State v. Kleypas

• Decision Date: 10 July 1980
• Docket Number: No. 10838,10838
• Citation: 602 S.W.2d 863
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gary Wayne KLEYPAS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 863

602 S.W.2d 863

STATE of Missouri, Plaintiff-Respondent, v. Gary Wayne KLEYPAS, Defendant-Appellant.

No. 10838.

Missouri Court of Appeals, Southern District, Division Two.

July 10, 1980.

Motion for Rehearing or for Transfer Denied July 30, 1980.

Application to Transfer Denied Sept. 9, 1980.

Devon F. Sherwood, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Lisa M. Camel, Edward F. Downey, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The 21 year old defendant was charged with having committed a capital murder on January 23 or 24, 1977. He entered a plea of not guilty and gave notice of his intent to rely upon the defense of mental disease or defect. He was permitted to waive trial by jury. While the defendant introduced evidence tending to establish the same, the trial court found that the evidence did not establish mental disease or defect excluding responsibility. The trial court further found the defendant's actions in killing the victim were the result of prolonged and excessive use of drugs coupled with excessive consumption of alcohol the night in question. The defendant was found guilty of second degree murder. The trial court, mercifully expressing a hope of rehabilitation, sentenced the defendant to 30 years' imprisonment. The defendant appeals. The sufficiency of the evidence is not in question. Only a brief summary of the facts is required to cast the background of the two points of error asserted by the defendant.

The 78 year old victim lived alone in her home. She was known to have been alive on the evening of January 23, 1977. At approximately 8:00 a. m. on January 24, 1977, her body was discovered by her daughter. The sheriff was called and arrived within a few minutes. After an investigation in the home, the sheriff turned his attention to the footprints in the fresh snow leading to and going away from the back door of the victim's home. These were the only footprints leading to and going away from the home. The footprints had been made by boots which left a distinctive track in the snow. The defendant lived with his parents a short distance from the home of the victim. When the parents retired at approximately 11:00 p.m. on the 23rd, the defendant was writing a letter. He was drinking orange juice which, unknown to them, was mixed with vodka. The defendant testified and stated that although he awoke in the morning in his bed, he did not recall going to bed that night. The footprints led from the back door of the home of the defendant to the home of the victim and from the home of the victim to the back door of the home of the defendant. The stride of the footprints coming to the home of the victim was 30 inches, while the stride of the footprints going from the home of the victim was 60 inches. The sheriff followed these footprints to the back door of the home of the defendant. Along the route, he found a vodka bottle in the disturbed snow containing only a trace of vodka. The defendant admitted the vodka bottle was his.

The details of what happened at the home of the defendant are the subject of a conflict in the evidence. The sheriff did enter that home and took into his possession a pair of the defendant's boots. The configuration on the soles of these boots was shown to match the tracks in the snow. The defendant's first point is that the court erred in admitting these boots in evidence. He further contends that without these boots the sheriff had no probable cause to arrest defendant. Therefore, he continues, the court also erred in not suppressing as the fruit of the poisoned tree, evidence of the defendant's hair samples and dental impressions taken from him after he was arrested and placed in county jail. The defendant's hair samples were shown to match hair samples taken from the victim's body. The "bite test", based upon the defendant's dental impressions, is the subject of the defendant's second point of error and will be later discussed.

It is conceded that when the sheriff arrived at the back door of the defendant's home he knocked. The defendant's mother answered that knock. She testified that when she saw the vodka bottle he was carrying in his hand, she asked what the trouble was and the sheriff replied that he had found a bottle on the railroad tracks. The sheriff then asked if her husband was at home. She replied: "I said that my husband was in a wheel chair and he asked if there was any other person there and I said that (defendant) was there, and I told him I would go get (defendant), and my husband had come into the kitchen by then and the sheriff came in when I went to call (defendant)". She further testified that when she turned to call the defendant, the sheriff, without invitation, entered the kitchen. At that point the defendant had also entered the kitchen. The sheriff then asked the defendant if he had any boots and if he could see them, to which he replied, "Sure". Defendant then turned and went to his bedroom, followed by the sheriff. The defendant and his parents testified the sheriff also went into the bedroom and later reappeared carrying the vodka bottle and the defendant's boots. The defendant testified he first showed the sheriff a pair of cowboy boots and the sheriff asked "if I had any other boots". The defendant said he then picked up the boots in question and the sheriff grabbed them from him. On the other hand, the sheriff testified that when the mother answered the door, he identified himself and told her he was concerned about the footprints coming from and to her residence; he then asked if her husband was at home and she replied that he was and she told him he could come in and talk to her husband and opened the door for him. The sheriff then stepped in and saw the husband had one leg amputated and was in a wheel chair. He then asked if any other males lived at the residence and was told the defendant did. About that time the sheriff looked up and saw the defendant standing in a doorway. The sheriff was acquainted with the defendant and asked him if he wore boots. The defendant replied that he did and in response to the sheriff's question, further replied that the sheriff could look at them. Then the defendant went into his bedroom and handed the sheriff, who was standing just outside the door, a pair of cowboy boots. The sheriff then asked if he had other boots and the defendant picked up the boots in question and handed them to the sheriff. The sheriff noticed the boots were damp and he examined the soles and determined they were compatible with the footprints in the snow. At that point the sheriff asked the defendant to go with him to the office, which the defendant did. Upon arriving at the office, the sheriff formally arrested the defendant and placed him in the county jail.

The defendant does not contend that the sheriff, upon seeing the boots that constituted material evidence, could not seize that evidence. State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978), cert. den. 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). He does contend the manner in which those boots came into view constituted an unreasonable search and seizure condemned by the Fourth Amendment to the Constitution of the United States and § 10 and § 15 of Article I of the Constitution of Missouri. Without deciding that the preliminary action of the sheriff constituted a search or a seizure, see State v. Howell, 524 S.W.2d 11 (Mo. banc 1975); Deckard v. State, 456 S.W.2d 35 (Mo.1970), the defendant's contention will be determined on that basis. The defendant acknowledges that a voluntary consensual search and seizure is not condemned by the cited constitutional provisions. However, he contends the state did not establish a search and seizure by voluntary consent, but only acquiescence to the authority of a law enforcement officer citing Bumper v. North Carolina, 391 U.S. 453, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Commonwealth v. Dixon, 226 Pa.Super. 569, 323 A.2d 55 (1974). He also contends a voluntary consent is not established because the sheriff did not advise the defendant and his parents he was investigating a homicide and of the right to refuse him entry and the right to refuse to produce the boots. He goes on to contend that even if there was a voluntary consent for the sheriff to enter the house, there was none for him to enter the defendant's bedroom.

Whether or not there was a voluntary consent is to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Rush, 497 S.W.2d 213 (Mo.App.1973). That consent may be implied as well as express. United States v. Turbyfill, 525 F.2d 57 (8th Cir. 1975); State v. Berry, 526 S.W.2d 92 (Mo.App.1975). That determination is dependent on "many factors including but not limited to the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether the person was already in police custody, whether there was any fraud or misleading on the part of the officers, and the evidence as to what was said and done by the person consenting." State v. Rush, supra, 497 S.W.2d at 215. Where there is a conflict in the testimony, it is the function of the trial court to determine the credibility of the witnesses and resolve such conflicts. State v. Sayles, 579 S.W.2d 748 (Mo.App.1979). The testimony of the sheriff which the trial court was entitled to believe, established that he did ask and was granted permission to enter the home. It established that he asked to see the boots in question and they were handed to him. The sheriff was alone. He made no threats. Even according to the defendant and his parents, the language of the sheriff was precatory. The consents to the sheriff's requests were expressly and freely given. These factors and others distinguish this case from State v. Witherspoon, 460 S.W.2d 281 (Mo.1970). See State v....