State v. Stevenson

• Decision Date: 04 September 1979
• Docket Number: No. 39405,39405
• Citation: State v. Stevenson, 589 S.W.2d 44 (Mo. App. 1979)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Willie Norman STEVENSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 44

589 S.W.2d 44

STATE of Missouri, Plaintiff-Respondent, v. Willie Norman STEVENSON, Defendant-Appellant.

No. 39405.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 4, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 15, 1979.

Application to Transfer Denied Dec. 6, 1979.

Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Dean R. Hoag, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

STEWART, Judge.

A jury found defendant guilty of illegal possession of a Schedule I Controlled Substance Heroin. The court entered judgment upon the verdict and assessed punishment under the Second Offender Act § 556.280. We affirm.

Defendant's contentions in general terms are that the court erred in 1) denying his motion to suppress evidence; 2) denying his motion for acquittal because the State failed in its proof; 3) failing to discharge him because he had been twice placed in jeopardy; and 4) failing to dismiss the information.

We first consider defendant's charge that the trial court erred in denying his "Motions for Judgment of Acquittal because the prosecution failed to meet its burden of proving that (defendant) himself had knowingly possessed heroin in that the prosecution failed to demonstrate exclusive possession on the part of (defendant)."

In considering this issue we view the evidence in the light most favorable to the State and give it the benefit of all favorable inferences. State v. Wiley, 522 S.W.2d 281, 292 (Mo.1975). We review the facts relevant to this issue. The facts necessary to other issues will be stated when those issues are considered.

On May 13, 1976 at about 4:30 PM police officers executed a search warrant to search a two story single family brick residence at 5233 Raymond in the City of St. Louis for heroin. Officer Morgan knocked on the door at the above address. A son of defendant approached the door from the inside and when Officer Morgan held up his badge the young man ran up a flight of stairs. The officers forced the door. Two of them followed defendant's son to the bathroom on the second floor where they found him flushing the toilet. Other officers ran up a flight of stairs leading to a loft or attic area above the second floor to secure the building. They saw defendant, Carolyn Hoskins, his "common-law wife" and their baby lying on a mattress asleep. One of the officers woke defendant, read the search warrant to him and gave him a copy. Officer Stolte searched the room. There was a dresser about four feet from defendant. From the top of the dresser he seized a wire strainer and a wire sifter, several cooker caps, 14 hypodermic syringes, 5 measuring spoons, and an envelope of empty gelatin capsules, a brown plastic vial containing 17 pink capsules of heroin and a 1973 wage and tax receipt from Jaeckes-Evans Manufacturing Company bearing the name W. Stevenson and the address 5233 Raymond.

Defendant was placed under arrest and read his Miranda rights. Defendant then told the officer that the 17 capsules of heroin were all they would find in the house. Defendant also said, "Damn, you have got me good. If I hadn't been sleeping, I could have flushed the (capsules) before you got up to my room." There was a discussion with respect to arresting Mrs. Hoskins and at that time defendant told the police, that there was no need to arrest her because she didn't live there and none of the heroin was hers, that it was his for his personal use. He told the police that Mrs. Hoskins had been an addict but that she was in a rehabilitation program.

Mrs. Hoskins appeared as a witness on behalf of defendant. She testified that she was defendant's common-law wife and that she resided at 5233 Raymond on May 13, 1976, a house owned by defendant's mother, Willie Stevenson Perkins. She said that she paid $60.00 per month for the room. Although it appears to be a single family house it is occupied by eight to ten persons. She had told the police that she lived at 4921 Penrose but that is the address of her mother. She stated that defendant lived at 4215 Shreve on May 13, 1976 and had come by 5233 Raymond that day about 10:00 AM to visit her. She stated that defendant's sons Stanley and Randy and his nephew also use the room.

She also testified that defendant did not bring the heroin and paraphernalia into the room and she did not know that they were in the room until they were seized; that they did not belong to defendant; that defendant said they belonged to him because he was protecting her.

While we believe there is sufficient evidence to warrant a finding that defendant was in control of the premises at 5233 Raymond, we do not have to make that determination to conclude that the defendant was knowingly in possession of heroin. Defendant was present in the room where the heroin was found. Mrs. Hoskins disclaimed any knowledge of the presence of heroin. The defendant admitted that it was his for his personal use. There was ample evidence from which the jury could find defendant guilty of the crime charged. State v. Wiley, supra.

We consider next defendant's contention that the court erred in denying his motion to suppress evidence and admitting into evidence items seized in the execution of the warrant in the loft or attic because the search and seizure were beyond the scope of the warrant to search "a single family two story brick constructed residence at 5233 Raymond" in that the warrant confined the search to the first two floors of the building.

Defendant relies on State v. Barrelli, 317 Mo. 461, 296 S.W. 413 (1927). There the warrant described the premises to be searched as:

"A two-story brick building, the basement beneath the same and all structures, barns, sheds, garages, outhouses in the rear of the same, and all buildings located in and upon the premises at 315 Cherry Street, Kansas City, Missouri."

The principal structures at that address consisted of a two story building. Defendant rented the first floor as a soft drink parlor. The landlord lived upstairs. There was another building occupied by another tenant and a shed on the premises. As we read the case the court held that where there is a description by street and number and the premises are occupied by a number of persons for different purposes each having the right to exclusive possession of separate portions of the premises whether as owners or tenants, the description in the warrant is not a particular description as required by the Constitution because it does not discriminate between the various owners or tenants.

This is not the issue presented to the court by defendant's point relied on. Defendant argues that the house was a multi-unit structure, however, issues not raised in the point relied on may not be raised in the argument portion of the brief. V.A.M.R. Civil Rule, Rule 84.04(d, e), State v. Flynn, 541 S.W.2d 344 (Mo.App.1976). In the hearing on the motion to suppress defendant testified that he had lived at 5233 Raymond for twenty years but presented no evidence that there were multi-units in the premises. On a motion to suppress evidence seized under a warrant the burden of proof is upon the defendant. State v. Randall, 540 S.W.2d 156 (Mo.App.1976). There is a complete lack of evidence to support such a contention.

The issue presented is whether the description in the warrant was intended to exclude the search of the loft or attic area of the premises. § 542.276.6(5) requires that a search warrant " . . . identify the person, place or thing (to be searched) . . . in sufficient detail and particularity that the officer executing the warrant can readily ascertain whom or what he is to search." The warrant commanded the officers to search "the two-story, single family, brick constructed residence located at 5233 Raymond Avenue." The photographs introduced show a building with a single front door, two stories and what appears to be a loft or attic area with a window unit in the center of the attic under the eaves. The window unit consists of two adjacent windows. The building is what one would commonly refer to as a two story single family residence.

The language of the warrant restricted the search to the building described but is not restrictive as to the areas of the building to be searched. We hold that the search of the attic was within the scope of the warrant. The trial court did not err in overruling defendant's motion to suppress.

Defendant also contends that the court erred in denying defendant's motion to suppress and in permitting the State to introduce the Wage and Tax Statement on the ground that the search was invalid and for the further reason that it was not described in the warrant and was not sufficiently connected to the res gestae of the act of possession of the controlled substance.

What we have said with respect to the validity of the search above is equally applicable to this item of evidence.

With respect to the other issues in this point defendant contends that prior to the first trial of this case that ended in a mistrial he was unaware that the State had the Wage and Tax Statement. It was for that reason this item was not included in his motion to suppress. He further states in his brief that he offered a second motion to suppress which included among other items the Wage and Tax Statement. We have reviewed the proffered motion but find no reference to the Wage and Tax Statement. ¹

If the defendant desires to attack the validity of a search and the admissibility of the fruits of the search he must file a motion to suppress that evidence and keep the question alive by timely and proper objections throughout the trial and by bringing it to the attention of the trial court in the motion for new trial. State v Fields, 442 S.W.2d 30 (Mo.1969)....