State v. Brewster, s. 58136
| Decision Date | 16 June 1992 |
| Docket Number | 60046,Nos. 58136,s. 58136 |
| Citation | 836 S.W.2d 9 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Byron David BREWSTER, Defendant/Appellant. Byron David BREWSTER, Plaintiff, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Deborah B. Wafer, Asst. Sp. Public Defender, St. Louis, for defendant, appellant.
William L. Webster, Atty. Gen., Joan F. Edwards, Asst. Atty. Gen., Jefferson City, for respondent.
This is a consolidated direct appeal and appeal from denial of Rule 29.15 post conviction relief. The indictment charged felony murder in the second degree, § 565.021.1(2) RSMo 1986, attempted robbery in the first degree, § 564.011 RSMo 1986, and armed criminal action, § 571.015 RSMo 1986. The jury's verdict convicted defendant on all three counts and assessed punishment at fifteen years, seven years and three years, respectively. The court entered judgment on the verdict and imposed consecutive sentences. We affirm.
Viewing the evidence in the light most favorable to the verdict, the evidence is as follows. On December 14, 1988, at approximately 7:00 p.m., defendant left his home at 5448 Geraldine, in the City of St. Louis, accompanied by a friend named Daryl. Daryl "wanted to go downtown to take care of some business." An unknown third party drove them to a McDonald's restaurant in downtown St. Louis. Daryl informed defendant he intended to rob a cab driver. They entered a cab at the Missouri Bar and Grill. Defendant took the back seat and Daryl got in the front. Daryl instructed the driver to take them to the area of Durant and Lillian streets. Daryl then pulled out a gun and aimed it at the cab driver. The cab driver accelerated hitting a parked Cadillac. Daryl shot the driver in the head. Defendant and Daryl fled returning to defendant's home. Several days later the cab driver died from the gunshot wound.
On direct appeal, defendant raises two claims of trial court error. First, defendant contends the trial court erred in overruling his motion to suppress statements made by him, both oral and written, and clothing seized from his home and later admitting these items into evidence. He avers that the police obtained this evidence "as a direct result of an illegal, investigatory detention of [defendant] and the custodial interrogation of [defendant] that occurred during the detention" and therefore, is inadmissable. Specifically, defendant argues he was under arrest when transported from his home to the police station because he was not free to leave nor was he free to leave at any point prior to signing a consent to search. He also claims the police lacked probable cause to arrest when they transported him to the station.
Our review of a trial court's ruling on a motion to suppress is limited to a determination of whether the decision is supported by substantial evidence, keeping in mind the court's opportunity to judge the credibility of witnesses. State v. Johns, 679 S.W.2d 253, 261 (Mo. banc 1984). In a motion to suppress the state must show by a preponderance of the evidence the motion should be overruled. Section 542.296.6 RSMo 1986; State v. Riley, 704 S.W.2d 691, 692 (Mo.App.1986).
We review the ruling allowing evidence over trial objection and may consider the record of the hearing on defendant's motion to suppress. Officers Swiderski and Will testified at the hearing and the trial. Two additional witnesses, Francine and Michelle Douglas, who shared a residence with defendant, testified at trial concerning the investigation. Defendant never testified.
The officers' testimony established they arrived at approximately 7:00 p.m. at 5448 Geraldine to question defendant about a shooting of a cab driver that took place two days earlier. They had received a telephone tip from an anonymous informer implicating the defendant in the shooting. They advised defendant and Francine Douglas, who answered the door, why they were present and that they wished to talk to defendant about the assault. They asked if he would accompany them to the station. Defendant agreed. The station is approximately one block from defendant's residence. At the station the officers Mirandized defendant and informed him of the information they had received. Defendant denied any involvement in the assault and indicated that Michelle and Francine Douglas would verify his presence at home on the evening in question. The officers then went back to the house with defendant to question Michelle and Francine Douglas concerning defendant's alibi. Their comments did not confirm defendant's statement. At approximately 8:00 p.m., the officers returned to the station with defendant. They again Mirandized him and told him what Francine and Michelle had said. Defendant again denied any involvement. The officers then asked defendant if he was not involved in the incident would he consent to a search of his room. Defendant then signed a consent to search form. The police returned to defendant's home to search his room. Once they arrived they also received a consent form from the owner of the house, Francine Douglas. The search revealed clothing hidden in defendant's closet with blood stains. The officers returned to the station, advised appellant again of his Miranda rights, and informed him of their discovery. Initially, defendant denied ownership of the clothes. He then made a lengthy oral statement detailing his involvement in the shooting. He also agreed to make a short written statement. The officers testified that the statements were made after defendant was placed under arrest.
The testimony of both Francine and Michelle Douglas substantiated much of the officers' testimony. There were several significant variations. Both testified defendant was in handcuffs, but differ as to when this occurred. Michelle stated it happened at the house and Francine testified defendant was brought back to the house the second time already handcuffed. Michelle also stated the officers looked in defendant's room on their first visit to the house.
The issue is whether the facts support a finding by the trial court that there was no illegal detention, making the fruits of that detention, the statements and clothing, inadmissable.
Defendant relies substantially on State v. Riley, 704 S.W.2d at 691. In Riley, the court found defendant under arrest because the police officers were in charge and control of defendant's movements. The officers stopped defendant one block from an accident where an automobile had been abandoned. Defendant consented to return to the scene where witnesses identified him. Defendant agreed to accompany the officers to the station where he was placed in a holding cell. "Although defendant acquiesced to a request by the police to accompany them to the station, submission to authority is not voluntary consent." Id. at 694.
We find State v. Hicks, 755 S.W.2d 242 (Mo.App.1988); State v. Spivey, 710 S.W.2d 295 (Mo.App.1986); and State v. Sherrard, 659 S.W.2d 582 (Mo.App.1983) controlling. In Hicks, police located the defendant at a rooming house. Defendant agreed to accompany police. Defendant did, however, testify at trial that he understood the police only wanted to talk to him. The court in finding nothing "inherently coercive" amounting to an arrest, noted the defendant was not "searched, handcuffed, or restrained in any way." Hicks, 755 S.W.2d at 244.
In Spivey, two officers contacted the defendant at his place of employment. They identified themselves as such, displayed their badges and requested that defendant come with them because someone at homicide wanted to talk with him. Defendant complied. At the station defendant was questioned and placed under arrest later that day. The court found defendant accompanied the officer voluntarily: his movement was not restrained nor was he coerced. Thus, no arrest occurred.
In Sherrard, police officers came to defendant's home and told him they wanted to talk to him about a shooting he reported. They asked him to go with them to the station. Defendant testified he agreed to their request. There was no illegal detention.
In this case there was substantial evidence from which the court could find defendant voluntarily accompanied the officers to the station. The police arrived at defendant's home, identified themselves and explained the nature of their visit. After requesting defendant to go back to the station, he agreed.
The question remains, however, whether the duration of time spent by defendant with the officers prior to his formal arrest constituted an illegal detention or arrest. We find it did not. The overwhelming weight of the evidence shows no coercion on the part of the officers and no restraint of defendant. Although the two women testified defendant was handcuffed, the officers testified he was not. The defense points out that Officer Swiderski testified that if the police verified defendant's alibi with Francine and Michelle Douglas, then they "would probably let him stay there at the residence." In response to the next question, however, the officers unequivocally stated defendant was free to go.
Given that credibility of witnesses is within the province of the trial court and the substantial evidence supporting the ruling, we find defendant was voluntarily in the company of the two police officers and was not, therefore, illegally detained. The statements and clothing were not the fruits of an illegal detention. Point denied.
Defendant's second claim on direct appeal asserts the trial court abused its discretion by denying his challenge for cause of venireperson Hediger. He argues her tendency to favor the testimony of police officers prevented her from being a fair and impartial juror. As a result, defendant was denied a full panel of qualified jurors from which to make preemptory...
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