State v. Harris, 46246

• Court: Missouri Court of Appeals
• Writing for the Court: DOWD; SATZ, P.J., and GAERTNER
• Citation: State v. Harris, 670 S.W.2d 526 (Mo. App. 1984)
• Decision Date: 03 April 1984
• Docket Number: No. 46246,46246
• Parties: STATE of Missouri, Respondent, v. Tommy Ray HARRIS, Appellant.

Page 526

670 S.W.2d 526

STATE of Missouri, Respondent, v. Tommy Ray HARRIS, Appellant.

No. 46246.

Missouri Court of Appeals,

Eastern District,

Division Five.

April 3, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 17, 1984.

Robert J. Maurer, Asst. Public Defender, Clayton, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, for respondent.

DOWD, Chief Judge.

Defendant Tommy Ray Harris was convicted of second degree assault § 565.060 RSMo 1978 and sentenced as a persistent offender to eight years pursuant to § 558.016 RSMo 1978. He now appeals contending the trial court erred in denying his motion to suppress his confession in that it was the product of an illegal arrest made without probable cause; that it was procured by the use of duress and coercion and; that it was made subsequent to his invocation of his right to silence. Defendant also contends the trial court failed to make the required factual determination of the issues presented in his motion to suppress.

On the evening of May 16, 1981, the victim in this case was struck on the head as he was entering his home. The victim was unable to see who hit him. Prior to the assault, two neighbors observed a white van traveling up and down the street about three times. Ten or fifteen minutes later they heard screams and ran to the victim's house where they found him in a bloodied condition. One of the neighbors observed two men walking out of the victim's yard and subsequently break into a run. The other neighbor chased them and saw them pull off in a white van. After the police arrived, a bulletin based on the information provided by the witness was issued for an early model white van. Shortly thereafter a police officer stopped a van fitting the description, and the witness later identified it as the one seen in the victim's neighborhood. Defendant, an occupant of the van, was advised of his constitutional rights on several occasions including the morning after the arrest, before he was informed the police knew the victim was his uncle by marriage. Defendant then made an oral and written statement to the effect that he and his accomplices had planned to rob the victim because he was known to carry large sums of cash. Defendant further stated his accomplices drove him to a Zantigo's restaurant and left him at that location because he was known by sight in the area. Approximately thirty minutes later both accomplices picked up the defendant and told him the robbery had not gone according to plan. At trial, defendant admitted to two prior felonies and denied any responsibility for the assault on the victim. He also claimed his confession was not voluntary but was the product of coercion and duress.

We first address defendant's failure to preserve any point of error. When a motion to suppress has been denied and the evidence is subsequently offered at trial, counsel must again make a timely objection in order to preserve the issue for appellate review. State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974). While defendant may have considered a renewed objection superfluous, we do not. The trial judge should be given the opportunity to reconsider his previous ruling in light of the evidence presented at trial. Id. at 403. The record reflects defendant's pretrial motion to suppress evidence was denied and that during trial, he failed to object to the admission of the very evidence he had sought to suppress. Accordingly, our review of defendant's entire appeal is limited to that of plain errors affecting substantial rights resulting in manifest injustice or a miscarriage of justice. Rule 29.12(b) V.A.M.R.; State v. Bryson, 506 S.W.2d 358, 361 (Mo.1974). We find no such error for the following reasons.

Defendant first argues the motion to suppress should have been granted because the confession was obtained as the result of an arrest made without probable cause. We disagree. The record demonstrates defendant's vehicle fit the description for a van which had just been involved in a crime in the vicinity and witnesses were able to positively identify it as the one seen prior to and immediately following the incident. See State v. Carter, 572 S.W.2d 430, 435 (Mo. banc 1978) where the witnesses' description of a tan or light colored car served as the basis for probable cause for arresting and searching the defendant found in a cream colored car. Also see State v. Murray, 445 S.W.2d 296, 298 (Mo.1969).

Defendant also contends his confession was involuntary and made as the result of duress and coercion. Absent a showing of special circumstances, the state need only make a prima facie case of voluntariness by showing that at all stages of interrogation the accused was advised of his constitutional rights and that no physical force, threats, or coercive tactics...