State v. Overstreet, 59833

• Decision Date: 14 June 1977
• Docket Number: No. 59833,59833
• Citation: 551 S.W.2d 621
• Parties: STATE of Missouri, Respondent, v. Tommie Warren OVERSTREET, Appellant.
• Court: Missouri Supreme Court

Page 621

551 S.W.2d 621

STATE of Missouri, Respondent, v. Tommie Warren OVERSTREET, Appellant.

No. 59833.

Supreme Court of Missouri, en banc.

June 14, 1977.

James M. Smith, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Jeff Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.

FINCH, Judge.

Defendant was convicted of first degree murder and first degree robbery under §§ 559.010 and 560.120, RSMo 1969, and sentenced to concurrent terms of life and five year imprisonment. He appealed to the Missouri Court of Appeals, St. Louis District, which affirmed, but a dissenting opinion was filed. The court then sustained defendant's application to transfer the case to this court. We now review the case as though here on direct appeal. We reverse and remand.

On January 3, 1974, two men, one of whom the State's witnesses identified as defendant, entered the office of the Straight Way Iron and Metal Co. in St. Louis. The two men, apparently unarmed, approached Louis Adelstein, president of the company, and demanded money. A struggle ensued in which Adelstein pulled a gun and started firing, wounding the man identified as defendant. During the fight, Adelstein dropped his gun. Defendant's companion grabbed it and shot and fatally wounded Adelstein. The two men then fled, taking the victim's gun with them.

During the morning of January 3, 1974, defendant went to Homer G. Phillips Hospital for treatment of a bullet wound in his left buttock. The police were notified that the victim of a shooting at Clarendon and Kensington was at the hospital and Officer Daniel Crane was dispatched to investigate. On arrival, he asked defendant how he received the gunshot wound. Defendant responded that he left his house at 5153 Kensington at 11:30 a. m. and walked west on Kensington to its intersection with Clarendon. There he became involved in a dice game with strangers. While squatting, he heard a noise like a gunshot and felt a sting in his left hip. He turned and saw a car go south on Clarendon. Defendant said that he then returned to 5153 Kensington, changed his trousers and came to the hospital.

Treating defendant as the victim of a shooting, not one suspected of committing a crime, Officer Crane went to the intersection of Kensington and Clarendon to investigate the shooting. The ground was covered with snow and the officer discovered that at the point where defendant said the dice game occurred, the snow was undisturbed. He then went to 5153 Kensington and learned that an aunt of defendant lived there but defendant did not and that the aunt had not seen defendant that morning.

Officer Crane called the Homicide Division and reported what he had learned. He then returned to the hospital. He again asked defendant how he received the gunshot wound but defendant said nothing.

In response to Officer Crane's call, two detectives from homicide came to the hospital and, without giving Miranda warnings, asked defendant about the gunshot wound. He repeated what he had told Officer Crane. The detectives then gave defendant the prescribed Miranda warning. Thereafter, with defendant's consent, they continued to question him. In response to questions, he then stated that he was walking along the street in the vicinity of the Straight Way Iron and Metal Co. and was hit by a stray bullet. After further conversation, he stated he had not told them the truth and wanted to speak to Lt. Adkins.

When Lt. Adkins appeared, defendant again was advised of his Miranda rights. Defendant then told Lt. Adkins that he had been shot by persons who accused him of selling bad marijuana.

After defendant had been indicted and arraigned, the State filed motions on March 13 and March 20, 1974, whereby they sought to have defendant examined by a doctor to ascertain whether a metal bullet was lodged in soft tissue of defendant's buttocks and whether, under accepted medical procedure, the bullet could be removed by minor surgery without endangering defendant's health, safety or life. If it could, the State requested that the operation be ordered and that the bullet, when removed, be turned over to the police department.

On March 21, 1974, the court entered an order that defendant be delivered to the hospital to "be examined to determine if a metal pellet located in the buttocks of the defendant could be removed through the use of proper medical procedures without endangering the health, safety, or life of the defendant, and also if said metal pellet were to remain in the buttocks of the defendant whether the metal pellets so remaining in the buttocks of the defendant would constitute a danger to the health, safety or life of the defendant".

Thereafter, the State filed with the court two letters received by the prosecutor's office from Dr. Bazzano, the acting chief of staff of the hospital. In one letter he advised that from x-rays of defendant "it appears that the metallic density is overlying the left femoral head and appears to be fairly superficial. On this basis, the object could be removed with a very simple surgical procedure without threatening life or unexpected medical complications to the above subject". In the other letter the doctor stated that there was no compelling medical reason for removing the bullet at that time.

On May 7, 1974, without any evidentiary hearing, the court entered an order that defendant be delivered to the hospital the next day for the purpose of removal of a metal pellet from the soft tissue of defendant's left buttock. That order contained these provisions:

"It is further ordered that the defendant be delivered to Dr. J. Zanzzo of the Medical Staff of City Hospital Number One, at the above date and time, and that the defendant be examined to determine whether a metal pellet located in the left buttock of the defendant can be removed through the use of simple medical procedures without endangering the health, safety, or life of the defendant.

"If said metal pellet is found to be recoverable from the person of the defendant, without endangering the health, safety, or life of the defendant, Dr. Zanzzo is then directed to remove the said metal pellet from the left buttock of the defendant. The metal pellet is then to be given to Detective William Jones of the St. Louis Metropolitan Police Department, * * *."

Pursuant to the foregoing order, the bullet was removed after administration of a local anesthetic in the area where two incisions were made. The bullet was deeper than anticipated and incisions three and a half to four inches in depth were required. A clamp was utilized to withdraw the bullet, after which the incisions were sutured. An antibiotic and a tetanus toxoid were administered. Defendant was discharged from the hospital the following day. No complications developed.

At trial, defendant objected to introduction of the bullet taken from his body on the basis that granting the State's motion to order the operation to remove the bullet from defendant's body and subsequently performing the operation violated his constitutional rights against unreasonable search and seizure as guaranteed by the fourth amendment to the constitution of the United States. Whether this complaint is valid and whether admission of the bullet in evidence entitles defendant to a new trial is the first issue we address.

The principal decision by the U. S. Supreme Court on this subject is Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In that case defendant was arrested in a hospital while receiving treatment for injuries received in an automobile accident. Defendant apparently had been drinking. The police, without a search warrant or a court order, directed the physician at the hospital to withdraw a sample of blood from defendant's body. It was analyzed to determine alcoholic content and the result thereof was admitted in evidence over defendant's objection that this violated his constitutional rights under the fourth, fifth and fourteenth amendments to the United States Constitution.

The Supreme Court rejected defendant's claim under the due process clause and held that there had been no violation of defendant's fifth amendment privilege against self-incrimination. It then considered defendant's contention that the intrusion into his body to secure the blood sample violated his fourth amendment right against unreasonable search and seizure. In overruling this contention, the court said at 768, 86 S.Ct. at 1834:

"* * * (T)he Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. * * * "

The court then pointed out that in this instance the blood sample was taken in the hospital according to accepted medical practice and was performed in a reasonable manner.

The court summarized its holding in these words,

"We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions." Id. at 772, ¹ 86 S.Ct. at 1836.

Since the decision in Schmerber, there have been several cases in which courts have considered whether and when intrusions into a defendant's body to procure evidence of a crime are prohibited by the fourth amendment to the U. S. Constitution.

In Adams v. State, 260 Ind. 663, 299 N.E.2d 834 (1973), cert. denied sub nom. Indiana v. Adams, 415 U.S. 935, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974), the...