State v. Vinzant

• Decision Date: 29 July 1986
• Docket Number: No. WD,WD
• Citation: 716 S.W.2d 367
• Parties: STATE of Missouri, Respondent, v. Terry Ray VINZANT, Appellant. 36854.
• Court: Missouri Court of Appeals

Page 367

716 S.W.2d 367

STATE of Missouri, Respondent, v. Terry Ray VINZANT, Appellant.

No. WD 36854.

Missouri Court of Appeals,

Western District.

July 29, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 28, 1986.

Application to Transfer Denied Oct. 14, 1986.

Cenobio Lozano, Jr., Contract Public Defender, Harrisonville, for appellant.

Lee A. Bonine, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, C.J., and SHANGLER and KENNEDY, JJ.

CLARK, Chief Judge.

Terry Ray Vinzant was charged by information with the offense of murder in the second degree, § 565.004, RSMo. 1978 ¹ (erroneously specified in the information as § 559.020, RSMo. 1969) and, in a jury trial, he was convicted and sentenced to a term of twenty-five years. On this appeal, he presents six points of alleged trial error.

The victim in the case was Lola Vinzant, appellant's mother. At the time of the events relevant to the case, Lola was living in a trailer home situated in a complex of similar homes in Pleasant Hill. Appellant was also staying in the trailer temporarily while on leave from the United States Navy. On August 24, 1983 at approximately 2:30 in the afternoon, appellant stopped by the trailer residence of neighbors Terry and Jacquelyn Betts. He told the Betts he was waiting for his mother to return home from work and had been unable to enter the Vinzant trailer because his key would not unlock the door. In the observation of Mrs. Betts, appellant appeared to be normal as he spent a brief time watching television and in assisting Terry Betts to start his automobile as he left for his evening employment. At about 3:00 p.m., appellant left the Betts' home stating that he would try his key on the rear door of the Vinzant trailer.

A few minutes past 3:00 p.m., appellant appeared at the next door trailer residence of Kathryn Jamison (also referred to in the evidence as Kate Davis), in a highly agitated state. He exclaimed that someone had killed his mother and demanded that the police be called. According to Mrs. Jamison, Vinzant was a "raving maniac," he was cursing, screaming, pounding on furniture and "was just acting wild, plumb wild." Mrs. Jamison made the call to the police at 3:35 p.m.

The first officer to arrive at the scene at 3:38 p.m. was Alex McCauley. He entered the Vinzant home and found Lola Vinzant dead on the trailer floor, an obvious victim of a homicide. He called for assistance and Officer Mark A. Rohr responded followed by Sergeant James McLaughlin. Rohr and McLaughlin also entered the Vinzant trailer and viewed the body. The area of the trailer was secured for the subsequent processing of the crime scene but no evidence was immediately observed suggestive of appellant's implication. Some inquiry was made of the neighbors and Sergeant McLaughlin then directed that appellant be placed under arrest. In later testimony, McLaughlin said his decision to arrest Vinzant was based on the fact Vinzant was acting "wild," that he, McLaughlin, had been given to understand Vinzant "was maybe the last one" to see Lola alive.

Vinzant was given his Miranda ² rights and he was taken in handcuffs to the Pleasant Hill police station where he was placed in a cell. The arrest was recorded at 4:18 p.m., some forty-five minutes after the call had been made by Mrs. Jamison reporting the discovery of the body. Interrogation of Vinzant at the police station commenced at 5:40 p.m. and lasted about three hours. Later he was questioned for two hours at the office of the Cass County Sheriff. All of these sessions were recorded on tape which was subsequently transcribed. Although appellant maintained his innocence throughout the questioning, information was obtained which subsequently led the police to discover items of physical evidence which were used against appellant at trial. During the questioning, the police also took appellant's clothing, which was subjected to analysis, and samples of his blood and hair were obtained. On the evidence so acquired, the jury found appellant guilty of the crime.

I.

In his first and most troublesome point on appeal, Vinzant contends the evidence which led to his conviction was improperly acquired and erroneously admitted because it was the product of a warrantless arrest made without probable cause to believe he was the perpetrator of the homicide. The claim was properly asserted in a motion to suppress heard immediately before the trial commenced, it was renewed at trial and reasserted in the motion for a new trial. An understanding of the issue requires a review of the evidence applicable to the probable cause question.

At the hearing on the motion, testimony was given by the police officers, McCauley, Rohr and McLaughlin, by another officer, Lester Smith, who was involved in the interrogation of appellant, and by appellant. A summary of the facts known to the officers at the time they arrested Vinzant is as follows, subject however to the restriction of the facts to those assumed to be true according to the suppression hearing testimony. On the night of August 23/24, 1983, the sound of an argument between Lola Vinzant and a man was overheard by Officer Rohr who lives in a house some 100 feet from the Vinzant trailer. Rohr was acquainted with appellant but he was unable to identify the male voice engaged in the argument as that of appellant. Rohr had previously been told by the victim that appellant had frequently come home without leave and she wanted him picked up the next time it happened. Some previous disturbance complaints had dispatched the police to the Vinzant trailer, apparently associated with appellant's absences from his service duty without leave. Rohr said his suspicion of appellant was particularly aroused because appellant seemed agitated and irritated by the presence of the police at the scene of the crime.

Sergeant McLaughlin testified that he too was aware of the problems concerning appellant's absence without leave and the victim's concern and fear about appellant. He said his decision to arrest appellant was based on the suspect's "wild" conduct and appearance, the fact that appellant was the one who had called the police and his assumption that appellant was the last person to have seen the victim. Of particular and critical significance in evaluating probable cause was McLaughlin's reliance on information from Officer Rohr and the neighbor, Kathryn Jamison (referred to by McLaughlin as Miss Davis) that appellant had been heard to have been engaged in an argument with his mother at the trailer home the night before the body was discovered.

The probable cause standard for arrest is derived from the Fourth Amendment and its common law antecedents and requires the presence of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct. 854, 861-62, 43 L.Ed.2d 54 (1975); State v. Purnell, 621 S.W.2d 277, 285 (Mo.1981). The lawfulness of an arrest without a warrant is determined by application of the probable cause standard. State v. Garrett, 627 S.W.2d 635, 641 (Mo. banc 1982), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). The remedy for an illegal arrest is the suppression of the evidence obtained as a result of the arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Williams, 604 F.2d 1102 (8th Cir.1979); State v. Hicks, 515 S.W.2d 518, 522 (Mo.1974).

The contention that evidence has been obtained by unlawful search or seizure must be made by a motion to suppress the evidence in advance of trial and the question must be kept alive by timely objection and preservation in a motion for new trial. State v. Fields, 442 S.W.2d 30, 33 (Mo.1969). The proponent of a motion to suppress evidence has the burden of establishing that his Fourth Amendment rights were violated by the challenged search or seizure. State v. Johnson, 670 S.W.2d 882, 885 (Mo.App.1984).

Although under the statute, § 542.296.6, RSMo. 1978, it is the state's burden at a suppression hearing to show by a preponderance of the evidence that the motion should be overruled, it is the defendant's burden to establish his own standing to assert violation of Fourth Amendment rights. State v. Baker, 632 S.W.2d 52, 53 (Mo.App.1982). The validity of a search or seizure and the admissibility in evidence of the fruits of the search or seizure present issues collateral to the issue of guilt and are to be tried independently. State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974).

A trial court's ruling on a motion to suppress evidence prior to trial is interlocutory in nature and the court may therefore receive additional evidence later and change its ruling. State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975). The purpose of the rule which requires defense counsel to repeat his objections to the evidence at trial is to provide the trial judge an opportunity to reconsider his prior ruling against the backdrop of the evidence actually adduced at trial. State v. Fields, 636 S.W.2d 76, 79 (Mo.App.1982).

With the foregoing precepts as a guide, we turn to the facts of the present case under which appellant contends his initial arrest less than one hour after the victim's body was found was without probable cause. The standard, restated, is whether the officers, and Sergeant McLaughlin in particular, had sufficient information at that time of a reasonable trustworthy quality to warrant a person of prudence and caution in believing that Vinzant had killed his mother. Some of the facts recited by Sergeant McLaughlin may obviously be rejected out of hand as indicative of any guilt. The "wild" appearance of appellant would equally well have been attributable to the shocking discovery of his mother's body as would appellant's insistence that the police undertake a search for the assailant. Even were it Vinzant...