effective date (January 1, 1979) of the new Criminal Code (§ 556.031-1 and 3, RSMo 1978); it was therefore not governed by the new code. The crime with which Newman, movant herein, was charged and of which he was convicted occurred, as previously noted, October 16, 1978, or before the effective date of the new Criminal Code on January 1, 1979. Ergo, as in Gardner, it was not error for the trial court to instruct on first degree murder as being a lesser included offense of capital murder. Newman's first point relied on is denied.
In essence, Newman's second point relied on is that the trial court erred in denying his Rule 27.26 motion in that his arrest was illegal because he was arrested in his residence without a warrant and without his consent to enter the house. He asserts that evidence obtained at the time of the alleged illegal arrest was used to convict him.
It was held in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that a warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest is violative of the suspect's Fourth Amendment rights. This is so, the court said, even when the police have previously assembled evidence sufficient to establish probable cause that a crime has been committed and the person sought was the one who committed the crime. Following and citing Payton are State ex rel. Williams v. Marsh, 626 S.W.2d 223, 236 (Mo. banc 1982) and State v. Mayes, 654 S.W.2d 926, 935 (Mo.App.1983). However, the key to these cases is "nonconsensual entry" for if the entry be with permission by someone authorized to grant same there is no warrant requirement. People v. Keenan, 91 A.D.2d 1049, 458 N.Y.S.2d 648, 649 (1983)--entry permitted by defendant's brother who had such authority; State v. Gregory, 327 N.W.2d 218, 220 (Iowa 1982)--defendant's sister gave permission for officers to enter her home; State v. Filiatreau, 274 Ark. 430, 625 S.W.2d 494, 495 (1981)--defendant's mother consented to entry into her home. The arrest of movant herein occurred "in the home of [his] brother" with whom he was living at the time. When the officers arrived at the brother's home, they were greeted at the door by the brother's wife who consented to their entry into her home before movant was arrested. Predicated on those facts and the last cited authorities, Newman's second point relied on is denied.
Newman's third and final point relied on claims the trial court erred in not granting him postconviction relief because he was deprived of effective assistance of counsel in the criminal trial for three stated reasons. In the argument portion of his brief in support he makes reference to the transcript on appeal in the criminal...
To continue reading
Request your trial-
State ex rel. Amrine v. Roper
...innocence. Allegations, however, do not prove themselves. See State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991); Newman v. State, 669 S.W.2d 617, 619 (Mo.App.1984). Habeas corpus is an original action, and has the burden to prove he is entitled to relief. See State ex rel. Nixon v. Jayn......
-
State v. White
...authorized to allow entry, a warrant for arrest is not necessary." State v. Powell, 728 S.W.2d 622, 625 (Mo.App.1987); Newman v. State, 669 S.W.2d 617, 619 (Mo.App.1984). Defendant, in his final point, argues the motion to suppress should have been granted because the State failed to prove ......
-
State v. Hudson, s. 20024
...uncontradicted. Sanders v. State, [790 S.W.2d 497 (Mo.App.1990) ]. Furthermore, such allegations are not self proving. Newman v. State, 669 S.W.2d 617 [ (Mo.App.1984) ]. During the trial of defendant's criminal case, the trial court advised him concerning his right to refrain from testifyin......
-
Newman v. Frey, 88-2155
...merits. Although Newman appealed other aspects of the postconviction decision, he failed to pursue this claim. See Newman v. State, 669 S.W.2d 617, 618-19 (Mo.Ct.App.1984). The federal district court later denied Newman's habeas corpus petition that raised the same claim. On appeal, Newman ......