State v. Lachterman

• Decision Date: 28 May 1991
• Docket Number: No. 55615,55615
• Citation: 812 S.W.2d 759
• Parties: STATE of Missouri, Respondent, v. Michael LACHTERMAN, Appellant.
• Court: Missouri Court of Appeals

Page 759

812 S.W.2d 759

STATE of Missouri, Respondent, v. Michael LACHTERMAN, Appellant.

No. 55615.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 28, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 23, 1991.

Application to Transfer Denied Sept. 10, 1991.

Irl B. Baris, St. Louis, for appellant.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

Defendant appeals his conviction on two counts of sodomy of a minor boy in violation of § 566.060 ¹ and sentence as a prior and persistent offender under § 558.016 and 558.018 to two consecutive thirty-year sentences.

On April 17, 1987, Lonnie, then eleven years old, introduced defendant to Shaun, then nine years old, and his cousin Gary, then ten years old. Shaun, Gary, and Lonnie got into defendant's car together at a Kroger's lot. They were joined by Junior and Jerry. Junior, Jerry, and Lonnie were let off at a movie theater. Defendant drove Shaun and Gary around and then parked in a school parking area. After getting out of the car, Gary climbed on a roof and defendant and Shaun descended a ramp into a basement area where defendant sodomized Shaun. Defendant returned Shaun and Gary to the Kroger's lot, gave Shaun two twenty dollar bills, and let the boys out.

On April 18, 1987, defendant again picked up Shaun and Gary at the Kroger's lot. Lonnie, Junior, and Jerry joined them in the car but were dropped off at Sears. Defendant drove Shaun and Gary to the zoo, to a shopping area, and then to his house where he sodomized both Gary and Shaun. Another man arrived at defendant's home during this period. When defendant returned the boys to the Kroger's lot he gave forty dollars to each boy but yanked the bills away after he saw Gary's mother.

An indictment issued December 1, 1987 charged defendant with two counts of sodomy in violation of § 566.060, punishable under § 558.011.1(2), in that defendant had deviate sexual intercourse in St. Louis City with Shaun on April 17, 1987. The second count contained identical language. On January 7, 1988, a substitute information in lieu of indictment was filed which added provisions that defendant was a prior and persistent sexual offender under § 558.016 and § 558.018.

A jury found defendant guilty of both counts on August 10, 1988. Defendant was sentenced on each count to consecutive terms of thirty years without probation or parole to run concurrently with sentences imposed in St. Louis County. Defendant filed a timely appeal.

CONTINUANCE

In his first point, defendant contends the trial court erred when it refused to grant his August 8, 1988 motion for a continuance to locate a defense witness, the man who had been at the house on April 18. Defendant asserted this witness would corroborate his testimony that the boys had been sodomized for money on April 17 by someone else.

Rule 24.10 regulates a motion for continuance due to an absent witness. A trial court's ruling on a motion for continuance Trial was originally set for February 16, 1988. By the time the trial court denied a continuance on August 8, 1988, it had already granted three defense motions for continuance: February 15, 1988, April 14, 1988, and July 5, 1988. In view of the efforts that had been undertaken to find the witness, including a search by a private investigator, the trial court could reasonably conclude the missing witness would not be found. The trial court did not abuse its discretion when it denied a fourth continuance.

will not be reversed on appeal unless the proponent makes a strong showing that the court clearly abused its discretion. State v. Nave, 694 S.W.2d 729, 735 (Mo. banc 1985), cert. denied 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 901 (1986); State v. Brown, 762 S.W.2d 471, 475 (Mo.App.1988). In ruling on the motion, the trial court may consider the probability that the witness will not be found. State v. Wade, 711 S.W.2d 523, 531 (Mo.App.1986). The trial court does not abuse its discretion if a continuance probably would not result in the presence of the witness at trial. State v. Leigh, 621 S.W.2d 515, 517 (Mo.App.1981).

SEARCH WARRANT

Defendant's second point asserts the trial court erred by admitting into evidence exhibits seized as a result of a search warrant unconstitutionally broad in its scope and issued without probable cause. U.S. Const. amend. IV; Mo. Const. art. 1, § 15.

"A warrant may be issued to search for and seize ... any of the following: [p]roperty, article, material, or substance that constitutes evidence of the commission of a criminal offense." § 542.271.1(1) Section 542.276 sets out the procedure, form, and contents required for a valid application, affidavit, and search warrant.

A judge must first determine that probable cause exists, State v. Johnson, 677 S.W.2d 330, 332 (Mo.App.1984), from the totality of the circumstances. State v. Gardner, 741 S.W.2d 1 (Mo. banc), cert. denied, 486 U.S. 1025, 108 S.Ct. 2001, 100 L.Ed.2d 232 (1987) (citing the test enunciated by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 545 (1983)):

The task of the issuing magistrate is simply to make a practical, common sense decision whether given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Gardner, 741 S.W.2d at 7; State v. Holland, 781 S.W.2d 808, 812 (Mo.App.1989).

Given all the circumstances in this case, we have no hesitancy in finding a substantial basis for the conclusion of the associate circuit judge that probable cause existed for the issuance of the search warrant. "A substantial basis for believing hearsay is established if the affidavit shows that the informant gleaned the information through personal observation and if the informant's statement are corroborated through other sources." State v. Ambrosio, 632 S.W.2d 262, 265 (Mo.App.1982). Here, the affidavit supporting the application was based upon the personal observations of not one but two of defendant's victims. That they were victims rather than mere uninvolved informants further reduces the concern over reliance upon a reckless or prevaricating tale. Plant v. State, 781 S.W.2d 245, 246-47 (Mo.App.1989).

We detect considerably more substance in defendant's argument that the warrant, authorizing a search for and the seizure of "pornographic material, controlled substances, and instrumentalities of the crime of sodomy" lacks sufficient detail and particularity.

A search warrant must "[i]dentify the property, article, material, substance ... to be searched for and seized, in sufficient detail and particularity that the officer executing the warrant can readily ascertain The phrase "instrumentalities of the crime of sodomy", rather than constituting a sufficiently particularized description of property subject to seizure, opens the door to the exercise of unfettered discretion on the part of the officers executing the warrant. Although we readily concede our lack of expertise in the subject, we read the State's suggestion that the phrase encompasses devices which might be used by a sodomist for sexual gratification as constituting an overly broad generalization limited only by stretches of individual imagination. The seizure in this case of such objects as women's undergarments and children's size tennis shoes demonstrates the breadth of the officers' interpretation of the warrant's language.

it[,]" § 542.276.6(4), or be deemed invalid. § 542.276.10(5). A "search warrant must leave nothing to the discretion of the officers who execute it, but rather must contain a clear command." State v. Munson, 714 S.W.2d 515, 523 (Mo. banc 1986), citing Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). A court reviewing the validity of a search warrant must consider "whether the items were sufficiently described so that an exercise of judgment respecting the items to be seized is not arbitrary ... and left to the caprice of the police conducting the search." State v. Flauaus, 515 S.W.2d 873, 877 (Mo.App.1974).

We find a similar deficiency in the term "pornographic material." As was noted in State v. Watson, 715 S.W.2d 277 (Mo.App.1986), the use of a generic term to describe the subject matter of a search warrant does not cause the warrant to be invalid per se. Id. at 280. However, the validity of such a warrant generally depends upon the existence of "objective, articulated standards" by which the officers can distinguish between those items subject to seizure and those that are not, id, quoting from U.S. v. Pollock, 726 F.2d 1456, 1466 (9th Cir.1984), and circumstances do not permit the officers to provide a more detailed and specific description. State v. Johnson, 677 S.W.2d 330, 331 (Mo.App.1984). Neither of these conditions is present here.

In view of the debate which has persisted in our judicial system for decades and in our society for centuries over what is and what is not pornographic, that adjective can hardly be said to establish an objective, articulated standard. What one searching officer may view as pornographic another may consider a work of art. This element of subjectivity caused the quashing of a search warrant directing the seizure of "obscene, lewd, licentious, indecent or lacivious" articles in In re Search Warrant of Property, etc., 369 S.W.2d 155, 158 (Mo.1963) because of the absence of any directions in the exercise of discretion as to what constituted an obscene article. See also, Marcus v. Search Warrants of Property, etc., 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961).

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