State v. Davis, WD
| Citation | 625 S.W.2d 903 |
| Decision Date | 17 November 1981 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Carl Alexander DAVIS, Appellant. 32290. |
| Court | Court of Appeal of Missouri (US) |
K. Stanley Clay, Asst. Public Defender, Columbia, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, C. J., and TURNAGE and LOWENSTEIN, JJ.
Carl Davis was found guilty by a jury of burglary in the second degree and stealing, §§ 569.170 and 570.030, RSMo 1978. On finding Davis to be a persistent offender, the court sentenced him to ten years imprisonment on each count with the sentences to be served concurrently.
On this appeal Davis raises questions concerning the seizure of boxes from the back seat of the car in which he was riding; the denial of a motion for continuance; the giving of certain instructions and the failure to instruct on trespass. Affirmed.
Davis does not question the sufficiency of the evidence. About midnight on July 7, 1980, Michael Ladd left his apartment and observed two men in a car pull up to the rear area of an auto parts store. He saw them look around the area then open the door of the store and saw one of the men enter. He then saw the man who had entered the store handing boxes out of the back door to the other man who put them into the car. Some of the boxes were put into the trunk and some into the back seat. Ladd called the police and then returned to a position where he could observe the two men still loading boxes from the store. The men entered the car and drove off with Ladd still able to see them. He obtained the personalized license words, and while still observing the car, a police officer arrived. Ladd gave him the license wording and pointed out the car to the officer. The officer then stopped the car and Davis got out from the passenger side and approached the police car. The officer placed Davis and the driver under arrest. The officer observed several boxes in the back seat and these were removed and taken to the police station where they were later identified by the manager of the auto parts store as having come from his store.
Davis first contends the court erred in overruling his pretrial motion to suppress the evidence of the boxes which were taken from the back seat of the car because they were taken by an illegal search and seizure. There are at least two reasons why the boxes were properly seized by the officer at the time of the arrest, those being, a lack of standing on the part of Davis and the fact the boxes were in plain view. However, a recent decision by the United States Supreme Court has simplified questions of search and seizure of the passenger compartment of an automobile contemporaneous with a lawful arrest. In New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the court stated at 2864(2, 3):
"(T)hat when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."
In this case Davis does not question the legality of his arrest and the boxes were seized contemporaneously with that arrest. Thus, it is clear under Belton that the boxes were seized within the rule announced therein and were properly admitted in evidence, together with their contents. Belton at 2864, n.4.
Davis next contends the court erred in failing to grant a continuance so that he could obtain the testimony of the other person with him who was the driver. After the State had rested, counsel for Davis moved for a continuance because the driver failed to appear. A subpoena had been issued for him, but a return showed that he had not been served. Davis testified for the limited purpose of trying to establish that the driver would testify favorably toward him if he were present, however, this testimony was equivocal to say the least and established only that the driver had told Davis that he would try to get him out of this mess. Davis was asked if anything more specific had been said and stated that he couldn't hear any more because the man had talked almost in a whisper. Nothing further was presented as to what the man would say if he were present and testified.
In State v. Reece, 505 S.W.2d 50, 52(2-6) (Mo.1974) the court held that an application for continuance is addressed to the discretion of ...
To continue reading
Request your trial
-
State v. Thompson
...trespass in the first degree. State v. Gitz, 680 S.W.2d 294 (Mo.App.1984); State v. Walters, 636 S.W.2d 122 (Mo.App.1982); State v. Davis, 625 S.W.2d 903 (Mo.App.1981); State v. Martin, supra. The judgment is PREWITT, C.J., and CROW, J., concur. HOGAN, P.J., concurs in result. ...
-
State v. Walters, WD
...we hold that the trial court did not err in omitting a first-degree trespass instruction. For a similar analysis, see State v. Davis, 625 S.W.2d 903, 905-906 (Mo.App.1981). Necessity of instruction on stealing property worth less than $150 when all evidence was of greater For his third poin......
-
State v. Mondaine
...basis of an acquittal of the greater offense and a conviction of the lesser included offense." (Emphasis added). See also, State v. Davis, 625 S.W.2d 903 (Mo.App.1981); State v. Neighbors, 613 S.W.2d 143, 148 (Mo.App.1980). It is clear that in the instant case there is no evidence which cou......
-
State v. Eidson, 49006
...trespass in the first degree. Trespass in the first degree is a lesser included offense of burglary in the second degree. State v. Davis, 625 S.W.2d 903 (Mo.App.1981). Trespass in the first degree becomes burglary second when the element of the trespasser's "purpose of committing a crime th......