State v. Linder

• Decision Date: 13 March 1967
• Docket Number: No. 52276,No. 2,52276,2
• Parties: STATE of Missouri, Respondent, v. Orville Hubert LINDER, Appellant
• Court: Missouri Supreme Court

Page 412

412 S.W.2d 412

STATE of Missouri, Respondent, v. Orville Hubert LINDER, Appellant.

No. 52276.

Supreme Court of Missouri, Division No. 2.

March 13, 1967.

Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Glen C. Schomburg, Sp. Asst. Atty. Gen., Kirkwood, for respondent.

BARRETT, Commissioner.

Charged with burglary in the second degree (RSMo 1959, § 560.070, V.A.M.S.) and a prior felony conviction (RSMo 1959, § 556.280, V.A.M.S.), a jury found the appellant Orville Linder guilty as charged and, after a hearing on allocution, the court fixed his punishment at seven years' imprisonment.

His first point is that the court erred in permitting the state to amend the information 'after trial commenced to change the allegation that appellant had previously been convicted in Jackson County to an allegation that he had been previously convicted in Polk County.' In short, in charging a prior felony conviction of grand stealing the state had alleged that the conviction was in Jackson County, the fact was that this particular conviction was in Polk County, not Jackson, and accordingly, the state asked and was given permission to amend the information by striking out the word 'Jackson' and interlining the word 'Polk.' There would be no point to elaborating on his claim that this amendment violated both his constitutional right to know and 'demand the nature and cause of the accusation' (Const.Mo.1945, Art. 1, § 18(a), V.A.M.S.) and the rule and statute permitting amendments 'if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.' Criminal Rule 24.02, V.A.M.R.; RSMo 1959, § 545.290, V.A.M.S., and see RSMo 1959, § 545.030, V.A.M.S. On more than one occasion it has been held that the state may amend an information and for the first time allege a prior felony conviction, State v. Wilson, Mo., 349 S.W.2d 934; State v. Ninemires, Mo., 306 S.W.2d 527. And as long ago as 1922, upon a charge of shooting craps, even after the jury had been empanelled and a witness sworn, it was held not to be erroneous or prejudicial to permit an amendment to the information inserting the name of the county. State v. Wright, Mo.App., 236 S.W. 395; State v. Flores, 332 Mo. 74, 55 S.W.2d 953. In addition when against the advice of his lawyer the appellant insisted on testifying he admitted five prior felony convictions in at least three states, he wanted to 'stipulate I have got a bad record. I have done a lot of time, but I can tell the truth.'

The appellant's second point is that in violation of his rights under the Fourteenth Amendment and Art. 1, Sec. 10, Constitution of Missouri, his 'conviction was based in part upon the admission in evidence of alleged oral statements made by appellant to police officers, said statements having been coerced, involuntary and the results of threats, therefore requiring a reversal of said conviction.' (Emphasis supplied, particularly for future reference.)

This claim of coerced 'statements' and invasion of constitutional safeguards is made in the face of these incontrovertible facts and circumstances: Edward Morgan is the principal owner of the Morgan Supply Company, a wholesaler in plumbing supplies, 903--905 Truman Road and 1509--15 Campbell Street. He had been on a month's vacation and on September 19, 1964, a day when the business was closed, he went 'down there Saturday morning, quiet, and was trying to clean up my work.' Because of prior burglaries an 'electronic eye' burglar system, with an alarm on the outside of the building, had been installed. While Morgan was working in his second-floor office, about 4:30 in the afternoon, the burglar 'siren' went off. His desk was near the stairwell and when he looked down the stairway he 'saw this man (the appellant Linder) down at the bottom of the stairway in the electric eye.' And he said 'wihout giving it a second thought, I run downstairs and grabbed him, and pulled him away from the electric eye and twisted his arm up behind his back, and I marched him upstairs and called the police.' And, 'while I had his arm twisted behind his back there, I asked him then what he was doing in the building, and he said he was in there to open the doors to let somebody in with a truck to take some material out of there.'

The first officers to arrive were two patrolmen, Mr. Morgan had Linder 'in custody' so they handcuffed him and without investigating 'placed him in the wagon.' Officer Reed of the burglary unit arrived in a few minutes, 'introduced myself to the defendant,' took him out of the paddy wagon and, before anything and all else, 'told him that since this case would probably be going to court he didn't have to tell me anything about what had happened or what he did unless he wanted to, and it was his right to a lawyer if he so desired. * * * I told him that it was his right to call a lawyer, and that he didn't have to tell me anything, and that since this case was going to court, anything he told me could be used up there against him. I could use it against him.'

They returned to the building and Officer Reed continued, all without a single objection by counsel experienced in criminal law, 'I said there is a few things I would like to know, especially how you got in here, into the place, and what you intended to do. He told me that he first started to go through the window, the back window off the roof to get into the place, but there was iron bars across the window, and he decided this would be a little too hard so he tore a hole in the boards next to the window; that he went in and dropped down onto some pipes, then went over and pried a bar off the inside of the front door and turned the snap-type lock on the inside of the door to allow it to be opened from the outside. Then he went over to the overhead door just north of this front door, and as he was standing just inside the door he set off the alarm, which is a siren, a siren-type alarm outside. And he told me that there was--his partner by the name of Biddie, he didn't know his full name. * * * He said that his partner had dropped him off there, and that his partner was supposed to take his car to the area of 30th and Harrison and pick up a truck and bring it back to 1509 Campbell, and they were going to load the truck with the materials, and that they were supposed to split whatever they got for these materials.'

Prior to Saturday the doors and windows had been locked and the building made secure, and investigation revealed that where the back of the building dropped 'down to a one-story building' there was an 'up-and-down place along the back side of the building approximately four feet high, and there had been a hole torn out of this.' Mr. Morgan described the hole as 'three foot by three foot,' large enough to admit a person, and as to Linder, he said, 'I don't know how he come in, except there was a hole in the roof.' Officer Reed said that Linder took him around to the south side of the building and pointed out how he had climbed up a pipe onto the one-story roof and then through the hole which he described as sixteen by sixteen inches. The police found a pinch bar, 'strange' to Morgan, near the front of the building.

Upon this evidence the state rested its case. Only Officer Reed testified to any 'statements' or oral admissions by Linder, there was no written statement and none was requested. The only patrolman who testified, Hannah, did not testify to any incriminating statements by Linder and there was no indication in defense counsel's cross-examination that there was to be a claim of threats or of coerced 'admissions' or 'statements.' On cross-examination Officer Reed again said that he advised Linder of his right to remain silent and to counsel. He said that Linder was already under arrest and handcuffed when he arrived, he did not remove the handcuffs and was there and talked to him 30 to 45 minutes. The only questions germane to the claim of coerced statements were these:

'Q. So his hands were like this (indicating), handcuffed in back of him?

'A. Yes.

'Q. Did any other officers accompany you and this defendant on his tour of showing you around?

'A. The other officers were in and around the building.

'Q. But they were not with you?

'A. No, they didn't go with me, specifically.

'Q. In your presence, Detective Reed, were any threats of violence or anything else made against this defendant if he didn't confess?

'A. No.

'Q. You, of course, Didn't make any threats of this kind, did you? A. No.'

There was no request to examine Officer Reed preliminarily to inquire into the circumstances in which he conducted his investigation. These were the only questions or other indication that there was to be a claim of coerced 'statements.' As stated, throughout the trial there was no objection to Reed's testifying to Linder's oral statements or admissions and except as may be inferred from the cross-examination no claim of coercion or improper invasion of the right to remain silent. In short, up to this point in the trial, that is at the conclusion of the state's evidence, there was no direct claim by appellant's counsel of coerced admissions or the invasion of any constitutional right and there was no evidence from which it was a fair or permissible inference that there had been any threats or coercion, either physical or psychological, that would require the court as a preliminary matter to consider and determine whether any statements Linder may have made to Reed were voluntary or involuntary.

In support of his assignment of error with respect to involuntary 'oral statements' the appellant cites and relies upon State v. Williams, Mo., 369 S.W.2d 408; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Stroble v. State of California, 343...