*1 X, non-compensable allowance was tion is without merit. Article made § designed taxpayer-plaintiffs Thus, that to insure services. Id. the burden was on day in respondent as shall have their affirmatively such to establish appellants that provisions court to enforce the of the Han- compensation allowed was a clear or cock Amendment. judicial manifest abuse of sound discretion. Id.; Rosen, Sebree v. S.W.2d the trial
Finally, appellants cоntend that
(Mo.1965). Moreover, in the absence of con-
awarding
court
its discretion in
re-
abused
evidence,
presumed
trary
the trial court is
$1,156.48
$9,000 for
spondent
in costs and
to know the character of the services ren-
attorneys’
conducting
litigation.
fees in
duration,
ability,
dered in
zeal and
and to
respondents’ attorney’s
The record contains
according
know
value of them
to cus-
testimony
ordinarily charges
that he
$120
tom,
hour;
place, and circumstance. Nelson v.
per
that he believed that his rate
Hotchkiss,
cable unit of
ing attorneys’ reasonable fees incurred
maintaining such suit.”
The trial court is considered attorneys’ expert question be an Missouri, Respondent, STATE of tries a case and is fees. acquainted may with all the issues involved BONUCHI, Appellant. Shawn attorneys’ fix the amount of fees without Hotchkiss, the aid of evidence. Nelson No. 62683. 1980). The Supreme Court of setting attorneys’ fees is within the En Banc. the trial court and sound discretion of should not be reversed unless the award is Aug. 1982. arbitrarily at or is unreasonable arrived so Rеhearing As Modified on Denial of as to lack prop indicate indifference and Aug. 1982. er Id. In the ab consideration. sence of contrary, pre it fees attorneys’
sumed that the allowance of compensable
was for services and that no *2 Strauss, Defender, M. Public Co-
David lumbia, for Gen., Ashcroft, Atty. Steven H.
John Gen., Akre, City, Jefferson for Atty. Asst. respondent.
PER CURIAM: Bonuchi, was Appellant, con- Shawn by jury murder a first-degree victed of County, of Johnson Mis- Circuit Court souri, at punishment and his was assessed imprisonment Following life. rendition sentence, imposition appeal perfected to this Mo. Court. V, Const.Art. 3.§ Steрhen Walker testified that at 2:00 a. gave m. on November he a ride to appellant, hitchhiking at time who was Columbia, Missouri. He that testified awhile, they drove around smoked some marijuana, got lengthy into a discus- sion about restrictions at the Mexican bor- der. He testified that asked him young driving if a man a new Trans Am or a new Pontiac Firebird Formula would be strictly Appellant checked at the border. Kelley then asked Walker to drive to Ponti- at the way, appellant ac to look cars. On planning told Walker that he was steal go car. He asked Walker if he would with him test drive a car since he was not old enough test the car himself drive and did along a dealer Appel- not want with him. already lant told Walker that he had license plates put on the car after it was stolen. Pontiac, Kelley they When arrived at looked at a Firebird Formula and a Trans Am Firebird. indicated to Walk- going er that he was to steal a car the following day. leaving Kelley After Ponti- ac, dropped appellant Walker off in the picked up area where he had him earlier morning. Kelley employees, Two Pontiac John Ire- Hendren, land and Kenneth testified that 29, 1978, they m. on at 11:00 a. November Bond, salesman, Gregory observed W. Kelley dealership drive from the car youths two white male in a new 1979 blue Formula. Ireland testified Pontiac Firebird saw Bond take his dealer license out merit. “A review of the record in the plate with him when he and youths the two light most favorable to prosecution con- walked to the automobile in the lot. vinces us that a rational fact finder could readily [appellant] have found guilty be- Selfridge Reno, Officer Michael of the El yond a reasonable first-degree doubt of Oklahoma, Department Police testified that *3 murder under law.” Jackson v. [Missouri] on November he saw a blue 1979 307, Virginia, 324, 99 S.Ct. Pontiac Firebird in the El Reno cemetery. As the officer drove toward the Pontiac in car, his appellant and Mitchell Dean Appellant next asserts the trial Osburn exited began the car and to walk in admitting erred into evidence the away. Selfridge ordered them stop and shotgun found in the trunk of the stolen return to the Selfridge car. had noticed car. The assertion is without merit. De Pontiac had no Missouri license monstrative evidence is admissible “if it plate on the front of the car and that the any throws light upon relevant a material plate Missouri license on the rear of the car issue,” matter at v. Murphy, State had been piece attached with a of wire. (Mo. 1979), banc or if it Officer Samples, Reno, Dennis another El * * any “tends to establish fact in issue or Oklahoma, policeman, arrived at the ceme- aid the jury any way in arriving at a tery to assist Selfridge. Officer The two verdict,” Holmes, correct State v. officers inventoried the Firebird and found 1980). “Articles, 20-gauge in the trunk a double barrel shot- weapons instruments and that have a tend A gun. vehicle identification number check ency explain the manner in which a revealed that the Firebird had been stolen crime was committed that are found at or previous day Kelley from Pontiac in near the scene subsequent crime Columbia, placed Missouri. The officers the commission of a crime arе generally pellant and under arrest and took Osburn Neal, admissible.” State 591 S.W.2d City them to the El Reno Jail. (Mo.App.1979). The trial court has dis County Charley Boone Foster Sheriff cretion whether to admit or exclude demon twenty found Bond’s feet from a strative evidence. v. Murphy, road in County, the northern of Boone S.W.2d at 730. p. at about 7:00 m. on November Arnold, Lowry pathol- 1978. Dr. Kirk Appellant finally asserts that ogist County and Boone Deputy Medical trial court committed error in failing to Examiner, performed autopsy on the suppress cards, certain credit a driver’s victim’s body on December 1978. Dr. license, and testimony regarding the vic Arnold testified that Bond died from two tim’s body, because all were found aas wounds, shotgun one of which lacerated the direct result of interrogations ap illicit right lung and the liver and other of and, therefore, pellant were “fruits of the which shattered the breast bone and three poisonous trеe.” Miranda v. separated pulmonary ribs and the aorta and L.Ed.2d Fragments arteries from the heart. (1966); Wong Sun v. United shells, plastic shotgun wadding, and shot- gun pellets were found in the wounds. pretrial At a hearing sup- on motions to Type “A” human blood was found on the evidence, press Samples, Officer Dennis one spoiler on the back of the Pontiac officers, of the arresting testified that when plate, dealer’s license which the El Reno he and colleague appellant arrested police had discovered under the driver’s seat Osburn, they searched the Pontiac Firebird in a inventory second of the car. and the grounds immediately around it. They first asserts there found a shotgun in the trunk of the car, presented was insufficient evidence to sus grounds found no evidence on the tain the conviction. The assertion is with- near the car. noon ganized
Before on November to search the They arrest sitе. arrested, day appellant was a licensed attor- were any told to search for documents or Reno, Oklahoma, ney practicing in El papers Columbia, relating Missouri. appointed by represent appel- the court to Hill, David one of the civil defense volun- lant and He Osburn. talked to teers, testified that he kicked a small day Captain and Osburn that and advised mound of dirt accidentally and discovered Ray Depart- Watson of thе El Reno Police Bond’s driver’s license and three credit ment and Stan Chatman of the District cards. Attorney’s office that no statements were Information obtained in violation of the to be taken from either De- of his clients. attorney-client relationship may have led to directive, spite explicit the El Reno However, discovery of Bond’s interrogated appellant on several oc- basis of the record in this case we cannоt reading casions that afternoon without him *4 hold the trial court abused its discretion in Miranda, rights required by supra. his as ruling relating the evidence to Bond’s Among things, other asked him if Neal, admissible. State any evidence remained at the location of his (Mo.1967); also, Flowers, see arrest. He told shotgun them that some Cf. shells were there and that Bond’s credit Killough v. United 336 F.2d cards and driver’s license were hidden near (D.C.Cir.1964); also, 933-4 see Brewer v. where he had been arrested. Williams, 387, 406, 430 U.S. n. Aсting information, on this the El Reno 1232, 1243, n. L.Ed.2d 424 afternoon, police searched the area that The effect admission of the credit looking They for these items. found noth- was, worst, cards and driver’s license at ing. Early following morning, on De- minimal. Evidence unrelated to mis- 1, Captain cember Watson and two other supports conduct the following conclusions: appellant officers asked go if he would with That appellant intended to steal a car frоm them to the cemetery and show them where Pontiac; Kelly that appellant had in his request evidence was hidden. This was possession the stolen Firebird in which appellant made of several times before Bond, youths, dealership; two left the replied go that he would out there and show Firebird; shotgun that a was found in the things them where the okay were if it was that the dealer’s plate, license with blood on attorney. with his Captain Watson told it, Firebird; was found in the that blood him he would contact lawyer for him. Firebird; the spoiler of the and that appellant’s presence, Watson left returned shotgun. Bond was killed with a later, about five minutes and stated that appellant’s attorney said that it was all In view of these facts and circumstances right for him to accompany them. Watson particular in this we declare fail- appellant’s had not lawyer contacted ures on the of the trial court to аbide lawyer’s permission had not received the law,” “the requirements organic of federal appellant accompany him to the arrest Wong Sun, articulated in Miranda and Appellant accompanied site. Watson to the California, Harrington harmless. Cf. pointed exactly arrest scene and out where Osburn had buried Bond’s driver’s license shotgun and credit cards and where some is affirmed. lay. shells None of the officers seized the They evidence at that time. took RENDLEN, HIGGINS, MORGAN and jail. During back to of the police search JJ., concur. afternoon, shotgun arrest site that DONNELLY, J., separate C. concurs in Bond’s, found, shells were credit cards concurring opinion filed. and driver’s license were not found. WELLIVER, J., following separate dissents in dis- day, December group senting opinion of civil defense volunteers was or- filed. BARDGETT, JJ., better that nine ninety-nine
SEILER dissent or guilty separate dissenting opinion and concur in esсape punishment men for their crime WELLIVER, J. than that one innocent man be convicted. certainly doing justice For that not DONNELLY, Justice, concurring. Chief either to the nine or ninety-nine guilty or opinion, I concur in the principal but have potential to their victims. When crime is an observation to make. rampant today, as as it is those who in- Court, Supreme sitting The United States voke justify this dictum to strengthening Revision, aas Council of enacted the Miran- rights of the individuals aсcused of Rule organic da as “federal law” in 1966. expense violent crime at the rights of the Berger, by Judiciary Government potential victims of violent crimes (Cambridge, 300-306 Massachusetts: Har- are not even self-righteous entitled to the Press, 1977); University vard Miranda v. claim that are by compassion. moved Compassion, virtue, if it is a must itself and North Carolina v. Where, be balanced and equitable. we Butler, ask, is their compassion myriad victims of violent point, crime? At whаt view, my the Rule should now be re- ask, we do the victims come into the pealed by the place Court in order to more Hook, ethical reckoning?” Philosophy S. value on a concern for victims as a compo- and Public Policy *5 (Carbondale 136 & Pound, nent in the equation. social Edwardsville, Illinois: Southern Illinois (Cam- Criminal Justice in America 11 Press, University bridge, University Massachusetts: Harvard WELLIVER, Justice, dissenting. Press, 1945). To Sidney borrow from Hook: I respectfully dissent.
“We wish to reduce the role оf violence sacrificing human affairs without the original The basis for the exclusionary principles justice. of The extension of rule is judicial to further the principle of privileges against the self-incrimination integrity, which demands that the courts be justices to absurd lengths by who aban- contagious isolated from contact with un- doned common sense in a desire to estab- activity.1 constitutional To affirm the con- lish a reputation for liberalism has no victiоn in this case and allow the evidence parallel in any legal juris- other national through obtained the clearly perceivable po- diction. testimony To elicit relevant it lice misconduct to remain intact “would be required legislation has that has enabled judicial to affirm by decision a manifest purchase criminal defendants to an defiance, neglect, if not open an of the immunity punishment undeserved from prohibitions of the Constitutiоn.” Weeks v. very for serious crimes. The statistics of States, 383, 392, United 232 34 U.S. S.Ct. violent crimes show that our situation is 341, 344, (1914). “[W]hen indulge much too serious to in sentimen- involved,” flagrant misconduct is as in the expense talism at the of our citi- fellow principle instant “the normative un- zens. When crimes of violence are rare the derlying exclusionary rule —that infrequent may we justifiably lean government play should no in unlawful protect over backward those accused of a activity сompelling justification for possible serious crime from a miscarriage —is justice. the justice exclusionary But it is not only principle sanction.” compassion say leads us to that it is integrity demands that Ohio, Terry 1, 12-13, Wasserstrom, 1. 394 U.S. 2. Mertens & The Good Faith Ex- 1868, 1875, Henderson, ception Exclusionary Deregulating Rule: Eighties: Exclusionary Law, Derailing Justice in the Rule the Police and Geo.L.J. Principle Integrity, and the of Judicial 65 Judi- 405 n. 196 cature 354 accomplice rights.” Harrington California, to the viola- tional Court not act as 1726, 1730, of the Elkins v. United Constitution. U.S. S.Ct. States, (Brennan, J., (1969) dissenting). L.Ed.2d 284 I, too, contagious. L.Ed.2d 1669 “Crime is have no doubt admissible breaker, If the becomes a law supports finding guilt Government in this ” contempt it for the law . .. equally breeds . Olm case. I am that a convic- confident States, stead v. United upon tion would be obtained retrial without (1928) J., (Brandeis, L.Ed. 944 illegally. use of the evidence obtained Ju- overruled, dissenting), Katz v. United integrity dicial and individual constitutional 19 rights could bе maintained if this principled (1967). Although other analysis courts were undertaken. There is a dis- may eclipsing underlying be rationale reversing tinction between on a mere tech- exclusionary by rule reducing nicality placing bad, approval on pragmatic dimensions, rule to this Court police procedure. infectious Even if the join hoc, need not in ad purpose result-oriented of the exclusionary rule is viewed plication principles, of constitutional technique, as mere deterrence deterrence can be achieved in only by sup- this case is, [Tjhis type of ad hoc evaluation as it pressing illegally obtained evidence. been, always deepest problem
has “[Cjonsistent application of the exclusion- our constitutionalism .... ary by rule a reasonable judici- and resolute ary significantly could alter behav- judi- ... main constituent of the [T]he gained ior.”4 All that by principal process cial is precisely that it must be opinion’s tacit approval illegal inves- genuinely principled, resting respect tigations in this case is a conviction without every step reaching that is involved retrial. Retrial is a small price pay5 analysis quite and reasons preserving judicial integrity and constitu- transcending the immediate result that is tional principles. *6 achieved.3 The need for court intervention for the The judgment of cоnviction in this case purpose maintaining proper of standards of should be reversed and the cause remanded law being enforcement clearly so demon- for further proceedings in which illegal- the strated in this our own failure to ly obtained evidence suppressed. As will, fear, intervene I be interpreted by our retrial, regret much as I I say would rather federal brothers as but another invitation to to the world that integrity and indi- intervene. rights vidual preserved will be and that Appellant Bonuchi contends that admis- deterrence of police blatant misconduct will sion of the credit cards and driver’s license be furthered than to party become a into evidence was error because were violation of Constitution. discovered only through violation of his con- principal opinion The rests its harmless and, thus, rights stitutional are fruits of the finding error of sufficient poisonous point tree. This should be ruled guilt apply this case. To appellant’s favor. sufficiency standard of “as a threshold re- quirement raising interrogation It was when police of constitutional challenges convictions,” accompany to criminal how- asked them to the ever, “is cemetery purpose to shield from attack errors of a showing them most fundamental nature and thus to de- where the credit cards and license driver’s prive many police defendants of basic constitu- were buried. give appel- did not 3.Wechsler, Principles Wasserstrom, 2, supra Toward Neutral of Con- 4. Mertens & note at 393 Law, 12, 1, stitutional 73 n. 126. Harv.L.Rev. 14
5.See id. at 401.
344
warnings
authorities,
lant his Miranda6
before their
the Columbia
who had been
repeated requests
trip
or
searching
before the
to the
days,
for several
body by
to the
cemetery. Although appellant consented to
telephone conversations in
map
which the
the trip upon the cоndition that his lawyer was explained. With even this failing to
approved, Captain Watson falsely
told
lead the
investigators
Columbia
body,
to the
pellant
that he had
his attorney
contacted
Columbia Detective
engaged
Bob Muse
in a
and that the attorney
given
had
his consent.
telephone conversation
appellant.
Ap-
Under
subterfuge,
it cannot be said
pellant at
the time had not received the
attorney-client privilege
warnings,
was not Miranda
and counsel was not
477,
violated. Edwards v.
451
present.
U.S.
Without condoning any of the
(1981);
101 S.Ct.
than that Oklahoma discovery
inevitable exception saves the evi-
dence of the victim’s body, saves this and, permit
and would undoubtedly, retrial
conviction. The discovery, inevitable inde- source,
pendent exceptions, and attenuation
do not reach the other hidden evidence. date, justice
Even at this late prevail can integrity
and the of both law enforcement judicial process
and the can be vindicated
by a retrial of Appellant’s con-
viction should be reversed and the cause
remanded for further proceedings.
STATE of
Plaintiff-Respondent, STEWART,
Alfred Defendant-Appellant.
No. 43522.
Missouri Appeals, Court of District,
Eastern
Division Two.
May 4, 1982.