State v. McGee

• Decision Date: 06 September 1988
• Docket Number: No. WD,WD
• Citation: State v. McGee, 757 S.W.2d 321 (Mo. App. 1988)
• Parties: STATE of Missouri, Respondent, v. Dennis McGEE, Appellant. 39859.
• Court: Missouri Court of Appeals

Page 321

757 S.W.2d 321

STATE of Missouri, Respondent, v. Dennis McGEE, Appellant.

No. WD 39859.

Missouri Court of Appeals Western District.

Sept. 6, 1988.

Daniel L. Radke, Public Defender, St. Joseph, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, P.J., and LOWENSTEIN and FENNER, JJ.

CLARK, Presiding Judge.

Appellant Dennis McGee was convicted of assault in the first degree. He was found to be a prior and dangerous offender and was sentenced by the court to a term of thirty years. Appellant raises five points of alleged trial error, but he makes no challenge to the sufficiency of the evidence. The facts will therefore be stated with brevity.

On the evening of March 26, 1986, one Christopher Courtin was drinking in a tavern in St. Joseph. Among persons observed to be with Courtin was appellant. Courtin left the tavern before midnight in a highly intoxicated state. Some distance from the tavern, Courtin was attacked, beaten, cut with a knife and robbed. Although Courtin was unable to describe or identify his attacker, a witness who lived near where the assault occurred was alerted by the barking of his dog and he went outdoors while the encounter was still in progress. The witness identified appellant as the assailant. Clothing which appellant had worn the night in question was recovered from appellant's home and was found to be bloodstained.

In his first point, McGee contends the trial court erred when it failed to suppress the evidence consisting of the clothing worn by appellant the night of the crime. He asserts the evidence was the product of an illegal search of and seizure from his residence made without a warrant. We conclude that because the clothing was voluntarily delivered to the police by appellant's wife, there is no merit to the point.

The facts relevant to acquisition of the evidence are as follow. On the day following the assault upon Courtin, four or five detectives from the St. Joseph Police Department went to appellant's home. Appellant's wife answered the door and was told by the detectives that her husband was suspected of involvement in an assault. They requested permission to search the house, but Mrs. McGee refused. The detectives then asked if they could see the clothes appellant had worn the previous night. Mrs. McGee went to the second floor of the residence, obtained the garments and gave them to the detectives who then left. No search of the premises was conducted or attempted.

Appellant contends his wife was not entitled to consent to a search of the house, that she had no authority to deliver his garments to the police and that she acted only because of intimidation by and fear of the officers. For these reasons, he argues that the evidence was unlawfully acquired and should have been suppressed.

In the first place, there was no showing under the evidence that any search of appellant's home occurred or any seizure of evidence was made. Mrs. McGee voluntarily delivered the clothes to the detectives in response to their request. If, however, in the broadest sense of the term, it be concluded that the police acquired the garments by a seizure in that the request for Mrs. McGee to produce them was equivalent to a search, the search and seizure were consensual. Search without a warrant is valid if done under proper consent voluntarily given. State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983).

Appellant seeks to overcome the fact that his wife gave the clothes to the detectives by arguing that Mrs. McGee had no authority to agree to a search of the house or to the taking of the garments and, if she did, it was the result of coercion and was therefore involuntary.

The evidence was uncontroverted that the premises were the residence which appellant occupied with his wife and children. The law is well settled that the consent of one person who possesses common authority over premises or effects is valid as against the absent nonconsenting person with whom the authority is shared. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). As a co-occupant of the dwelling with appellant, Mrs. McGee had equal authority to provide the police access to the premises and contents.

The claim that Mrs. McGee did not voluntarily consent to the search, if such it was, is equally unfounded. There was no evidence any threats were made by the officers or any indication of force or intimidation. Appellant simply argues that because his wife was a small person and the detectives were large men who were armed, she was subjected to "implied coercion." A consent otherwise freely given is not an involuntary act absent proof that force or coercion was applied. See State v. Johns, 679 S.W.2d 253, 262 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985).

Appellant next argues the court erred in permitting detective Nash to testify regarding statements made by appellant when he was interrogated following his arrest. He bases the point on a contention that his arrest without a warrant was unlawful because the arrest was made without probable cause to believe appellant had committed the offense. He also claims the statement was involuntary.

On the morning following the crime, appellant was arrested and taken to police headquarters. According to the state's evidence, appellant was given his Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he signed a form, later introduced in evidence, indicating that he had been informed of and understood those rights. He was questioned about the clothing obtained from his wife under the circumstances described earlier in this opinion, and he explained the bloodstains as having resulted when he had cut his finger a week earlier. He was also asked if he would submit to a polygraph test which he declined. When appellant mentioned wanting to discuss the test with his lawyer, the questioning ceased.

The principal complaint appellant makes is based on his claim that when he was arrested, the only evidence the police had connecting him with the assault was the statement by a witness who saw appellant leave the tavern with the victim. He contends this was not enough of a connection to justify his arrest without a warrant and, on this account, his statements were "fruit of the poisonous tree."

Assuming for the sake of the point that the arrest was without probable cause and, also, that the statements made by appellant and repeated above were somehow incriminating, those facts alone do not require that the statement be suppressed. The exclusion of a confession does not result merely because it follows an illegal arrest, but only when there is a causal connection between the arrest and the confession which overbears the free will of the accused and results in the confession being involuntary. State v. Pollock, 603 S.W.2d 614, 616 (Mo.App.1980). In this case, the state's evidence showed, and the trial court was entitled to conclude that appellant was fully informed of his rights and made the statements in question without any threats or promises being made. The court was therefore entitled to find that the arrest, even if without probable cause, was not a factor tending to coerce appellant or overbear his free will. The court correctly overruled objections to the statement.

The next two points raised by appellant are interrelated and arise out of the following sequence of events. Appellant was originally charged by information but, after a preliminary hearing, he was ordered discharged for lack of proof showing probable cause to believe he committed the offense. On the same day the order was made, the prosecutor refiled the same charge. That case was scheduled, after a continuance, for preliminary hearing on November 14, 1986. In the meantime, the prosecutor had presented the case to a special grand jury which returned a true bill indicting appellant on November 14, 1986. The prosecutor concurrently dismissed the information.

The consequence of this sequence of events was that appellant had no preliminary hearing, the finding of probable cause being the decision by the grand jury to return the true bill. The two points of error appellant raises contend either that the procedure the prosecutor used to bring him to trial was unconstitutional in that he was denied a preliminary hearing and therefore precluded from cross-examining and impeaching his accusers at that stage of the case or, the court erred in refusing appellant the opportunity to impeach the state's witnesses by showing inconsistencies in their grand jury and trial testimony.

The first proposition appellant advances turns on the question of what latitude is available to a prosecutor in choosing to proceed against an accused by information or indictment and when the course of action taken may be altered. There can be no doubt that under § 545.010, RSMo 1986, prosecution of a felony may be by information or indictment and a prosecutor is entitled to exercise his discretion as to which course of action he selects. See State v. Greer, ...