State v. Fields, 42103
| Citation | 636 S.W.2d 76 |
| Decision Date | 27 April 1982 |
| Docket Number | No. 42103,42103 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Ethel Pearl FIELDS, a/k/a Ethel Fields, a/k/a James Earl Taylor and a/k/a James Roy Williams, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
John T. McCaffrey, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Nancy D. Kelley, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
Appellant was charged with breaking into a building and stealing three typewriters. A jury convicted him of second-degree burglary and stealing. The court below sentenced him to six years for burglary and two for stealing, with the sentences to run concurrently.
Appellant urges two grounds for setting aside the conviction and remanding for a new trial. First, he argues that the trial court erred in overruling his motion to suppress certain evidence. Second, he maintains that the trial court should have given him a hearing on his motion for appointment of substitute counsel. Finding no merit in either of these points, we affirm the conviction.
The facts relevant to the first point on appeal are as follows:
At about 1:00 a.m. on December 1, 1978, Officer John Logan of the St. Louis Metropolitan Police Department was on routine patrol. He saw an automobile, a Chevrolet, parked near a building at 314 North Jefferson. Upon driving into the lot where the car was parked, he saw a man dressed in a light blue shirt and dark pants. The man, who had been standing near the car, began to climb through a broken window in the building. Officer Logan parked his squad car in front of the parked car that he had seen and got out. The officer started to go after the person crawling through the window, but then noticed the Chevrolet begin to move. He arrested the driver, during the course of which arrest he noticed several typewriters in the car.
Officer Logan then radioed for assistance. Five or six police officers were soon on the scene. To these officers, Officer Logan described the suspect who had crawled through the broken window as a white male with a small build wearing a blue shirt and dark trousers. At trial, Officer Logan could not recall whether he included additional information in his description.
Officer Logan informed the officers at the scene that the suspect whom he had described had gone into the building and would probably try to get out on the other side. He noted that "I couldn't go after him because I was holding the one man in custody at which time (the other) officers went around to the south side of the building." Officer Ronald Schneider and other officers found a window open on the southwest corner of the building. Officer Schneider then began to work under the assumption that the suspect had gone east on Olive because no building in which he might conceal himself was open west of Jefferson at that time of night. Accordingly, he drove east on Olive in his tricar. While driving east on Olive, Officer Schneider saw defendant, who fit the general description given by Officer Logan. There was conflicting testimony about whether the defendant was walking at a fast pace or "galloping."
Officer Schneider approached defendant on his motorcycle and ordered him to halt. Defendant turned suddenly, threw his hands up in the air, and said "You got me." The officer placed defendant under arrest. At the time of his arrest, defendant was wearing a blue short-sleeve shirt of the "pull-over" type and a dark pair of pants. Officer Schneider testified that he scrutinized defendant prior to arresting him and "found that he not only matched the description but he also had glass particles in his hair that I could visually see and he also had a fresh cut on his nose and a fresh cut on his right wrist."
Defendant's blue shirt and black trousers were seized as evidence subsequent to his arrest. A debris sample was taken from his hair. Three typewriters and a black topcoat were seized from the green Chevrolet parked outside the scene of the burglary. When Officer Logan brought the topcoat to police headquarters, according to Officer Logan, defendant "indicated the black overcoat that I brought in and said, 'Could I take my coat with me?' " Upon request, defendant correctly identified the brand of the coat and said that there were some "Bugle" cigarette papers in the pocket. Officer Logan found that brand of papers in the pocket.
Defendant filed a motion to suppress certain evidence obtained after his arrest, including his blue shirt, his trousers, and his statements identifying as his the overcoat seized at the scene of the crime. This motion to suppress was based on the theory that Officer Schneider had no probable cause to arrest defendant.
After the jury was impaneled and immediately before the first witness was called by the state, the trial court heard testimony on defendant's motion to suppress and overruled it. At the hearing on the motion, Officer Logan recounted the events surrounding his discovery of a burglary in progress at 314 North Jefferson. Officer Logan testified that, after calling for assistance, he did not give the police dispatcher a description of the suspect whom he had seen crawl through the window. Officer Logan had in fact written on his police report, filled out the night after the early morning burglary, that he had given the dispatcher a general description of the suspect. At a preliminary hearing several weeks after defendant's arrest, Officer Logan testified that he had caused a description to be broadcasted. Defense counsel was also able to elicit testimony to the effect that Officer Logan could not tell whether Officer Schneider had been among those officers responding to his request for assistance to whom he had given in person a description of the suspect.
The next witness called at the hearing on the motion to suppress was Officer Schneider, the arresting officer. On direct examination, Officer Schneider testified that in his deposition he had described the blue shirt worn by defendant when arrested as a dress shirt that "buttoned all the way down." Defendant introduced the shirt into evidence; it was in fact a pull-over shirt. Officer Schneider had also testified in his deposition that, when arrested, defendant had a laceration on his right wrist. Officer Logan had also made a note of an injury to defendant's right wrist in the police report. The hospital record covering defendant's treatment after his arrest contains no reference to an injury to the wrist.
On cross-examination by the state, Officer Schneider testified that he arrived at 314 North Jefferson shortly after Officer Logan's call for assistance and that Officer Logan gave him a description of the suspect. Officer Logan then testified that he arrested defendant, who matched the description, after seeing defendant running east on Olive.
The trial court overruled defendant's motion to suppress, and the matter proceeded to trial on the same day. On that day and on the two subsequent days of trial, evidence that defendant had asked to be suppressed in his motion was offered by the state and admitted without objection.
In overruling defendant's motion to suppress, the trial court addressed the following remarks to defense counsel: "(B)asically the burden is on you and your defendant to prove that the Court should sustain the Motion and throw out the case by not allowing this testimony to be entered."
Defendant maintains on appeal that the trial court reached its decision to overrule the motion to suppress by placing the risk of non-persuasion on defendant and then finding the results wanting. According to defendant, evidence of this improper allocation of the burden can be found in the court's own statement, quoted supra, and in the fact that defendant began the presentation of the evidence. Defendant, on the basis of this allegation of error, asks that we set aside the conviction and remand for a new trial.
The question that we must address initially is whether this point is properly preserved for appellate review. Defendant did not object to this alleged error during the hearing on the motion to suppress. The motion to suppress having been overruled, defendant allowed the evidence that he had sought to suppress to be admitted at trial without objection. In his motion for new trial, he asserted that the trial court erred in overruling his motion to suppress because the court allegedly ruled on the motion without considering the credibility of the police officers who testified.
The rule is well established in Missouri that when a motion to suppress evidence is denied and the evidence is subsequently offered at trial, defendant must object at trial to the admission of the evidence. Otherwise, he does not preserve for review the issue of whether the evidence should be suppressed. State v. Yowell, 513 S.W.2d 397, 402-403 (Mo. banc 1974); State v. Bryson, 506 S.W.2d 358, 360-361 (Mo.1974); State v. Simone, 416 S.W.2d 96, 100 (Mo.1967); State v. Powers, 613 S.W.2d 955, 959 (Mo.App.1981); State v. Manning, 612 S.W.2d 823, 827 (Mo.App.1981); State v. Rayford, 611 S.W.2d 377, 378 (Mo.App.1981); State v. Ethelbert, 611 S.W.2d 379, 380-381 (Mo.App.1981).
The facts presented here raise the question of whether this rule should always be strictly applied. The judge who admitted the evidence at trial was the same judge who had only hours before heard and ruled on the...
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