State v. Auger

• Decision Date: 12 November 1968
• Docket Number: No. 53722,No. 2,53722,2
• Citation: 434 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. Robert B. AUGER, Appellant
• Court: Missouri Supreme Court

Page 1

434 S.W.2d 1

STATE of Missouri, Respondent, v. Robert B. AUGER, Appellant.

No. 53722.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Special Asst. Atty. Gen., Kansas City, for respondent.

Robert G. Duncan, Pierce, Duncan, Beitling & Shute and Gary Clifton, Liberty, for appellant.

EAGER, Judge.

Defendant was convicted of second degree burglary and stealing; his punishment was fixed by the jury at four years for the burglary and three years for the stealing. A motion for new trial was duly filed and overruled and he appealed. He was represented at the trial and is represented here by able and most diligent counsel.

The evidence showed without dispute that at some time between 2:00 p.m. and 9:00 p.m. on August 4, 1967, the second floor apartment of Ida Mae Ferril at 2009 North Erie, in North Kansas City was entered, and that about $350 in currency, some coins, a manila folder of papers, an 'old' watch, and some costume jewelry were stolen. The doors were shut and secured when Mrs. Ferril left at 2:00; when she returned the back screen door had been unfastened, two holes had been punched in it near the lock, and the main back door had been opened and was partly ajar. Drawers had been pulled open and left open. Mrs. Ferril found on the floor a receipt from 'Ed's Florist' issued in the name of defendant for flowers ordered on that day for one Victoria Staggs. Mrs. Ferril identified this receipt as an exhibit at the trial. The manager of the florist shop also identified the receipt and stated that he made it out in quadruplicate; he gave one copy to the purchaser, one was sent to the recipient of the flowers, and one given to the driver for his information. This witness could not positively identify the defendant at the trial, as the purchaser. The police investigated the burglary almost immediately, and at that time either took the receipt or got all the information from it.

Detective Charles Ross and Lieutenant Kenneth Beck of the North Kansas City police later located defendant at 1627 Main Street in Kansas City, Missouri, on August 9; that address was shown (out of the presence of the jury) to be the location of the parole office. The officers had a warrant for the defendant which, after identifying themselves, they read to him. They both testified that Officer Ross at that time, and before proceeding any further, read to defendant the 'Miranda Card' which contained the printed or typed notices and warnings required by that decision. As a part of his testimony Mr. Ross read the contents of the card into the record, as follows: 'You do not have to make any statement at this time, and have a right to remain silent. Anything you say can and will be used against you in a court of law. You're entitled to consult with an attorney before any interview and to have an attorney present at the time of interrogation. If you cannot afford an attorney, one will be appointed for you.' Ross further testified: that he asked defendant if he understood that advice and that defendant said that he did; that defendant at that time denied all knowledge of the burglary; that he then showed defendant the receipt which had been found in Mrs. Ferril's apartment and defendant stated that it had been taken from him (supposedly in his wallet) by two men near 30th and Prospect about 8:00 a.m. on August 4th; that defendant was then taken to the Kansas City, Missouri Police Headquarters where he was booked and released to these same North Kansas City officers, who proceeded with him to their own police station; that there Ross again read the Miranda card 'rules' to the defendant (because, as he said, the police custody had changed) and again defendant said that he understood them; that he, Ross, then read a form of 'waiver' to defendant; thereupon defendant stated that he 'did not wish to sign his name to anything,' but further said that: 'he didn't mind talking about it. He just didn't want to sign his name to anything'; that he, defendant, then proceeded to tell them orally of the details of the burglary, admitting that he committed it, and further stated that he had spent $100 of the money on a new suit and had paid $100 on an apartment for a girl friend. In the course of the conversation defendant also admitted that the receipt for the flowers was still in his billfold when he last saw it (a retraction of the story about the two men taking it). Defendant was dressed in a new suit when arrested. Mr. Ross was permitted to testify without objection that defendant not only said that he understood the warnings but that he, Ross, believed that he understood both the warnings and the questions asked. Lieutenant Kenneth Beck, who was with Ross, confirmed generally the facts just recited.

It was further shown that defendant told the officers that he had been in a mental hospital in Kansas, and that he was 'sick' and needed help. The officers told him that they would so advise the Court and they did so. The record reveals that he was then sent to the Fulton State Hospital for an evaluation, and that a certification of some sort was returned. The State sought to introduce this certificate at the trial (apparently because of the statements of defendant about being 'sick,' etc.), but it was objected to by defendant's counsel as hearsay, and excluded. There was no attempt by the defendant to establish the existence of mental disease as negating guilt under the requirements of § 552.030, Laws 1963.

The woman to whom defendant had allegedly sent the flowers testified that she had known him for about three months, that he called her by phone on August 4, 1967, and that she thanked him for the flowers. Rather vaguely, she identified the receipt (or a copy), and she testified further that defendant had taken her to dinner on the next evening and had told her that he was buying a new suit; also, that on August 5th or 6th he had paid some money for the rental of her apartment and had given her some money as a 'loan.'

At the beginning of the trial defendant's counsel requested and were granted a hearing outside the presence of the jury on their motion seeking the exclusion from evidence of defendant's oral admissions. There were no factual allegations in the motion, but its intent was seemingly assumed. The testimony at that hearing was substantially the same as the trial testimony already recited. Defendant did not testify on either occasion. Only the two officers were called as witnesses. Officer Ross testified that, in reading the Miranda warnings to defendant in North Kansas City, he asked defendant separately, after the reading of each 'one of his rights,' if he understood it and that defendant said that he did; that defendant further said that in the past 'his attorney' had advised him not to sign anything, but that 'he didn't mind talking about it.' At the conclusion of that hearing the Court overruled the motion. Unless the mere refusal to sign a written waiver indicated such, there was no evidence, at that hearing or at the trial, to show any form of coercion or duress. In his oral statements defendant described many details of the burglary and of the theft. Mr. Ross also testified that after defendant had come 'back from Fulton' and at the time of his arraignment, he offered to call defendant's mother but that defendant said 'she probably won't come.' The conversations of Officer Ross with defendant after the initial interview were mere official or social contacts.

On this appeal defendant submits three points: (1) That the Court erred in failing to exclude defendant's oral statements to the police officers, which were made after he had indicated that he 'did not desire to waive' his rights to remain silent and to have an attorney present; (2) that the information was defective in alleging that the burglary was of an apartment which was a 'dwelling place,' rather than a 'house' or a 'building'; and, (3) that plain error was committed in failing to instruct the jury that it could find defendant guilty of stealing only, and not guilty of burglary. We shall consider all three but in inverse order.

As to the instructions. We first note that we will not consider any matter of instructions as 'plain error' unless the Court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice. We approach the question from that standpoint. Defendant was charged in the information with burglary and with stealing in connection with that burglary. He was not charged with any independent stealing. Instruction No. 3 was on burglary only and there is no complaint of its correctness. Instruction No. 4 told the jury that if it found defendant guilty of burglary, as defined in the instructions, and further found that he 'wilfully and feloniously did steal, take and carry away' from the apartment certain described property, 'at the time and place aforesaid,' then it would also find him guilty of stealing in conjunction with burglary; that instruction concluded: 'and unless you find the facts to be, you will find the defendant not guilty of stealing in conjunction with burglary.' It is not contended that this was not a correct instruction for that offense. Instruction No. 13 concerned the forms of verdict: the first part gave the jury the form to be used if it found defendant guilty of both burglary and of stealing 'in conjunction with burglary, as defined in Instruction No. 4'; the second part told the jury that unless it found defendant guilty of burglary, as defined in Instruction No. 3, would find him 'not guilty of burglary or stealing in conjunction with burglary,' and submitted an appropriate form for such verdict.

It is thus seen that there was no submission of an independent crime of stealing, either below $50 or above $50, under §§ 560.156 and 560.161, RSMo 1959, V.A.M.S. There was no such charge in the information. It is a...