State v. Burnett

• Decision Date: 10 June 1968
• Docket Number: No. 53077,No. 2,53077,2
• Citation: 429 S.W.2d 239
• Parties: STATE of Missouri, Respondent, v. Joseph Louis BURNETT, Appellant
• Court: Missouri Supreme Court

Page 239

429 S.W.2d 239

STATE of Missouri, Respondent, v. Joseph Louis BURNETT, Appellant.

No. 53077.

Supreme Court of Missouri, Division No. 2.

June 10, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 8, 1968.

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

James E. Cary, Ely & Cary, Hannibal, for appellant.

DONNELLY, Judge.

Appellant, Joseph Louis Burnett, was convicted of uttering a forged check under § 561.011, RSMo 1959, V.A.MS., by a jury in the Hannibal Court of Common Pleas, at Hannibal, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280 RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B. 117), was assessed at imprisonment in the custody of the State Department of Corrections for a term of six years. Jurisdiction was in the Hannibal Court of Common Pleas because the offense was alleged to have been committed in Mason Township, County of Marion, Missouri. Section 480.200, RSMo 1959, V.A.M.S. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court. We affirm.

According to the evidence, on February 18, 1966, 'between 5:00 and 6:00 o'clock' in the evening, Mrs. Judy Fishback was working as a teller at the Farmers and Merchants Bank. A forged payroll check, on the account of Seither & Cherry Company, and payable to 'Charles Dunham,' was presented to her by appellant. Appellant endorsed the check and received $177.34 in cash.

Appellant first contends that the trial court erred in connection with testimony and argument which related to money found by a police officer in appellant's home in St. Louis County the morning of February 19, 1966. He asserts that the 'search was made without warrant and not incident to a lawful arrest and without other lawful authority.' The search was made by Sergeant Timothy Mahoney of the City of Florissant Police Department. His testimony was, in part, as follows:

'Q. Do you know Joseph Louis Burnett? A. Yes, sir, I do.

'Q. You know him personally?

'A. I have had previous contact with him, yes.

'Q. How long would you say you have known him?

'A. Approximately--from now, or the date of arrest?

'Q. From now. A. Approximately two years.

'Q. Now directing your attention to February 18, 1966, did you have occasion to go to his home on that day?

'A. It was February 19th, 12:15 A.M, when I received the call.

'Q. Just past midnight? A. Yes, sir.

'Q. Why did you go there?

'A. To assist Missouri State Highway Patrol officers in effecting an arrest.

'Q. About what time do you think you arrived there?

'A. Within two minutes, 12:17 at the most.

'Q. Who was there when you arrived?

'A. Sergeant Beck, Trooper Ryan and Trooper Crutchfield.

'Q. All right, how did you get in the house?

'A. I was met at the door by Mr. Burnett.

'Q. Did he invite you in? A. Yes, sir, he did.'

* * *

* * *

'Q. Did you conduct a search of the premises?

'A. Yes, sir, I did.

'Q. Did you ask him, that is, did you ask Mr. Burnett if you could conduct a search of the premises?

'A. Yes, sir, I did.

'Q. What did he say?

'A. He said go ahead, he had nothing to hide, to go ahead.

'Q. In other words, you conducted the search with his permission, right? A. Yes, sir.

* * *

* * *

'Q. Did you ever advise him that a warrant had been issued for his arrest? A. Yes, sir, I did.

'Q. Did you tell him where the warrant emanated from?

'A. Yes, sir. I advised him that he was to be arrested as a fugitive from the City of Hannibal and there was a warrant on file, to my understanding, for issuing a fraudulent check.'

We need not decide (1) whether defendant voluntarily consented to the search (see Annotation, 9 A.L.R.3d 858), or (2) whether, under the conflicting evidence, a warrant had in fact been issued prior to the time the arrest and search were made, because we believe the search was incident to a lawful arrest.

It is 'elementary that an officer may make a lawful arrest without a warrant. The general rule is that he may arrest without a warrant any person whom he has reasonable cause to believe has committed a felony * * *.' State v. Vollmar, Mo.Sup., 389 S.W.2d 20, 24.

'* * * Police officers are authorized to arrest upon reasonable cause to suspect that one is guilty of a felony, either upon their own knowledge or upon facts 'communicated to them by others * * *.' State v. Brown, Mo., 291 S.W.2d 615; State v. Green, Mo., 292 S.W.2d 283; State v. Edwards, Mo., 317 S.W.2d 441. If police officers could not thus base the existence of reasonable cause upon bona fide information communicated to them in the performance of their duties, their hands would be very effectively tied.' State v. Witt, Mo.Sup., 371 S.W.2d 215, 219.

'It is a settled rule in this state that when a defendant has been lawfully arrested a search may be made of his person and of the premises where he was arrested without the necessity of a search warrant.' State v. Vollmar, supra., 389 S.W.2d 20, 25. According to the evidence, a felony had been committed. Under the circumstances, Sergeant Mahoney had reasonable cause to believe appellant had committed it. The arrest and search were legal and the trial court did not err.

Appellant next contends that the trial court erred in connection with an alleged admission, because there is no evidence that appellant 'had been advised prior to the conversation of his constitutional right to the presence and consultation of counsel.'

The evidence in this regard was elicited from Sergeant Mahoney and was as follows:

'Q. Now, did you have any conversation with Mr. Burnett as to whether or not any of this money was his?

'MR. CARY: We object, your Honor, to any conversation that this defendant may have had with this Police Officer because of the grounds, at this point, there is no ascertainment that the defendant could be properly interrogated by this officer outside the hearing or presence of an attorney.

'THE COURT: Overruled.

'A. I did not actually ask the gentleman if the money belonged to him. I assumed it did and he volunteered the information that that was his money. These two sums I mentioned, the one sum I found in the north corner of the house in the one bedroom that was $483.00, and the one sum that I found in the rear bedroom of the house which was $300.00.

'Q. He admitted ownership then of $783.00, is that right?

'A. Yes, sir, that's correct.'

Appellant relies upon Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

In Miranda v. State of Arizona, 384 U.S. 436, at 478 and 479, 86 S.Ct. at 1630, the Court stated:

'In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

'To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.'

We are of the opinion that the admission in question was volunteered by appellant. Further, the record made on the motion to suppress, at which appellant testified, shows that the admission was not 'obtained as a result of interrogation.' Sergeant Robert E. Beck, of the Missouri State Highway Patrol, who was present at appellant's home with Sergeant Mahoney, testified as follows:

'Q. To your knowledge was there a lengthy interrogation of him either at his home, at the Florissant City Police Department, or at Troop C Headquarters?

'A. There was no interrogation at any of those places.

'Q. Did you ever attempt to interrogate him?

'A. No, sir.

Appellant asserts that the 'confrontation of the money was * * * an interrogation, albeit a silent 'interrogation', of appellant.' We do not agree. The law announced in Miranda and Escobedo does not assist appellant. The point is without merit.

Appellant contends he was deprived of his right to bail in violation of S.Ct. Rules 21.13 and 21.14, V.A.M.R., and that, because he was denied bail, he was 'forced to confront his several accusers at a time and under circumstances when the question of his guilt...