State v. Stewart

• Decision Date: 06 October 1976
• Docket Number: No. 9953,9953
• Citation: 542 S.W.2d 533
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James Lee STEWART, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 533

542 S.W.2d 533

STATE of Missouri, Plaintiff-Respondent, v. James Lee STEWART, Defendant-Appellant.

No. 9953.

Missouri Court of Appeals, Springfield District.

Oct. 6, 1976.

Jerry D. Mee, Springfield, for defendant-appellant.

John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before HOGAN, P.J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.

BEN F. PYLE, Special Judge.

Appellant James Lee Stewart, hereinafter referred to as defendant, was charged with possession of more than 35 grams of marihuana (§ 195.017, subd. 2(4)(j), RSMo Supp.1973). The jury found the defendant guilty of possession of a controlled substance, and he was sentenced to a term of five years in the custody of the Missouri Department of Corrections. Defendant appeals from this conviction claiming three assignments of error.

On October 1, 1974, at about 5:00 a.m., Mary Bryant called the Springfield, Missouri Police Department concerning possible vandalism to her son's car which was parked in front of her house at 2130 East Cairo. Officers Baugh and Youngblood arrived to investigate. Mrs. Bryant at that time mentioned certain activities to the officers concerning the house across the street at 2127 East Cairo; that there was considerable traffic coming and going, and people going to the house in the early morning hours and remaining only a short time. At that time a U-Haul van was observed parked it the driveway of the premises and a car parked on the street in front. Later that morning around 9:00 a.m., Mrs. Bryant observed a blond-haired person get out of a vehicle in front of 2127 East Cairo and go into the house. She at no time saw the defendant prior to his arrest that afternoon. Mrs. Bryant later saw the U-Haul van backed up to a door on the west side of the house, but she never saw anyone around the van. About 3:00 p.m. she again called the police. Officers Baugh and Youngblood responded. Upon arriving, they went to the premises at 2127 East Cairo and looked in the front window of the van and saw what they believed to be a marihuana stalk sticking between the sidewall of the van and a panel dividing the driver's compartment and the back cargo area. The rear door of the van was closed. On the steps between the rear door of the van and the door leading into the house they observed what they believed to be marihuana. The officers knocked on the back door but received no response. They went to the front door and found the screen closed and the door standing open. Through the open door they could see the defendant lying on a divan ten feet from the front door. They knocked but received no response. The officers then entered, and one of them spoke to the defendant but got no response. Upon hearing a noise, one of the officers went through the kitchen to a back room. No one else was found in the house, but the floor of the back room contained a large quantity of freshly cut marihuana. This room was approximately ten feet square. The officer returned to the living room.

The officers work the defendant and placed him under arrest for possession of marihuana, handcuffed him, advised him of his rights and searched him. No marihuana was found in the living room where the defendant was sleeping nor on his person. The room where the marihuana was found could not be seen from the living room. At the time defendant was searched, two keys were found in his pocket, one of which fit a padlock on the rear door of the van. This padlock was not locked and the rear door of the van was opened by the officers who discovered that it was about one-third full of marihuana of the same type as was found inside the premises. The ignition key to the van was found in the switch. The marihuana in the house and in the van had a combined weight of approximately 380 pounds. Defendant did not question the chain of custody or the chemical analysis of the marihuana. After his arrest he was transported to the Springfield Police Department where he signed a waiver of rights form and was placed in a cell. The next morning Detective John Smith went to the defendant's cell and the following conversation was testified to by Smith at the instance of the Prosecuting Attorney, Mr. Upp:

Q. (W)ould you tell us what, if anything, the defendant said to you in your conversation with him on the 2nd of October, 1974?

A. After I asked him if he knew why he was in jail, he stated, 'Yes, for possession of marihuana.' I asked if he'd been advised of his rights under Miranda. He stated he had and signed the papers. He understood them. I asked if he wanted to go upstairs and talk to me in regard to the situation. He stated, 'No, it was just some old, homegrown stuff.' And he didn't wish to talk to me.'

At the suppression hearing the defendant denied that part of the conversation about 'homegrown stuff'. He did not testify at the trial.

The State proved that the defendant had rented the U-Haul van the afternoon of September 30, 1974, using his own name and address at 1925 North Colgate, Springfield, Missouri.

The State further proved that the residence at 2127 East Cairo was owned by Roy Dulany and was rented to one Jerry Hamilton who lived at the residence with a young lady by the name of Angel Collins. Pickup orders for both Hamilton and Collins were issued but they were never located. A notebook and diary apparently belonging to Angel Collins were found under the cushions of the divan where the defendant was sleeping, which had some drug use and drug sales recorded in them. Defendant's mother testified that her son lived at home and was not related to anyone residing at 2127 East Cairo.

Defendant's first assignment of error is that the trial court erred by admitting in evidence his conversation with Detective Smith and for overruling his motion to suppress that conversation and for permitting defendant's desire not to talk to be admitted in evidence against him. The conversation complained of occurred the morning following defendant's arrest and after he had previously been advised of his rights and had signed a waiver of rights form. That conversation is set out in the above statement of facts.

This assignment of error is two-pronged. First, the defendant claims that this entire conversation was inadmissible because he was merely expressing his desire not to talk and to remain silent. Secondly, he claims that even if a portion of his response would be admissible as an admission against interest, the trial court erred in permitting Officer Smith to testify that defendant did not want to talk.

The silence of an accused while under arrest is inadmissible because he is under no duty to speak. State v. Stuart, 456 S.W.2d 19, 22(3, 4) (Mo.banc 1970); State v. Halk, 524 S.W.2d 44, 48(7) (Mo.App.1975); State v. Benfield, 522 S.W.2d 830, 834(9) (Mo.App.1975). Likewise, answers equivalent to silence are not admissible. State v. Dowling,348 Mo. 589, 599, 154 S.W.2d 749, 755(6--8) (1941). Here the defendant did not remain silent, but made oral answers to Detective Smith's questions, a part of which was incriminating, i.e., 'it was just some old, homegrown stuff.' This was volunteered in conjunction with his indication that he didn't desire to talk. Clearly the reference to 'homegrown stuff' was incriminating and constituted an admission against interest. The defendant was fully advised of his rights prior to the questioning by Smith and admitted that he had been so advised and understood those rights. There is no showing or claim by the defendant that he was tricked or coerced into making the admission. A voluntary statement or admission by an accused while under arrest and after being fully advised of his rights is admissible, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Gregg v. State, 446 S.W.2d 630, 632(1, 2) (Mo.1969), and being a voluntary admission against interest, it was properly admitted in evidence. Further, the defendant's response that he knew he was charged with possession of marihuana did not constitute an admission or inference of guilt, but was merely an acknowledgement that he knew why he was in jail. Its admission as part of the conversation did not constitute error. The point is ruled against the defendant.

Secondly, defendant alleges that even if that portion of his statement referring to 'homegrown stuff' was admissible, to admit that part referring to his desire not to talk was error since to do so would in effect allow the State to use his constitutional right not to talk against him as evidence of his guilt.

The defendant had the right to remain silent or indicate his desire not to talk, in which event neither would have been admissible against him. Instead, he voluntarily injected into the response an incriminating remark. He now wants us to hold that the trial court erred by allowing the State to introduce the entire response; but how is the State to question Detective Smith so as to elicit from him only the words constituting the admission and omitting those referring to his refusal to talk, where both are a part of one continuous and complete response? Is the State required to introduce the admission out of context? This court thinks not.

This testimony was introduced for the purpose of laying a foundation for the admission of defendant's incriminating remark. No claim has been made that it was introduced for the purpose of permitting the jury to draw an inference of guilt from his refusal to talk. We hold that this case falls within the rule that the State is entitled to prove the entire conversation where part of it is incriminating and part is not. State v. Hardin, 324 Mo. 28, 36, 21 S.W.2d 758, 761(4) (banc 1929); State v. Dowling, supra, 348 Mo. at 599--600, 154 S.W.2d at 755(9, 10).

The defendant had...