State v. Macke

• Decision Date: 08 January 1980
• Docket Number: No. 40311,40311
• Citation: 594 S.W.2d 300
• Parties: STATE of Missouri, Respondent, v. Ernest MACKE, Appellant.
• Court: Missouri Court of Appeals

Page 300

594 S.W.2d 300

STATE of Missouri, Respondent, v. Ernest MACKE, Appellant.

No. 40311.

Missouri Court of Appeals, Eastern District, Division Four.

Jan. 8, 1980.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Feb. 15, 1980.

Application to Transfer Denied March 11, 1980.

Gary L. Robbins, Public Defender, Jackson, for appellant.

John Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.

SATZ, Judge.

In the early morning of May 30, 1977, a burglary occurred at Urhahn's Service Station in Cape Girardeau, and during the course of the burglary, a cash register and its contents were stolen. Defendant was charged with the burglary and stealing, tried by the trial court without a jury, found guilty of each charge and sentenced to concurrent 3 year sentences. We affirm.

As grounds for his appeal, defendant contends that: (1) a pretrial hearing on his motion to suppress evidence was improperly conducted and (2) a photograph of a rent receipt for the service station was improperly admitted into evidence because (a) the rent receipt was seized from defendant's apartment by means of an invalid search warrant, (b) the rent receipt was not listed in the original return to the search warrant and the court improperly permitted the state to amend the return to include the receipt and (c) admitting the photograph of the receipt into evidence violated the best evidence rule.

The basis of defendant's first contention is § 542.296(6) RSMo 1978 which provides that in a hearing on a motion to suppress evidence:

"The burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled."

Defendant contends this section of the statute was violated because, at the hearing on his pre-trial motion to suppress evidence, the burden of going forward with the evidence and the risk of nonpersuasion was improperly placed upon him rather than the state. Defendant's argument in support of this contention is neither clear nor explicit. His complaint may be against the particular method by which the trial court permitted the state to adduce evidence and, thus, may be a complaint that he was not afforded the procedural process required by the statute; or his complaint may be that, regardless of the procedure followed, the state's evidence failed to overcome the statutory risk of nonpersuasion. On the present record, defendant cannot prevail on either ground.

Defendant's motion to suppress evidence was based upon an allegation that the evidence in question was seized under an improperly issued search warrant. At the pre-trial hearing on defendant's motion, his counsel stated, in effect, that § 542.296(6) RSMo 1978 means exactly what it says and, thus, the state had the burden of going forward with the evidence and, also, carried the risk of nonpersuasion. The state did not argue against this position and proceeded to go forward with the evidence by asking the court to take judicial notice of the application and affidavits in support of the search warrant in question as well as the search warrant itself. Defendant's counsel specifically stated he had no objection to the court taking judicial notice of these documents. The state rested. Defendant did not adduce any evidence. The court then made findings based upon the judicially noticed documents and overruled defendant's motion to suppress.

Obviously, from the procedure described, the state did assume the "burden of going forward with the evidence", and, if there would be any merit to a complaint against the state adducing evidence through the process of judicial notice, defendant specifically waived that complaint. Thus, defendant cannot sensibly complain about the trial court's procedure.

However, the real thrust of defendant's argument may be that, regardless of the method chosen to adduce evidence, the state still failed to overcome its statutory risk of nonpersuasion. If this is defendant's contention, he has failed to specifically point out and inform this court where the trial court erred. Rule 84.04(d) requires a defendant to specifically point out and explicitly state why he believes the decision complained of is erroneous. This rule applies to criminal cases. Rule 28.18. See, e. g., State v. McClain, 541 S.W.2d 351, 354 (Mo.App.1976); State v. Brown, 535 S.W.2d 606 (Mo.App.1976). Assuming that § 542.296(6) does require the state to carry the risk of nonpersuasion, ¹ we are not obliged to search the transcript and conjure up the specific grounds which may support defendant's general complaint about the state's alleged failure to overcome that risk. Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978); State v. Hulsey, 557 S.W.2d 715, 717 (Mo.App.1977).

Defendant next contends that a photograph of a rent receipt for Urhahn's Service Station was improperly admitted into evidence because the receipt was seized from defendant's apartment under an invalid search warrant. More specifically, defendant contends the search warrant was invalid because (1) the affidavits upon which the search warrant was issued contained information supplied by an anonymous female phone caller and her credibility and the reliability of her information were not established in the affidavits; (2) the affidavits contained information acquired by a prior illegal entry into and search of defendant's apartment; and (3) the affidavits failed to show the probable cause necessary to issue a valid search warrant.

Defendant failed to preserve the issue of the informant's credibility and the reliability of her information for review. Arguably, defendant may have particularized this issue in his written pretrial motion to suppress evidence. However, at trial, he did not question the admissibility of the photograph of the rent receipt on this ground but simply objected to its admission into evidence because it was "based on illegal search and seizure and illegal entry". Then, in his motion for a new trial, he merely complained about the admission of the photograph into evidence on the general ground that the photograph was the product of an unlawful search and seizure. Obviously, it was not until this appeal that defendant again raised or even mentioned the issue of the informant's credibility and reliability of her information and, thus, he did not preserve this issue for our review. E. g., State v. Ealey, 519 S.W.2d 314, 320 (Mo.App.1975). ²

Moreover, as the record indicates, it is questionable whether defendant preserved the other two grounds he now maintains invalidated the search warrant. Defendant's objection at trial, even his general reference to an illegal entry, did not necessarily call the trial court's attention to the specific grounds he presently argues on appeal. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). Furthermore, defendant did not set forth these objections in detail and with particularity in his motion for new trial as required by Rule 27.20(a). State v. Madison, 537 S.W.2d 563, 565 (Mo.App.1976); State v. Pride, 567 S.W.2d 426, 433-434 (Mo.App.1978). Nonetheless, we will address the substance of his argument that the affidavits in support of the search warrant contained information gained by a prior illegal entry and search; and, as will develop, consideration of this argument necessitates a consideration of defendant's remaining argument of an insufficient showing of probable cause to issue the search warrant. We first set out the pertinent portions of the affidavits in question.

In one affidavit presented at the pre-trial hearing, Officer Eakins, a desk sergeant of the Cape Girardeau Police Department, swore that he believed the stolen property to be at "the upstairs apartment of a dwelling house and residence of one Ernest Macke and others and commonly known as 807 William Street . . ." because the property "was stolen at approximately 0256 o'clock on May 30, 1977, from Urhahn's Service Station . . . and that a Charles Polen, a University Security Police Officer observed a white male, about 5'11 tall, wearing blue jeans, no shirt, with long brown hair and of slender build, standing at the corner of the said service station at the walkway between the main building and the garage, just prior to the stated time, when he called the Cape Girardeau Police Station". In addition, Officer Eakins swore he received an "anonymous telephone call" from a female caller at "approximately 0430 o'clock" on the same day, and the caller told him she had just "observed two white males enter the upstairs apartment at 807 William Street, one a short man about 5'1 tall and the other man . . . taller with long brown hair, both men were wearing blue jeans and no shirts". The caller also revealed that "one (man) was carrying a light colored bag and the other was carrying a large dark object, which might have been a cash register. The reason she called was because she had seen police cars running around shining their spotlights around the area and she wanted to know if they were looking for some guys." Further, Officer Eakins swore that "Ernest Macke has been identified by Officer Riley as being in said apartment on the morning of May 30, 1977. . . . . Ernest Macke (is) a known burglar and is on probation for Burglary. There have been 3 burglaries within 2 blocks of this apartment within the last 4 weeks. Ernest Macke is the approximate size described by the anonymous caller. At the time (the) officer saw Ernest Macke he was wearing blue jeans with no shirt and no shoes. The cash register taken was a large bulky object which was too heavy to carry for one person (for) a long distance. There were two sets of footprints at the scene and the apartment in question is only a block from the scene of this burglary."

In his affidavit, Officer Riley swore that he had personal knowledge of the items stated in Officer Eakins' affidavit. Further,...