State v. Miller, 57551
| Decision Date | 08 October 1973 |
| Docket Number | No. 57551,No. 1,57551,1 |
| Citation | 499 S.W.2d 496 |
| Parties | STATE of Missouri, (Plaintiff) Respondent, v. George Edward MILLER, (Defendant) Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmer, Sp. Asst. Atty. Gen., St. Louis, for (plaintiff) respondent.
Kirby, Lewis & Cohick, Maynard Cohick, Springfield, for (defendant) appellant.
Defendant was charged with burglary in the second degree and stealing. See §§ 560.070 and 560.156. 1 The information also charged a prior felony conviction under the provisions of § 556.280. The jury found defendant guilty of both offenses and the court (after making the required findings) fixed his punishment at imprisonment for a term of seven years for the burglary and five years for the stealing, the sentences to run concurrently. See §§ 560.095 and 560.110(1). Defendant has appealed. We have jurisdiction because the appeal involves a felony conviction, and was taken prior to January 1, 1972, the effective date of new Art. V, § 3, Mo. Const., V.A.M.S. We affirm.
At some time between 4 and 9 o'clock p.m., on January 13, 1971, a warehouse of Dillard's Department Store was broken into. Among the items taken were approximately 1,500 shirts. At about 9:30 that evening the police department received a call from a next-door neighbor indicating that a possible burglary involving four men was in progress at 433 West Portland in Springfield. That information was broadcast and several police cars responded. Upon arrival at the house the police arrested the four men found there and also discovered about 25 bags filled with men's shirts marked 'Dillard's.'
A joint charge for the Dillard's burglary and stealing was filed against all of the men arrested. Each filed a motion to suppress certain evidence, including the shirts heretofore mentioned. The motions were, by agreement, heard together upon the same evidence and at the conclusion of the hearing were overruled. Defendant was separately tried and upon this appeal his principal contention is that the court erred in failing to sustain his motion to suppress because the articles involved were the fruits of an illegal search.
The evidence taken on the hearing of the motion to suppress is as follows: The house in question contained a living room, two bedrooms, a kitchen, and a small utility room off the kitchen which led to an attached garage. The men arrested when the officers went to that residence were Bobby Joe Ross, Donald Gene Vineyard, Clifford Wayne Morelock, and George Edward Miller, the defendant here. One of the first officers to arrive at the house was George Brinkman. He testified that he observed a green Buick backed into the driveway with the rear within a foot or two of the garage door; that he observed Morelock, through the garage window, sacking up some type of articles; that he had seen Morelock riding in the Buick at various times and knew that he claimed the Pioneer Hotel as his residence; that he strongly believed that a burglary was in progess; that as he approached the front door he saw Morelock coming into the front room and when Morelock saw him he turned and started toward the kitchen; that he then went in and immediately placed Morelock under arrest and turned him over to another officer following him while he proceeded to look for the other three men he thought were in the house; that when he walked into the utility room he observed the shirts stacked in the garage through an open door between the utility room and garage; that he then discovered Vineyard hiding under a bix in the utility room and arrested him.
Detective Ray Crocker testified that when he entered the house the officers had Morelock and Vineyard in custody; that he proceeded into one of the bedrooms where he found Bobby Ross hiding in a closet; that he then returned to the living room where he saw Officer Larbey discover defendant who was lying on the floor behind the couch; that he had known all four of these men for several years and knew that they were all convicted felons.
Officer Larbey testified that when he arrived at the premises he saw Morelock and Vineyard in the garage; that he then entered the house at the front door and proceeded to help look for the other men they thought were in the house; that he pulled out the couch in the living room and found defendant lying behind it and placed him under arrest.
The house was rented and occupied by one Joy Beavers who was not available at the time of the hearing. It was stipulated that at the preliminary hearing she testified that Morelock was a friend and was welcome in her home. It was not stipulated that she had authorized him to enter the home on the occasion in question.
Upon the trial of the case much of the evidence heretofore stated was repeated. In addition to that evidence there was testimony concerning the burglary of the warehouse and the fact that the shirts, a TV, and two stereos were taken. The TV and stereos were found later behind a nearby building. It had rained the day of the burglary and there was mud on the floor of the warehouse. When arrested all of the men had mud on their shoes. Samples of this mud were delivered to the highway patrol laboratory in Jefferson City and were tested by the laboratory technician. The technician stated that he found similarity of color and density of the samples taken from the warehouse and shoes and that the chances of finding similar soil elsewhere in Greene County were very slight.
Elbert Thompson testified that he lived next door to the Beavers residence; that about 9 p.m. on the day in question he heard noise at that house and...
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...while police are in hot pursuit of a fleeing suspect, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); State v. Miller, 499 S.W.2d 496 (Mo.1973); evidence observed in an automobile during a traffic arrest, State v. Mick, 506 S.W.2d 35 (Mo.App.1974) (burglar tools); Stat......
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