State v. Wade

• Decision Date: 02 March 1976
• Docket Number: No. 36152,36152
• Citation: 535 S.W.2d 492
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Nathaniel WADE, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 492

535 S.W.2d 492

STATE of Missouri, Plaintiff-Respondent, v. Nathaniel WADE, Defendant-Appellant.

No. 36152.

Missouri Court of Appeals, St. Louis District, Division One.

March 2, 1976.

Motion for Rehearing or Transfer Denied April 13, 1976.

Charles D. Kitchin, Public Defender, Richard A. Knutson, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard A. Heidenry, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

RENDLEN, Judge.

Defendant, Nathaniel Wade, found guilty of burglary second degree, § 560.070 RSMo. 1969, V.A.M.S., and sentenced to ten years imprisonment by the court under the Second Offender Act, § 556.280 RSMo.1969, V.A.M.S., appeals that conviction. Appellant's questioning of the sufficiency of the State's case requires a detailed recital of the evidence.

On Sunday, August 12, 1973, Richard Klaus, an off-duty policeman working with an assigned partner as security guard inside the Transport Motor Express Building on North Seventeenth Street in St. Louis, was attracted by a 'crashing' sound at the west side of the building ¹ Going there he observed someone breaking splinters to enlarge a fresh hole in the panel of an exterior door. Not able to see who was at the door, he waited and watched. When this activity ceased, Klaus went to the north end of the building and told his partner what was happening, asked him to stand by in case help was needed, returned to the broken door and waited. Presently appellant crawled head first through the hole in the door panel, stood up and proceeded about 15 feet into the building. Klaus stepped around a corner where he had been waiting, identified himself as a security officer, told appellant to halt, and as he did so, brought up the shotgun he was holding in his right hand. Appellant turned, saw Klaus and said: 'Don't shoot, I'm just in here to hand things out through the panel.' Searching appellant for weapons and finding none, Klaus handcuffed him to a nearby doorknob. As he was doing this, Klaus heard whispering outside the broken door and what sounded like footsteps. He phoned the police and walked around the building in search of other suspects. Several officers arrived in response to Klaus' call, advised appellant of his 'rights' and took him to the district station for booking.

Appellant, testifying in his own defense, told quite another story. He claimed he was standing near the south side of the Transport Motor Express Building waiting for his car to be repaired at a shop across the street. He further testified Klaus came from the Transport building, approached appellant, pointed a shotgun at him, and asked him why he was there. The guard then forced appellant to accompany him into the building where he handcuffed and searched him, then took his wallet, $112, pocketknife and keys. These matters were categorically denied by Klaus.

After being advised of his rights at the station by officer Thurmon Moore, appellant stated that security guard Klaus had taken $150 from him. At that time officer Moore asked appellant if he had broken into the building and in response appellant said he had a narcotic habit. Testimony concerning this matter was as follows:

'Q. (Circuit Attorney) I want you to tell me what you asked him exactly, and what his response was?

A. (Witness Moore) I asked him if he broke into the place and I said, 'You know, the security guard said he caught you inside. Did you break out the panel?' And he said, 'I have to support my habit in some way.'

Q. What did you do then? Did you say anything to him in response to that?

A. I looked at him and said, 'It don't look to me you have a habit.' And he showed me his arms.

Q. He showed you the underside of his arms?

A. Yes, sir. He did.

Q. What did you observe there?

A. Marks down the veins of each arm.'

As corroboration of his assertion that Klaus had taken $112 from him, appellant offered the arrest register to show appellant had no money or wallet when he was booked.

By his first two contentions of error, appellant asserts the evidence is insufficient to support the verdict, claiming the identity and guilt of defendant were not established and that defendant's alibi was confirmed by the evidence. By these contentions, appellant ignores the fact the jury chose not to believe him and instead was persuaded by the contrary evidence. The State's evidence established the necessary elements of the offense. In addition to abundant direct evidence as to the manner of entry and presence of appellant in the burglarized building, appellant's incriminating statement that he was in the building to hand things out through the door (admitted into evidence without objection) was sufficient to establish intent. Though the actual removal did not occur, it is unnecessary to show a completed act of stealing if a breaking and entering with accompanying intent appears. State v. Smith, 357 S.W.2d 120, 123(5) (Mo.1962). The intent to steal was further shown by the testimony of officer Moore who asked appellant if he had broken into the building and in response was told that appellant had a (drug) habit to support, showing the officer marks down the veins of each arm. From this the jury could find appellant was telling Moore why he had broken in and could reasonably infer the breaking and entering with intent to steal had indeed occurred. Where sufficiency of evidence is challenged, we review to determine if there is sufficient substantial evidence to support the jury's verdict and we consider as true all evidence favorable to the State including reasonable inferences that may be drawn therefrom. State v. Cain, 507 S.W.2d 437, 438(1) (Mo.App.1974).

Appellant urges his claim of alibi should have been believed; however, the jury is entitled to believe or disbelieve the testimony of a witness and consider the testimony of one witness as it relates to all the circumstances and facts in the case. It is the responsibility of the trier of fact to weigh and determine the credibility of the witnesses as presented and all other evidence in the case. State v. Wynn, 391 S.W.2d 245, 247(1) (Mo.1965). From the Record we find sufficient substantial evidence to sustain the jury's verdict and judgment.

Appellant next contends the court erred in overruling his oral motion to suppress his admission made in the presence of security guard Klaus at the time of apprehension, i.e., 'Don't shoot, I'm just in here to hand things out through the panel.' This untimely oral motion made on the morning of trial was overruled by the court and the point was not preserved for review as appellant failed to object when the statement or admission was offered at trial. State v. Stavricos, 506 S.W.2d 51, 57(10) (Mo.App.1974); State v. Simone, 416 S.W.2d 96, 100(11) (Mo.1967). Examining for plain error, we find none as the mere fact a weapon was pointed at appellant when he was told to halt, absent any interrogation or demand that he speak up, did not render appellant's spontaneous statement, involuntary. As the court said in State v. Hart, 292 Mo. 74, 237 S.W. 473, 479(9) (1922): 'The weapon was not leveled at the defendant to induce him to confess, but to compel surrender. . . . He was bound to know that as soon as he yielded and was safely in custody no danger of violence remained.' The security officer acted only with proper caution in apprehending a suspect in the apparent act of committing burglary who might have been armed. He could not, nor was he required to prevent the appellant from speaking until he could be informed of his Miranda rights. Neither time nor circumstances permitted giving the Miranda warnings and it is absurd to suggest the facts here required such warnings at the moment of arrest and before appellant could blurt his statement. Here, as in State v. Hart, supra, the gun was leveled at appellant to apprehend, not to coerce confessions. The statement was voluntary and thus was not constitutionally barred from use at trial. See Boyer v. State, 527 S.W.2d 432 (Mo.App.1975).

Appellant contends the court erred in denying his request for continuance ² to permit calling officer Klaus for testimony in connection with the untimely motion to suppress. This contention is without merit. It appears appellant was less than diligent in securing Klaus' presence at the pre-trial motion. Further appellant failed to show how the testimony of Klaus would have proved the statements of defendant inadmissible and the oral request for continuance and to delay the trial for 24 hours, failed to conform to requirements of Rule 25.08, V.A.M.R.

Officer Klaus was the first witness for the State in the presentation of its case in chief. Appellant had a full and fair opportunity to cross-examine at that time and Klaus' testimony was diametrically opposed to that of appellant at the hearing on the motion to suppress. In light of these circumstances we cannot see how defendant was prejudiced by the court's actions.

In reviewing appellant's various requests for continuance, we note that: 'The trial court has great discretion in granting or denying a continuance, and 'it requires a very strong showing to induce a higher court to interfere, and it will disturb the action of the trial court only where a clear abuse of discretion is shown. '' State v. Thomas, 433 S.W.2d 537, 539(1) (Mo.1968); State v. Amerison, 399 S.W.2d 53, 55(5) (Mo.1966); State v. Cuckovich, 485 S.W.2d 16, 22(8) (Mo. banc 1972). Finding no abuse of discretion in denying the oral application for continuance, the point is ruled against appellant.

On the morning of the trial's commencement, appellant made an additional oral motion for continuance to permit time to employ counsel of his own choice in lieu of the assigned public defender. He stated he had hired an attorney who failed to appear and his family was then in the process of...