State v. Riggs, 10877

• Citation: 586 S.W.2d 447
• Decision Date: 27 August 1979
• Docket Number: No. 10877,10877
• Parties: STATE of Missouri, Respondent, v. Kenneth Lloyd RIGGS, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 447

586 S.W.2d 447

STATE of Missouri, Respondent, v. Kenneth Lloyd RIGGS, Appellant.

No. 10877.

Missouri Court of Appeals, Southern District, Division One.

Aug. 27, 1979.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Robert W. Evenson, Pineville, for appellant.

TITUS, Presiding Judge.

Tried as a habitual criminal (§ 556.280 RSMo 1969), defendant was jury-convicted of second degree burglary (§ 560.045 RSMo 1969), and burglarious stealing. § 560.110 RSMo 1969. Defendant was court-sentenced to consecutive prison terms of 5 years for burglary and 4 years for stealing. This appeal ensued.

Upon returning to her rural Newton County home the evening of June 13, 1977, Miss Webb discovered her record player and 57 record albums were missing. (She later discovered a floor fan was missing also). Deputy Sheriff Pearman responded to her summons. From talking with neighbors German and Winchester, the deputy learned they had seen a white-over-maroon pickup truck parked at the Webb residence earlier in the day. Mrs. German also advised that she had observed the male truck driver (whom she later identified as being defendant) loading objects into the pickup.

The following day, June 14, witness Winchester again saw the same pickup, followed it and noted the names "Jim and Sue Irwin" were printed on the side. (This truck was identified at trial as having been sold to defendant by a deputy reserve sheriff on June 10, 1977). After this was reported to Deputy Pearman and pursuant to other information acquired in his investigation, the deputy interviewed a Mrs. Yust who recounted that the previous evening (June 13), at defendant's invitation, she and her husband had gone to defendant's house to listen to recordings on a player that defendant represented he had just purchased for $30. (At trial, Mrs. Yust identified Miss Webb's player as the one she had seen at defendant's house).

Armed with the accumulated information, supra, Pearman, another deputy and the sheriff, drove to defendant's bucolic home the afternoon of June 14 and contacted defendant's wife. While awaiting defendant's arrival, the other deputy, from outside the home and by looking through a window, espied the reported purloined record player in the living room. When defendant arrived home driving the pickup previously described, he was arrested and advised of his rights. Because it was raining, the three officers and defendant et uxor sat in the sheriff's vehicle while inquiry was made concerning the necessity vel non of obtaining a warrant to search the house for the stolen player and records. According to the officers, and as concluded by the trial court, defendant consented to the warrantless search. One deputy and the sheriff accompanied defendant into the house to obtain clothing in anticipation of incarceration. Another officer accompanied defendant's wife to the living room to obtain the player and the records which defendant's wife sorted out to be those that purportedly had been stolen.

The morning following his arrest, i. e., June 15, defendant was again advised of his rights. In his memorandum as to what defendant said on the 15th, Deputy Pearman, inter alia, wrote: "After he gave this (information regarding another burglary and stealing) I asked if he wanted to give (a) statement on the Webb house and he said not until he talked to his lawyer but that he got a fan from the house and when we got the rest of the stuff from the other (defendant's) house we might as well get the floor fan all so (sic). Stated he got it out of the front room all so (sic)." The amended information upon which defendant was tried accused him of stealing the record player and 57 record albums; no mention was made of stealing the floor fan.

Defendant's first two points relied on asseverate that the trial court erred in permitting, over objection, the prosecuting attorney, in his opening statement, and Deputy Pearman, in his testimony, to allude to defendant's oral statement, supra, relative to the fact he had also stolen the floor fan from Miss Webb's home. Defendant says this was error because the court, ere trial, had sustained his motion In limine to cause the prosecutor and state witnesses to refrain from referring to " . . . any items of alleged stolen property other than set forth in the amended information filed herein which may have been found at the residence of Defendant" because it would allow "the jury to consider a reference to another crime not charged in the information, nor established by the evidence by proper foundation laid by the state . . .."

The Latin phrase "in limine" is defined to mean "In or at the beginning." Bouvier's Law Dictionary, Baldwin's Ed.1934, p. 530. Such a motion with no title save "in limine", apparently is designed, at the beginning of litigation, to accomplish some purpose which may be known only by reference to the context thereof. When so viewed, the pleading here was nothing more or less than a highfalutin motion to suppress designated testimony or evidence. However, sustention of such a motion does not per se work as a permanent damnation of the evidence sought to be suppressed. Neither does sustention prevent the trial court from later changing its mind. The...