State v. Holt
| Decision Date | 01 November 1983 |
| Docket Number | No. 44232,44232 |
| Parties | STATE of Missouri, Respondent, v. Ricky B. HOLT, Appellant. |
| Court | Missouri Court of Appeals |
Robert E. Rapp, Clayton, for appellant.
John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals from jury convictions of second degree burglary and stealing a firearm. The trial court sentenced him to consecutive 15 year prison terms. We affirm defendant's conviction but reverse and remand for resentencing.
Defendant's first point, claiming error in the trial court's denial of a motion to suppress the fruits of an allegedly unconstitutional search, has not been properly preserved for appellate review. During trial, when the subject matter of the motion to suppress was introduced, defendant raised two objections relating only to the identification of the items seized. See, State v. Bryson, 506 S.W.2d 358, 360-61 (Mo.1974).
Nevertheless, we find the warrantless search took place within constitutionally permissible parameters. Officers were called to a hospital with a report a visitor was brandishing a revolver in a threatening manner toward hospital attendants and patients. Hospital officials gave a detailed description of the man and alerted officers to the fact the man kept a blue airline flight bag in his presence at all times.
When the police arrived they were directed to the room where the man was last seen. Upon entering, the police officers saw a man fitting the description they were given. A blue airline flight bag lay under his chair. One officer seized both the suspect and the flight bag and lead him from the room, away from the patients.
As soon as they were outside the patients' presence, the officer unzippered the flight bag. When he looked in he saw a blue steel .357 revolver. At that point defendant was placed under arrest for carrying a concealed weapon.
In determining whether the warrantless search of the flight bag violated the precepts of the Fourth Amendment, we conduct a dual inquiry: "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-1879, 20 L.Ed.2d 889 (1968).
The officers were called to the hospital with a report of an armed man threatening the safety of others with a gun. Therefore, the officers knew the man presented a threat to their own safety, justifying the initial seizure of the suspect and the flight bag.
Since a Terry stop was justified by the facts and circumstances presented to the arresting officers, we next consider whether the search of the flight bag violated the limits permitted by Terry. The sole rationale for a Terry search "is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officers." Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. at 1884. Such an intrusion also includes the area within the immediate control of the person frisked. United States v. Chadwick, 433 U.S. 1, 14, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977).
We find the present search analogous to the search upheld in United States v. Johnson, 637 F.2d 532 (8th Cir.1980). The arresting officers had reasonable grounds to believe defendant had engaged in criminal activity by threatening persons at the hospital. Further, the officers knew defendant to be armed and dangerous. Since the seizure and search were protective and the scope of the search limited, the intrusion under the circumstances was reasonable. Id.
Defendant urges reversal in his second point due to the trial court's refusal to suppress a confession defendant claims was involuntary. While defendant testified as to threats and coercion surrounding his confession, substantial evidence indicated the confession was made freely. The determination of voluntariness is a question of fact for the trial court to make. State v. Kimball, 613 S.W.2d 932, 943 (Mo.App.1981). Since the trial court's finding is supported by sufficient evidence, it will not be disturbed on appeal. State v. Greathouse, 627 S.W.2d 592, 595 (Mo.1982).
Pursuant to defendant's pretrial motion, the trial court excluded any testimony concerning certain stolen items obtained as a result of an illegal search of defendant's girlfriend's bedroom. At trial the prosecutor asked a sheriff why he had contacted the girlfriend. The sheriff replied, "[w]e had found some items at her property removed from the [victim's] residence and I wanted to ask her if she had any knowledge of that being there." Defendant immediately objected, requesting a mistrial for a violation of the pretrial order.
The trial court sustained defendant's objection, but assigned as its reason the unresponsive nature of the sheriff's answer. The trial court denied the motion for a mistrial.
While mistrial is an appropriate remedy in certain circumstances for violations of pretrial orders, the remedy is a drastic one reserved to the sound discretion of the trial court. This court will not reverse a trial court's exercise of its discretion absent a showing of clear abuse and substantial prejudice resulting to the defendant depriving him of a fair trial. We note from the record defendant did not request the objectionable testimony stricken or for the jury to be instructed to disregard it. Since defendant chose to stand on the harsh and stringent remedy of mistrial rather than requesting other curative action, we cannot say the trial court abused its discretion in assessing the prejudice to defendant and declining to declare a mistrial. See State v. Carter, 641 S.W.2d 54, 60 (Mo. banc 1982).
Defendant, under the same point, also complains about the victim testifying as to items of jewelry found missing following the burglary. In so arguing, defendant misconstrues the trial court's pretrial ruling. The order did not forbid...
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Bohlen v. Caspari
...Missouri precedent similarly lacks foundation. On direct appeal after resentencing, the appellate court relied on State v. Holt, 660 S.W.2d 735, 739 (Mo.Ct.App.1983) and State v. Lee, 660 S.W.2d 394, 399 (Mo.Ct.App.1983) (per curiam), for the proposition that double jeopardy is not implicat......
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Caspari v. Bohlen
...as a persistent offender no proof was made of the prior convictions." Id., at 123. Following Missouri practice, see State v. Holt, 660 S. W. 2d 735, 738-739 (Mo. App. 1983), the court remanded for proof of those convictions and On remand, the State introduced evidence of four prior felony c......
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State v. Pate
...held that the argument was not improper. To similar effect see State v. Williams, 747 S.W.2d 635, 638 (Mo.App.1988); State v. Holt, 660 S.W.2d 735, 738 (Mo.App.1983). Defendant's second point has no Defendant's third point is that the trial court violated his right to a fair trial "in permi......
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State v. Kriebs, 21909
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