State v. Shaw

• Decision Date: 20 February 1996
• Docket Number: No. WD,WD
• Citation: 915 S.W.2d 775
• Parties: STATE of Missouri, Respondent, v. Gloyd W. SHAW, Appellant. 49748.
• Court: Missouri Court of Appeals

Page 775

915 S.W.2d 775

STATE of Missouri, Respondent, v. Gloyd W. SHAW, Appellant.

No. WD 49748.

Missouri Court of Appeals Western District.

Feb. 20, 1996.

Appeal from the Circuit Court of Boone County; Frank Conley, Judge.

Jarrett Aiken Johnson, Assistant Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and ULRICH and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Gloyd W. Shaw was convicted of three counts of forgery under section 570.090.1, RSMo 1986, after a trial by jury. He was sentenced to three years imprisonment on each count. Mr. Shaw appeals his conviction on the grounds that: (1) the admission of certain blank checks and carbon duplicates of checks found in his motel room was error because this evidence was the result of an unconstitutional search and seizure; (2) the State improperly questioned and commented on Mr. Shaw's failure to provide information to the police or prosecutors; (3) the admission of statements made by Mr. Shaw to the police was error because such statements were taken in violation of Mr. Shaw's constitutional rights; and (4) the State should not have been permitted to present evidence and testimony as to the blank computer-generated checks found in Mr. Shaw's room and as to other forged checks because it constituted evidence of other uncharged crimes. Finding no prejudicial error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Shaw checked out of his room at the Super 8 Motel in Kingdom City, Missouri on October 22, 1993, planning to catch a bus out of town. Because he missed the bus, he returned to the motel later that day and was checked into a new room.

Shortly thereafter, while the motel housekeeping staff was cleaning Mr. Shaw's first room in order to make it ready for other guests, they discovered a large amount of women's clothing underneath the bed and in the dresser as well as a Bible, photographs, men's clothing and car care products. The motel manager thought it strange that Mr. Shaw, traveling alone, had left these items, and called the police to report a "suspicious person."

Sergeant Larry Dye and Deputy Marla Sweede were dispatched to the motel. They examined the discovered items, which had been removed from the motel room and placed in the manager's office, and then proceeded to Mr. Shaw's new room. Sergeant Dye knocked on the door of the room but there was no response. Hearing "some movement within the room," Deputy Swede returned to the lobby and had the manager telephone Mr. Shaw's room. When there was no answer, the officers unsuccessfully attempted to use a pass key to enter, but discovered they needed a second pass key. Just as Deputy Sweede was returning with the second key, Mr. Shaw opened the door and invited the officers into the room.

Sergeant Dye began questioning Mr. Shaw about the clothes discovered in the room he had previously occupied. According to the officers, Deputy Sweede obtained Mr. Shaw's consent to search Mr. Shaw's bags including a large black duffle bag, a smaller black bag and a small camouflage bag.

During the search, Deputy Sweede discovered a wallet belonging to a "Tim Savage," a name Deputy Sweede recognized as appearing in the Bible which had been found in Mr. Shaw's old room. Deputy Sweede then arrested Mr. Shaw for possession of stolen property and Sergeant Dye read Mr. Shaw his Miranda rights. Mr. Shaw indicated that he understood his rights.

After Mr. Shaw was handcuffed and seated in a chair in the motel room, Deputy Swede asked Mr. Shaw if they could search the motel room. Again according to the officers, Mr. Shaw consented and the officers proceeded to search the room. They found a date or address book containing the identification of a "Carol Spiewak" as well as approximately fifteen computer-generated Cheetah Transportation Company ("Cheetah") checks, between the mattresses on the bed. Sergeant Dye was aware that a few days earlier Ms. Spiewak had reported the theft of a large black duffle containing her clothes. The officers also found carbon copies of additional Cheetah checks inside the flush tank of the toilet.

During the search, at the point Sergeant Dye discovered the checks under the mattress, Mr. Shaw said, "That's what you're looking for." While in the patrol car en route to Kingdom City, Mr. Shaw told the officers that he had taken the checks from Robert Cochran in Columbia, Missouri and that he did not want Mr. Cochran to get in trouble because Mr. Cochran was a good guy. Mr. Shaw also told the officers "that he had passed four or five checks at Midway and one at Petro Truck Stop."

Further investigation revealed that the checks found in Mr. Shaw's room had been reported as missing on approximately October 20, 1993, by Mr. Cochran, a freight broker with Cheetah. Mr. Cochran had permitted Mr. Shaw to sleep in his office on a roll-away bed during October of 1993, after Mr. Shaw had told Mr. Cochran that he was low on funds. ¹ When Mr. Cochran came to his office on October 20, 1993, he discovered that Mr. Shaw had removed his belongings from the office. Searching the office, Mr. Cochran discovered that a number of checks from Cheetah and Packard Transportation Company were missing.

In addition, an employee of Midway Travel Center testified that Mr. Shaw had presented three checks for payment between October 17 and October 19, 1993. Mr. Cochran identified these checks as Cheetah advance checks--numbers 137282, 137281 and 137150, written for $185.00, $183.00 and $150.00, respectively. Mr. Cochran testified that Mr. Shaw was listed as the payee on each of the checks. Mr. Cochran also stated that, although his own name appeared on the signature line of each of the checks, he had not signed the checks nor had he authorized any of the three transactions. Mr. Shaw was convicted for forging these three checks, carbons of which had been found in the flush tank of the toilet in Mr. Shaw's motel room.

Prior to trial, Mr. Shaw had sought to suppress both the evidence discovered in the motel room and the statements he had made after his arrest. The trial court overruled both motions. He now raises the issues addressed in these motions as error on appeal.

II. ADMISSION OF THE CHECKS FOUND IN MR. SHAW'S MOTEL ROOM WAS NOT ERROR

Mr. Shaw argues that the evidence discovered in his motel room should have been excluded at trial because the police obtained it through an unlawful search and seizure. This evidence included blank computer-generated checks found between the mattress of the bed and carbons and duplicates of the three forged checks passed by Mr. Shaw found in the flush tank of the motel room's toilet.

A. Standard of Review.

The Fourth Amendment guarantees the right to be secure against unlawful searches and seizures, United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), and is enforceable against the states through the due process clause of the Fourteenth Amendment. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). The mandate of the Fourth Amendment is such that any search without a warrant per se unlawful unless it falls within certain narrowly delineated exceptions. State v. Gilpin, 836 S.W.2d 49, 52 (Mo.App.1992). Among the recognized exceptions to the warrant requirement are (1) consent of the individual being searched and, (2) a search incident to lawful arrest. State v. Greene, 785 S.W.2d 574, 576 (Mo.App.1990).

A trial court has broad discretion in determining the admissibility of evidence. State v. Hofmann, 895 S.W.2d 108, 113 (Mo.App.1995). Appellate review of a ruling on a motion to suppress is limited to determining whether the evidence is sufficient to support the trial court's ruling. Id. On review, the appellate court considers the facts and reasonable inferences from those facts in a light most favorable to the trial court's ruling. Id. An abuse of discretion will not be found unless the evidence shows that reasonable persons could not differ as to the propriety of the action taken by the trial court. Id.

B. Mr. Shaw Validly Consented to the Search.

Mr. Shaw claims that his alleged consent to the search of his motel room was invalid on two grounds. First, he alleges, he did not consent to the search of anything other than his luggage. Second, he asserts, even if the trial court believed he also consented to a search of his motel room, that consent was invalid because not freely given in that the circumstances surrounding the visit of the law enforcement officers to his motel room created an "intimidating atmosphere." As a result, he said, "any consent given ... could not have been of his free will in light of the actions and statements" of the law enforcement officers.

We disagree. The evidence adduced by the State supports the trial court's finding that Mr. Shaw voluntarily consented to the officers' entry into the motel room, to the search of his luggage and to the search of the room.

A consent to search is valid only if it is freely and voluntarily given. State v. Hyland, 840 S.W.2d 219, 221 (Mo. banc 1992). Consent is freely and voluntarily given if, considering the totality of all the surrounding circumstances, an objective observer would conclude that the person giving consent made a free and unconstrained choice to do so. Id. That is what occurred here.

More specifically, Sergeant Dye testified that Mr. Shaw invited him and Deputy Sweede into his room after they identified themselves as law enforcement officers. Deputy Sweede testified that Mr. Shaw consented to the search of his luggage before he was placed under arrest, and Mr. Shaw admitted that this was the case. In searching Mr. Shaw's luggage, the officers found a wallet containing the identification of Tim Savage. As a result, they arrested and handcuffed Mr. Shaw.

At this point, Deputy Sweede testified, she asked Mr. Shaw for...