State v. Darris

587 S.W.2d 89, 1979 Mo. App. LEXIS 2955
CourtMissouri Court of Appeals
DecidedAugust 28, 1979
DocketNo. 39639
StatusPublished
Cited by10 cases

This text of 587 S.W.2d 89 (State v. Darris) 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. Darris, 587 S.W.2d 89, 1979 Mo. App. LEXIS 2955 (Mo. Ct. App. 1979).

Opinion

STEPHAN, Presiding Judge.

Defendant Reginald Darris was found guilty by jury of burglary in the first degree, § 560.040, RSMo 1969, and sentenced by the trial court to fifteen years’ imprisonment under the Second Offender Act. Section 556.280, RSMo 1969. On this appeal, he contends the trial court erred in three respects: (1) in denying his pretrial motion to suppress testimony concerning a statement made by him before he was advised of his right to remain silent; (2) in refusing to allow defense counsel to reopen cross-examination of one of the state’s witnesses; and (3) in failing to grant his motion for a directed verdict at the close of all evidence because the state failed to prove that he entered the dwelling with the intent to steal or commit a felony. Having examined the transcripts and briefs, we find the points to be without merit and affirm.

Turning first to defendant’s attack on the sufficiency of the evidence, we set it forth in the light most favorable to the verdict. State v. Green, 575 S.W.2d 211, 212 (Mo.App.1978); State v. Nichelson, 546 S.W.2d 539, 542 (Mo.App.1977).

On February 23, 1977, at approximately 2:00 in the afternoon Mrs. Dorothy Williams was in her home at 4225 Red Bud in the City of St. Louis with her four-year-old grandson. Mrs. Williams had in her home personal property of value, including a color television set, stereophonic equipment, portable radios and jewelry. She heard a knock at her front door and, after a short delay, answered it. She found no one there. While at the front door, she heard a loud noise at the back of her home and proceeded to investigate. Upon reaching a hallway toward the back of the house, Mrs. Williams encountered the defendant, who was already inside the house. She asked him what he was doing and he said he had come to collect $500 that her son owed him. Mrs. Williams, denying that such could be the case, turned around and went out the front door. She knocked on the door of the upstairs flat but no one responded. Defendant followed her out the front door and ran south on Red Bud after telling her not to call the police. Mrs. Williams then went back inside, discovered that her back door had been kicked in, and called the police.

St. Louis Police Detectives Edgar Holloway and Richard Jones were patrolling the area in an unmarked car when they heard a radio dispatch concerning prowlers at 4225 Red Bud. The dispatch described the suspect as wearing blue jean pants and a blue jean shirt. Upon nearing the address, the officers observed the defendant walking on the sidewalk approximately three hundred feet from the house. Since he matched the description they had, he was stopped, put in the squad ear and driven back to 4225 Red Bud. The police officers testified that when they first talked to appellant they told him that they wanted him to accompany them on a call and if he was not involved he would be released.

After the short trip to the Williams home, Jones went to the door and summoned Mrs. Williams. Holloway remained in the vehicle with defendant. As Mrs. Williams and Detective Jones walked toward the car, Mrs. Williams pointed at defendant and said, “That’s him.” At this point, defendant “blurted out” a statement to the effect that he had entered the house to collect $1,400 that Mrs. Williams’ son owed him. Holloway then informed defendant he was under arrest and advised him of his Miranda rights. Up to that point, the officers had asked no questions of defendant except his name. Defendant repeated his admission several times after the Miranda warning, on the way to and at the police station. Testifying in his own defense, defendant admitted gaining entrance to the home by kicking in the back door but insisted that he had no intention of stealing anything, that he was looking for Jerome Johnson to collect $500 he had lent to Johnson. It was made to appear that Johnson lived with his mother at 4252 Red Bud. Defendant claimed to have gone to the 4225 address as a mistake.1 The jury was, of [91]*91course, free to disbelieve the defendant’s exculpatory evidence. State v. Brunson, 516 S.W.2d 799, 804[9] (Mo.App.1974). The evidence was sufficient for the jury to find that defendant forcibly entered Mrs. Williams’ home with the intent to steal. State v. Powell, 357 S.W.2d 914, 917 (Mo.1962); State v. Carson, 501 S.W.2d 503, 506[1-2] (Mo.App.1973). Her presence provided the element necessary for the crime to be burglary in the first degree. Section 560.040, RSMo 1969; State v. Murphy, 508 S.W.2d 269, 275 (Mo.App.1974).

With respect to defendant’s contention that the trial court erred in failing to suppress testimony concerning his statement at the time Mrs. Williams identified him, we note that no objection was made at the trial when the officers testified that defendant stated he had entered the premises, albeit for the purpose of collecting a debt. No objection having been made at the trial, defendant failed to preserve the point. State v. Hulsey, 557 S.W.2d 715, 718-719 (Mo.App.1977); State v. Yowell, 513 S.W.2d 397, 402-403 (Mo. banc 1974); State v. Bryson, 506 S.W.2d 358, 361 (Mo.1974). As pointed out in Yowell and Bryson, a defendant may not stand mute while arguably objectionable evidence is put in the record, take his chances with the jury, and then complain on appeal. This principle is underscored by the situation presented in the instant case: the testimony of the police officers as to what defendant said at the time of his arrest corroborated, in part, the defendant’s own testimony that he entered the Williams home by mistake, seeking to collect a debt, not to steal. Defendant may not have the benefit of the officers’ testimony to bolster his theory of defense at trial and then, having received an unfavorable verdict, use it to seek reversal of his conviction.

We have, nonetheless, considered the point under Rule 27.20(c) to determine whether the admission of the statement in evidence was plain error affecting substantial rights of the defendant. We hold it was not.

Appellant contends that his statement to the effect that the victim’s son owed him money was inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because it was made before he had been advised of his right to remain silent. We believe neither the letter nor the spirit of Miranda supports such a view.

Under Miranda, an accused must be advised of certain federal constitutional rights before being subjected to “custodial interrogation” which was defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra, 444, 86 S.Ct. 1612. Thus, in order for the rule of Miranda to obtain, there must be both custody and questioning:

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Bluebook (online)
587 S.W.2d 89, 1979 Mo. App. LEXIS 2955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-darris-moctapp-1979.