State v. Singer

• Citation: 719 S.W.2d 818
• Decision Date: 09 September 1986
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Lewis Edward SINGER, Appellant. 37701.
• Court: Court of Appeal of Missouri (US)

Page 818

719 S.W.2d 818

STATE of Missouri, Respondent, v. Lewis Edward SINGER, Appellant.

No. WD 37701.

Missouri Court of Appeals,

Western District.

Sept. 9, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 4, 1986.

Application to Transfer Denied Dec. 16, 1986.

Mark T. Kempton, Sedalia, for respondent.

Paul LaRose, Asst. Atty. Gen., Jefferson City, for appellant.

Before BERREY, P.J., and PRITCHARD and DIXON, JJ.

BERREY, Presiding Judge.

Defendant appeals his jury conviction of voluntary manslaughter and ten years sentence. Defendant alleges trial court error in (1) admitting defendant's statements into evidence because his warrantless arrest was made without probable cause and these statements were the fruit of the illegal arrest; and (2) overruling his motion for judgment of acquittal and submitting jury instruction No. 7 on voluntary manslaughter because there was insufficient evidence that he caused the victim's death while he was under the influence of sudden passion. After reviewing the record, this court finds no error and affirms the judgment below.

Almost 1,100 pages of transcript reveal that defendant shot the deceased, Christine Staten, following a party at the Buckner Apartments (hereinafter the projects) in the early morning of April 21, 1985. John Goodwin stated he saw defendant drive up in the parking lot of the projects. He went to defendant's car and told defendant that Christine Staten was looking for him. Goodwin entered defendant's car and observed Staten approaching. Although defendant said "oh shit" and rolled up his window as she approached, he went to the rear of the car at her request. Here they argued and Goodwin stated he heard defendant tell Staten not to hit him again. Staten stated "What are you going to do, shoot me" and defendant again admonished her not to hit him again. Goodwin then heard a gun shot and saw defendant lay Staten in the back seat. Goodwin got out of the car and defendant drove off.

Harold Frazier, another party goer, observed defendant and Staten talking at the rear of the car. They were about an arm's length apart when Frazier heard a "pop" and saw Staten stumble forward. He next saw defendant grab Staten and put her in his car and drive off.

Next Thomas Bentley testified he was present in the projects at a party being given by Mary Claxton. As he stood on a balcony at the projects he saw deceased, whom he had known all his life, cross the parking lot to Singer's car. Bentley stated Staten spent ten or fifteen minutes at the car and then he heard a "shot go off." Bentley looked to the sound and saw Lewis put Staten in the car and drive off.

Harold Frazier, who had known the defendant for quite a few years and the deceased all of her life, likewise testified he was at a party in the early morning hours of April 21, 1985. Frazier had talked with Staten on the balcony of an apartment and saw her go to the defendant's car. He observed defendant and Staten talking at the rear of Lewis' car. He testified he heard a "pop", looked around, and saw Staten stumble. Lewis grabbed her, put her in his car, and drove off. At the time he heard the pop and turned, he noted that about an arm's length separated defendant from the deceased.

Another party goer, Kent Curd, testified he was sitting about forty or fifty feet away in another car facing the defendant and victim as they stood talking. As he watched he did not "observe anything out of the ordinary." Later he saw a flash and heard a shot and saw Staten stagger toward the defendant. At that moment approximately two feet separated the victim and defendant. Staten fell and "defendant picked her up and, put her in the car and he drove off with his lights off."

Walter Staten, brother of the deceased, next testified that he too was at the party. He stated he had known defendant for ten years but not personally. He testified he was just inside the balcony door of the apartment when his girlfriend pulled him out and he saw defendant "had his sister by the arm shoving her into the back seat of the car." He saw defendant drive away with his lights off. Walter Staten ran down the stairs, jumped in his car and followed the defendant. He lost the defendant and stopped at a Colonial Store and dialed 911. He stayed at the store twenty minutes then proceeded to Bothwell Hospital where he observed his sister in the emergency room.

Wanda West, Sedalia police dispatcher, testified she took Walter Staten's 911 call. Staten identified himself and advised West that "his sister had been shot" at the projects. The prosecutor then asked:

Q. And did he give you any names?

A. Yes.

Q. And what name did he give you or names?

A. Lewis Singer.

Q. Did you cause any radio traffic to be issued by you personally--

A. Yes.

Q. --in that regard?

A. Yes.

Q. Do you recall what traffic you issued using Mr. Singer's name?

A. I advised all Sedalia cars that the person that had done the shooting possibly was Lewis Singer and what type car he was in.

Q. What kind of car did you place on the air?

A. Silver car with red stripes, small.

Q. Where did you determine that information from?

A. Mr. Staten.

The dispatcher took the call regarding the shooting and put it out on the air that defendant was a suspect. Sheriff Starke, whose wife was the emergency room registered nurse at Bothwell Hospital, heard the call and proceeded to the hospital. He saw defendant and Goodwin there and asked them if the medical team was working on the shooting victim. The defendant replied he didn't know. The Sheriff then inquired as to the identity of the person being treated and received no reply. Later the Sheriff asked defendant how the victim got to the hospital and he said "I drove her in my car." Following this exchange defendant was quite insistent about moving his car and despite orders to stay put he went to move the car. Sheriff Starke ran after him and brought him back. Again he asked who the person was who got hurt, defendant replied "Christine Staten." Defendant then denied knowledge of how she was hurt saying only that she was hurt in "some kind of disturbance." As people began gathering at the hospital, defendant acknowledged that some of her family and friends probably thought he was involved in the shooting. At this point he was given the Miranda warning. Whether he was arrested at this moment or earlier when the Sheriff directed him to remain in the hospital, is not material. The question of whether probable cause existed revolves around the officer's reliance upon the radio dispatch; the defendant's subsequent actions at the hospital only enhance a finding that probable cause does exist.

After arriving at the police station and signing the rights waiver form, defendant made some damaging admissions ¹ which he now claims should be excluded as fruit of the poisonous tree; he alleges the warrantless arrest was made without probable cause.

In reviewing a motion to suppress this court is free to disregard contrary evidence and inferences and the trial court's ruling shall be affirmed if there is sufficient evidence in the record to support its finding. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985). The determination of whether probable cause existed at the time of the arrest is dependent upon the facts and circumstances within the knowledge of the arresting officers, and if they have reasonably trustworthy information sufficient to warrant the reasonable belief that the person being arrested has committed the crime for which he was arrested. State v. Reynolds, 619 S.W.2d 741, 746 (Mo.1981).

Here, the arresting officers knew through the police dispatch that defendant was connected with the shooting, and although the record does not reveal Walter Staten, the victim's brother, told the dispatcher that the defendant shot his sister, the dispatcher advised the patrol cars that "the person that had done the shooting possibly was Lewis Singer." An officer has a right to rely upon information communicated as such and to hold it as valid in his decision to make an arrest. State v. Bradley, 515 S.W.2d 826, 828 (Mo.App.1974). " 'If police could not thus base the existence of reasonable cause upon bona fide information communicated to them in the performance of their duties, their hands would be very effectively tied.' " Id. (quoting from State v. Burnett, 429 S.W.2d 239, 241-242 (Mo.1968). This information taken in conjunction with defendant's actions and conflicting statements made at the hospital was sufficient to constitute probable cause to arrest the defendant. Thus, because there was probable cause to arrest, defendant's subsequent statements made after being advised of his Miranda rights, were admissible and not the fruit of an illegal arrest. United States v. Capers, 685 F.2d 249, 252 (8th Cir.1982).

Defendant, in his Points II and III, alleges there is insufficient evidence to support his conviction of voluntary manslaughter because the evidence failed to reveal he acted "under the influence of sudden passion arising from adequate cause" § 565.023(1), RSMo. (Cum Supp.1984). Defendant asserts the lack of such evidence entitled him to a judgment of acquittal. He similarly uses this argument to attack jury Instruction No. 7 patterned on MAI-CR2d 13.08.

Defendant relies chiefly on State v. Clough, 327 Mo. 700, 38 S.W.2d 36 (Mo.1931), and State v. Bruton, 383 S.W.2d 525 (Mo.1964), in support of the argument that the victim's action of slapping the defendant was insufficient to establish "sudden passion" and that his actions were consistent only with those associated with self-defense.

In State v. Bruton, supra, 383 S.W.2d at 528, the defendant testified that the victim had raised a wine bottle to shoulder height and made a threatening motion stating he was ready to fight (with knives) when he (the defendant) took his own knife from his pocket. When the victim began pulling his hand from his pocket, the defendant...