State v. Hamilton

• Court: Missouri Court of Appeals
• Writing for the Court: Crow, P.J., and Shrum; John E. Parrish
• Citation: State v. Hamilton, 8 S.W.3d 132 (Mo. App. 1999)
• Decision Date: 04 November 1999
• Parties: (Mo.App. S.D. 1999) State of Missouri, Plaintiff/Respondent, v. Lloyd Hamilton, III, Defendant/Appellant. 22562

8 S.W.3d 132 (Mo.App. S.D. 1999)

State of Missouri, Plaintiff/Respondent, v. Lloyd Hamilton, III, Defendant/Appellant.

22562

Missouri Court of Appeals Southern District

11/04/99

Appeal From: Circuit Court of Greene County, Hon. Calvin R. Holden, Judge

Counsel for Appellant: Irene Karns

Counsel for Respondent: Krista D. Boston

Opinion Summary: None

Crow, P.J., and Shrum, J., concur.

John E. Parrish, Judge

Lloyd Hamilton, III, (defendant) was convicted of possession of cocaine, a controlled substance, following trial before the circuit court without a jury. Section 195.211, RSMo 1994. He contends that the trial court erred in denying his motion to suppress evidence and in proceeding to trial under circumstances whereby he had not waived a jury in open court and no waiver of a jury had been entered of record.

Defendant does not contend there was insufficient evidence from which the trial court could have found him guilty. Facts stated in this opinion are limited to issues defendant has raised in this appeal.

Defendant's second point is dispositive. It contends he did not waive his right to a jury trial; that the trial court committed reversible error by conducting his trial without a jury. This court agrees.

Defendant did not object to commencement of his trial without a jury present. He thereby failed to preserve the claim that the trial court erred by denying him a jury trial.¹ State v. McMillan, 593 S.W.2d 629, 632 (Mo.App. 1980). Defendant obviously recognizes this failing in that Point II contends the trial court "plainly erred." Rule 30.20 permits matters not properly preserved to be reviewed on appeal if they are "plain errors affecting substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." See State v. Bogard, 836 S.W.2d 87, 88 (Mo.App. 1992).

Rule 27.01(b) permits a defendant, with the assent of the trial court, to "waive a trial by jury and submit the trial of any criminal case to the court." It requires, however, "In felony cases such waiver by the defendant shall be made in open court and entered of record."

The record on appeal does not reveal defendant's waiver of a jury trial in open court or any entry of record disclosing his waiver of a jury trial. In State v. Rulo, 976 S.W.2d 650 (Mo.App. 1998), this court granted plain error review under similar facts. This court reversed the judgment of conviction in Rulo and ordered a new trial where the record was devoid of any reference that the defendant in that case had waived his right to jury trial. Rulo explains that to do otherwise "would be the equivalent of totally ignoring Rule 27.01(b)." Id. at 653. Consistent with the holding in Rulo, this court concludes that Point II warrants plain error review; that the trial court committed error that resulted in manifest injustice. The judgment of conviction must be reversed and the case remanded for new trial.Although it has no bearing on the outcome of this appeal, defendant's claim that the trial court erred in denying defendant's motion to suppress evidence will likely be an issue in any future trial. For that reason, it will be reviewed.

On January 4, 1996, police conducted a search of defendant's apartment. The search was conducted pursuant to a search warrant obtained by Springfield Police Detective Allen Neal. Detective Neal received information from a confidential informant that defendant possessed and was selling crack cocaine at his apartment. The informant stated that defendant "had the crack cocaine in [$]25 and $50 quantities"; that it was hidden in various locations in defendant's apartment and car. Detective Neal was told that defendant had been in trouble in the past for selling drugs; that defendant was in possession of a handgun. The informant added that the handgun "was possibly a BB gun."

Detective Neal checked city utility records and determined that the utilities at the apartment for which the search warrant was issued were in defendant's name. Detective Neal checked defendant's criminal history. His inquiry disclosed that defendant had been arrested 25 times. Defendant's arrest record included arrests for armed robbery, sodomy, burglary, stealing, drug offenses and concealed weapons charges.

Detective Neal requested that the police department's special response team execute the search warrant. He provided the team with all the information he had obtained, including defendant's criminal history and the possibility that defendant possessed a handgun.

The team decided prior to executing the search warrant that it would not knock on defendant's door before entering the apartment. The team approached the door, announced its presence and immediately used a ram to enter the apartment. Defendant was at the apartment. He was arrested and read his rights.

Defendant filed a motion to suppress the evidence obtained from the search of his apartment and to suppress statements he made to Detective Neal. An evidentiary hearing was conducted, after which the motion was denied.

Detective Neal testified at the suppression hearing. Detective Neal told the trial court, "He explained to me that he had what he referred to as buttons, which is a street term for the size of the rocks of crack cocaine. He said that he had various buttons of crack cocaine in the living room in a small zipper lock pouch." Defendant was questioned further. In response to Detective Neal's questions, he said there was additional cocaine in the apartment. Defendant directed Detective Neal to a locked box in a closet. The box contained three bags that each held approximately one ounce of crack cocaine. Several small zipper bags of crack cocaine were recovered from the living room area of the apartment.

Detective Neal testified that he found approximately $980 currency on defendant's person; that defendant "stated it was from selling crack cocaine." Two other small Ziploc style bags that contained crack cocaine were retrieved from clothing hanging in a bedroom closet.

Items recovered from defendant's apartment were offered and admitted in evidence at trial over defendant's objection. Defendant objected to the evidence on the grounds asserted in his motion to suppress evidence; that the items were seized in violation of the Fourth, Fifth and Fourteenth Amendments of the U. S. Constitution and article I, sections 10, 15, 18(a) and 19 of the Missouri Constitution.

Defendant's Point I contends that the officers who executed the search warrant failed to knock and announce their presence. He argues that this action violated his right to be free of unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the U. S. Constitution and article I, section 15 of the Missouri Constitution. He claims the trial court erred in denying his motion to suppress evidence and in admitting the material to which the motion was directed in evidence.

Appellate review of a trial court's ruling on a motion to suppress evidence is limited to determining whether there was sufficient evidence to support the ruling. State v. Ricketts, 981 S.W.2d 657, 659 (Mo.App. 1998). All facts and reasonable inferences are stated favorably to the order challenged on appeal. State v. Rushing, 935 S.W.2d 30, 32 (Mo. banc 1996), cert. denied, 520 U.S. 1220 (1997). The trial court's judgment will be reversed only if it is clearly erroneous. Ricketts, supra. Although findings of fact are reviewed under a clearly erroneous standard, whether defendant's constitutional rights were violated is a question of law reviewed de novo. Id.

The Fourth Amendment provides the same guarantees against unreasonable searches and seizures as article...