State v. Orso

• Decision Date: 17 April 1990
• Docket Number: No. 56550,56550
• Citation: 789 S.W.2d 177
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Estasio ORSO, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 177

789 S.W.2d 177

STATE of Missouri, Plaintiff-Respondent, v. Estasio ORSO, Defendant-Appellant.

No. 56550.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 17, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 16, 1990.

Application to Transfer Denied June 19, 1990.

Deborah B. Wafer, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Judge.

Defendant, Estasio Orso, was convicted by a jury of second degree murder and armed criminal action. He was sentenced by the court as a prior and persistent offender to two terms of life imprisonment to be served consecutively.

On appeal defendant contends the trial court erred in: (1) admitting evidence that was seized in a warrantless search of his residence, including testimony of incriminating statements made by defendant; (2) admitting photographs of the deceased that were prejudicial, inflammatory and cumulative outweighing any probative value; and (3) failing to strike a venireperson for cause thus depriving defendant of his full rights of peremptory challenges.

The victim, Delores Robinson, was found by the police on December 15, 1987 in her home which she shared with defendant, her grandson. The events leading up to the discovery of the victim are as follows. Mrs. Robinson invited defendant to live with her after her son, defendant's father, died in September 1987. Concerns regarding the welfare of Mrs. Robinson were first expressed by Sister Delores Shea, a Catholic nun. Sister Shea's duties included "visiting the sick and 'shut-ins' " for the parish. She was concerned because Mrs. Robinson was an "eighty year old female living alone who wasn't responding to visitors or telephone calls." Mrs. Robinson was unable to attend church because she was ill and "full of arthritis." On December 8, 1987 Sister Shea heard from a church worker providing in-home pastoral services to Mrs. Robinson. The church worker was unable to get a response from Mrs. Robinson when she went to her home. Sister Shea made several unsuccessful attempts to contact Mrs. Robinson by telephone and in person from December 9 to December 11. On December 11 and December 13, Sister Shea went to Mrs. Robinson's house during daytime hours. She found the drapes were drawn. This was unusual because Mrs. Robinson normally kept them open. On December 12 or 13, Sister Shea phoned the Director of Meals on Wheels who informed her delivery of meals had been cancelled. Additionally, Sister Shea called local hospitals to determine if Mrs. Robinson had been admitted. She also telephoned a friend of Mrs. Robinson who did not know of Mrs. Robinson's whereabouts. Sister Shea then contacted the police and made a Hot Line call seeking assistance. On December 14, 1987, Sister Shea called Carmen Orso, Mrs. Robinson's granddaughter and defendant's half sister, to report that she had been unable to make contact with Mrs. Robinson.

Sgt. Beverly Noble, a Supervisor with the St. Louis Police Department, Seventh District, testified she received a phone call from Ms. Orso on December 14, 1987 ¹. Ms. Orso "expressed a concern about the well being of her grandmother. She said she had been trying to contact her for "about a week and there was no answer. She said she suspected foul play." Although Ms. Orso told Sgt. Noble she didn't know defendant, her half brother, "her grandmother had befriended him and had permitted him to live in the house with her."

With this information, Sgts. Noble and Buschard and Officer Harry Fitzgerald went to Mrs. Robinson's home and "conducted an investigation there on December 14." Sgt. Noble testified there was no response to her knock on the door. She "looked through the mail slot ... [and] the light was on." There was no accumulation of mail, "no foul smell coming from the place," and "no signs of forced entry. In fact, there was snow on the ground. There was [sic] no footsteps or any car tracks or anything at the house."

After inspecting the house, Sgts. Noble and Buschard and Officer Fitzgerald interviewed two neighbors. Neither neighbor had seen Mrs. Robinson recently. One neighbor "thought that she was sick and staying with a friend."

Sgt. Noble called Ms. Orso:

I didn't feel comfortable--because she wanted me to force our [sic] way into the house to check on her grandmother, and I told her that under the circumstances of what the neighbors were saying and with the investigation there at the house I didn't feel comfortable in forcing the door in, that I wanted to conduct a more thorough investigation first before we went into the house.

On December 15, 1987, Sgt. Noble contacted Sister Shea for additional information. Sister Shea told Sgt. Noble she had contacted Mrs. Robinson's physician and local hospitals. Neither knew of Mrs. Robinson's whereabouts. Sister Shea and Sgt. Noble then drove to the house of a friend of Mrs. Robinson's but were unable to make contact. Sgt. Noble called Ms. Orso agreeing to enter the house if Ms. Orso would authorize the entry and make arrangements to board up the house. Sgt. Noble testified this investigatory procedure, accompanied with proper authorization to enter, is an accepted procedure for nonresponsive elderly citizens. Three additional policemen and the fire department were called to assist Sgt. Noble in entering the premises.

Sgt. Stevenson and Officers Newsome and Gardner arrived at 2:10 p.m. on December 15. This time Mrs. Robinson's car was parked in front of the house. When Sgt. Noble peeked through the mail slot the light was off. No other changes were noted since the previous investigation on December 14, 1987. Sgt. Noble knocked on the door and defendant answered. In response to questions regarding the whereabouts of Mrs. Robinson, defendant stated she was at his sister's house about three blocks away. He didn't know the specific address or phone number.

Defendant asked why the police were making this inquiry. Sgt. Noble told him she had been in contact with his half sister, Ms. Orso who "was concerned because she had been trying to get in touch with her grandmother." Defendant volunteered to call Ms. Orso and tell her that Mrs. Robinson was with his sister. Sgt. Noble told defendant "that wasn't good enough, that since we had gotten a complaint we needed to see her for ourselves to make sure she was okay." Defendant agreed to accompany the police to his sister's house after he got his jacket. During this interaction defendant was standing inside the doorway speaking through a partly open door. When defendant reentered the house to get his jacket, he closed the door.

Sgt. Noble ran a trace on the automobile license plate noting defendant had not yet come out of the house. She knocked on the door while another officer observed, "I think we hear him talking on the telephone." Defendant came to the door, closed and locked it saying his grandmother had "gone shopping with my sister, they're not at home." When defendant was asked how he obtained this information he said he had just called his sister's house. Sgt. Noble found this suspicious because defendant had previously told them he didn't remember the phone number.

Sgt. Noble persisted. "We want to go in the house and check to see if your grandmother is there." Sgt. Noble testified defendant "was breathing very, very hard. It was very noticeable. And he seemed kind of jumpy and nervous." Again, Sgt. Noble said she wanted to go into the house. Defendant replied "No." Sgt. Noble explained Ms. Orso was concerned and they wanted to check the house. Defendant said, "Well, you need a search warrant." Sgt. Noble asserted, "We don't need a search warrant. It's not your house; it's your grandmother's house. That's all we want to do is make sure she's okay." Defendant "looked over, he saw the fire truck pulling up and he stuck the key in the door and then he looked back over his shoulders again. And when he did that, I [Sgt. Noble] just turned the key and then we went in."

While Sgt. Noble stayed with defendant the other officers searched the first floor, the second floor where the bedrooms were located and finally, the basement where Officer Newsome discovered Mrs. Robinson. Upon discovering the body, Sgt. Noble "put cuffs on Estasio and had him sit down in the living room and we waited for Homicide to respond." Defendant was not advised of his Miranda rights. The police had not interrogated defendant. Sgt. Noble further testified she had not suspected "foul play" prior to the body being found. Officers Herbert Gardner's and Kenneth Newsome's testimony confirmed Sgt. Noble's recollection of the events leading up to the warrantless entry and search.

Sgt. Gary Poelling, St. Louis Police Department, Homicide Division testified to the events after the discovery of the body. Sgt. Poelling said defendant was "being detained ... until additional information can be gathered to find out exactly what has transpired inside the house." Defendant was moved by Sgt. Poelling from the living room to Mrs. Robinson's bedroom on the second floor. Sgt. Poelling did not tell defendant he didn't have to talk if he didn't want to until "he started talking in reference to arguments and disagreements that he had had with his grandmother...." He was then given his Miranda rights.

Defendant proceeded to tell Sgt. Poelling of an argument "some prior weeks back" over an open window in the house. Defendant said his grandmother had called the police and he believed she was "becoming somewhat senile, or paranoid ..." explaining why Mrs. Robinson kept a pistol in her nightstand drawer. Sgt. Poelling "opened up the drawer of the nightstand and recovered a brown holster. There was no weapon in there." Defendant said he had placed the pistol in the trunk of Mrs. Robinson's automobile prior to the day of her death. Sgt. Poelling testified defendant...