State v. Stuart
| Decision Date | 13 July 1970 |
| Docket Number | No. 54045,54045 |
| Citation | 456 S.W.2d 19 |
| Parties | STATE of Missouri, Respondent, v. Thomas Wendell STUART, Appellant. |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, James F. Mauze, Charles B. Blackmar, Sp. Asst. Attys. Gen., St. Louis, for respondent.
Clay Cantwell, Branson, for appellant.
Thomas Wendell Stuart, hereinafter referred to as defendant, was charged by information with second degree burglary and stealing. 1 A jury found him guilty as charged. The court, under the provisions of the Second Offender Act, 2 sentenced him to imprisonment for a term of five years for burglary and for a term of two years for stealing, the sentences to run consecutively. 3
Defendant briefs three points: (1) error in overruling his motion for judgment of acquittal, because the evidence is not sufficient to sustain the conviction; (2) error in overruling his motion to suppress evidence and in admitting evidence of property seized during a search of his apartment, because the search and seizure were unlawful; and (3) error in failing to declare a mistrial when evidence was admitted that he failed to deny or explain an incriminating fact while under arrest, because he had the constitutional right to remain silent. We reverse and remand, because of the violation of his right to remain silent.
We make use of portions of an unadopted opinion written in Division.
On Wednesday evening, January 10, 1968, Earnest Stewart left his home in Stone county, Missouri and went to church in Crane, Missouri. During his absence, his home was burglarized and three rifles, a transistor radio and a variety of coins including silver dollars, dimes, and Kennedy one-half dollars were stolen. Information acquired in an immediate investigation pointed to defendant as one of the burglars and led Sheriff Barnes of Stone county to defendant's one-room apartment in Springfield, Greene county, Missouri, later that night. Sheriff Barnes, with Lieutenant Ed. Young and Detectives Deckard and Kordalis of Greene county, knocked on the door of defendant's room and, receiving no response, decided that the Sheriff should return to Stone county for an arrest warrant. He did so, and procured a warrant for defendant's arrest from the clerk of the Magistrate Court of Stone county. He then returned to Springfield and delivered the warrant to the Greene county officers. They again knocked on the door and, receiving no response, pushed the door open, entered the room, and arrested defendant and a companion. Thereafter, the officers searched defendant's room and found $248.93 in half dollars, dimes and pennies in a plastic bag under a dresser. Some of these coins were identified by Earnest Stewart at the trial as money taken from his home, and were admitted in evidence.
The state's case depends, in part, upon defendant's recent, unexplained possession of the stolen property, 4 and is sufficient if the evidence acquired as a result of the search is admissible. Defendant contends the court erred in overruling his pre-trial motion to suppress that evidence and erred in admitting such evidence at the trial, for these reasons: (1) he was not arrested until after the search of his apartment, therefore, the search was not incident to an arrest and was unlawful; and (2) the arrest warrant under authority of which the arrest was made is void, because issued by a clerk of the magistrate court and not by a neutral and detached judicial officer. 5 We do not reach the second reason, because we hold the view the search and seizure were subsequent and incident to an arrest lawfully made, whether or not the warrant was invalid.
At the hearing on the motion to suppress, Lieutenant Young testified that after Sheriff Barnes advised him of the crime committed in Stone county that evening, and of the he went to defendant's apartment and arrested him. This evidence is sufficient to show a lawful arrest without a warrant. State v. Burnett, Mo., 429 S.W.2d 239, 241, 242. 'Such an arrest is valid despite an invalid warrant.' Dearinger v. United States, 9 Cir., 378 F.2d 346, 347 (1967). The search and seizure occurred subsequent to the arrest. The search was incident to a lawful arrest, and evidence obtained as a result of the search is admissible. The testimony of witnesses relating to the search and articles seized is also admissible. State v. Phelps, Mo., 384 S.W.2d 616, 619. The trial court did not err in overruling the motion to suppress. The evidence is sufficient to sustain the conviction, and the court did not err in overruling the motion for judgment of acquittal.
The determinative issue raised by defendant involves an occurrence during the testimony of Lieutenant Young, and, in particular, a question asked by a juror and the Lieutenant's answer.
DIRECT EXAMINATION BY PROSECUTING ATTORNEY:
'Q. After you arrested Stuart, did you gentlemen proceed to search Stuart's apartment? A. Well, we told them they were under arrest, and then the warrant was read to them, and then Kordalis advised them of their rights.
'Q. After they had been apprised of their right to remain silent, then the search of the apartment was made, is that right? A. Yes.
Q. Now, to your own knowledge, was there any money found at that time during this search of the apartment? A. Yes.
Q. Found there in the apartment? A. Yes.'
CROSS-EXAMINATION BY MR. CANTWELL, COUNSEL FOR DEFENDANT:
'Q. Did you ask Mr. Stuart, this defendant, if those were his coins that you found? A. No.
Q. You did not? A. No, being in his possession, I did not need to.
Defendant contends that the juror's question and the witness' answer violated his rights under the self-incrimination clause of Article I, § 19, Constitution of Missouri, V.A.M.S., because 'the silence of an accused while under arrest is not admissible into evidence against him.' Defendant concedes that this assignment of error was not properly preserved at the trial or in his motion for new trial.
The law is established in this state that the silence of an accused while under arrest is not admissible against him because he is under no duty to speak, State v. Vainikos, Mo., 366 S.W.2d 423, State v. Dowling, 348 Mo. 589, 154 S.W.2d 749; State v. Phelps, Mo., 384 S.W.2d 616. The cases in which this rule of law...
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Jerskey v. State
...reversed and the cause remanded when comment was made that a prisoner refused to respond to questions, and the court said: 'In State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970), the following language appears at page "The law is established in this state that the silence of an accused while un......
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State v. Antwine
...on State v. Mathenia, 702 S.W.2d 840 (Mo. banc 1986), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986), and State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970), for the proposition that Missouri law does not permit impeachment with post-arrest The cases upon which appellant reli......
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State v. McMillin
...claims of plain error, but lawyers should realize that plain error will not be found unless something startling appears. See State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970), in which the Court found plain error in a juror's improper question, despite my efforts to uphold the conviction. Fail......
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State v. Boyd, WD
...arrest, an incriminating fact about which no question was asked. State v. Howell, 838 S.W.2d 158, 161 (Mo.App.1992) (citing State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970)). The admission of the accused's post-arrest silence constitutes an invasion of his constitutional rights. Howell, 8......