State v. Blanchard, 36266

CourtCourt of Appeal of Missouri (US)
Citation527 S.W.2d 37
Docket NumberNo. 36266,36266
PartiesSTATE of Missouri, Respondent, v. Lucious BLANCHARD, Appellant. . Louis District, Division Four
Decision Date19 August 1975

Hayes & Heisler, Daniel B. Hayes, Clayton, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Crim. Div., Philip M.

Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

NORWIN D. HOUSER, Special Judge.

Lucious Blanchard, convicted of burglary, second degree, § 560.045, RSMo 1969, following a jury trial, and committed to the department of corrections for 10 years under the Second Offender Act, has appealed on the sole ground that the court erred in failing to conduct an evidentiary hearing on the issue of the voluntariness of his confession and in not instructing the jury on voluntariness.

The record shows that no objection was made to the admission of the confession in evidence and no request was made for an independent evidentiary hearing on the issue of voluntariness. In the absence of such an objection or request the trial court is not required to conduct an evidentiary hearing sua sponte. State v. Jackson, 448 S.W.2d 895 (Mo.1970); State v. Day, 515 S.W.2d 584 (Mo.App.1974); State v. Arrington, 529 S.W.2d 368 (Mo.1975); United States v. Taylor, 374 F.2d 753, 756 (7th Cir. 1967); Evans v. United States, 377 F.2d 535, 537 (5th Cir. 1967); Lundberg v. Buchkoe, 389 F.2d 154, 157 (6th Cir. 1968); Garrison v. Patterson, 405 F.2d 696, 697 (10th Cir. 1969), cert. den., 404 U.S. 880, 92 S.Ct. 212, 30 L.Ed.2d 160; United States v. Carter, 431 F.2d 1093, 1097 (8th Cir. 1970); Jacobson v. People of State of California, 431 F.2d 1017, 1019 (9th Cir. 1970); United States v. Monroe, 141 U.S.App.D.C. 251, 437 F.2d 684, 686 (1970); Gerberding v. United States, 471 F.2d 55, 61 (8th Cir. 1973). Furthermore, by failing to make proper objection to the admission of his confession, defendant has not preserved for review the court's failure to conduct an evidentiary hearing. State v. Price, 422 S.W.2d 286 (Mo.1967).

Nor did the court err in not instructing on the voluntariness of the confession. This is a collateral issue, not required to be instructed upon as a part of the law of the case. State v. Pughe, 403 S.W.2d 635, 641 (Mo.1966); State v. Truster, 334 S.W.2d 104, 111 (Mo.1960); State v. Francies, 295 S.W.2d 8, 15 (Mo.1956); State v. Ramsey, Mo. 720, 197 S.W.2d 949, 957 (banc 1946). This instruction must be given if requested, par. 1., Notes on Use, MAI-CR 3.44, but in the absence of a request or submission by defendant the court is not required to give such an instruction sua sponte. State v. Pughes, supra; State v. Truster, supra. The record does not show that defendant requested such an instruction or that he submitted an instruction on the subject. Furthermore, the point was not raised in the motion for new trial. No manifest injustice resulted from failure to so instruct, and therefore this case does not...

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2 cases
  • State v. Hollis, KCD
    • United States
    • Court of Appeal of Missouri (US)
    • 29 June 1979
    ...court to conduct, sua sponte, such an evidentiary hearing, State v. Kelly, 539 S.W.2d 106, 111(10) (Mo. banc 1976); State v. Blanchard, 527 S.W.2d 37, 38(1) (Mo.App.1975). Neither did the defendant object to any question or move to strike any answer or to discharge the jury during the testi......
  • State v. Ray, 48583
    • United States
    • United States State Supreme Court of Missouri
    • 29 March 1983
    ...matter, not requiring instruction unless specifically requested. State v. Pughe, 403 S.W.2d 635, 641 (Mo.1966) and State v. Blanchard, 527 S.W.2d 37, 38-9 (Mo.App.1975), speak directly to this Defendant's arguments relating to the voluntariness of his confession are clearly without merit. P......

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