State v. Britton

666 S.W.2d 11, 1984 Mo. App. LEXIS 4494
CourtMissouri Court of Appeals
DecidedJanuary 5, 1984
DocketNo. 13125
StatusPublished
Cited by2 cases

This text of 666 S.W.2d 11 (State v. Britton) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Britton, 666 S.W.2d 11, 1984 Mo. App. LEXIS 4494 (Mo. Ct. App. 1984).

Opinion

MAUS, Judge.

A jury found the defendant guilty of possession of more than 35 grams of marijuana. He was sentenced to imprisonment for five years in accordance with the verdict. By two of his 16 points on appeal, the defendant attacks the sufficiency of the evidence. In resolving those points, the evidence and all reasonable inferences therefrom must be considered most favorably to the verdict and conflicting evidence and inferences disregarded. State v. McGee, 592 S.W.2d 886 (Mo.App.1980). The following is a brief summary of the evidence so considered.

On April 10, 1982, Deputy Sheriff McGuire saw the defendant driving a pickup truck in Poplar Bluff. The pickup bore no license plate. McGuire stopped the defendant. McGuire then saw a temporary permit in the window. However, in response to a question, the defendant told McGuire he had no driver’s license. By radio, McGuire learned the defendant was wanted on a felony warrant. McGuire ar[14]*14rested the defendant and took him to the county jail.

Soon after the defendant had been stopped, McGuire was joined by city policeman Adams who participated in the defendant’s arrest. The defendant’s pickup was partially blocking a public street. Nevertheless, the defendant was told he could have someone get the pickup if it was done quickly. The pickup was locked and the defendant took the keys. Later, Adams, on patrol, drove by the pickup several times. From the jail, the defendant called his aunt to move the pickup. Before the aunt arrived at the jail, McGuire received a call from Adams. McGuire then determined to impound the pickup. McGuire met Adams at the pickup. Adams had called a tow truck operator to impound the pickup. The pickup was opened by a “slim jim.” In making a routine inventory search before the impoundment, McGuire found three or four marijuana cigarette butts in the ashtray and a brown bag containing 60 individual packets of marijuana behind the seat.

Five of the defendant’s points are based in whole or part upon his contention the warrantless search of the pickup was contrary to the Fourth Amendment. The propriety of an inventory search prior to impoundment of a motor vehicle was the subject of recent consideration by this court. State v. Williams, 654 S.W.2d 238 (Mo.App.1983). The inventory search of defendant’s pickup is readily distinguishable from the search in that case by reason of the principal basis of State v. Williams, supra. In this case, the routine search extended only to the passenger compartment of the pickup. Under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and the authorities cited in State v. Williams, the routine inventory search of the defendant’s pickup did not infringe upon the Fourth Amendment.

Even recognizing those authorities, the defendant yet contends the search was invalid because of the motivation of the officers. This contention is invalid under Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). Further, it has no real factual basis. When the defendant was personally searched at the jail, a partially smoked marijuana cigarette was found in his pocket. In response to a question, McGuire stated it was not determined to impound the pickup until after the marijuana cigarette butt was discovered in the defendant’s pocket. The defendant insists this evidence conclusively establishes the impoundment of the pickup was subterfuge. However, the defendant ignores the following additional facts. It was 45 minutes to an hour from the time the defendant was arrested until a determination was made to impound the pickup. The pickup partially was blocking a public street. McGuire clearly testified no determination was made to impound the pickup until after he received the call from officer Adams, who called for a tow truck. All the evidence clearly supports a conclusion the pickup was impounded because officer Adams determined the pickup had partially blocked a public street for an unreasonable length of time.

By five points, the defendant seeks reversal because of the composition of the jury or the manner in which it was selected. He first asserts the panel should have been quashed because the trial court excused two jurors for cause and peremptorily struck six additional jurors, leaving only 18 veniremen. It is the burden of an appellant to present to this court a record of the action he seeks to have reviewed. State v. Clark, 522 S.W.2d 332 (Mo.App. 1975). This point must be denied because the defendant failed to present a record of the action of the trial court of which he complains. Further, this point is apparently incorporated in his complaint that he was allowed only three, rather than six, peremptory challenges as prescribed by § 546.180.1. The state agrees the defendant was entitled to six peremptory challenges. State v. Morrison, 557 S.W.2d 445 (Mo. banc 1977). However, the state contends that both of the above points were waived because the defendant made no objection to the panel before the jury was [15]*15selected and impaneled and the trial commenced. At one point the defendant complained that he wished to examine all 42 persons whose names had been supplied to him before striking for cause or any other reason. The record does not contain any further clue to what 42 persons he referred. His remarks are not shown to have been directed to the panel that appeared for his trial. From the record presented, it may be reasonably concluded it was a list of potential jurors containing the names of those summoned and those not summoned for the panel for his trial. Later, when the trial court erroneously announced the defendant would be limited to three strikes, he made no objection to the panel or request for corrective action. In fact, he made no objection to the number of strikes he was allowed but proceeded to raise other objections. The state’s contention is valid. State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981); State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972); State v. Francis, 544 S.W.2d 306 (Mo.App.1976); State v. Thomas, 530 S.W.2d 265 (Mo.App.1975), aff'd. 548 S.W.2d 564 (Mo. banc 1977).

The defendant’s other three points concerning the composition of the jury are premised upon the fact he is a black and there was no black on the jury. He first states that because of this fact, the jury was per se so prejudiced as to require reversal. He cites Pogue v. Swink, 365 Mo. 503, 284 S.W.2d 868 (1955). That case in no way supports the defendant’s assertion. The point states no basis for relief. Systematic exclusion of blacks was not alleged or demonstrated. State v. Mitchell, supra; State v. Granberry, supra; State v. Strawther, 476 S.W.2d 576 (Mo.1972).

The defendant next asserts error because after the voir dire, the trial court excused the only black on the panel. After the completion of the voir dire, the prosecuting attorney asked that this juror be excused for cause.

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Bluebook (online)
666 S.W.2d 11, 1984 Mo. App. LEXIS 4494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-britton-moctapp-1984.