STATE of Missouri, Respondent, v. Jerry McCRARY, Appellant.
No. 62236
Supreme Court of Missouri, En Banc.
Sept. 8, 1981
Rehearing Denied Oct. 13, 1981.
266
Abоut one o‘clock that afternoon one of the officers awakened appellant in his cell and told him that the information had been turned over to the prosecuting attorney. Appellant then started crying and stated that he wanted to tell “all of it; this time tell * * * the truth.” According to the officer he made no promise of leniency, and appellant did not request an attorney. Appellant was again advised of his rights and he again signed a Waiver of Rights in the form above set out. A statement was reduced to writing and it was signed by appellant. The principal difference between the two statements is that in the second appellant did not purport to implicate any of the other employees of the restaurant.
The conclusion of the trial court that the confession of appellant was voluntarily made is clearly supported by the evidence, and justifies the conclusion of voluntariness based on the “totality of the circumstances.”
The judgment is affirmed.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the court.
WELLIVER, P. J., and HIGGINS and SEILER, JJ., concur.
WELLIVER, Judge.
Appellant was tried on a four count indictment and convicted by a jury on all four counts. Count I charged appellant with assault with intent to kill with malice aforethought,
Appellant contends that the trial court erred: (I) in not dismissing either Count II or III, because the charging of both counts placed appellant twice in jeopardy for the same offense; (II) in not granting appellant‘s motion to sever, because there was an improper joinder of offenses; and (III) in admitting evidence obtained through an unconstitutional search and seizure. We affirm appellant‘s convictions.
Appellant lived with Lydia Penermon without the benefit of marriаge for a number of years, having two children by her. Their relationship was somewhat turbulent, and, in May of 1978, Lydia left appellant. Shortly thereafter, Lydia started to live with Rufus Penermon, whom she married on July 16, 1978.
Early Monday morning, November 13, 1978, Rufus, Lydia, and the children were leaving their home, located at 4241 East Evans, St. Louis, Missouri. As Lydia and the children were getting into a car, Rufus walked out into the backyard to unlock a gate. As Rufus returned to the car, three gunshots were fired. One shot struck Rufus in the back, and he was subsequently hospitalized. Neither Rufus nor Lydia could identify the man who fired the shots. The police recovered two spent bullets near one of the parked cars in the backyard. The next day, Lydia received a telephone call from appellant in which he said, “I wanted to see the kids. Next time I‘m going to kill him.” About a month prior to the shooting, appellant had telephoned Rufus and said, “If you don‘t stay away from my woman, . . . I‘m going to kill you.” Both Rufus and Lydia testified that appellant made numerous threats against them.
Appellant had told Lydia that, “If I can‘t see the kids I‘m going to burn the house down.” On March 8, 1979, while Rufus Penermon was recuperating, appellant telephoned Lydia and told her, “If you don‘t come back to me . . . I‘m going to do something bad tonight.” At about 9:40 that evening, Rufus, Lydia, and the children were in their respective bedrooms on the second floor of 4241 East Evans. John Penermon, Rufus’ father, was on the first floor of the house, where he permanently resided. John testified that as he was walking through his bedroom he looked out the window just as appellant threw a firebomb which landed in his bedroom. The firebomb burst into flames burning John‘s face and hands, and he was hospitalized for these injuries.
On March 12, 1979, Officer Richard Arthur responded to an anonymous call to investigate a suspicious person described as, “A [N]egro male wearing a black hat, black coat, black trousers and, . . . a black shirt and holding a long or large cardboard box.”
Upon seeing Officer Arthur, appellant dropped the cardbоard box on the ground near the street and walked away. Officer Arthur testified that he stopped appellant and determined that he was not carrying a weapon. At this time, Officer Clyde Bailey arrived and watched appellant as Officer Arthur went back to the place where appellant had dropped the cardboard box on the ground. One end of the box was open and the contents were clearly visible to anyone who picked the long narrow box up from the ground. Officer Arthur discovered a .22 rifle, live shells, and a homemade silencer inside the box. A firearms identification expert testified that bullets fired from the .22 rifle matched the two spent bullets recovered near the Pеnermons’ car on November 13, 1978, indicating that the .22 rifle that was found in the box fired the bullets at the November 13, 1978, shooting.
Lydia Penermon testified that appellant often came by and did things like throwing something into the house or shooting into the house to harass them.
I
Appellant contends that the charging of Count II (arson in the first degree) and Count III (assault in the first degree) placed appellant twice in jeopardy for the same offense, because arson in the first degree is a lesser included offense within assault in the first degree under the facts of this case.
In Sours v. State, 593 S.W.2d 208 (Mo. banc 1980), vacated and remanded sub nom. Missouri v. Sours, 446 U.S. 962 (1980), incorporated by reference on remand, Sours v. State, 603 S.W.2d 592, 603 (Mo.banc 1980), cert. denied, 450 U.S. 953 (1981), we stated:
The test for determining whether two offenses are “the same” for double jeopardy purposes was stated in Blockburger v. United States, 284 U.S. 299, 304 (1932):
The applicable rule is that where thе same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342 (1911), and authorities cited.
593 S.W.2d at 213. See also State v. Haggard, 619 S.W.2d 44 (Mo.banc 1981).
The General Assembly has codified the Blockburger definition of lesser included offenses in
Applying the Blockburger test, we find that arson in the first degree requires, in part, that the defendant “[damage] a building or inhabitable structure, . . . .”
Section
II
Appellant contends there was an improper joinder of offenses under former Rule 24.04(b), now, Rule 23.05(b). The constitutionality of the Rule is not challenged.2 Rather, appellant argues: (1) that there was a misjoinder of offenses, i. e., including the counts appellant was charged with in the same indictment or information was not permissible under former Rule 24.04(b); and (2) that there was a prejudicial joinder of offenses, i. e., even though joinder of offenses may be permitted under former Rule 24.04(b), it was the duty of the trial court to grant appellant‘s motion to sever the counts, because the joinder of offenses was unduly prejudicial to appellant.
Former Rule 24.04(b)3 stated:
(b) With the exception stated in (a) hereof [subsection (a) dealt with the joinder of offenses when one or more of the offenses charged was capital murder4], all offenses whiсh are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count where authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.
Our research has not reveаled an opinion by this Court construing the meaning of the words “a common scheme or plan” as used in former Rule 24.04(b). However, all districts of the court of appeals have considered the issue.6 We find that the essential test in determining whether a common scheme or plan exists, in a case involving a single defendant acting alone, is the requirement that all the offenses charged must be “products of a single or continuing motive.”7 State v. Jackson, 566 S.W.2d 227, 228 (Mo.App.1978); State v. Prier, 561 S.W.2d 437, 440 (Mo.App. 1978) (emphasis added).
In this case, the state‘s evidence8 showed that appellant‘s actions were the product of the single, continuing motive of revenge by harassment for the loss of his paramour and children. With regard to Counts I, II, and III, the state‘s evidence shows that appellant made numerous threats on the life of Rufus Penermоn, and that appellant threatened to burn down the Penermons’ house. The state‘s evidence concerning the Count IV charge showed testimony that appellant had a history of throwing things into and shooting into the Penermons’ house, that appellant had in his possession the weapon used in the assault upon Rufus Penermon that occurred on November 13, 1978, and that he was arrested a short distance from the Penermon residence. There is ample evidence of the ex-
Appellant‘s second argument is that, although the joinder of offenses was proper under former Rule 24.04(b), the trial court was under a duty to order severance, because the joinder of offenses was unduly prejudicial to appellant. There is no Missouri Supreme Court Rule requiring the trial court to sever counts that are properly joined under former Rule 24.04(b) because of the prejudice created by the joinder of offenses. See also
In State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), rev‘d on other grounds sub nom. Duren v. Missouri, 439 U.S. 357 (1979), after concluding that the joinder of offenses was proper under fоrmer Rule 24.04, this Court stated:
Further, severance is a matter within the sound discretion of the trial court directed toward achieving a fair determination of the defendant‘s guilt or innocence of each offense charged. The court should consider, among other relevant factors, the number of offenses charged, the complexity of the evidence to be offered and whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. The court remains under a continuing duty during trial to counter prejudice and order severance if necessary to achieve the fair result intended.
556 S.W.2d at 20 (emphasis added). See also State v. Williams, 603 S.W.2d 562, 567 (Mo.1980).
Applying the Duren criteria, we find that the evidence in this case is nоt complex. The three criminal acts charged occurred at distinctly different times. The jury could intelligently distinguish the law and evidence applicable to each offense and were instructed to do so in Instruction No. 5 (MAI-CR2d 2.70), which stated in part, “Each offense and the evidence and law applicable to it should be considered separately.” Appellant‘s argument here made is based upon speculation. See State v. Easton, 577 S.W.2d 953, 956-57 (Mo.App. 1979), cert. denied, 444 U.S. 863 (1979). The penalties imposed by the jury do not appear excessive under the circumstances. We find no abuse of discretion in the trial court‘s refusal to sever the offenses here charged.
III
Appellant argues with respect to the Count IV charge that the .22 riflе, live shells, and homemade silencer seized on March 12, 1979, should have been suppressed, because these articles were obtained through an unreasonable search and seizure in violation of the fourth and fourteenth amendments to the federal constitution and
Prior to trial, appellant moved to suppress the admission of the .22 rifle and other evidence seized on March 12, 1979. A hearing was held on this motion, and the motion to suppress was overruled. Appellant did not object when this evidence was offered at trial, nor did appellant include this allegation of error in his motion for new trial. Appellant has failed to preserve this error for review.
In Rakas v. Illinois, 439 U.S. 128, 143 (1978), the Court concluded that before one can complain of the violation of the fourth amendment, as incorporated into the fourteenth one has to have a “legitimate expectation of privacy” in the place or thing being searched. The Court created a two-
In In re J.R.M., 487 S.W.2d 502, 508 (Mo. banc 1972), this Court held that the test for standing under
We conclude then, that in оrder for appellant‘s fourth and fourteenth amendment rights to have been violated or for appellant to have standing to assert a violation of
In State v. Achter, 512 S.W.2d 894, 899 (Mo.App.1974), it was stated:
It is settled law that one has no standing to complain of the search or seizure of property which he has voluntarily discarded, left behind, or otherwise relinquished his interest so that he no longer retains a reasonable expectation of privacy with regard to it at the time of search or seizure.
See also State v. Hall, 534 S.W.2d 508, 510 (Mo.App.1976); State v. Browner, 514 S.W.2d 355, 356 (Mo.App.1974). We find no manifest injustice constituting plain error.
The judgment is affirmed.
DONNELLY, C. J., concurs in result in separate opinion filed.
RENDLEN, J., concurs in result.
BARDGETT, J., dissents in separate dissenting opinion filed.
SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.
DONNELLY, Chief Justice, concurring in result.
If I may be indulged the following observations:
(1) In Boyd v. United States, 116 U.S. 616 (1886), and Weeks v. United States, 232 U.S. 383 (1914), the United States Supreme Court articulated The Exclusionary Rule (which holds that evidence obtained by illegal search is not admissible at trial when timely objection is made).
(2) In State v. Owens, 302 Mo. 348, 259 S.W. 100 (banc 1924), The Exclusionary Rule was adopted in Missouri.
(3) In Mapp v. Ohio, 367 U.S. 643 (1961), the Court sought to make The Exclusionary Rule binding on the States.
(4) A rationale fоr The Exclusionary Rule has proved elusive. See Schlesinger and Wilson, Property, Privacy and Deterrence: The Exclusionary Rule in Search of a Rationale, 18 Duq.L.Rev. 225 (1980). To borrow from Irvine v. California, 347 U.S. 128, 136 (1954):
“Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrongdoing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.”
(5) In Owens, supra, this Court expressed the view that The Exclusionary Rule was the only method available by which a citizen could be assured the protection of the Constitution.
(6) We now know that the Owens view is no longer valid. In Owen v. City of Independence, 445 U.S. 622 (1980), the Court held that municipalities sued for damages under
(7) In Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310 (Mo. banc 1978), this Court held that
(8) In those circumstances, a remedy, other than application of The Exclusionary Rule, exists in Missouri by which a person injured can obtain redress for a constitutional violation.
(9) The purpose of the The Exclusionary Rule was to deter violations of rights to privacy — it does not appear in the United States Constitution.
Accordingly, I would overrule the holding in Owens, supra, wash our hands of The Exclusionary Rule, and turn to
I concur in the result.
BARDGETT, Judge, dissenting.
I respectfully dissent. In my opinion the failure of the trial court to sustain the appellant‘s motion to sever count I (committed November 13, 1978) from counts II and III (committed March 8, 1979) and count IV (committed March 12, 1979), and count IV from counts II and III constituted reversible error.
Rule 23.05, formerly Rule 24.04, permits the joinder of several counts charging separate crimes and the prosecution of them at
Former Rule 24.04 was amended in 1971 in an effort to reconcile the Missouri rule, as set forth in State v. Terry, supra, and the “double jeopardy-collateral estoppel” holding of Ashe v. Swenson, 397 U.S. 436 (1970). State v. Neal, supra, at 550.
In the instant case there are obviously no collateral estoppel or double jeopardy problems which would attend the trial or conviction on count I (November 13, 1978) assault with intent to kill with malice aforethought charge and count IV (March 12, 1979) carrying a concealed weapon charge vis-a-vis counts II and III (March 8, 1979) first-degree arson and first-degree assault charges. In Ashe v. Swenson, supra, the United States Supreme Court held that collateral estoppel prevented Ashe‘s trial for several other robbery charges after being acquitted of one robbery charge because, the Court said, the acquittal was based on a finding that the defendant was not present at the time of that robbery. Therefore, Ashe could not have been present when the other robberies took place because they occurred at the same time.
Here, an acquittal on alibi grounds of the November 13, 1978, charge (count I) would not estop a trial on the March 8, 1979, charges (counts II and III) or the March 12, 1979, charge (count IV). Consequently, I do not believe the circumstances of the instant case present the same or similar problem which this Court sought to mitigate by adopting the amendment to Rule 24.04 in 1971. I do not think this Court intended the rule to authorize, over objection, the trial of separate crimes where the times of their commission were so far apart, as in this case.
The majоrity contends “the essential test in determining whether a common scheme or plan exists [to be] the requirement that all the offenses charged must be ‘products of a single or continuing motive.‘” Thus, several sales of controlled substances to the same person could be joined on the premise that there was a continuing motive to sell drugs. Yet, in State v. Prier, 561 S.W.2d 437 (Mo.App.1978), the court, correctly I think, held that three sales of different controlled substances within two months to the same undercover policeman could not be joined. There was no intent to make all the drug sales to the same person prior to the first sale and no showing that any overall design would have been frustrated if any of the offenses had not been committed. Id. at 440. Similarly, the stealing of purses from two people could be joined under the principal opinion‘s test, demonstrating a continuing purpose to steal purses. Nevertheless, the court in State v. Howard, 601 S.W.2d 308 (Mo.App.1980), found that joinder was improper where the defendant, within one hour, stole purses from two people who were located several blocks apart. No factual connection existed between the offenses. Id. at 309. Equally, assault of one person could be joined with the assault of another a short time later because they evidenced a single motive to injure people. Still, in State v. Buford, 582 S.W.2d 298 (Mo.App.1979), the court found that these crimes “were not shown to be motivated by a common scheme or plan, and could not be described as part of the same transaction.” Id. at 302. Likewise, fraudulently obtaining loans from several banks in the same city within two years might be joined on the basis that the accused had a continuing motive to get loans in that fashion. Although the court in United States v. Cartwright, 632 F.2d 1290 (5th Cir. 1980), allowed joinder, it was permitted under
I am concerned how a trial court can apply Rule 23.05 in any particular case, as enlarged by the principal opinion, without jeopardizing a defendant‘s right to a fair trial as well as the validity of the conviction or convictions. The purpose of objecting to joinder is to prevent the trial of all counts at the same time. Therefоre, the decision concerning joinder has to be made before trial because that is when the objection, to be preserved, must be made. There is no evidence, at that time, on which to decide the issue. State v. Jackson, 566 S.W.2d 227 (Mo.App.1978), demonstrates the perils of such an approach. In that case, the prosecutor promised the judge that evidence would be introduced showing that first-degree murder and heroin possession were part of the same transaction. The evidence was never submitted and the court of appeals reversed and remanded for a new trial on each count. This is inefficient and creates unnecessary work which will recur frequently when judges order joinder without a solid evidentiary basis for doing so. The “products of a continuing motive or purpose” standard gives great leeway to prosecutors without aiding the trial court. The judge must guess at the beginning whether the crimes are part of a common scheme or plan and hope that after the evidence is submitted he is proved right. Convictions should not be premised on such a tenuous basis. The principal opinion states that “[t]he underlying theme of the Rule is the achievement of judicial economy through the joinder of related offenses.” It seems to me, however, more judicially efficient to provide a workable formula in which crimes are likely to be joined properly than to adopt the majority tеst. Under that standard, the trial court speculates and hopes that the crimes are part of a common scheme or plan, only to be reversed on appeal and then have to retry the charges separately. In the instant case, the indictment did not even allege the four counts to be part of any common scheme or plan, and the record does not reflect the trial court‘s basis for denying the motion to sever prior to trial. The reason given by the prosecutor for joining count I (November 13, 1978, assault) with the others was that it was learned that the rifle which was the subject of count IV (March 12, 1979, carrying a
The ownership and possession of the weapon by appellant on March 12, 1979, which the state‘s ballistics evidence shows fired the shot on November 13, 1978, would probably be admissible as evidence that appellant fired the shot on November 13, 1978.3 The fact that carrying a concealed weapon is a crime, however, is of no consequence with respect to the November 13th assault charge. The question is whether the gun was in the possession, lawful or unlawful, of appellant on March 12. Since the ballistics tests show this gun fired the shot on November 13, mere possession of the gun is circumstantial evidence that appellant was the one who fired the shot on November 13. It is certainly nо indication that the assault on November 13, 1978, was part of some scheme or plan which involved possession of a concealed weapon on March 12, 1979, or vice versa. Further, the weapon found on appellant March 12, 1979, and which fired the shot on November 13, 1978, played no part in the house bombing and assault of March 8, 1979.
I recognize that the evidence at trial was sufficient to permit a finding that appellant committed all these acts and that he was motivated in these acts by his desire to see his children and to cause Rufus to leave Lydia. Nonetheless, that motive alone does not, in my opinion, satisfy the common scheme or plan requirement of the rule nor does it otherwise come within the purview of former Rule 24.04(b). The crimes were not part of a common scheme or plan as I understand our rule. Not only were the acts decided on sequentially, and not all contemplated prior to the commission of the first one, but neither would some villainous and overall design have been frustrated if one or more of the crimes had not been committed or if appellant had committed them in no other manner. There was no indication that appellant, acting pursuant to an overall design, was in the process of committing or in fact had committed another crime against the victims at the time he was arrested for carrying a concealed weаpon.
Thus, the crimes in nature were not similar; they did not occur close in time as contemplated by the rule;4 nor were they all formulated prior to the first crime and pursuant to an overall design.
Under State v. Howard, supra, State v. Buford, supra, and State v. Prier, supra, some of the convictions in the instant case would have to be reversed and remanded for improper joinder. I believe these cases are correct and therefore I dissent.
STATE of Missouri, Respondent, v. Maurice PURNELL, Appellant.
No. 62019
Supreme Court of Missouri, Division No. 1.
Sept. 8, 1981
Rehearing Denied Oct. 13, 1981.