State v. Toliver

• Decision Date: 30 December 1976
• Docket Number: No. 59464,59464
• Citation: 544 S.W.2d 565
• Parties: STATE of Missouri, Respondent, v. Raymond L. TOLIVER, Appellant.
• Court: Missouri Supreme Court

Page 565

544 S.W.2d 565

STATE of Missouri, Respondent, v. Raymond L. TOLIVER, Appellant.

No. 59464.

Supreme Court of Missouri, En Banc.

Dec. 30, 1976.

C. B. Fitzgerald, Warrensburg, for appellant.

John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., for respondent.

HENLEY, Judge.

Defendant, Raymond L Toliver, convicted of stealing over $50, was sentenced under the Second Offender Act to ten years imprisonment. On appeal, the Missouri Court of Appeals, Kansas City District, reversed and remanded. The case was transferred to this court pursuant to our order and is decided as on original appeal. We affirm.

The sufficiency of the evidence is not disputed, and from the record, the jury reasonably could have concluded as follows: shortly before 1:30 p.m. on September 13, 1973, defendant and Richard Stevenson entered a Wal-Mart store in Warrensburg, Missouri. Defendant was wearing 'baggy' overalls. Both men went to the sporting goods department. Defendant enticed the only clerk of that department away from her post near the gun display case to discuss outdoor heaters, allowing Stevenson to crawl 'on all fours' and remove from the case 10 handguns valued at more than $800, which he placed in an oil pan. Defendant and Stevenson met later at a vacant checkout counter near the exit, where some 30 seconds of 'arm movement' between the two men indicated the contents of the oil pan were being transferred to defendant's loosely-fitting clothing.

The two men left the store together and drove away in an automobile, which was later stopped by a state trooper who was reacting to a police radio bulletin concerning the alleged theft. Defendant had been driving about 80 m.p.h. with Stevenson and a man named Garner as passengers. After placing defendant under arrest for speeding and investigation of stealing over $50, the trooper gave defendant his 'Miranda warnings,' although defendant assured the trooper it was unnecessary to do so, because he had done nothing wrong. A search of the car and its occupants produced no handguns. The group was taken to patrol headquarters in Lee's Summit to be held for Warrensburg police, who were investigating the theft. At headquarters, Miranda warnings were read again and defendant was questioned about the theft. He denied the theft, saying he entered Wal-Mart to look for camping materials and had left when he could not find what he desired. When later taken to Warrensburg police headquarters, two more questioning episodes ensued preceded by Miranda warnings each time, but defendant made no statement. The three men were detained in the Johnson county jail over night, and the next day, September 14, 1973, they were charged with stealing over $50 and released on bond.

The first point we consider is defendant's contention that the court erred in overruling his pretrial motion to suppress inculpatory statements made by him to officers of the Kansas City police department on November 22, 1973, because, he says, they did not inform him of his rights under the Fifth and Sixth Amendments of the United States Constitution as delineated in Miranda v. Arizona, 386 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

It is admitted by the State that the Miranda warnings were not given to defendant by the Kansas City police on the occasion of his statements to them that he and others were involved in the stealing of handguns from the Wal-Mart store in Warrensburg. The statements were made in the course of a general investigation of a Kansas City homicide which had been committed with a handgun having the same serial number as one of those stolen from the Wal-Mart store. Defendant, a resident of Kansas City and well known to its police, was not suspected of being involved in the homicide, although it was known that he had been charged in Johnson county with this stealing. Their inquiry of defendant was for the purpose of finding and identifying the killer by tracing this gun from defendant to the killer. Defendant told them that the guns had been taken to Kansas City where they were sold to a black man at a certain address for some dope. The purpose of the inquiry was not to secure evidence in support of the stealing charge. At the close of the motion to suppress hearing, the court remarked the 'defendant had received the warning four times' from highway patrolmen and Warrensburg police only two months before, and, indicating that it was persuaded that defendant knew his 'rights' when he made the statements, overruled the motion.

The testimony of the police officer at the trial before the jury was essentially the same as that heard by the court on the motion to suppress. Defendant made no objection to this testimony and participated in its presentation to the jury by his cross-examination. Defendant thus failed to keep alive and preserve for appellate review the question raised by his motion to suppress. State v. Yowell, 513 S.W.2d 397, 402--3(1, 2) (Mo.banc 1974) and cases collected therein. Our review of the briefs of the parties, the transcript of the evidence heard on the motion to suppress and the evidence at the trial on the merits, leads us to the conclusion that manifest injustice or a miscarriage of justice has not resulted from the receipt of testimony relating defendant's inculatory statements made to the Kansas City police.

Another point raised by defendant is that the trial court erred in refusing to allow defendant's counsel to comment adversely upon the State's failure to produce a material witness endorsed on the information, namely, defendant's accomplice, Stevenson. The State apparently pursued diligently all reasonable means to secure Stevenson's presence but failed. He was no more 'available' to the State than to defendant. State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 648--649 (1942). In this situation, no unfavorable inference may be drawn from the State's failure to produce Stevenson. The trial court did not err. State v. Houston, 451 S.W.2d 37, 39--40 (Mo.1970).

Defendant also contends that the court erred in overruling his pretrial motion which sought to limit the State's cross-examination of him concerning his previous convictions in the event he should decide to take the stand. Defendant asserts that the court's ruling deprived him of the right to make an intelligent decision before trial as to whether he should take the stand and subject himself and his testimony to an attack upon his credibility. Clearly, the State is entitled to inquire about prior convictions of a witness to affect his credibility. Section 491.050, RSMo 1969; State v. Busby, 486 S.W.2d 501, 503(1) (Mo.1972). The scope of such prior conviction inquiry is subject to the discretion of the trial judge to act, upon timely objection, to prevent probing of convictions for any purpose other than to affect the witness's credibility. State v. Scott, 459 S.W.2d 321, 324(2) (Mo.1970). Defendant's point is without merit.

Defendant further claims the trial court erred in overruling his motion to declare this court's Rule 25.34 unconstitutional and in refusing to excuse him from compliance with the State's request for disclosure of certain matters within the purview of the rule. The only information disclosed by defendant to the State as a result of this ruling was (1) the names and addresses of two witnesses (the sheriff and a deputy sheriff of Johnson county) he intended to call in his own behalf, and (2) that he did not intend to rely upon an alibi or a plea of not guilty by reason or mental disease or defect. Defendant has failed to show that he was prejudiced by operation of this rule; therefore, he lacks standing to challenge, its constitutionality. State v. Brown, 502 S.W.2d 295, 305--306(20, 21) (Mo.1973); State v. Mucie, 448 S.W.2d 879, 886(1) (Mo.1970). The court did not err in requiring defendant to disclose this information to the State.

Defendant's last point is that the court erred in ordering the 10 year sentence imposed by it be consecutive to a sentence he was then serving in the Kansas penitentiary, because, he contends, the court erroneously believed that under § 546.480, RSMo 1969, it had no discretion to impose a sentence that would run concurrently with the Kansas sentence. He argues that because of this error the judgment must be reversed and the case remanded so the trial court may exercise its discretion and resentence him.

He relies upon State v. Baker, 524 S.W.2d 122, 131(7) (Mo.ban 1975), which held that § 546.480 violated the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. In that case there was a remand to the trial court for resentencing and the exercise of discretion by the trial judge as to whether the sentences imposed should be concurrent or cumulative.

The trial court's reliance upon § 546.480 as authority or reason for its order that this sentence begin upon completion of the Kansas sentence was misplaced and, therefore, error. That section, during its life, applied only to sentences imposed by Missouri courts for convictions of two or more offenses against the laws of this state; it did not apply to sentences, one of which was imposed by a court of another state for an offense against its laws and another by a court of this state for an offense against Missouri laws.

Notwithstanding the fact that the reason stated for the court's order is erroneous, the error is harmless and may be disregarded, because the Missouri sentence could not begin to run until defendant is released from the Kansas penitentiary and delivered to the custody of the Missouri department of corrections. Section 546.610; Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784, 787 (banc 1945); Higlin v. Kaiser, 352 Mo. 796, 179 S.W.2d 471, 472(1--3) (banc 1944). There is no statutory authority for a court of this state to order that a sentence imposed by it run concurrently with a sentence being served in another state. State v. Brager, 497 S.W.2d 181,...