State v. Starks
| Decision Date | 12 October 1970 |
| Docket Number | No. 55107,No. 1,55107,1 |
| Citation | 459 S.W.2d 249 |
| Parties | STATE of Missouri, Respondent, v. Harold E. STARKS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
Shaw, Howlett & Gerard, Charles M. Shaw, Clayton, for appellant.
HOUSER, Commissioner.
Harold E. Starks, convicted by a jury of tampering with a motor vehicle and sentenced to imprisonment in the county jail for one year, appeals for a reversal of the judgment of conviction and a new trial on three grounds.
Appellant claims error in admitting in evidence testimony relating to a pellet gun and a .38 calibre pistol. A police officer testified that he observed Starks lying on the ground underneath the motor vehicle in question; that he told Starks to get out from under the automobile; that he saw the pellet gun, which closely resembles a pistol, stuck in Starks' belt behind his back, and saw a .38 calibre pistol lying on top of a left-handed brown jersey glove which in turn was lying on top of an adjacent car. Starks admitted that he owned the pellet gun but denied knowledge of the .38 calibre pistol. A police officer testified that when Starks was asked whose guns they were Starks said 'They are mine.' Starks complains that the admission of this evidence constituted prejudicial admission of evidence of other offenses, namely, carrying concealed weapons; that this evidence was wholly immaterial on a charge of tampering and without probative force to prove the facts in issue; that the facts in this case do not fit into any of the exceptions noted in State v. Hancock, Mo.Sup., 451 S.W.2d 6, allowing admission in evidence of other crimes; that the State's motive was to show that Starks was not a law abiding citizen and to import evil in the possession of the guns.
The court did not err in admitting this testimony. The police officer testified that the pellet gun was 'plainly visible' and not concealed or hidden from view, and that the .38 calibre pistol was observed lying on top of the adjacent automobile. Concealment is an essential element of the offense of carrying a concealed weapon, State v. Tate, Mo.Sup., 416 S.W.2d 103(1), and the test of concealment is whether the weapon is so carried as not to be discernible by ordinary observation. State v. Bordeaux, Mo.Sup., 337 S.W.2d 47, 49. The evidence was not inadmissible on the ground that it disclosed the commission of the crime of carrying a concealed weapon or weapons. Nor was it inadmissible on the ground of irrelevancy or immateriality. Although it is not claimed or established that the guns were used in the commission of the crime of tampering, the testimony with respect to the guns was admissible as tending to show the circumstances attending the arrest of the defendant State v. McGee, 336 Mo. 1082, 83 S.W.2d 98(19), including the possibility that he contemplated resisting arrest, and that he was armed when arrested. State v. Hart. 309 Mo. 77, 274 S.W. 385, 388(8). Also, it was relevant on the question of intent. Criminal intent is an element of the crime of tampering with a motor vehicle, State v. McLarty, Mo., 414 S.W.2d 315, 318. Criminal intent was denied by Starks. If he was carrying a pellet gun and had in his immediate possession a .38 calibre pistol (which the evidence showed was loaded and cocked), these facts would have some probative value in determining the question whether Starks had the intent to tamper with the motor vehicle or commit some other crime in connection with the vehicle. State v. Lindner, Mo.Sup., 282 S.W.2d 547, 552(8).
Appellant claims that his constitutional right to remain silent was violated by an answer given by the arresting officer to a question by the prosecuting attorney which raised an inference that appellant must have had something further to say 'but that he was merely withholding it for legal reasons.' By this claim appellant seeks to invoke the protection of the rule of State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, that the silence of a person under arrest who is accused of and is being interrogated about a crime, or in whose presence statements about a crime are made, may not be shown in evidence, because he is under no duty to speak. The most recent application of the rule was in State v. Stuart, Mo.Sup., 456 S.W.2d 19. In addition to the Dowling case the cases of State v. Vainikos, Mo.Sup., 366 S.W.2d 423; State v. Phelps, Mo.Sup., 384 S.W.2d 616, and State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, deal with this subject. Appellant also relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Bel-Ridge City Police Officer James Turner testified that he went to the lot where the owner of a new Corvette had parked his car and there observed a person (defendant Starks) lying on the ground with his right arm extended from beneath the car. He advised the subject to stand up and place his hands on top of the car. Starks did so, and in the process a glove which Starks had been wearing on his right hand 'went over the car.' Starks asked for a cigarette. The officer observed the pistol in Starks' belt and told him to keep his hands on the roof of the car or he would shoot him. The officer radioed for assistance and waited for the arrival of other officers. When the assist car arrived the officers checked inside the Corvette. They found another person lying on the front seat and observed that the window was broken out of the door and that there was glass in the car and found scratch marks around the ignition switch. The man found inside the car was ordered to get out and place his hands on the top of the roof. As he did so he tossed a screwdriver into an adjacent field. Officer Turner then discovered the pistol on the top of a Ford automobile which was parked 3 feet distant from the Corvette. The pistol was lying on top of a glove. The suspects were then searched, handcuffed and advised of their rights. Officer Turner read from a card which stated: Starks said he understood his rights as read to him; that he did not wish an attorney and that he would make a statement. The officer asked him about the guns. Starks stated that both the guns were his and that he was taking them to St. Louis to pawn them. When asked how the one got cocked he said he did not know. At that point in the direct examination of Officer Turner the prosecutor asked the question, 'Did he say anything further?,' to which the officer responded. 'No sir, that is all he would say.' On the basis of the Dowling case counsel for Starks asked...
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State v. Mack, WD
...a defendant "stood mute" or claimed his privilege to remain silent in the face of accusation. Howell, 838 S.W.2d at 161; State v. Starks, 459 S.W.2d 249, 252 (Mo.1970). These principles do not apply, however, where a defendant did not stand mute in the face of an accusation because no accus......
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State v. Hollis, KCD
...the defendant and his father after the defendant made voluntary conflicting statements. Such showing was permissible. State v. Starks, 459 S.W.2d 249, 252(8) (Mo.1970). This record does not form any basis for a finding by this Court that the matters complained of in Points III and V resulte......
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State v. Harper
...v. Harris, supra; State v. Taylor, 472 S.W.2d 395, 401 (Mo.1971) (waiver after exercise of right to remain silent); State v. Starks, 459 S.W.2d 249, 252-253 (Mo.1970); State v. Hollis, 584 S.W.2d 137, 145 (Mo.App.1979) (waiver before exercise of right to remain silent). Numerous federal dec......
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State v. Henderson
...the testimony concerning this conduct was admissible both to show the circumstances surrounding his arrest (State v. Starks, 459 S.W.2d 249, 250(3) (Mo.1970)), and to show conscionsness of guilt or a desire to conceal the crime (State v. Ruckman, 222 S.W.2d 74, 75(4) (Mo.1949)). Accordingly......