State v. Hodges, 13507

• Decision Date: 16 January 1986
• Docket Number: No. 13507,13507
• Citation: 705 S.W.2d 585
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gerald B. HODGES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 585

705 S.W.2d 585

STATE of Missouri, Plaintiff-Respondent, v. Gerald B. HODGES, Defendant-Appellant.

No. 13507.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 16, 1986.

Motion for Rehearing or to Transfer to

Supreme Court Denied Feb. 7, 1986.

Application to Transfer Denied

March 25, 1986.

Calvin R. Holden, Conklin, Holden, & Wagner, P.C. Springfield, for defendant-appellant.

Gerald B. Hodges, pro se.

William L. Webster, Atty. Gen. Christine M. Szaj, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GREENE, Judge.

Defendant, Gerald Hodges, was jury-convicted of the class A felony of first degree robbery, § 569.020, ¹ and thereafter sentenced by the trial court, after a finding that Hodges was a prior offender due to a previous robbery conviction, to 25 years' imprisonment.

The robbery charge filed against Hodges alleged that on or about December 1, 1982, Hodges and a companion knowingly and forcibly stole money and other property which was in the possession of Linda Hartman, and that in the course of the robbery, Hodges displayed and threatened to use a dangerous and deadly weapon.

In support of his appeal, Hodges has filed two briefs, one pro se and the other by his court-appointed counsel. We consider both, as the trial court sustained Hodges' application to proceed pro se with the aid of court-appointed counsel.

We first address the contention raised in counsel's brief that the evidence was insufficient to sustain the conviction.

In determining whether evidence is sufficient to support the verdict, the evidence and all reasonable inferences to be drawn therefrom must be considered in the light most favorable to the state, disregarding all evidence and inferences to the contrary. State v. Garrett, 682 S.W.2d 153, 154 (Mo.App.1984).

Viewed in such light, the record indicates that on December 1, 1982, at about 10:30 p.m., two black males carrying pistols and wearing scarves wrapped around the lower part of their faces, stocking caps, jeans, jackets and gloves entered the Pizza Hut restaurant located on Battlefield Road in Springfield, Missouri. They demanded that a waitress, Terry Aldrich, take them to her manager, Linda Hartman, who was working at a desk in the rear of the restaurant. Hodges, who was one of the robbers, pointed his pistol in Linda's direction and demanded money. She handed him two bank bags, each of which contained over $300 belonging to Pizza Hut. The robbers obtained additional money from the cash register. Hodges and his companion then forced Linda and Terry to give them their purses, containing their personal effects, and left the restaurant.

The bank bags, as well as the ladies' purses and contents, such as driver's licenses, car keys, credit cards, checkbooks and other items were recovered from Hodges' home on December 17, 1982, during a search conducted by Springfield police. At that time, the police also searched the purse of Lillie Scott, a visitor in Hodges' home, and recovered a .38 caliber over-under derringer pistol, which Hartman identified as the gun used by Hodges during the robbery. Both Hartman and Aldrich identified Hodges as one of the robbers. The evidence we have recited was sufficient for the jury to find, beyond a reasonable doubt, that Hodges was guilty of first degree robbery as charged.

In the remaining point in counsel's brief, as well as in the first point of the pro se brief, it is contended that the trial court erred in overruling Hodges' motion to suppress evidence, and in admitting into evidence, over defendant's objection, the bank bags, purses, credit cards, keys, pistol, etc., seized during the search of Hodges' home. In counsel's brief, he claims that the searches during which all of the items complained of were found, with the exception of the pistol, were illegal, as the initial search warrant, whose execution yielded evidence that provided probable cause for the subsequent warrant, was invalid because 1) it was based on "stale" information, 2) there was insufficient information to establish probable cause for the issuance of the warrant, and 3) the warrant was a subterfuge to allow officers to search for evidence of the robbery when they did not have probable cause for such a search. He also argues that the area of Hodges' home which the warrant authorized to be searched was "overly broad."

The facts pertinent to the searches and seizures in question are as follows. The robbery occurred on December 1, 1982. Sergeant Darrell Crick, head of a special police task force, received information that Hodges may have been one of the robbers. He also had learned from an informant that Hodges kept a considerable quantity of marijuana in his home located at 2235 South Ingram Mill Road in Springfield, Missouri.

On December 17, Crick applied to a circuit judge for a warrant to search Hodges' residence for marijuana. The application was accompanied by an affidavit which stated that an informant, who had previously given Crick "several bits of information that has been varified [sic] through investigation," had told Crick about being in Hodges' home on December 12, and seeing "over 40 grams of marijuana" in the living room. The affidavit further stated that several related items of information given Crick by the informant, such as the exact location of Hodges' home, the type of automobile he drove, and the identity of his live-in girl friend, had been investigated by police and found to be accurate. It also stated that the informant had previously given Crick "other drug related information which this officer knows to be true." Based on the affidavit, the judge issued a search warrant authorizing the police to search Hodges' residence for controlled substances. The warrant did not designate a specific area within the home that was to be searched.

Crick and other officers then went to the Hodges residence. Hodges, another male, two females and a child were in the house. The warrant was served on Hodges, and the search commenced. Two "grasshopper" trays containing marijuana and paraphernalia were found in the living room. Pipes and other drug paraphernalia were also found in other locations within the house. Officer Thomas Collins, while searching the kitchen cabinets, found Linda Hartman's driver's license, her J.C. Penney and Montgomery Ward credit cards, and a Ward's credit card belonging to Terry Aldrich. Collins showed Crick the items and the search for drugs was stopped and Officers Tim Medlin and Collins were sent to seek a second warrant to permit the officers to search for articles used in the Pizza Hut armed robbery.

Based on Collins' affidavit relating the discovery of the license and credit cards, the warrant was issued. Here again, no restrictions were placed on the area within the house which could be searched. A second search was then commenced and the bank bags, the women's purses, Linda's checkbook, keys, and makeup were found in a brown paper sack in the utility room of Hodges' home.

Probable cause for the issuance of a search warrant is determined by the totality of the facts and circumstances alleged in the application for the warrant and its accompanying affidavit. State v. Gilmore, 665 S.W.2d 25, 28 (Mo.App.1984). An issuing judge's determination as to what facts and circumstances constitute probable cause in a given case is accorded great deference by the reviewing court. State v. Pennington, 642 S.W.2d 646, 648 (Mo.1982). The constitution only requires that the judge called upon to issue a search warrant make a practical, common sense decision, based on the circumstances set out in the affidavit...