State v. Bates
| Decision Date | 02 August 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 540 S.W.2d 161 |
| Parties | STATE of Missouri, Respondent, v. Ronald Dean BATES, Appellant. 27898. |
| Court | Missouri Court of Appeals |
Thomas M. Larson, Public Defender, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.
The appellant (hereafter defendant) was charged in an indictment in two counts, of Robbery First Degree. The second count was dismissed by the state and the defendant proceeded to trial before a jury. The jury found him guilty and assessed his punishment at ten (10) years. After his motion for a new trial was overruled, he was given allocution, sentenced, and prosecutes this timely appeal.
The defendant raises two assignments of error: First, that the court erred in admitting certain state's exhibits and testimony relating thereto, for the reason that said exhibits and testimony were admitted after a timely motion to suppress and over objection, and were the product of an illegal search and seizure; and second, the court erred in admitting State's Exhibits 8a, 8b, 8c and 8d, four .38 caliber bullets, for the reason that these exhibits were highly inflammatory, which fact outweighed any relevance or materiality they might have had with respect to any issues in the case.
Before trial, the defendant filed a motion to suppress one piece of evidence, to-wit, a black billfold, the property of the defendant. During the pretrial hearing on this motion, defense counsel was permitted to orally amend the motion to include the other exhibits which are the subject of the first assignment of error. All of these exhibits, eight in number, were found by law enforcement officials in an automobile in which defendant was riding when he was arrested. These exhibits by number, general description, and place in the automobile where each was found, are as follows:
Exhibit No. 1 Black billfold or wallet owned by defendant and found in the unlocked glove compartment.
Exhibit No. 2 Nylon stocking, knotted near the foot, found above left front sun visor.
Exhibit No. 3 Withdrawal slip from a class, Longview Community College, name of Sam Levine, found on right front floorboard.
Exhibit No. 4 Letter from Longview Community College to Sam Levine found on right front floorboard.
Exhibit No. 5 List of names and telephone numbers which secretary had taken down for Sam Levine, found on right front floorboard.
Exhibit No. 7 Bullet, found in the back of the right rear seat.
Exhibit No. 13 Stocking cap. Record is not clear as to where this was found.
Exhibit No. 14 Photograph of two key rings and keys--Officer Peterson stated that these were found in the automobile and in plain view and were photographed and returned to Sam Levine.
At the conclusion of the pretrial hearing, the motion to suppress this evidence was overruled.
The record on appeal reveals that on October 12, 1974, shortly before 9:00 p.m., Max Levine, owner of the Sunshine Market at 2126 East 39th Street (39th and Brooklyn), Kansas City, Missouri, his son, Sam Levine, and an employee were preparing to close the store. Three black males entered the store and two of them carried guns. Max Levine and the employee were forced to lie on the floor; the robbers were unable to open the cash register and thereupon forced Max Levine to open it; when he did so, a burglar alarm was activated; one of the robbers took the paper money from the register; they took Sam Levine's billfold and two sets of keys from his person, and fled the store. At a police lineup a short time after the robbery, both Max and Sam Levine identified a man, other than defendant, as being one of the participants in the robbery. Neither could identify the defendant at the lineup or at trial.
The testimony of the police officers involved in this matter (substantially the same at both the hearing on the motion to suppress and at the trial) revealed that Officers Halteman and Florea were together in a police vehicle in the vicinity of 43rd and Lydia at approximately 9:00 p.m. on October 12, 1974, when they received a radio dispatch that there was a 'robbery alarm' at the Sunshine Market. They immediately started toward the Sunshine Market and while their vehicle was headed north on Woodland (in approximately the 4000 block), Holteman observed a four-door white vinyl over green Cadillac automobile headed south on Woodland, away from the vicinity of the market, at a speed of 40--45 m.p.h. He observed a man in the back seat of the Cadillac wearing a stocking cap or ski mask 'pulled down to his eyes' and because this Cadillac was 'leaving the scene of the robbery' speeding, and the occupants looked 'apprehensive', Halteman turned the police vehicle around and started to pursue the Cadillac. At about 43rd and Woodland, the police turned on the red lights, siren and spotlight, and adjusted the headlights to high beam. The Cadillac thereupon speeded up and traveled about three more blocks and headed back north. At 40th and Michigan, the driver of the Cadillac stopped it in the middle of the intersection and fled on foot. Halteman chased this man, caught him, and placed him under arrest. In the meantime, Officer Florea with pistol drawn 'apprehended' the remaining two occupants of the Cadillac who were still seated therein. One of these was the defendant, although there is some conflict in the evidence as to whether he was seated in the front or back seat.
The three men under arrest were taken to police headquarters and the police had the Cadillac towed to the police garage at headquarters because it was a rainy night and a crowd was gathering. From the time the police first ovserved the Cadillac until sometime after its three occupants were taken into custody, the police had no description of the robbers of the Sunshine Market but only the information that a robbery alarm had sounded from that store.
In the search of the driver of the Cadillac following his apprehension, Officer Halteman found four .38 caliber bullets (Exhibits 8a, 8b, 8c and 8d) the subject of defendant's second point relied upon.
Donald E. Peterson, evidence technician for the Kansas City Police Department, processed the Cadillac automobile at the police garage beginning at about 9:30 p.m. on October 12, 1974. He had no search warrant. He testified he found the defendant's billfold (Exhibit No. 1) in the unlocked glove compartment. He also found the other exhibits in the automobile, most of which were in plain view. When asked on cross-examination, 'And what was your purpose in searching the glove box?', he responded,
James Glasgow, pastor of a church, testified that his car was parked in the 4000 block on Michigan while he visited with a family on that street. At around 9:00 p.m., he noticed a speeding car and heard a siren. He found that 'a lot of papers (were) all over his car', apparently held there by the rain. He also found a wallet and more papers near his car. There was an American Red Cross identification card in the wallet and some of the papers had the name of Levine on them. He turned the wallet and papers over to the police at the scene of the arrests, but apparently they were never offered as evidence.
Ronald D. Bates, the defendant, testified in his own behalf at both the hearing on the motion to suppress and at the trial.
In addition to his denial that he had in any way participated in the robbery of the Sunshine Market, he testified that on October 12, 1974, he was coming from his girl friend's house on East 41st Street, on foot, en route to his grandmother's house at 34th and Park; at around 40th or 41st and Woodland, he was given a ride in the Cadillac; that he sat on the back seat of the car on the left-hand side; that when he got in the car, there were three other men in the car, so that he made the fourth occupant; that he had seen the other three men but did not know their names; that he had only been in the car about a minute when the police began chasing it; that when the siren and red light came on, the driver said he was not going to stop because he did not have a driver's license; and that when the arrests were made, the fourth occupant of the Cadillac must have 'vanished'. He also stated that his billfold was on his person when he was arrested and 'patted down' and that it was taken by the police from his person and not from the glove compartment of the car. The record is silent as to the identity of the other two men arrested and as to the ownership of the Cadillac.
Sam Levine identified his billfold (secured by Rev. Glasgow), the papers and his two sets of keys, at the police station about 45 minutes after the robbery.
A resolution of defendant's first assignment of error focuses attention upon two areas. It must first be determined if, upon this record, the defendant has standing to challenge the constitutional validity of the search of the Cadillac automobile and the seizure of the objects which constitute the exhibits described above. If he did not enjoy such standing, his first point must be ruled against him, regardless of the character or legality of the search and seizure.
Of course, defendant stoutly asserts that he did have standing to challenge the search and seizure and, to maintain that position, relies strongly upon the case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). It is true that in Jones, the court discarded the distinctions theretofore drawn by the courts, in cases involving standing to complain of illegal search and seizure--denying such standing based upon the status of 'guest', 'invitee', 'lessee' and 'licensee'. The Jones court conferred such standing upon a person showing that he was himself the victim of an...
To continue reading
Request your trial
-
State v. Dodson, 37584
...214 (1973). See also United States v. Tortorello, 533 F.2d 809 (2d Cir. 1976); State v. Ross, 507 S.W.2d 348 (Mo.1974); State v. Bates, 540 S.W.2d 161 (Mo.App.1976). Defendant has satisfied none of the Brown criteria. He did not arrive at 4136 Westminster until after the search was complete......
-
State v. Nichols
...(3rd Cir. 1964); State v. May, 613 S.W.2d 877, 881 (Mo.App.1981); State v. Perkins, 543 S.W.2d 805, 808 (Mo.App.1976); State v. Bates, 540 S.W.2d 161, 165 (Mo.App.1976); Osborne v. State, 82 Nev. 342, 418 P.2d 812, 813 (1966); State v. Pokini, 45 Haw. 295, 367 P.2d 499, 509 (1961).8 Compare......
-
State v. Perkins
...reviewed the current state of decisional law, authoritative here, as to this question of 'standing' in the case of State v. Bates, 540 S.W.2d 161 (Mo.App.1976), citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Simmons v. United States, 390 U.S. 377, 88 S.Ct. ......
-
State v. Hatten, KCD
...cannot complain of the illegality of a search since he had no expectation of privacy in the place (vehicle). State v. Bates, 540 S.W.2d 161, 164-165 (Mo.App.1976), and authorities cited therein; accord, State v. Perkins, 543 S.W.2d 805, 807-808(3-5) (Mo.App.1976); State v. Damico, 513 S.W.2......