Defendant Henry Earl Henderson appeals from convictions for second degree murder and assault with intent to kill without malice. In accordance with the jury assessment, defendant was sentenced to twenty and five year terms of imprisonment, respectively, for the murder and assault convictions; said terms to run concurrently.
Defendant raises five points on appeal, but does not question the sufficiency of the evidence which was entirely circumstantial. His first three points question the admissibility of certain evidence. The fourth point questions one of the court’s instructions to the jury, and thе fifth point questions certain portions of the circuit attorney’s closing argument to the jury. We affirm.
While making insurance collections on June 24, 1972 from the. residents of an apartment building located at 2431 Dickson in the City of St. Louis, Early Lashley and his private security guard, Jolly Doyle, were confronted by two armed men. One of the men was armed with a shotgun, the other with a pistol. Both men had their faces covered with what Doyle later described as light blue scarves which appeared to be made of a thin silky material. Once confronted, one of the men told Doyle and Lashley not to move. About the time a pistol was fired, Doyle rushed the man with the shotgun. While Doyle rushed the man with the shotgun, he reached for his own gun but was interrupted when pellets fired from the shotgun struck him in the face. Immediately after Doyle was struck, the two men disappeared. Doyle then turned to assist Lash-ley who was lying on the floor and groaning. Doyle then knocked on the door of one of the apartments and asked an occupant to call the police.
Within about five minutes, St. Louis Metropolitan Police Officers arrived at the apartment building. Doyle and Lashley were escorted to City Hospital No. 1, whеre Lashley was pronounced dead on arrival. The physician who performed the autopsy determined the cause of Lashley’s death to be a gunshot wound of the brain. The physician removed the bullet from *817 Lashley’s brain tissue and gave it to an officer from the police laboratory.
Around 10:30 a. m. additional police officers arrived at the scene and began questioning residents of the apartment building. While engaged in this questioning, the officers saw a man walking down the stairs of the apartment building. The man identified himself as Henry Henderson. In response to a question, Henderson told the officers that he had been in his apartment with his mother all morning. Three officers accompanied Henderson back to his apartment to check his alibi. His mother was not in the apartment when the officers arrived. Henderson then consented to a search of his room which revealed nothing of value to the officers. The officers, after arresting Henderson, discovered a .38 caliber revolver under a mattress in another room and took possession of the gun. It was later determined that the revolver found under the mattress fired the bullet that killed Early Lashley. Noticing that thе bedroom window was open, two of the officers looked out the window and saw a blue scarf on the ground. After photographing the scarf, the officers took possession of it. This scarf was later shown to Doyle. Although he could not identify it as one of the scarves worn by his assailants, he did identify it as being similar in color and texture to the scarves worn by the assailants.
Prior to the trial, defendant filed a motion to suppress evidence. After a hearing on this motion was held, the trial court overruled the motion.
At the trial, the only surviving witness who testified, Jolly Doyle, was unable to identify Henderson as one of the assailants. The .38 caliber revolver and photographs of the location where it was found were admitted into evidence. Testimony concerning photographs of and an evidence receipt for the blue scarf found outside defendant’s apartment were also admitted into evidence. Defendant Henderson testified in his own behalf.
Defendant first contends that the trial court erred in denying his oral motion to suppress certain evidence, namely the .38 caliber revolver, obtained by police officers as a result of an allegedly unlawful search and seizure. He claims that the warrant-less search was unlawful because it was not incident to a lawful arrest based upon probable cause. Irrespective of the legality of the arrest, he also claims that the war-rantless search was unlawful because the revolver was not seized from an area within his immediate control and was not seized pursuant to any other circumstance indicating the necessity of an immediate, warrantless search.
At the hearing on the motion to suppress, Officer Josephus Reynolds, a member of the St. Louis Metropolitan Police Department, testified that on June 24, 1972, around 10:00 a. m., he received a telephone call from some person who informed him that Henry Henderson and Lou Charles Hopson were responsible for the robbery and shooting at 2431 Dickson. Officer Reynolds knew the caller and had received previous information from the caller that had subsequently led to arrests and convictions. Approximately ten minutes after receiving this call, Officer Reynolds arrived at 2431 Dickson and relayed the information concerning Henderson and Hopson to Sergeant Philip Antoon. Among those policemen рresent at the scene of the crime with Sgt. Antoon were Detectives James McCarty and James Dowd and Officer Joseph Burgoon. Officer Burgoon testified that he was informed by Sgt. An-toon that Henry Henderson of 2431 Dickson, Apt. 613, and Charles Hopson of 2431 Dickson, Apt. 303, were the persons responsible for the shooting. When Officer Burgoon received this information, he was standing in the areaway outside Apt. 303 with Detective Dowd. Immediately thereafter, a man who identified himself as Henry Henderson walked down the stairs from the fifth to the fourth floor. In response to a question asked by Sgt. Antoon, Henderson stated thаt he was coming from his mother’s apartment and that he had *818 been there all morning. In order to verify Henderson’s statement, the officers accompanied him to the apartment, but found that his mother was not home. The officers then searched Henderson’s room with his permission and with him present but found nothing. The officers then walked into a hallway whereupon Henderson ran to the door of another bedroom, blocked the door and told the officers they could not enter. Officer Burgoon then informed Henderson he was under arrest and advised him of his constitutional rights. Henderson then backed into the bedroom to a position about two to three feet from a bed. Officer Burgoon followed Henderson into the bedroom, raised the mattress of the bed and found a .38 caliber revolver. Although he did not feel threatened by Henderson, Officer Burgoon said Henderson could have reached the bed with a fast movement. Prior to the discovery of the pistol, Officer Burgoon said that he did not see any officer search Henderson’s person.
Defendant Henderson testified in his own behalf at the hearing. He testified that his sister was present at the apartment at the time the officers arrived. He said the officers entered the apartment with neither his nor his sister’s permission, and that the officers conducted a search of the apartment without his consent. At the conclusion of the evidence, the court overruled the motion to suppress.
Generally, a warrantless search is an unreasonable one under the fourth amendment unless it is conducted within well-noted exceptions to the warrant requirement. The exceptions are based upon the principle that searches of limited scope may be conducted if they are incident to а lawful arrest. United States v. Robinson,
The test for determining the legality of an arrest without a warrant for a felony is whether the arresting officer had reasonable grounds or probable cause to suspect that the person arrested has committed a felony. State v. Gant,
Part of the information possessed by the officers at the time of defendant’s arrest was that provided by an informant: the names of the two individuals allegedly responsible for the shooting. One of those named was Henry Henderson. This informant had on previous occasions provided the police with information which had led to arrests and convictions. Although information given by an informer who is reasonably considered reliable may in itself justify an arrеst (State v. Gant, supra, at 48 [5]), the officers possessed additional information at the time of arrest which, when combined with that given by the informant, certainly provided them with reasonable grounds to suspect that defendant had committed a felony. The officers knew that a shooting which resulted in one person’s death had occurred in defendant’s apartment building within approximately an hour before the officers saw defendant coming down the stairs. The officers were also aware that, after they had searched defendant’s bedroom with his *819 consent, defendant blocked the doorway tо another bedroom in the apartment and told the officers they could not enter it. Once this occurred, Officer Burgoon immediately placed defendant under arrest. Coupled with the knowledge of the crime itself and the information provided by the informer, defendant’s conduct subsequent to the search of his own bedroom gave the officers, including Officer Burgoon, reasonable ground to suspect that defendant participated in the shooting which the officers were investigating. The knowledge possessed by the officers at the time of defendant’s arrest rose far above mere suspicion. That arrest was therefore not only justifiable but lawful.
Having concluded that defendant’s arrest was lawful, it is then necessary to determine whether the. subsequent warrant-less search of the bedroom which resulted in the seizure of the revolver was constitutionally permissible. We rely on Chimel v. California,
In
Chimel
the Supreme Court held that in order for a warrantless search to be reasonable under the fourth and fourteenth amendments once an arrest has been mаde it must be limited to a “search of the ar-restee’s person and the area ‘within his immediate control’ * * *
Here, defendant was arrested as he tried to bar entry to a bedroom in the apartment. ‘ As defendant backed into the bedroom, he was followed by the arresting officer, Burgoon, and two other officers. Officer Burgoon proceeded immediately to a bed which was positioned approximately three feet from defendant, lifted the mattress, discovered and seized a .38 caliber revolver. Officer Burgoon stated that the defendant was not handcuffed at the time, and that although he did not feel threatened by defendant, defendant could have reached the bed with a fast movement.
In
Chimel,
the court construed the area within an arrestee’s immediate control “to mean the area from within which he might gain possession of a weapon or destruсtible evidence.”
Defendant, however, argues that the mattress was not in an area within his immediate control. He cites Coolidge v. New Hampshire,
Defendant next contends that the trial court erred in denying his motion to suppress the blue scarf found outside the apartment building on the grounds that the testimony regarding it was irrelevant and prejudicial. The motion to suppress evidence filed by the defendant before trial did not contain objections to the admission of any evidence upon the grounds of either relevancy or prejudice. This motion confined its objection to any evidence discovered as a result of an illegal search and seizure. The motion did not specifically mention a blue scarf, but rather, sought to suppress “any and all evidence”. And, at the hearing on the motion to suppress, no testimony concerning a blue scarf was ever given. Rule 25.06(e), V.A.M.R., requires a trial court to disregard any motion which does not clearly specify “the defense or grounds of objection relied upon by the defendant *
*
*Although the motion to suppress specified an illegal search and seizure as a ground of objection, the trial court could not possibly have committed error in overruling defendant’s motion upon the grounds of either relevancy or prejudice as these grounds of objection were not before the court when it heard and determined defendant’s motion to suppress.
See
State v. Crow,
But defendant also contends that the trial court erred in allowing all testimony at trial concerning the scarf, including photographs of and a property receipt for the scarf, to bе admitted into evidence “because the blue scarf was not relevant and tended only to confuse the issues and prejudice the jury.” The state claims that defendant has not preserved this point for appellate review because he failed to make timely and proper objections to the testimony concerning the blue scarf.
The first time the prosecuting attorney attempted to elicit testimony concerning the blue scarf found on the ground outside the defendant’s apartment, defendant objected to such testimony on the ground that it would not be relevant; that no foundаtion had been laid linking him to the scarf found outside his apartment. He also objected to the admission of the photographs of the scarf. The relevancy of the testimony concerning the scarf and the photographs of the scarf found on the ground outside the defendant’s apartment is an issue the defendant has preserved for review. Defendant’s objections were made both timely and with sufficient specificity to inform the trial court of the nature of the challenge, and the objections were repeated in his motion for new trial.
Defendant argues that the photographs of and the testimony concerning the scarf found on the ground outside his apartment were irrelevant and prejudicial because the scarf was not shown to be connected with him. He argues that the mere fact that a blue scarf was found outside his apartment building is not of sufficient strength to support an inference that he was one of the two assailants involved in the crime. While we agree with defendant that the testimony concerning and the photographs of the scarf do not support this inference and are of little evidentiary value if considered standing alonе, there are other reasons supporting the trial court’s decision to admit this evidence.
Testimony concerning any physical object connected with the crime which tends to show the manner in which the crime occurred may be admitted into evidence. State v. Parr,
In addition, evidence is considered admissible if it bears upon a material matter at issue in a case. State v. Edwards,
Trial courts have some discretion in admitting circumstantial evidence even though inconsistent inferences may be logically drawn from it. State v. Fields,
We are of the opinion that the trial court did not err in admitting the evidence concerning the scarf subsequently found near the scene of the crime.
Defendant also objects to that portion of the prosecuting attorney’s closing argument to the jury which implied that the scarf found outside the defendant’s apartment building was thrown from an open window in defendant’s apartment. Defendant claims that this argument exaggerated the probative value of the scarf, causing unfair prejudice to him. Although defendant objected to this argument at the time it was made, he made no reference to it in his motion for new trial. Any claim of error not assigned in the motion for
*822
new trial is not preserved for appellate review. State v. Bowens,
Defendant next contends that the trial court erred in allowing certain witnesses to testify about defendant’s refusal to permit police to enter or search the bedroom of the apartment in which the revоlver was discovered. He argues that because his conduct in this regard was an assertion of his fourth amendment right to be free from unreasonable searches and seizures, any testimony or any comment on this conduct is impermissible. Although defendant waived this claim by failing to object at the earliest fair opportunity [State v. Simmons,
In support of his position defendant cites Griffin v. California,
Additionally, in reaching the decision that the search and seizure in this case was not an unlawful one, we decided that the search was incident to a lawful arrest upon рrobable cause. One of the factors bearing upon probable cause was defendant’s conduct in refusing to allow the police to enter or search the bedroom. Such conduct clearly heightened the degree of suspicion the officers were then focusing on defendant for defendant was arrested immediately after he announced this refusal. Under these circumstances, the testimony concerning this conduct was admissible both to show the circumstances surrounding his arrest [State v. Starks,
For his fourth point defendant claims that the trial court erred in instructing the jury on second degree murder because the only submissible issue of guilt was that of first degree murder. He argues that the *823 giving of this instruction prejudiced his right to a fair trial.
In a homicide prosecution instructions on all degrees of homicide should not be given automatically, but should only be given if there is evidence to support them.
See
MAI-CR § 6.02, Note 6. Indeed, if the evidence in a particular case warrants the giving of a second degree murder instruction the trial court has a duty to give it whether requested or not. State v. Glenn,
In this case there was some evidence that thе fatal wound was inflicted upon provocation since Jolly Doyle testified that, after being told not to move, he “charged” one of the assailants. On the other hand, there was also some evidence that the fatal wound may have been inflicted without provocation since Doyle also testified that he heard a pistol shot before he moved toward the assailant. As we read the record in this case, there is scant evidence from which the jury could have inferred either the presence or absence of deliberation. Although the jury would have been justified in finding every element of first degree murder, as the court also gave a first degree murder instruction in this case, the jury could have believed that the fatal wound was inflicted without deliberation. Absent evidence which compels a finding of deliberation, the question is for the jury to determine, and, accordingly, the trial court did not err in giving the second degree murder instruction. State v. Stevens,
supra,
For his final claim of error, defendant objects to certain remarks concerning a .38 caliber revolver made by the circuit attorney in his closing argument to the jury. The specific remarks objected to are: “If yоu want to put this defendant back on the street, I will give him his .38 and he can go back, * * And later in the argument: “So, I say now the only thing that has to be done — you have to have courage to tell by your verdict, the dignity of your verdict, that you warn others in this community; second, that you punish him; and third, that you give the Department of Corrections sufficient time to work on his rehabilitation, if possible. If you don’t feel that way, he takes his .38 and goes back there — ”. Only after this latter remark did the defendant object. Defendant, however, did not state the grounds for his objection. When the trial court did not rule on defendant’s general objеction, defendant neither asked for a ruling nor requested any other relief. Under these circumstances, this point was not preserved for appellate review. State v. Martin, 484 ' S.W.2d 179, 180 [1] (Mo. 1972). Furthermore, the circuit attorney’s remarks here were not such as to have impaired defendant’s substantive rights under Rule 27.20(c). We cannot conclude that these remarks were designed either to arouse the jurors’ personal hostility or to cause the jurors fear for their personal safety. Nor did the remarks constitute an effort by the circuit attorney to place his personal opinion of defendant’s guilt before the jury. See State v. Martin, supra, at 180 [2],
The state has moved that the sentence be set aside and the defendant be remanded for re-sentencing to consecutive sentences under § 546.480, RSMo 1969, V. *824 A.M.S. This section does not apply when sentences are pronounced upon convictions under multiple count indictments and in-formations filed in accordance with Rule 24.04. The motion is therefore denied.
Judgment is affirmed.
Notes
. Popularly denominated by courts as probable cause.
See
State v. Gant,