State v. Thompson
| Decision Date | 12 February 1973 |
| Docket Number | No. 1,No. 57097,57097,1 |
| Citation | 490 S.W.2d 50 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Lloyd V. THOMPSON, Defendant-Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Richard S. Paden, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Douglas N. Merritt, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for defendant-appellant.
This case involves the unusual situation of a direct appeal from a judgment entered following a trial which occurred in 1954. Defendant was charged with the offense of robbery in the first degree. See §§ 560.120 and 560.135 RSMo 1949, V.A.M.S. The trial resulted in a verdict of guilty and the jury fixed defendant's punishment at 20 years' imprisonment which was reduced by the trial court to 15 years. The sentence was to run consecutively with a 25-year sentence previously imposed. Consequently, defendant did not begin serving the instant sentence until December 31, 1968. In 1971 the trial court (Judge Paul E. Vardeman) sustained a Rule 27.26, V.A.M.R., motion and set aside the judgment because of ineffective assistance of counsel, apparently in failing to perfect an appeal. The court then resentenced defendant to imprisonment for 15 years (with credit for time served), and this appeal followed in due course. We affirm.
The sole point raised on this appeal is that defendant should be awarded a new trial because illegally seized evidence was admitted to support the conviction. It should be stated at the outset that no motion to suppress was filed, the evidence was admitted without objection on the ground now urged, and this complaint was not mentioned in the motion for new trial. Defendant says we should grant the relief under Rule 27.20(c), the plain error rule.
Howard Walker worked at a gasoline service station located on Highway 71 in Jackson County. At sometime between four and five o'clock a.m., on February 15, 1953, a car occupied by three Negro men stopped for service. While servicing the car Walker (working alone) was struck from behind and rendered unconscious. He was discovered at 5 a.m., and sent to a hospital. He suffered a concussion and a broken jaw and was unconscious for an extended period of time. A deputy sheriff who saw Walker at the station said his head was swollen to twice its normal size. The owner of the station testified that $274 in cash, 20 cartons of cigarettes, and three Skelly automobile batteries were missing.
Later that day John Scott, an Arkansas Highway Patrolman, received a report that an automobile had overturned near Dardanelle, Arkansas. We quote a portion of his testimony, as follows: He further testified that they found $315 in currency and silver and three Skelly automobile batteries in the car. No details concerning the search of the car appear in the testimony. It does appear that the batteries were in the trunk and that the trunk was capable of being locked.
The three men arrested in Arkansas were defendant, Leslie Sheard, and Levi Sheard.
The defense was alibi. Defendant presented as his only witness Levi Sheard. Levi stated that his brother drove a taxi and that they had agreed to take defendant to Arkansas to see his mother who was ill; that they picked up defendant at his home at 5:45 a.m. on the day in question.
The point involved on this appeal relates to the admission in evidence of the three batteries.
As we have indicated, defendant contends that his Fourth and Fourteenth Amendment rights were violated in the seizure of the batteries and hence he should have a new trial. There are at least two reasons why defendant cannot prevail on the stated contention. In the first place he does not have standing to object to this search. The evidence was that the automobile had been stolen and therefore was not owned by defendant. Also, the testimony indicated that defendant was a passenger in the car, that he was not the driver, and that he did not claim any possessory interest in the car. Under those facts, our decisions clearly hold that defendant was not entitled to raise the issue of illegal search. See State v. Edmonds, 462 S.W.2d 782(1) (Mo.1971); State v. Taylor, 429 S.W.2d 254(1) (Mo.1968); State v. Pruett, 425 S.W.2d 116(6) (Mo.1968); State v. Worley, 383 S.W.2d 529(13) (Mo.1964); and State v. Martin, 347 S.W.2d 680(2, 3) (Mo.1961). The case at bar is factually distinguishable from the cases of State v. Witherspoon, 460 S.W.2d 281 (Mo.1970), and In Interest of J.R.M., Mo., 487 S.W.2d 502.
The second reason this point should be ruled against defendant is because he made no objection to the admission of this evidence in the trial court. We have heretofore stated that ...
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