State v. Meiers
| Decision Date | 13 March 1967 |
| Docket Number | No. 51615,No. 1,51615,1 |
| Citation | 412 S.W.2d 478 |
| Court | Missouri Supreme Court |
| Parties | STATE of Missouri, Respondent, v. Alvin Buddy MEIERS, Appellant |
J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
Norman H. Anderson, Atty. Gen., Jefferson City, C. H. Parsons, Jr., Sp. Asst. Atty. Gen., Dexter, for respondent.
Defendant was charged by amended information as an habitual criminal with unlawful possession of narcotic drugs. Sections 556.280 and 195.020, RSMo 1959, V.A.M.S. Trial was before a jury on May 4 and 5, 1965. Before submission of the case to the jury, the court found that defendant had been convicted previously of a felony, sentenced and imprisoned therefor. The jury found him guilty and the court thereafter assessed his punishment at imprisonment for seven years. Defendant appeals from the ensuing sentence and judgment.
He was represented at the trial by counsel of his own choice. His counsel filed a motion for new trial; after this motion was overruled, sentence imposed and judgment entered, counsel filed a timely notice of appeal. On defendant's motion, he was permitted to perfect his appeal as a poor person and other counsel was appointed to represent him on appeal; he was furnished a transcript at the cost of the state. Counsel appointed by the court has filed a brief and presented oral argument in defendant's behalf. In addition to his counsel's brief, we have a brief prepared by defendant in which he raises points in addition to that raised by his counsel.
Defendant presented no evidence. The state's evidence showed that on January 6, 1965, Detectives Robert Jenkins, Donald Grasher and Leo Caulfield of the Narcotics Detail of the Kansas City, Missouri, Police Department, and Inspector Harold Leap of the U.S. Food and Drug Department, received information from one Charles Victor Osborne that defendant, Alvin Buddy Meiers, was in possession of certain narcotic drugs in the latter's apartment at 3220 Harrison Street, Kansas City, Missouri. Under authority of a search warrant issued by a Jackson county Magistrate these four officers, in the presence of defendant and his girl friend, searched defendant's apartment on the afternoon of January 6, and found and seized nine-tenths of a gallon of paregoric containing morphine and opium, and one hundred thirty-eight tablets and capsules containing a codeine compound, a derivative of opium. Defendant was served with a copy of the warrant, arrested and taken to police headquarters.
We quote the one point relied on in the brief and argument of defendant's counsel: No mention is made in argument of denial of his Sixth Amendment right to counsel, the argument being confined to denial of his Fifth Amendment right to remain silent.
The evidence to which defendant refers is the testimony of Inspector Leap and detectives Jenkins and Grasher regarding an occurrence in defendant's apartment during the search or immediately after all the narcotic drugs were found. Inspector Leap was asked whether he heard the defendant make any statements at the apartment. His reply was: After this answer, defendant objected on the sole ground that 'The witness is stating a conclusion.' The objection was overruled. No motion was made to strike the answer or to instruct the jury to disregard it on the grounds that this evidence should be excluded because defendant had not been informed by the officers of his right to remain silent or 'that any statement he might make could be used against him.' Detective-Sergeant Jenkins testified that during a discussion with defendant at the apartment 'He (defendant) told me they (the narcotics) were his;' that defendant's exact words were: 'You know they are mine, or you wouldn't be here.' No objection was made to this testimony. The same testimony was elicited on cross-examination by defense counsel. Detective Jenkins further testified on cross-examination that he did not advise defendant of his right to remain silent before defendant made the above statement. Detective Grasher, in his testimony, related essentially the same statement made by defendant, without objection.
The only assignment of error in defendant's motion for new trial which conceivably might direct the trial court's attention to the one point briefed in this court by his counsel is: 'The court erred in admitting over defendant's objections, irrelevant, immaterial and incompetent evidence and testimony.' Defense counsel frankly admits in his brief and argument that no objection was made to this testimony at the trial; that this general assignment of error does not comply with Criminal Rule 27.20(a), V.A.M.R., and, therefore, preserved nothing for review. The state concedes that defendant was not advised by the officers of his right to remain silent, but contends that this point may not be considered because not preserved for review. Defendant contends, contra, we may, and should, consider and review the point under Criminal Rule 27.20(c), because manifest injustice and a miscarriage of justice has resulted from permitting these officers to relate to the jury this statement or admission of the defendant.
We are mindful of our Rule 27.20(c), commonly referred to as the 'plain error rule,' and cognizant of our recent case of State v. Beasley, Mo., 404 S.W.2d 689, 690(2). The circumstances in which the court applied that rule in Beasley are to be distinguished from the circumstances of this case. In Beasley an objection had been made to the admission in evidence of a signed statement of defendant on the ground that it was involuntary; the court held a hearing on the question of its voluntariness outside the presence of the jury and ruled that it was voluntary; an untimely motion for new trial was filed assigning the same question as error and the trial court had an opportunity to and did take up and hear the motion, and overruled it. In the instant case no objection was made at the trial to the admission in evidence of defendant's reply...
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State v. Hamell
...whether or not the error is raised in the trial court or preserved for review, or defectively raised or preserved." State v. Meiers, 412 S.W.2d 478, 480 (Mo.1967). There must, however, be "a sound, substantial manifestation, a strong, clear showing, that injustice or miscarriage of justice ......
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Gray v. Swenson
...of the Jackson v. Denno question presented. That court, however, applied a state rule of waiver articulated in State v. Meiers, Mo.Sup. Ct.Div. 1, 1967, 412 S.W.2d 478, and construed particular findings of the trial court made at the Rule 27.26 hearing "to be a determination of voluntary wa......
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State v. Rollie
...in appellant's motion for new trial, but Rule 28.02 requires this court to review the information for sufficiency. See State v. Meiers, 412 S.W.2d 478 (Mo.1967) and State v. Williams, 546 S.W.2d 533 Rule 24.01(a) prescribes the criteria for determining the sufficiency of an information. Tha......
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State v. Quinn, 38799
...be abandoned. To do so would invite chaos. Only by adhering to the established rules will we have an orderly process. State v. Meiers, 412 S.W.2d 478, 480-481 (Mo.1967). We conclude that appellant's second point is also without We have read the entire transcript, the briefs of the parties a......