*1 Missouri, STATE of

Plaintiff-Respondent, GARDNER,

Dwain L.

Defendant-Appellant.

No. 69169.

Supreme Missouri, Court of

En Banc.

Nov. 1987.

Rehearing Denied Dec. *2 Deaton, Branyan, T.

M. Pаtrick Elise defendant-appellant. Springfield, for Gen., Webster, Timothy Atty. William L. Gen., W.Anderson, Atty. Asst. Jefferson Mountjoy, Atty., Pros. City, E. Thomas Monroe, Atty., Pros. E. Chief Asst. Richard plaintiff-respondent. Springfield, for HIGGINS, Judge. by jury was convicted

Dwain Gardner receiving stolen twenty-one counts $150, section of over property of the value 570.080.1, The court deter- prior offender was a mined that defendant years in twenty-eight sentenced him Judgment Department of Corrections. accordingly. rendered Southern Appeals, Court Missouri District, and re- judgment reversed court with cause to manded the twenty of defendant’s vacate direction tо and sentences twenty-one convictions This Court grounds. jeopardy double general process transferred the case because of the to remain silent and due importance jeop- protected by interest and of the double law the 5th and 14th amend- ardy issue. Affirmed. ments of the United States Constitution I, and article section 10 and 19 of the Gardner was *3 Appellant Missouri Constitution. claims receiving counts of of the the statement was a fruit of an arrest $150, 570.080.1, value over violation illegal without cause and of the RSMo Each 1978. count that de- home, search and seizure of items from his fеndant, 570.080, in violation of section person. car and 1978, felony committed the Class C in that on or The detective stated that defendant made spontaneous about 14th of March Dwain the remark he read after was Gardner, purpose deprive rights. with the a his The Miranda State contends the specified property, kept voluntary spontaneous owner of certain statement was property, aggregate such of an value of at and incident to a valid arrest of defendant. $150, knowing believing least or it had up that Defendant was arrested when he drove particu- Agee during bеen stolen. Each count named a to his house with Steven property. lar owner and described different conduct of the search authorized war- all, property, thirty-two police question consisted rant. The officers did not pages of items recovered defendant. 14, 1984, from defendant’s home on March suppress Defendant’s motion to was de validly as the result of a executed search During nied before trial. trial when the

warrant. entered, statement defendant did not twenty-six The State called witnesses to object. suppress pri- A motion to evidence testify regarding proрerty twenty- interlocutory or to trial is in nature. The burglaries period one that occurred over a damage real is not done until the evidence prior of seven months to March is introduced in the trial of a case for Agee. The state also called He Steven by jury. consideration a Then a trial court testified that defendant was his “fence” change can receive additional evidence and and that he visited defendant at his home ruling admitting prior objected its “just every day” about to sell him various jury. items in evidence before a State v. property. Agee lots of stolen had entered Carrico, (Mo.App. 696 S.W.2d plea bargain into a with the State to receive 1985), Howell, quoting 524 S.W.2d lighter County a sentence on three Cole 1975). 11, 19(Mo. Defendant failed to banc burglary charges in return for his testimo- preserve point for review. ny against defendant. The last wit- State’s plain under the error stan Review Asher, respon- ness was David who was appellant mani requires dard suffer securing executing sible for the search injustice, 30.20. The record does fest Rule 14, 1984, warrant March at 2:49 a.m. at any injustice manifest occur not indicate defendant’s residence. him ring read his to defendant. Appellant presents five issues on this rights. They questions asked no of defend them appeal. The Southern District found point defendant made ant and at exception the double meritless with the spontaneous, voluntary statement. State jeopardy claim which sustained a determi- made voluntarily spontaneously ments charge against de- nation that the State’s interrogation not under by a defendant only one justified fendant conviction on admissible, have been held to property and not count of Kent, 217-18 multiple counts as the State contends. of a statement The voluntariness by evaluating all the circum determined

Appellant first asserts that the trial the statement stances ‍‌‌‌‌‌​​​‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​​‌‌‌​‌‌​​​‌‍under which mo court erred defendant’s made, Thomas, 698 S.W.2d 942 suppress because his tion to statements The record indicates de getting out guess “I don’t I’ll be statement proba- one,” occurred after long fendant’s statement time after this for a arrest, not limited to instances where he was read his because cause to ble knowledge, being interrogated judge’s likely at the he is to be and he proceeding, the statement. state- witness in the or he time he made a material voluntary, spontаneous and ad- personal prejudice concerning ment was has a bias properly. disputed personal mitted party, concerning evidentiary proceed- facts that trial court Appellant contends ing. Appel to recuse himself. erred in failure him requested judge trial recuse lant has not met his burden. Defendant day trial was to on June self First, alleged that there are no facts show motion in begin. Defendant also filed a against defendant. prejudice bias suppress motion to evidence limine and a Second, alleged that would there is no fact *4 day. The heard оn the same which were the person to believe that lead a reasonable over to recuse himself and judge refused called as a witness or that judge was to be defendant’s motions. ruled in the case. a material witness he was hinge on Becoming a at all would witness Defendant, right, could matter of as a suppress. motion to How- granting of the by writ- requested change judge a of have ever, posture of this motion procedural days after the not later than 30 application ten a determination designat- court to make judge is for the arraignment if the trial is validity the searсh war- application concerning the of designated, then the If not ed. from the days after If determines later than 30 rant. the court filed no must be is notifi- that the warrant judge of the document designation of face judge attorneys. necessary and the parties hearing or their cation to the no valid prove any If allege or as a witness. applicant possibly need not be called will not invalid, De- change. they Rule 32.07. are there such finds reason for the court procedure. on whether did not follow a determination fendant then be would good faith. The court officers acted requested recusal because Defendant and overruled valid the warrant was found a week a search warrant judge trial issued suppress the evidence. the motion a further arrest for defendant’s after on new home based of defendant’s search he intended to claim Defendant cannot po- alleges the Defendant police evidence. in order to have judge as a witness call the the search warrant requesting lice officers Had he fol- himself. disqualify judge judge parte discussions with had ex enti- have been he would Rule 32.07 lowed de- guilt of case about the concerning the a matter of change judge as tled to a fairly judge cannot and that fendant request Instead, chose to right. con- evidence suppress rule the motion without substan- day of trial on the recusal of the search warrant. cerning the issuance valid claims. request with tiating his intended Also, he contends the defendant demonstrated. alleged error is not for the mo- judge as a witness to call the argues the suppress evidence and charge is that tion Appellant’s principal judge witness sit as both judge cannot defend trial court erred acquittal same case. at judgment fоr motion ant’s all but as to evidence of all the the close are disqualification for The reasons property be receiving stolen one count any de- related to judge if and sentences appellant’s conviction cause has been in or has an interest fendant his counts twenty additional dis- proceedings in the criminal counsel guaranteed jeopardy from double freedom reason. any other for qualifies himself States to the United by the 5th amendment is fundamental The standard 32.10. Rule alleges the State Appellant Constitution. the Code under fairness, Also Rule 32.09. receiv аct of than one prove more failed 3(C),Disqualifi- Conduct, Canon of Judicial de keeping so that by stolen himself disqualify cation, judge should a on all convictions fendant’s impartiality his in which proceeding sen- multiple him with prejudiced including counts reasonably questioned, might be argued by appellant tences for one offense of stolen because the evidence proved by keeping. introduced at trial otherwise. State, (Mo. In Green v. The evidence showed that App.1986),the court held that a defendant owners, was stolen from different at differ- charged by information with eleven сounts times, by burglar ent inwho turn sold the time, at one goods at various times to Gardner. July the search warrant charge did not defendant with executed, single was a act that was dates, multiple counts on in- different separate merely into crimes divisible stead used the date of the offenses as on or because the was stolen at differ about the date the search warrants were people, ent times from different ex Appellant executed. his claims Campbell, rel. 637 S.W.2d at Westfall jeopardy by free from double was violated Green, 97; 721 S.W.2d at 199. Green did charging multiple possession the State dispute that the goods act; single when it was a from a on different number owners therefore, punish- he received cumulative dates and that all of the stolen for the ments same offense and should be possession July 2,1982, inwas when discharged accordingly. it was discovered law enforcement offi *5 single Section 570.080 established the pursuant cers in a search to a warrant. receiving property crime of stolen which receiving While different articles of sto- may by doing any be committed property, separate len at different times on prohibited receiving, several acts: retain occasions, sep- and unconnected constitutes ing disposing knowing property of or crimes, proper- arate even where all of the believing it to be stolen. State ex. rel. ty possession found in the of is afterward Campbell, 97-98 S.W.2d Westfall place, the same time and defendant at single receiving A act of Am.Jur.2d, Receiving Property, Stolen property stolen in one transaction has been p. charging by 293 at a defendant with held to be but one crime and not divisible receiving property all of the stolen on one separate into crimes because the stolеn information, in the offense is then date an property belonged owners, to different Gil single sepa- act that is not divisible into State, more v. rate crimes. Id. case is not the as Gil- same all the sto- more where defendant received distinguishable Gilmore is because property from one source in one trans- len separately defendant Gilmore received the clearly received action. Here defendant stolen items at the same time from the different the stolen on numerous transaction, same source and in the same occasions, and from from different оwners Gilmore, case, 710 S.W.2d at 358. In this set out the list one source. twenty-one defendant had from the owners in specific property stolen from from at different owners that was received twenty-one counts and stated each of the times, least one source at different all of same retained on or about the that it was one by which was confiscated on day, the search warrant which was The evidence introduced at trial was date. aggre- executed. There was not one was transaction, proof that there was not one in the gate list of stolen listed Gilmore, twenty-onе least dif- as but at instructions, jury information or the where defendant received ferent occasions specific counts of twenty-one different property. jury stolen and retained property identified owners as if defendant was instructed that it found during peri- a six-month from their homes specifically such listed stolen had retained od. day the property on the search warrant executed, guilty up put on notice of it could find him Defendant was com receiving charges against him and cannot twenty-one counts of stolen the prepare opportunity he had no plain one as property. This is not transaction seventy-two a defense. The State listed counts. Defendant had notice and there might appear twenty-six witnesses that and fore cannot claim his to be free from separate of those owners of lots violated, were jeopardy nor can he claim the property. the stolen There was no doubt incorrectly multiple information set out charges that defendant understood ‍‌‌‌‌‌​​​‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​​‌‌‌​‌‌​​​‌‍the against offenses him. A sufficient indict against him had notice with which to ment or indispensable information an prepare on a defense counts of vеrdict, prerequisite judgment to a valid property. might The State sentence, DiLiberto, 537 S.W. better have defendant with receiv (Mo.App.1976); 2d 671 Rule 24.01. Here occasions, on different requirement was satisfied. listing description the date of each and a opinion To the extent this conflicts with received, proof and introduced Green, cases are no Gilmore those which, separate on those issues counts if longer to be followed under the facts proper justi given, instructions were would jeopardy case on double In issue. However, fy multiple convictions. no in Gilmore, an informant told defend- dictment information shall be deemed ant had stolen his house. A invalid, trial, judgment shall the nor issued search warrant was and the stolen proceedings stayed, other thereon be ar It is property recovered. not known (5) any rested or in manner affected: for the record listed the how information omitting state the time at which separate five offenses committed, any offense case where ease, in this there property, but as had offense; time is of the essence of the proof by the State been (6) stating imperfectly; nor for time dates received stolen different (7) stating been nor for the offense to have (other than listed in the informa- the one day subsequent committed on a find *6 tion), owners, have from he could different information, ing of the indictment an of guilty multiple of offenses been found impossible day, day on a that never long receiving property as the stolen as happened. 545.030RSMo 1986. State limi- period the statute of time was within charged could defendant with multi have of not the critical element tations. Time is ple receiving property offenses of stolen receiving stolen of proving the offense using knowledge the dates tо best of its guilty of above. To be property, as stated valid, and the information would have been must receiving property, defendant stolen necessary. this not The variance but was purpose to with the property receive stolen allegation information in the between an the his with deprive the of interest owner “the_ that the was committed on offense knowledge property that had been or belief proof of and that it was September” 570.080, It is stolen, section committed in October does not invalidate re- record that Gilmore not clear from the goods, as stоlen conviction for property the possession of all stolen ceived an of the of element which time was time, the one other than that at it the evidence showed was fense where in defend- found at the same time was all limitations, period the committed within validly executed home result of ant’s as a (Mo. Glazebrook, v. 242 S.W. State search warrant. 1922). quashed will not be An information time unless is for times which are exact Each of this case. Green similar particular crime. the for that essence stated property counts stolen Murray, State pur- Green, July on owner, kept such pose depriving least of at aggregate value property of an case numerous wit in this had $150, believing to be stolen. it knowing or prove defend nesses and evidence specific is not if stolen It stated multiple offenses receiv ant committed count, both Green each was listed for specifically and listed ing County, in occurred Greene vari case of the each de- charge the used informations twenty-one both in each of the ous owners fendant, likely and the format was the The first set affidavit forth evidence which by personal observation, same. The Southern Distriсt found that had been obtained although dispute there was no surveillance other officers informa- and. agent was stolen from a number of dif- FBI tion from an which led the dates, ferent owners different because officers to believe that stolen merchandise the information stated he received all of being was stored at defendant’s residence at one time the act “chop shop” being operated and that a single therefore a act and not divisible. there. The second affidavit set forth the reasoning This is flawed because time is knowledge, source of the offiсer’s not of the essence for the crime of receiv- personal suspicious observations ac- defendant, if conjunction burglary tivities with a unit case, facts were similar to the and information received from Tulsa and put charges as to notice what he had to Appellant alleges supporting the FBI. defend. There was no defect within sufficiently affidavits fail to detail informa- prejudiced information that the substantial tion, demonstrate the for officer’s basis rights of the defendant in or in Gardner failing link and for (if similarly Green the case was activity. with criminal Green, prosecuted). Rule 23.11. determining proba- The test for whether therefore, longer is no valid as to this dou- ble cause has been established for issuance jeopardy argument. ble totality of a search warrant is the Appellant alleges that circumstances standard decided Illinois sup court erred in his motion to Gates, U.S. S.Ct. press evidence because the admission of L.Ed.2d 527 which was followed in evidence seized with four search warrants Horsey, Missouri violated his to be free from unreason protected by able searches and seizures issuing magistrate simply task 4th and 14th amendments to the United practical, tо make a common sense deci- States Constitution and article section given sion whether all the circumstances and 15 of Ap the Missouri Constitution. him, in- set forth the affidavit before pellant argues the first search warrant was cluding veracity and basis of knowl- *7 probable par invalid for want of cause and edge persons supplying hearsay infor- ticularity and scope exceeded the of the mation, probability there is fair that by beginning first warrant in the search or evidence of a crime be' contraband will the defendant’s bedroom for mechanic’s place. particulаr found in a And the parts. hand tools and vehicular He then simply duty reviewing of the court is to alleges that the fruits of the unlawful magistrate insure that the had a substan- search were used to obtain three additional concluding proba- tial basis for ... that search warrants that also failed to state ble cause existed. particularity seized, with the items to to be 238-239, Gates, 462 U.S. at 103 S.Ct. at arrest and search defendant’s automobile 2332, 548; Horsey 76 L.Ed.2d at 676 S.W. person and and as evidence at trial on all 2d at 852. prop counts of supporting search affidavits the four erty. sufficiently issued in case warrants this Validity of the searсh warrant is mea upon judge stated evidence which could by existing sured circumstances at time it them. The test for decide issue issued; was character of the warrant is not in cause to issue the warrants as stated changed by what the execution discloses. Horsey and was met. The affidavits Gates Wallace, 593 S.W.2d 545 specificity the reasons the set out with requesting officers a search warrant were support The affidavits

Two affidavits were submitted in of the defendant’s home. investigation complaint displayed in is- a multifaceted of the which resulted ‍‌‌‌‌‌​​​‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​​‌‌‌​‌‌​​​‌‍the also caught question. getting in its web. suance of the search warrant in with defendant g to be searched. Steele v. place

Appellant’s identify 4th amendment the U.S., 498, 503-4, 45 S.Ct. and seizures U.S. free from unlawful searches Williams, (1925); U.S. v. 69 L.Ed. 757 violated. Cir.1982), (9th Mur quoted 290 292 in F.2d Leon, United States In 468 U.S. phy at 266. The search conducted 82 L.Ed.2d 677 S.Ct. particularity sufficient to meet with Gates dimension was added to another in specificity test of outlined above and by totality the circumstances test what good exception conjunction with the faith good to as the faith generally referred v. Leon convinces this U.S. laid down in exclusion exception to the 4th amendment particularity the lack of asserted Court Murphy, ary rule. justify application of appellant does not Supreme (Mo.App.1985). The Court de easily exclusionary rule. The tools were parted rigid application anywhere and concealed in the house exclusionary firm rule on the belief conducting police justified were a thor have acted “when law enforcement officers ough and search of res careful defendant’s transgres objective good if their faith or items. When contraband idence for the minor, magnitude of sions have been possible stolen items were discov and other guilty de conferred on such benefit ered, immediately went to the the officers concepts of fendants offends basic request two additional search war Court justice system.” Murphy, criminal their indicative of inten rants which was Leon, U.S. quoting S.W.2d at manner. A final tion to act a lawful Certainly at 3413. U.S. at 104 S.Ct. later based was obtained one week warrant assuming the officers met this standard searching of a officer on the observation arguendo transgression that a occurred. reports in burglary and his review of Again Department. Springfield Police Appellant claims the first warrant was duty sense of displayed the officer’s sufficiently particular. The first were is to detail. The warrants attention issued for mechanic’s search warrant was particularity and there sufficient sued with wrenches, sockets, tools, cut hand such as scope exceed showing their no instruments, screwdrivers, etc.; ting expec they defendant’s ed or that affidavits described in attached vehicles home, his car or his privacy tation transport and store stolen vehicles’ used arrested. person after he was parts, includes is not limited which transmissions, batteries, rear engines, search warrants Validity of thе ends, etc., vehicles. removed from stolen spontaneous coupled defendant’s cars, pickups include These vehicles having indicating knowledge of statement units. The contend tractor trailer gave crime committed a many easy due to the concealment cause to Probable to arrest the defendant. *8 warrant, in the the offi the items listed knowledge of depends upon make an arrest conducting a thor justified in cers were for a sufficient facts and circumstances home. It is ough of defendant’s suspect search that the person to prudent believе requirement of particularity patent that the an offense committing committed or has is preclude legal broad hindsight 4th amendment and is determined or general that know no bounds practical searches considerations technicians but inherently per of un smack reasonable everyday limits and which life on which Maryland, Smith, reasonableness, 518, Andersen v. v. sons act. State 2737, 463, Finding 49 L.Ed.2d contraband (Mo.App.1984). 427 U.S. 96 S.Ct. U.S., premis and Marron (1976), property 275 U.S. on defendant’s and stolen ongo quoted es, L.Ed. 231 information 48 S.Ct. combined with Springfield accuracy in de Murphy at 266. Practical ing investigations of both FBI would lead рrecision and the Department technical Police scription govern over defendant person to arrest requirement is met if reasonable particularity and the during the at his home upon to en his arrival sufficiently definite description is cause be- There was reasonably search. executing officer able an lieve that the any prosecution defendant committed an of- criminal under this sec- fense. prove requisite knowledge tion to or alleged belief of receiver:

Appellant alleges the trial court erred in (1) possession That judg- defendant’s motion for he was found in acquittal property ment of at the sepa- close of the State’s control of other stolen on appel- evidence because the State persons; rate occasions from two or more process equal pro- lant’s to due (2) prop- That he received other stolen guaranteed by tection of law as the 5th and erty in another transaction within the 14th amendments to the United States Con- year preceding charged; the transaction stitution and article section 12 and 10 (3) acquired proper- That he the stolen Appellаnt of the Missouri Constitution. al- ty for a consideration which he knew was leges that the did State not make submissi- far below its reasonable value. by failing prove ble cases on all counts The State introduced evidence an of the alleged element counts of receiv- from twenty-six property owners who iden property because at the time he tified that property their was stolen at dif property retained the defendant did not ferent times and different locations. The know or believe that it had been stolen. produced Agee, Steven who testified prove In order tо the offense of that he every day visited defendant almost receiving stolen property, the State bears property with stolen to sell to defendant. proving beyond the burden of a reasonable spon The State also introduced defendant’s doubt that defendant prop received stolen shortly taneous statement after his arrest erty purpose deprive with the ‍‌‌‌‌‌​​​‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​​‌‌‌​‌‌​​​‌‍the owner at his home while the search warrants were of his interest knowledge and with or belief executed, being stated, where he “I don’t has been stolen. Gil guess getting I’ll long out for a time State, more one,” after this which went to show his 1986); 570.080, RSMo 1978. knowledge of the stolen character of the Defendant did any evidence goods. supported This evidence a reason trial; at his defense was an attack on the able inference knew be credibility witness, of the State’s Steven lieved the was stolen. Agee. Appellant alleges Agee could emphasizes Appellant that unex anything not recall about the victim’s name plained possession recently prop counts, or address related to the could not erty give does not rise to an inference that connect defendant with listed in possessor guilty counts, several committing recalled a bur- Davis, property, S.W.2d 149 glary but did not recall what he stole or (Mo. is, however, banc It a circum what he did with the he remem- jury stance that the is entitled to consider stealing bered and could not remember together with the other facts and circum having conversations with defendant about Sours, stances the case. that had been stolen or could S.W.2d not remember the date and time he took appel- to defendant. Therefore testing sufficiency In lant contends prove the State did not be- evidence, accepts the court the State’s evi yond a reasonable doubt that defendant gives dence as true and the State the bene retained with the *9 fit of all reasonable dis inferences while belief that it was stolen. regarding all evidence and inferences to Turner, contrary. State v.

Direct evidence of defendant’s 4, (Mo. 1981), denied, required or belief banc cert. 456 U.S. and it 931, 1982, (1982). may proved 102 S.Ct. 72 L.Ed.2d 448 the facts and circum 2, requirements stances in evidence. 647 Under the of 570.080.1and McCoy, 862, 1978, S.W.2d RSMo and an evaluation of the Section evi 570.080.2(1),(2) (3), 1978, introduced, & states dence the State both direct and following circumstantial, rеquirement that evidence of the is admissible that de- fendant must know or believe proven beyond stolen has been

to be

reasonable doubt. judgment is affirmed.

BILLINGS, C.J., and ROBERTSON JJ., RENDLEN, concur. J.,

BLACKMAR, separate concurs filed.

opinion

DONNELLY, J., concurs result.

WELLIVER, J., participating.

BLACKMAR, concurring. Judge, support ample

There is in the record for judge’s that the ‍‌‌‌‌‌​​​‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​​‌‌‌​‌‌​​​‌‍several conclusion facially regular, were

search warrants descriptions adequate, and that were for issuance. As

there was cause out, opinionpoints the officers principal scrupulous comply efforts to

were their to discuss the the law. I see no need United, “good faith” test of States so-called 3405, Leon, 468 U.S. 104 S.Ct. or to decide whether

L.Ed.2d I,Art. Sec. appropriate

such a test is under

15, of the Missouri Constitution. See State (Mo. Munson, 714 S.W.2d banc respects I concur with the

In all other judgment of

principal opinion and in the

affirmance. Missouri, Respondent,

STATE BOWMAN, Appellant.

James E.

No. 69280. Missouri,

Supreme Court of

En Banc.

Nov. 1987.

Rehearing Dec. Denied