State v. Lacy, s. 59658

• Decision Date: 02 March 1993
• Docket Number: 61817,Nos. 59658,s. 59658
• Citation: 851 S.W.2d 623
• Parties: STATE of Missouri, Respondent, v. Michael T. LACY, Appellant. Michael T. LACY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 623

851 S.W.2d 623

STATE of Missouri, Respondent, v. Michael T. LACY, Appellant.

Michael T. LACY, Appellant, v. STATE of Missouri, Respondent.

Nos. 59658, 61817.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 2, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 31, 1993.

Application to Transfer Denied May 25, 1993.

David C. Hemingway, St. Louis, for appellant.

William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

Michael T. Lacy, appellant, appeals his jury convictions in the Circuit Court of St. Louis County for Robbery in the First Degree, § 569.020 R.S.Mo.1986 (all further references shall be to R.S.Mo.1986 unless otherwise noted), and Armed Criminal Action, § 571.015, for which he was sentenced to consecutive terms of ten years and five years respectively. He also appeals the denial of his post-conviction relief (Rule 29.15) motion.

On appeal, appellant claims the trial court erred in (1) denying his motion to suppress physical evidence and his post-arrest confessions because these items were seized in violation of his fourth amendment right against unreasonable searches and seizures; (2) precluding the defense from asking venire members during voir dire whether they could follow MAI-CR 3d 310.06 to first determine if a confession was voluntary and to disregard it if they found it was not; (3) denying his Batson challenge to two of the state's peremptory jury strikes; (4) denying his motion to quash the venire panel after certain statements by a venireperson during voir dire. Appellant also claims the motion court erred in denying an evidentiary hearing on his Rule 29.15 motion because the record does not clearly refute his claim that trial counsel was ineffective. We affirm.

Appellant does not contest the sufficiency of the evidence so we briefly review the evidence in a light most favorable to the verdicts. On June 6, 1989, at approximately 2:40 a.m., appellant entered a Majik Market wearing a blue shirt with white stitching and blue jeans. He also wore a nylon stocking with a knot in it on his head covering his face. Armed with a knife, he ran behind the counter and told the two employees to give him all the money or he would kill them. He then took paper currency and rolled coins from the cash register and the safe, and told the employees to lie on the floor for half an hour after he left, while threatening to kill them if they did not comply with his demands. The police, called by the clerk at the gas station next door, arrived approximately thirty seconds or a minute after appellant left the store. After interviewing witnesses, St. Louis County Police Officers Leonard Eckstein and John Newsham conducted a search on foot towards an apartment complex on a route they thought that appellant possibly would have taken. After finding nothing, the officers were ready to leave the apartment complex when they heard an argument coming from an upstairs window of an apartment. The officers stood under the window listening, and heard an argument between a male and a female but were unable to determine the gist of the argument. They were, however, able to discern that the female used the words "robbery" and "little Mike" in the same sentence, and that the male also used the word "robbery". After the argument ceased, the officers began to walk around to the front of the apartments in order to determine from what address the argument had come. After turning the corner to go around to the front of the apartments, the police noticed appellant walking towards them. When appellant saw the officers, he suddenly stopped and quickly walked into the same apartment from which the argument had been heard. The officers knocked several times and, after a while, appellant answered the door. Officer Eckstein spoke with appellant while Officer Newsham went back to the robbery scene to summon Detectives Edward Vitt and Michael Jones. Eventually, consent for a search of the apartment was obtained from appellant's mother, Mrs. Lacy, the lessee, and the apartment was searched. Pursuant to the search, the police found a wad of paper money between the mattress and box spring of the bed in the room in which appellant was staying. They also found, in a closet near the front door, a nylon stocking with a knot in it, a blue shirt with white stitching, a pair of blue jeans, and rolls of coins. The stocking, the shirt, the blue jeans, and the coin rolls were all taken back to the scene and identified by the victims as the clothing worn and coin rolls taken in the robbery. These items were also positively identified at trial as the clothing worn and money taken in the robbery. Appellant was subsequently arrested, gave a confession implicating himself as perpetrator of the robbery, and also walked through a reenactment of the crime with police. After a three-day trial, at which the items seized and the tape-recorded confession were admitted in evidence, the jury returned verdicts of guilty.

Appellant's first point is that the trial court erred in overruling his motion to suppress the items of evidence seized from Mrs. Lacy's apartment and the post-arrest confessions made by appellant because they were obtained pursuant to an illegal search in that the consent by Mrs. Lacy for the search was fraudulently obtained. Appellant contends that the reason for the search given by the police to Mrs. Lacy was pretextual because they told her they were looking for a radar detector stolen days before, and did not tell her of their intent to search for evidence of the Majik Market robbery until after she had consented to the search of her apartment for the radar detector.

Appellant's motion to suppress was heard and denied by the trial judge in Division 6 of the Circuit Court of St. Louis County. His subsequent motion for rehearing was also denied. Prior to trial in Division 9, appellant made a supplemental motion to suppress. Defense counsel and the prosecutor related to the court the procedural background of the motion to suppress, and also summarized the evidence adduced at the prior hearing. Further, Mrs. Lacy testified, and portions of the police reports relating to the search were admitted in evidence. The supplemental motion to suppress evidence and statements was denied.

Ordinarily, a ruling on a pre-trial motion to suppress may not be asserted as a ground of error on appeal because the pre-trial motion to suppress and the admission at trial of the challenged evidence are not two distinct procedures. State v. Vinzant, 716 S.W.2d 367, 372 (Mo.App.1986). The real damage is not done until the evidence is introduced in the trial of the case. Id. Here, however, objections at trial to admission of the items seized and appellant's statements were made based upon the search and seizure issues previously put before the trial court in the pre-trial motion to suppress. Therefore, we shall refer to the pre-trial motion proceedings to determine the propriety of the trial court's admission of the evidence.

Consensual searches conducted without a search warrant do not violate the Fourth Amendment so long as the consent to search was voluntary and not the product of duress, coercion or fraud. State v. Brown, 814 S.W.2d 304, 307[4-6] (Mo.App.1991). The voluntariness of the consent to the search is a question of fact to be determined from all the circumstances. State v. Morr, 811 S.W.2d 794, 797[2-4] (Mo.App.1991). The burden of going forward with the evidence and the risk of nonpersuasion is upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled. § 542.296.6; Brown, at 307[4-6]. In reviewing the trial court's ruling, we look only to determine whether the evidence was sufficient to support it. State v. Thompson, 820 S.W.2d 591, 594[6, 7] (Mo.App.1991). We consider all facts and reasonable inferences favorable to the challenged order and disregard contrary evidence and inferences, if the evidence is otherwise sufficient to support the trial court's ruling. Brown, at 307[1-3]. We also defer to the trial court's superior opportunity to determine the credibility of the witnesses and the weight of the evidence. Id.

At the first hearing on the motion to suppress, Officer Newsham testified that after speaking with appellant and learning his name, he recognized it as the name of the person who was suspected of stealing a radar detector from a car in the very same apartment complex. He testified he had been informed that fingerprints lifted from the car from which the radar detector was taken matched those of Michael Lacy. Upon making the connection, Officer Newsham spoke with Mrs. Lacy and informed her that he was interested in appellant for the radar detector larceny, and that he had reason to believe he did hide a radar detector in her house. Mrs. Lacy then gave consent to search her apartment by signing and indicating she understood a St. Louis County Police consent to search form, witnessed by Officer Newsham and Detective Jones. Officer Newsham testified he was in fact looking for the radar detector, that he never told Mrs. Lacy he was looking for evidence of a robbery, but that Detective Vitt came in the room as Mrs. Lacy was completing or signing the form and informed her that he would like to conduct a search for evidence of a robbery.

Detective Vitt testified that he entered the room when Officer Newsham was going through the consent to search form with Mrs. Lacy, and that he asked several questions about the argument overheard by Officers Newsham and Eckstein. He then left the room to speak with appellant and a cab driver who had been dispatched to Mrs. Lacy's address. When he came back in he told Mrs. Lacy that he thought her son possibly was involved in the robbery due to some of the statements he had given, and asked if he could search the premises for evidence. Mrs. Lacy consented to...