State v. Matney, 51063

• Decision Date: 12 November 1986
• Docket Number: No. 51063,51063
• Citation: 721 S.W.2d 189
• Parties: STATE of Missouri, Respondent, v. Charles MATNEY, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 189

721 S.W.2d 189

STATE of Missouri, Respondent, v. Charles MATNEY, Jr., Defendant-Appellant.

No. 51063.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 12, 1986.

Motion for Rehearing and/or Transfer Denied Dec. 10, 1986.

Application to Transfer Denied Jan. 13, 1987.

Charles E. Bridges, St. Charles, for defendant-appellant.

William L. Webster, Atty. Gen., Paul LaRose, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant, Charles Matney, Jr., appeals from a judgment entered on a jury verdict which found him guilty of three counts of Burglary in the Second Degree and three counts of Stealing. Defendant was found to be a persistent offender and sentenced to seven years imprisonment on each of the six counts with the sentences to run consecutively. We affirm.

In late November and early December of 1982 several business establishments in the Old Towne area of St. Charles were burglarized. Various tools and office equipment were taken. No fingerprints were found at the scene and none of the property was ever recovered. Detective Ed Janke of the St. Peters police department was assigned to investigate the burglaries. He interviewed a suspect, Gerald Ell, in November of 1983. According to Janke's testimony, Ell implicated defendant. The police, however, took no action against defendant. Almost ten months later, defendant, upon learning that he was a suspect, went to the police station to talk with Janke. He was there interviewed by both Janke and another detective, Vince Cowdry. Defendant was placed under arrest and read his Miranda rights. Both Janke and Cowdry testified that defendant orally confessed to three of the burglaries and implicated Ell in two of them. After nearly five hours of questioning, defendant was released. Janke testified that defendant was released on the condition that he provide information regarding other burglaries in the area and that he failed to do so. Defendant was again arrested.

Prior to trial, defendant filed a motion to suppress the confession. Evidence adduced at the hearing showed that defendant had retained a lawyer prior to speaking with Janke. The evidence further showed that defendant's lawyer phoned the St. Peters police department in an attempt to see his client but was erroneously told that defendant was not at the station. The trial court granted the motion to suppress but upon a subsequent motion by the prosecutor, reconsidered its ruling in light of State v. Beck, 687 S.W.2d 155 (Mo. banc 1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986), and reversed its decision.

Defendant's copious brief contains sixteen points of error which can be consolidated into three points. All points allege plain error by the trial court in not declaring a mistrial sua sponte. First, defendant sets out eleven statements made during testimony and closing argument and contends that these statements, as well their "combined effect," constitute inadmissible hearsay. Second, defendant sets out three statements made during the trial and contends that these statements are irrelevant, immaterial, and prejudicial. Third, defendant contends the trial court erred in admitting evidence of his confession.

Defendant's trial counsel did not object to the statements at trial or file a motion for a new trial as required by Rule 29.11(d). He has, therefore, failed to preserve any allegations of error for appellate review. State v. Adcox, 693 S.W.2d 111, 112 (Mo.App.1985). This court may, however, review in its discretion for plain error when it finds that "manifest injustice or a miscarriage of justice has resulted." Rule 29.12(b). The defendant carries the burden of showing that manifest injustice will result. State v. Groves, 646 S.W.2d 82, 83 (Mo. banc 1983). The plain error rule is not to be routinely invoked and is limited to circumstances in which there is a strong, clear showing of manifest injustice. State v. Jordan, 627 S.W.2d 290, 292-93 (Mo. banc 1982).

Plain error and prejudicial error are not synonymous terms. No precise method exists for determining plain error but it can be said that plain error includes prejudicial error which so substantially affects the rights of the accused that a "manifest injustice or miscarriage of justice inexorably results if left uncorrected."

State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983).

The conviction was supported by substantial and overwhelming evidence. Testimony established that defendant made a detailed confession of the burglaries which included a factually correct account of how he and his accomplices gained access to the business, how the ransacking occurred, and which items were stolen. These accounts matched the testimony given by the victims. There was also testimony that defendant hit himself on the forehead while burglarizing a safe at one of the businesses and that defendant still had a mark on his forehead at the time the confession was given. Detective Janke also testified that the same method was used in all three burglaries and that defendant and Ell lived within walking distance of the three businesses. Additionally, a witness testified that he had received threats from defendant warning the witness that his life would be in jeopardy if he testified.

Upon review of all the evidence, with due consideration given the limited scope of review, we find the first two points to be without merit. See State v. Murphy, 592 S.W.2d 727 (Mo. banc 1980); State v. Smith, 603 S.W.2d 78 (Mo.App.1980); State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972). No precedential value would be served by an extended discussion of these first two points. They are denied in compliance with Rule 30.25.

Because this court will, no doubt, be called upon to examine and distinguish Beck and because defendant's confession is a significant piece of evidence in this case, we will consider defendant's third point, that his confession was erroneously admitted into evidence, under plain error review. When a pretrial motion to suppress is filed and overruled, the defendant must, in order to preserve the issue, make a specific objection to the items when they are offered into evidence at trial. State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974). We are thus, compelled to review under the limited scope of plain error review because the defendant failed to object at trial to the introduction of the confession and also failed to file a motion for a new trial.

Defendant contends that the conduct of the police deprived him of due process when they held him without a warrant and refused to permit him to consult with his lawyer.

On November 30, 1983, defendant, upon learning that he was a suspect in the Old Towne burglaries, went to the St. Peters police station at about 1:00 p.m. to talk with Detective Janke. Defendant was arrested and read his Miranda rights. He signed a waiver form and made the alleged confession.

Ron Brockmeyer was the defendant's lawyer at this time. Brockmeyer testified at the suppression hearing to the following. He said he had been hired by defendant because defendant felt he was being harassed by the police department concerning these burglaries. On November 30, defendant's mother called Brockmeyer and told him that defendant had gone to the police station. Brockmeyer then called the station at about 1:00 p.m. and again at 1:15 p.m. and told the police that he was representing defendant. He was told defendant was not at the station. He went to court that afternoon and upon returning, called the station again at about 5:00 p.m. and spoke with Janke. He was told defendant was being questioned and that he could speak with defendant in thirty minutes. Janke testified that he did not speak with Brockmeyer or have any knowledge that a lawyer wanted to speak with defendant. The trial judge found that Brockmeyer represented defendant and that defendant was under arrest and in custody prior to the 1:15 p.m. call. The motion to suppress the confession was denied in light of Beck.

In Beck, the defendant fled the state after committing a double homicide. He phoned his mother in St. Louis and told her to get him a lawyer. She contacted a public defender who had been appointed to represent her son on pending but unrelated charges. The public defender contacted the sheriff and requested to be notified when the defendant was apprehended. The sheriff consulted the prosecutor and was told he did not have to comply with the request. A warrant was issued and the defendant was arrested at the Miami airport. The defendant was read his Miranda rights, signed a waiver, and responded affirmatively when asked if he wanted to make a statement. He was not told of his lawyer's request. The defendant made several statements after his arrest and during the flight back to St. Louis. In an attempt to suppress the statements, the defendant contended that the waiver was not knowing...