State v. Gardner, 69169

• Decision Date: 17 November 1987
• Docket Number: No. 69169,69169
• Citation: 741 S.W.2d 1
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Dwain L. GARDNER, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 1

741 S.W.2d 1

STATE of Missouri, Plaintiff-Respondent, v. Dwain L. GARDNER, Defendant-Appellant.

No. 69169.

Supreme Court of Missouri,

En Banc.

Nov. 17, 1987.

Rehearing Denied Dec. 15, 1987.

M. Elise Branyan, T. Patrick Deaton, Springfield, for defendant-appellant.

William L. Webster, Atty. Gen., Timothy W. Anderson, Asst. Atty. Gen., Jefferson City, Thomas E. Mountjoy, Pros. Atty., Richard E. Monroe, Chief Asst. Pros. Atty., Springfield, for plaintiff-respondent.

HIGGINS, Judge.

Dwain Gardner was convicted by a jury of twenty-one counts of receiving stolen property of the value of over $150, section 570.080.1, RSMo 1978. The court determined that defendant was a prior offender and sentenced him to twenty-eight years in the Department of Corrections. Judgment was rendered accordingly.

The Missouri Court of Appeals, Southern District, reversed the judgment and remanded the cause to the trial court with direction to vacate twenty of defendant's twenty-one convictions and sentences on double jeopardy grounds. This Court transferred the case because of the general interest and importance of the double jeopardy issue. Affirmed.

Gardner was charged with twenty-one counts of receiving stolen property of the value of over $150, in violation of 570.080.1, RSMo 1978. Each count charged that defendant, in violation of section 570.080, RSMo 1978, committed the Class C felony of receiving stolen property in that on or about the 14th day of March 1984, Dwain Gardner, with the purpose to deprive a specified owner of certain property, kept such property, of an aggregate value of at least $150, knowing or believing that it had been stolen. Each count named a particular owner and described different property. The property, in all, consisted of thirty-two pages of items that the police recovered from defendant's home on March 14, 1984, as the result of a validly executed search warrant.

The State called twenty-six witnesses to testify regarding property stolen in twenty-one burglaries that occurred over a period of seven months prior to March 14, 1984. The state also called Steven Agee. He testified that defendant was his "fence" and that he visited defendant at his home "just about every day" to sell him various lots of stolen property. Agee had entered into a plea bargain with the State to receive a lighter sentence on three Cole County burglary charges in return for his testimony against defendant. The State's last witness was David Asher, who was responsible for securing and executing the search warrant on March 14, 1984, at 2:49 a.m. at defendant's residence.

Appellant presents five issues on this appeal. The Southern District found them meritless with the exception of the double jeopardy claim which sustained a determination that the State's charge against defendant justified conviction on only one count of receiving stolen property and not multiple counts as the State contends.

Appellant first asserts that the trial court erred in overruling defendant's motion to suppress statements because his statement "I don't guess I'll be getting out for a long time after this one," violated his rights to remain silent and due process of law protected by the 5th and 14th amendments of the United States Constitution and article I, section 10 and 19 of the Missouri Constitution. Appellant claims the statement was a fruit of an arrest without probable cause and of the illegal search and seizure of items from his home, car and person.

The detective stated that defendant made the spontaneous remark after he was read his Miranda rights. The State contends the statement was voluntary and spontaneous and incident to a valid arrest of defendant. Defendant was arrested when he drove up to his house with Steven Agee during the conduct of the search authorized by warrant. The police officers did not question defendant.

Defendant's motion to suppress was denied before trial. During trial when the statement was entered, defendant did not object. A motion to suppress evidence prior to trial is interlocutory in nature. The real damage is not done until the evidence is introduced in the trial of a case for consideration by a jury. Then a trial court can receive additional evidence and change its ruling prior to admitting the objected to items in evidence before a jury. State v. Carrico, 696 S.W.2d 511, 513 (Mo.App.1985), quoting State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975). Defendant failed to preserve this point for review.

Review under the plain error standard requires that appellant suffer manifest injustice, Rule 30.20. The record does not indicate any manifest injustice occurring to defendant. The police read him his rights. They asked no questions of defendant and at that point defendant made a spontaneous, voluntary statement. Statements voluntarily and spontaneously made by a defendant not under interrogation have been held to be admissible, State v. Kent, 697 S.W.2d 216, 217-18 (Mo.App.1985). The voluntariness of a statement is determined by evaluating all the circumstances under which the statement was made, State v. Thomas, 698 S.W.2d 942 (Mo.App.1985). The record indicates defendant's statement occurred after probable cause to arrest, he was read his rights and he was not being interrogated at the time he made the statement. The statement was voluntary, spontaneous and admitted properly.

Appellant contends that trial court erred in failure to recuse himself. Appellant requested the trial judge recuse himself on June 24, 1985, the day trial was to begin. Defendant also filed a motion in limine and a motion to suppress evidence which were heard on the same day. The judge refused to recuse himself and overruled defendant's motions.

Defendant, as a matter of right, could have requested a change of judge by written application not later than 30 days after arraignment if the trial judge is designated. If not designated, then the application must be filed no later than 30 days after the designation of the trial judge and notification to the parties or their attorneys. The applicant need not allege or prove any reason for such change. Rule 32.07. Defendant did not follow this procedure.

Defendant requested recusal because the trial judge issued a search warrant a week after defendant's arrest for a further search of defendant's home based on new police evidence. Defendant alleges the police officers requesting the search warrant had ex parte discussions with the judge concerning the case about the guilt of defendant and that the judge cannot fairly rule the motion to suppress evidence concerning the issuance of the search warrant. Also, the defendant contends he intended to call the judge as a witness for the motion to suppress evidence and argues the judge cannot sit as both witness and judge in the same case.

The reasons for disqualification are present if the judge is related to any defendant or has an interest in or has been counsel in the criminal proceedings or disqualifies himself for any other reason. Rule 32.10. The standard is fundamental fairness, Rule 32.09. Also under the Code of Judicial Conduct, Canon 3(C), Disqualification, a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where because of the judge's knowledge, he is likely to be a material witness in the proceeding, or he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

Defendant has not met his burden. First, there are no facts alleged that show bias or prejudice against the defendant. Second, there is no fact alleged that would lead a reasonable person to believe that the judge was to be called as a witness or that he was a material witness in the case. Becoming a witness at all would hinge on granting of the motion to suppress. However, the procedural posture of this motion is for the court to make a determination concerning the validity of the search warrant. If the court determines from the face of the document that the warrant is valid no hearing is necessary and the judge will not possibly be called as a witness. If the court finds they are invalid, there would then be a determination on whether the officers acted in good faith. The court found the warrant was valid and overruled the motion to suppress the evidence.

Defendant cannot claim he intended to call the judge as a witness in order to have the judge disqualify himself. Had he followed Rule 32.07 he would have been entitled to a change of judge as a matter of right. Instead, defendant chose to request recusal on the day of trial without substantiating his request with valid claims. The alleged error is not demonstrated.

Appellant's principal charge is that the trial court erred in overruling defendant's motion for judgment of acquittal at the close of all the evidence as to all but one count of receiving stolen property because appellant's conviction and sentences on twenty additional counts violated his freedom from double jeopardy guaranteed by the 5th amendment to the United States Constitution. Appellant alleges the State failed to prove more than one act of receiving stolen property by keeping so that defendant's convictions on all twenty-one counts prejudiced him with multiple sentences for one offense of receiving stolen property by keeping.

The evidence showed that the property was stolen from different owners, at different times, by a burglar who in turn sold the stolen goods at various times to Gardner. The State did not charge defendant with multiple counts on different dates, but instead used the date of the offenses as on or about the date the search warrants were executed. Appellant claims his right to be free from double jeopardy was violated by the State charging multiple possession of stolen goods when it was a single act; therefore, he received cumulative punishments for the...