State v. Edmondson

• Citation: 461 S.W.2d 713
• Decision Date: 11 January 1971
• Docket Number: No. 1,No. 55296,55296,1
• Parties: STATE of Missouri, Respondent, v. George Ben EDMONDSON, Appellant
• Court: United States State Supreme Court of Missouri

Page 713

461 S.W.2d 713

STATE of Missouri, Respondent, v. George Ben EDMONDSON, Appellant.

No. 55296.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1971.

John C. Danforth, Atty. Gen., J. Michael Jarrard, Asst. Atty. Gen., Jefferson City, for respondent.

James A. Dunn, Carthage, for appellant.

HIGGINS, Commissioner.

George Ben Edmondson, with prior conviction for robbery, first degree, was convicted by a jury of robbery, first degree, with a dangerous and deadly weapon. The court assessed his punishment at 10 years' imprisonment, credited 1,885 days' prior imprisonment, and rendered judgment accordingly. Sections 556.280, 560.120, 560.135, 546.615; State v. Edmondson, Mo., 379 S.W.2d 486 (conviction by jury and 30-year sentence for present offense reversed for unlawful search of automobile); State v. Edmondson, Mo., 438 S.W.2d 237 (conviction and 10-year sentence on plea of guilty to present offense set aside by trial court and affirmed upon collateral attack under Criminal Rule 27.26, V.A.M.R.).

The trial which gave rise to this conviction and appeal was in the Circuit Court of Jasper County on change of venue from Greene County. There is no contention that the state failed to make a submissible case and a brief statement supports the verdict in all respects.

The J. C. Penney Store in Springfield, Greene County, Missouri, closed on December 23, 1962, at 9:00 p.m. At about 9:25 p.m., Robert J. Costello and Donald L. Stockton, Penney employees, undertook to carry five moneybags containing several hundred dollars in receipts from the store to the night depository of Union National Bank. As they approached the bank and as Mr. Costello prepared to insert his key into the depository, they were accosted by a man wearing a trench coat and carrying a carbine rifle under his coat. They had observed the man previously standing in the doorway of an adjacent building. The assailant, backed by his rifle, directed them to drop the moneybags and go around the corner until he was gone. When they heard fleeing footsteps they returned from around the corner, found three bags missing, and deposited the two remaining. Defendant was identified by both victims from pictures and at trial as the robber. On December 25, 1962, pursuant to a telegram from Greene County Sheriff Glen Hendricks, the police and local sheriff in Albuquerque, New Mexico, arrested defendant outside his room at a motel. A search of defendant's room was made and two shaving kits containing over $4,800 were found hidden behind an inspection panel in the bathroom.

Appellant's first point is that the described search was unreasonable and in violation of his constitutional rights rendering the evidence thereby obtained and admitted at trial inadmissible. Emphasizing that no arrest or search warrants were in possession of the officers, and that the arrest was made outside the premises searched, appellant argues, 'The search and seizure of evidence can be justified only so far as our laws permit a search without warrant and incident to a lawful arrest.' Appellant would support his position by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, and Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732. It is not necessary to discuss any suggested application of appellant's citations because the search of appellant's premises has other lawful justification.

By pretrial motion, defendant sought, among other things, to suppress all evidence seized as a result of the search of the motel room. Evidence on this and the other issues so presented was taken and the court found that 'the search was made as a result of the consent of the defendant given to the officers to search the apartment.' The matter was reopened by defendant's new trial motion and the court found similarly that the point 'is not well taken because the defendant, in effect, invited and consented to the search.'

At the pretrial hearing on the motion to suppress, James R. Wheeler, one of the Albuquerque police officers, described the circumstance of defendant's arrest 'for investigation of armed robbery.' Defendant was handcuffed and 'We asked him for identification, he showed us a driver's license, we put him under arrest. He said he didn't know what we were talking about. At that time we asked him if we could go in and search the room and he said we could. * * * He gave us permission to search the place. * * * I said, 'Do you mind if we search the room' and he said 'no." At no time during the search did either defendant or his wife object to the search which took twenty to thirty minutes. Upon cross-examination it was further elicited that Officer Wheeler 'asked him if he would mind if we would search the room. Q Did you tell him what you were looking for? * * * A Ten Thousand Dollars in cash and checks. * * * Q Did you threaten him with anything in order to get his consent to search the room? A No, sir. Q Did you use force on him to get his consent? A No, sir. Q Did you promise him anything in order to get his consent to search the room? A No, sir.'

During the trial, similar testimony was elicited from other officers present at the arrest and search. Lieutenant Ray Baca of the Albuquerque Police Department described the events following the arrest: '* * * we handcuffed him. And it was very cold that night, and he wasn't wearing a coat when he came out of the room. We told him that we were looking for some items in regards to a report that we got, and that we wanted to look in the motel room. * * * Then he said, 'Well, lets go on in; you are welcome to come in.' And we went in the motel room, myself and Sergeant Wheeler and Officers Sig Sanchez and Detective LeRoy Payne. * * * And I told him that we had a report he had a large amount of money--And he said, 'No, I don't have any money with me, anything on me, except what I have in my pocket.' He had some bills in his shirt pocket, and 'you are welcome to go ahead and look around. '' Sheriff LeRoy Payne testified that 'With the occupant's permission, George Edmondson, we searched the room. * * * Lt. Baca asked him if we could search the room. He said, 'I don't know what this is all about, go ahead.'' In response the officers entered Room 149 and were met by Mrs. Edmondson 'and we apologized for the intrusion and asked her permission also to search the room because I saw then they had room 149 and 150.' They were adjoining rooms. 'I told her her husband was under arrest for robbery' and 'asked her for permission to search it. * * * She told me to go ahead and search * * *.' Lieutenant Wheeler also testified at trial with respect to circumstances of the search. Following the arrest, 'I asked Mr. Edmondson for permission to search the room and we went inside and the wife was sitting on the bed, Officer Payne also asked her if she minded if we searched the room. When the defendant was placed under arrest he said he didn't know what we were talking about and he didn't mind if we searched the room.' When the defendant first emerged from the door of his room around 9:00 p.m., he was dressed and appeared awake.

The foregoing evidence demonstrates without question that defendant, freely and without coercion, gave his consent to the search of his room as found by the trial court. State v. Virdure, Mo., 371 S.W.2d 196, 200(3). Appellant's brief concedes that 'Edmonson agreed to a search of the room.' His own testimony on the motion to suppress was a denial of consent but upon cross-examination he conceded that he was 'being flip' with the officers because he wasn't worried. '* * * I am pretty well convinced they didn't ask, but as I said, eight years is a long time.' Such testimony simply created a conflict in testimony involving credibility of the witnesses. The trial court's rulings resolved the conflict and there was evidence to support such determination. State v. Gailes, Mo., 428 S.W.2d 555, 558.

In his second point, appellant complains that the court erred in refusing to grant a mistrial 'when evidence of another crime was introduced by the State.' He presents this point by asserting that when Greene County Deputy Sheriff Lee Kelso was testifying to certain purported admissions of defendant, 'the witness then testified that the Defendant had purchased a rifle from Herr's Department Store in Springfield, Missouri, and as payment for said rifle, passed a bad check.' Defendant objected and moved for a mistrial on the ground that this violated the general rule that "proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant's right to be tried for the offense for which he is indicted." State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307; State v. Summers, Mo., 362 S.W.2d 537, 542; State v. Mathis, Mo., 375 S.W.2d 196; State v. Holbert, Mo., 416 S.W.2d 129.

Appellant's assertion is thus presented as though the state, either intentionally, through its witness, or by volunteered statement of its witness, secured the admission of evidence of another crime. The context in which the matter arose demonstrates that the objection bore a different posture and that the trial court did not err in refusing to declare a mistrial.

Deputy Kelso, while testifying to certain statements made by defendant in his presence and, in particular, with respect to the rifle, was asked:

'Q Did the defendant indicate how he had come to have this 30 caliber carbine? Did he tell you where he got it and when he bought it or where he bought it? A Yes. Q What did he tell you about that? A He bought it at the Heer's Department Store in Springfield, Missouri and gave them an insufficient funds check.'

Several impressions, contrary to appellant's assertion, are thus shown to appear. First, there was no...