State v. Lindsey, 12004
| Decision Date | 25 January 1982 |
| Docket Number | No. 12004,12004 |
| Citation | 630 S.W.2d 191 |
| Parties | STATE of Missouri, Respondent, v. Raymond "Spike" LINDSEY, Appellant. |
| Court | Missouri Court of Appeals |
James R. Wyrsch, Charles E. Atwell, Koenigsdorf, Kusnetzky, Wyrsch & Stites, Kansas City, Steven G. Gladstone, Gladstone & Matteson, Columbia, for appellant.
John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant Raymond "Spike" Lindsey was jury-tried and convicted of second degree assault (§ 565.060, RSMo 1978) on an officer of the Missouri State Highway Patrol and sentenced to a five-year prison term. We affirm.
The sufficiency of the evidence to support the jury's determination of defendant's guilt is not questioned and a brief statement of facts will suffice.
On the night of December 14, 1979, Sergeant Bill Little of the Missouri State Highway Patrol, two other members of the Patrol, the sheriff of Carter County and a deputy sheriff went to the defendant's residence for the purpose of arresting him for another offense. The contingent of officers drove to the rural home in three marked highway patrol vehicles. When they arrived, they saw the defendant emerge from a wooded area and walk toward the car Sergeant Little was driving. Defendant was carrying a shotgun and a flashlight. Little was not in uniform but got out of his car and called out twice to the defendant that he was a police officer. The defendant dropped the flashlight, cocked and aimed the shotgun at Little and said "Things are not going my way, I'm going to shoot." The officer grabbed and deflected the shotgun as it fired, the shot barely missing his head. As Little was holding the defendant with one arm and the shotgun with his other hand, the defendant attempted to draw a pistol from a belt holster. The other officers joined the fracas and subdued and handcuffed the defendant. Miranda warnings were given the defendant. En route to Van Buren the defendant stated that if things did not go his way someone was going to be killed or "wasted." At the sheriff's office, the Miranda warnings were repeated. When defendant was asked what he had intended to do with the shotgun, he told the officers "I was gonna waste you, if things didn't go my way."
Defendant sought to suppress his statements, contending they were involuntarily given. Following an evidentiary hearing, the trial court found the statements were voluntarily given and at trial the statements were received in evidence.
Defendant contends that because of a head injury he had received in an automobile collision earlier in the day and three drinks of whiskey he had consumed after the collision, coupled with the manner and method of the officers' arrival and the struggle which ensued, his statements were involuntary. We find no merit in this contention.
The statements at the scene of the arrest and en route to Van Buren were volunteered by the defendant and do not offend Miranda. State v. Olds, 569 S.W.2d 745 (Mo.banc 1978); State v. Garrett, 595 S.W.2d 422 (Mo.App.1980). Defendant had been given the Miranda warnings twice before his statement in the sheriff's office. There was no evidence the defendant was intoxicated from the three drinks. Nevertheless, intoxication does not render a statement involuntary unless it rises to the level of mania. State v. Gullett, 606 S.W.2d 796 (Mo.App.1980). Furthermore, the defendant's detailed testimony as to the events at the scene of his arrest clearly indicates to us that he was aware of and appreciated the nature and consequences of his statements, notwithstanding his alleged physical and mental condition. The point is denied.
Defendant's points concerning the selection of the trial jury were not preserved by timely objections and are not for appellate review. State v. Robinson, 484 S.W.2d 186 (Mo.1972); Thompson v. State, 569 S.W.2d 380 (Mo.App.1978).
Defendant's remaining points have been reviewed and we find no error calling for reversal.
The judgment is affirmed.
In defendant's motion for a rehearing, he states we should have considered his point concerning the selection of the jury venire because there was in fact a timely objection made or, in the alternative, the point should be reviewed under the plain error doctrine. He contends his right to a fair and impartial trial by jury was unconstitutionally tainted by the sheriff's selecting additional bystanders to make up the requisite panel because the sheriff "investigated" and testified on behalf of the state, and, consequently, his equal protection and due process rights under both the State and Federal Constitutions were violated.
First of all, the sheriff was at the scene when defendant was taken into custody but testified he did not see the assault by the defendant. The victim of the assault and other officers present testified to the defendant's pointing the shotgun, making the threatening remark, and the gun being discharged. Secondly, the sheriff's testimony as to what the defendant said en route to Van Buren and at the sheriff's office was merely cumulative to the testimony of both Sergeant Little and Trooper Selvey as to the defendant's statements after he was in custody.
Defendant was represented at trial by a St. Louis attorney of his own selection. The transcript indicates there had been some colloquy between the trial judge, the prosecuting attorney, and Mr. Harris, defendant's attorney, concerning the fact that because the sheriff was going to be called as a witness he should not be in charge of the trial jury. 1 The transcript then shows as follows:
Voir dire of the panel was conducted by the court and the attorneys and a jury of 12 selected to try the case and an alternate juror agreed upon. After the 12 jurors were sworn, the court inquired of the State and the defendant if they had anything for the record. The prosecutor and Mr. Harris advised the court they were 'ready to proceed.' The court then excused the remaining panel members and again asked:
In addition to the foregoing, the trial judge's docket sheet recites that after the sheriff had advised the court that an insufficient number of veniremen were present, that "without objection, oath administered to sheriff to summons ten additional jurors ...." (Our emphasis).
The law in this state is that a constitutional attack be made at the first opportunity and preserved at each step of the judicial process. State v. Wickizer, 583 S.W.2d 519 (Mo.banc 1979). Assuming, but not deciding, that defendant's trial attorney objected to the sheriff summonsing additional jurors because he would be a witness for the...
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...and an appreciation of the consequences of his statements irrespective of his alleged physical and mental condition. State v. Lindsey, 630 S.W.2d 191, 193 (Mo.App.1982). Defendant's age, education to the ninth grade and lack of experience in criminal matters, while entitled to consideration......
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