*1 WHITE, Appellant, Charles Herbert Missouri, Respondent.
STATE of
No. 53250.
Supreme Missouri, Court of
Division No. 2.
June Rehearing
Motion for and to Transfer to 8, 1968. July Court En Banc Denied *2 seizure, the motion was
ful search and
and
pre-
trial,
the evidence
At
overruled.
when
of-
sought
suppressed was
viously
to be
fered,
objection thereto
no
defendant made
un-
by an
on the
that it was obtained
basis
and seizure. See State
lawful search
Although on
Lord, Mo.,
pursuant to Rule STOCKARD, B. Sergeant Charles closed that Detective Commissioner. informant McKinnie an was told represented by employed While a committed person defendant who selection, found of his own defendant was drugstore which burglary recent aof possession nar- guilty by jury of stolen, that defend- narcotics had been and drugs in violation cotic of Section taken ant and narcotics 1959, V.A.M.S., sentenced RSMo narcotics, burglary, possibly other imprisonment eight years. for a term of Street, in a were house at 2104 East 59th an filed, No motion for new but trial Sergeant McKin- City, Kansas Missouri. af- judgment was taken defendant, he knew nie knew White, Mo., firmed. State v. reputation burglar and a narcotics as under 31. Defendant filed a motion has robbery re- He that the user. also knew 27.26, V.A.M.R., judg- Rule to vacate the He had known his ferred to had occurred. evidentiary ment A and sentence. full years, him knew informant for the motion in the hearing was held on reliable, many re- and he had times court, findings trial fact and conclusions him. Ser- ceived accurate information from entered, defendant law were geant McKinnie stated that he considered any appealed denying judgment from important, ap- the time element relief on his motion. proximately forty the infor- minutes after first that his point Defendant’s convic- ar- he and two officers mation was received upon dur- evidence “was seized based by the in- rived at the address furnished ing unconstitutional, an unreasonable knocked formant. One an unlawful made as result of search they door, immediately thereafter heard cause, arrest made without they thought in the was a woman what un- an from based on information being help. screaming calling Ser- house corroborating any named informer without from a geant removed a McKinnie screen to how any showing circumstances nor as in the house and saw window and looked his information.” informer secured living room standing holding large shorts and defendant filed motion dressed Prior to trial complete opened the door money. roll Defendant A full and suppress evidence. and he told that under arrest. unlaw- the issue hearing held then issue becomes whether narcotics were As the result a search that, as reasonably find box on could in the in a cereal found basement Ohio, attempting stated in top Beck v. State furnace. While 142, at the 13 L.Ed.2d previous- that had been 85 S.Ct. to locate cir- heard, in the moment of the arrest “the ly McKinnie looked facts and Detective *3 hypodermic syringe [Sergeant cumstances bedroom and a within McKinnie’s] saw in reason- ordinarily had paraphernalia employed knowledge and of [he] ably trustworthy suf- Defendant told information were the use of narcotics. prudent in be- screaming ficient warrant a man that of to or opera” tele- part “soap lieving a of a that committed was had [defendant] vision, person than Mc- or other an offense.” also committing no woman was See Illinois, Cray 300, 87 defendant was found in house. v. U.S. State 386 62; L.Ed.2d State 1056, S.Ct. 18 Ker v. probable Whether there cause was 1623, California, 23, 10 374 U.S. 83 S.Ct. depends upon arrest for the of defendant supra; 726; Jefferson, L.Ed.2d v. grounds whether there existed reasonable con- the annotation entitled “What an of arresting officer to believe ‘probable stitutes cause’ ‘reasonable by had fense been committed defendant. grounds’ sus- justifying arrest narcotics is making Probable cause an arrest pect 3 warrant —federal cases.” without beyond saying incapable of exact definition set forth What we have L.Ed.2d 1736. arbitrarily, act “the officer must not findings, above demonstrates that the con- in legal exercise discretion must his trial court judgment clusions of the manner, to must reasonable means use all were not clearly erroneous. by prevent must be actuated mistakes and point Defendant’s is that second influence reason such motives as would con- right “denied his constitutional to be man faith.” able in State v. acting good against him, fronted his by witnesses Jefferson, Mo., 391 885. As stated S.W.2d right cross-examination, right and his 160, Brinegar in v. 338 U.S. compulsory process the trial because of 1302, 1879, in deter 69 93 L.Ed. S.Ct. di- require court’s refusal to the state arrest mination of cause for an vulge being informer, the name such prob warrant, without a deal with “we helpful relevant defense.” to [his] and practical “factual abilities” which are presented This behalf contention was everyday life on which considerations of the judg- of defendant on his from prudent men, legal not tech reasonable and ment his counsel conviction the same nicians, Sergeant Mc- act.” this case In representing appeal, now him on this reputation as a knew Kinnie defendant’s adversely ruled to his contention. See knew burglar and user. He a narcotics White, Mo., State v. c. 33-34. 408 S.W.2d recently bur that a had been pharmacy 27.26, been taken. under V.A. narcotics A motion Rule glarized and had Sergeant M.R., known to not to furnish defendant second informant is well appeal. years, and he had The action trial court many McKinnie for of the mo- supplied ruling defendant’s accurate on this contention in numerous occasions ob is affirmed for Defendant was Rule 27.26 reliable information. under prior opinion. inform reasons stated in the See premises where the served 115; placed Hooper, Mo., State v. S.W.2d ant said he would be before was Durham, Mo., State v. arrest. under denied, certiorari 86 S.Ct. “limited is proceeding Our review in this 110,15 L.Ed.2d findings, ato determination whether point the trial Defendant’s last “because conclusions and judgment of (j); Rule of trial in fail- clearly 27.26 ineffectiveness counsel are erroneous.” ing trial, file a motion for State, new Crosswhite [he] herein meaningful setting set Without forth effect forth. denied a real and conclusions, this because reasons for our we appeal from his conviction alleged con- not that there merit to other two that it will review is no court’s rule preserved such tentions. have not been errors appellant due motion, thereby denying Childers, Mo., In State v.
process of law.” the defendant contended motion under Rule that he was denied Defendant’s facts. note several We rea effective assistance counsel for the in the trial experienced at trial was counsel son specify his counsel cer failed appointed He of criminal cases. tainty objections instructions, and for employed by defend- but had been that reason the issue was not reviewable on and is He time of ant. appeal. It held that this was *4 repre- attorney partner the the law now grounds sufficient the setting for aside The trial appeal. senting defendant this on judgment, and was stated that court “this the time for upon request extended court has consistently followed that the rule thirty days. trial a motion to filing for new ‘negligence of skill af or want of counsel and motion was expired, that time no When fords ground no the for reversal of even filed, before the court appeared ** criminal case’ In v. allocution, and his trial with counsel for Mo., Worley, 371 S.W.2d the above any legal cause asked if there when was rule applied was to the failure of counsel imposed, be de- why sentence should not suppress evidence, to file a motion to that con- did not advise the court fendant in Mo., State Hooper, had not filed trary to his wishes his counsel 117,it applied was to the failure of counsel a motion for new Defendant has not trial. to timely file for As- motion new trial. under Rule 27.26 alleged in his motion filed suming the reason no motion for new trial the file a motion that failure of counsel to timely negli- this case filed in was the contrary instruc- new trial to his for gence counsel, trial in defendant’s which tions, agree that he that no mo- or did not opinion, our established, was not the above At the tion for new trial should filed. applicable. rule is The trial not court was hearing the under Rule 27.26 motion clearly in denying erroneous defendant’s testify. only did The trial counsel not contention that he was denied process due why explanation the as to a mo- in record of law. the for new trial not filed is The judgment is affirmed. by present statement defendant’s he had the matter “discussed” BARRETT, C., concurs. testimony “would trial counsel and that his We note just forgot.” be that he also PRITCHARD, C., not sitting. hearing the under Rule at the motion attempt defendant made no to show PER CURIAM: he basis reason on what or for what The opinion STOCKARD, foregoing to prejudiced by the failure of his counsel C., adopted is opinion as the of the Court. de- In his brief file a motion for new trial. All of the Judges concur. arose fendant asserts that “certain matters objections,” resulted in which On Motion for Rehearing and Transfer to generally action refers to the trial court’s en Court Banc. overruling suppress evi- his motion to PER CURIAM. dence, refusing an circum- instruction evidence, overruling Defendant, stantial pro se, acting has filed with the chain objection proof “to the motion for rehearing, a motion to trans- suppress fer The evi- evidence.” motion this case court en banc on ground properly for the reasons ruled question dence that a federal is involved. V, priorly adjudicated by Section Article Constitution of decisions of this Missouri, V.A.M.S., court, Doe, Mo., provides that a & cause Co. v. S.W.2d Swift 15, 20, prior en adjudication shall be transferred to the court banc and when that is good challenged. (a) when members of a division are faith See State v. Harris, Mo., equally opinion, (b) divided in division issue for order, application (c) require shall so of the did not “con- decision on party losing when a member divi- struction” of the federal or state consti- opinoin therein, most, (d) sion At there involved dissents from tution. involved,” question (e) principles “a the application federal is of constitutional pursuant supreme This court rule. construction of the federal or question” “A that the term “federal constitution. real substantive fed- held question eral exist the transfer as used in Section 9 of Article V to should “interpreted according allegation con- cause to The mere standard” Banc. V, question pertaining existence of federal is not suffi- tained in Section 3 of Article court, jurisdiction supreme Johnstone, cient.” State v. to “cases the construction involving refers of the the United States or Constitution of rehearing In defendant’s state, validity treaty of a or stat- this attempts to raise for first time con- any authority ute of police tention after exercised under the laws of the United *5 * * they thought and knocked on door heard States, v. St. Louis McAllister screaming, there resulted an un- Co., Ry. Bridge Merchants’ Terminal 324 entry Sergeant lawful into the house when 1005, Mo. 25 also Irwin S.W.2d 791. See McKinney screen and removed window Company, Publishing
v. Globe-Democrat
looked in the
He cites and
on
house.
relies
Mo.,
452,
368
the recent case of
Sabbath v.
828,
585,
L.Ed.2d
U.S.
S.Ct.
presented
The issue
presents a
and
asserts
this contention
wrongfully in
were
was whether narcotics
question requiring
transfer
federal
at defendant’s
troduced
evidence
court en banc.
they
been obtained
ground
so,
If
unreasonable search
seizure.
questions
pre
be
Constitutional
it
because the arrest
defendant was
appellate
be raised
However,
served for
review must
if
probable
made without
cause.
cause,
opportunity
with or
arrest
the first
consistent
lawful,
and seizure
the search
therefore
Smith, Mo., 310
derly procedure.
admittedly was
made as an incident thereto
They
pre
first
cannot
unreasonable,
thus ob
evidence
rehearing.
How
sented in a motion
only pos
properly
The
tained was
admitted.
ever,
any
would
this contention
event
federal or
sible
of either the
“construction”
call for the “construction”
search
state constitution would whether
constitution,
appli
or federal
but
made as an
and seizure without warrant
principles, and
cation
constitutional
ap
incident
arrest violates
lawful
addition,
contention.
merit to the
there is no
against un
plicable
provisions
constitutional
McKinney
himself
Sergeant
identified
However,
reasonable searches
seizures.
voluntarily
defendant,
long
that it does not.
has
been decided
admitted
opened the door
house
California,
Ker
v. State
police
officers.
726;
Phelps,
S.Ct.
10 L.Ed.2d
State v.
only of rear-
Other contentions consist
court does not