State v. ReeseState v. Reese
Appellant, Earl Reese, was convicted of robbery in the first degree by, the Circuit Court of Jackson County, Missouri, and, pursuant to §§ 558.016 and 557.036.3, RSMo 1978, the court imposed a life sentence. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.
As appellant does not challenge the sufficiency of the evidence supporting his conviction, it suffices to say that there was evidence showing appellant robbed a Kansas City sеrvice station and was hiding in the home of a girlfriend, Ms. Shekena Dab-ner, when he was apprehended a short time after the robbery.
Appellant first contends the trial court erred in not suppressing a revolver, coat, wallet, ski mask, and sunglasses seized without warrant by police when they arrested appellant at Ms. Dabner’s home. The State does not contend that the items were seized incident to appellant’s arrest, but rather pursuant to Ms. Dabner’s consent to searсh her home. Appellant maintains the State failed to sustain its burden of demonstrating that the warrantless search was conducted with Ms. Dabner’s consent. Appellant asserts that Missouri, by means of
State v. Berry,
The opinion in Berry does set forth the relevant considerations involved in a war-rantless search case:
“The ban of the Fourth Amendment against unreasonable searches and seizures applies to the state through the due process clause of the Fourteenth Amendment. State v. Witherspoon,460 S.W.2d 281 , 283 (Mo.1970), but a search may be made without a warrant under one of the few, specific well-recognized exceptions to the ban. State v. Rush,497 S.W.2d 213 , 215 (Mo.App.1973). A search conducted pursuant to a valid consent is constitutionally permitted and is ‘wholly valid.’ Schneckloth v. Bustamonte,412 U.S. 218 , 222,93 S.Ct. 2041 , 2045,36 L.Ed.2d 854 (1973). In relying upon consent to justify the lawfulness of a search, the state has thе burden of proving that the consent was, in fact, ‘freely and voluntarily given.’ Schneckloth, supra,93 S.Ct. 2041 , 2045.
“Whether a consent to search was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined from the ‘totality of all the surrounding circumstances.’ Schneckloth, supra, at 2047. In situations where the police have some evidence of illicit activities, but lack probable cause to arrest or search, the search authorized by a valid consent may be the only means of obtaining important and reliable evidence. Schneckloth, supra,93 S.Ct. at 2048 .
“To show consent the state must show more than mere acquiescence to a claim of lawful authority. State v. Rush, supra, at 215. While a person’s knowledge of the right to refuse consent is a factor to bе taken into account, as part of the circumstances, the prosecution is not required to demonstrate such knowledge ás a prerequisite to establishing a voluntary consent. Schneckloth, supra,93 S.Ct. at 2059 . [Emphasis added].
“In determining whether there is a voluntary consent to search, the court may consider such factors as the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether the person was already in police custody, whether there was any fraud on the part of the officers, the acts and statements of the consenter, and other matters comprising ‘the totality of the circumstances.' State v. Rush, supra, at 215.”
Thus, contrary to appellant’s assertiоn, the trial court was not required to find that Ms. Dabner knew she could refuse the police permission to search, but whether from the “totality of all the surrounding circumstances,” Ms. Dabner’s consent was, in fact, voluntary.
Relevant to this inquiry is the testimony of Ms. Dаbner and Hadley Cutburth, one of the arresting officers.
Ms. Dabner testified that three or four police officers came to her door, that she did not consent to a search, but was forced to permit the police to enter beсause they threatened to arrest her and put her child in a detention home. She conceded that she signed a consent to search form, but testified she did not know what the form was. She also testified she believed she had a* right to refuse tо permit the police to search.
Officer Cutburth’s testimony contradicted most of Ms. Dabner’s testimony. He testified that after he asked Ms. Dabner if she cared whether the police looked inside, she stepped aside allowing them to еnter. He denied that Ms. Dabner was ever threatened with arrest or loss of her child if she refused.
We conclude that the trial court did not err in determining that the “totality of the circumstances” disclosed Ms. Dabner’s consent to the search.
Appellant next maintains the trial court erred in overruling his objection to quash the jury venire because blacks were substantially underrepresented on the panel. Appellant concedes that we “have been reluctant to admit thе existence of system
Appellant’s third point concerns the admission into evidence of photographs of Ms. Dabner’s home, of items found in her home during the search and of her automobile. Appellant contends that despite his request for discovery of the photographs filed pursuant to Rule 25.03(A)(6), the fact that the photographs were not produced by the State until trial and the trial court’s failure to grant even a continuance “irreparably” damaged appеllant’s defense. We fail to see how the trial court’s ruling amounted to “fundamental unfairness” to appellant,
State v. Smothers,
Nor did the trial court err in admitting testimony relating to the photographs of the items found in Ms. Dаbner’s residence (money, a ski mask, and sunglasses). Appellant claims the relevance of these items was not shown.
As to the sunglasses and ski mask, we are limited to a review of whether the evidence relating to these items amounted to plain error, Rule 29.12(b), because appellant failed to preserve the issue as to these items by raising it in his motion for new trial. Rule 29.11(d). We do not believe that the admission of such evidence amounted to “manifest injustice” or a “miscarriagе of justice.” Rule 29.12(b);
State v. Nauman,
As to the money found in Ms. Dab-ner’s home, one of the arresting police officers testified that Ms. Dabner, who was aware that appellant was under arrest for robbery, led the officer to the kitchen where she handed him $38 tаken from a cabinet drawer and to a closet where more money was found. It can be inferred that she knew appellant had placed the money in these places upon returning from the service station, thus making the relevаnce of this evidence apparent.
Next, appellant argues the trial court erred in admitting into evidence items seized in Ms. Dabner’s home contending that his warrantless arrest was illegal, citing
Payton v. New York,
Finally, appellant presents several challenges to the trial court’s imposition of an extended term of imprisonment under
“1. The court may sentence a person who has pleaded guilty to or has been found guilty of a class B, C, or D felony to an extended term of imprisonment if it finds the defendant is a persistent offender or a dangerous offender.
“2. A ‘persistent offender’ is one who has been previously convicted of two felonies committed at different times and not related to the instant crime as a single criminal episode.
“3. A ‘dangerous offender’ is one who:
“(1) Is being sentenced for a felony during the commission of which he knowingly murdered or endangered or threatened the life of another person or knowingly inflicted or attempted or threatenedto inflict serious physical injury on another person; and
“(2) Has been previously convicted of a class A or B felony or of a dangerous felony.
“4. The total authorizеd maximum terms of imprisonment for a persistent offender or a dangerous offender are:
“(1) For a class B felony, a term of years not to exceed thirty years;
“(2) For a class C felony, a term of years not to exceed fifteen yeаrs;
“(3) For a class D felony, a term of years not to exceed ten years.”
Appellant apparently contends that if he received the life sentence as a “persistent offender” under
We note, however, that although the trial court did unnecessarily refer to appellant as a “persistent offender”, the trial court also found that appellant was a “dangerous offender”; that the record supports the imposition of the life sentence under the “dangerous offender” provision of
Next, appellant contends the imposition of an extended term of imprisonment placed him in double jeopardy in violation of the Fifth Amendment to the United Stаtes Constitution. .The contention is without merit. An accused may not receive an extended or enhanced punishment not authorized by the legislature.
Ex parte
Lange,
Lastly, appellant maintains that since
“3. If the jury returns a verdict of guilty and declares a term of imprisonment as provided in subsection 2 of this section, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless:
“(1) The term declared by the jury is less than the authorized lowest term for the offense, in which event the court cannot impose a term of imprisonment greater than the lowest term provided for the offense; or
“(2) The defendant is found to be a persistent or dangerous offender as provided insection 558.016, RSMo , in which case:
“(a) If he has been found guilty of a class B, C, or D felony, the court shall proceed as provided insection 558.016, RSMo ; or
“(b) If he has been found guilty of a class A felony, the court may impose any sentence authorized for a class A felony.” [Emphasis added].
As first degree robbery, a class A felony, carries with it a possible punishment of life imprisonment, § 558.011.1(1), RSMo 1978, the trial court was authorized by § 557.036.-3(2)(b) to impose the extended sentence.
See State v. Shive,
The judgment is affirmed.