State v. Mills

735 S.W.2d 197, 1987 Mo. App. LEXIS 4582
Missouri Court of Appeals·Decided August 25, 1987·No. No. 51908·Published·Cited by 7 cases

Opinion

KELLY, Judge.

Kenneth Mills appeals from his conviction, after a trial by jury, of unlawful possession of a concealable firearm; § 571.070 RSMo 1986.1 The trial court found Mills to be a persistent offender within the meaning of § 558.016 and sentenced him to ten years imprisonment as authorized under § 557.036.4. Mills challenges the trial court’s denial of his motion to suppress evidence discovered incident to his arrest. We affirm.

The evidence adduced at trial established the following facts:

Officer John McCrary testified that on October 19, 1984, at approximately 3:05 a.m., he and Officer John Eichelberger, both of the Metropolitan St. Louis Police Department, received a police radio broadcast as they were patrolling the City’s Fifth District in their squad car. The broadcast announced that a white male known as Kenneth Mills was wanted by the Third District for the destruction of property and leaving the scene of an accident. The broadcast also announced that the suspect was operating a maroon oldsmobile bearing Illinois license plates en route to 2123 Bremen St.

The two officers responded to the broadcast and proceeded to the 2100 block of Bremen. Approximately one to two blocks from 2123 Bremen St., the officers observed a dark-colored general motors car parked on the south side of the street. As the officers drove down the street, they observed a white male exit the car and walk to its trunk. The subject turned around, looked in the officer’s direction and walked across the street.

The subject, later identified as the appellant, then walked up the steps onto the [199] first floor landing of the building at 2123 Bremen St. The officers parked their car next to the car the appellant exited from, identified it as a maroon oldsmobile with Illinois plates and left the squad car.

The two officers, believing the suspect to be armed, drew their guns and ordered him to leave the landing. The suspect hesitated but complied after the second command. Upon request, he identified himself as Kenneth Mills. The officers advised the appellant he was under arrest for destruction of property and leaving the scene of an accident.

Immediately after the arrest, Officer McCrary conducted a pat-down search of the appellant. McCrary discovered a .25 caliber automatic pistol in the right front pocket of appellant’s jacket. The pistol was loaded with two live rounds in the clip and one live round in the chamber. At trial, McCrary identified State’s Exhibit No. 1 as the .25 caliber pistol that he discovered in the appellant’s pocket and State’s Exhibit No. 1-A as the pistol envelope containing the pistol and the cartridges.

After obtaining appellant’s consent, Officer Eichelberger searched the trunk of the maroon Oldsmobile and discovered a .22 caliber rifle. Officer McCrary placed the appellant in the rear seat of the squad car and notified the Third District that the suspect had been found. The officers then transported the appellant to the Fifth District police station.

Following Officer McCrary’s testimony, the court took judicial notice of judgment orders contained in its own court files that showed the appellant’s prior felony convictions in 1968 and 1978. The court found the appellant to be a persistent offender beyond a reasonable doubt. This finding made him eligible for an extended term sentence under §§ 558.016 and 557.036.4.

Officer George Moehlenhoff of the Third District testified that he placed a call to the police dispatcher regarding appellant at approximately 1:30 a.m. Another wanted call was placed at approximately 2:40 a.m. The second call was an all points bulletin originating from the Third District regarding a subject named Kenneth Mills allegedly en route to the Fifth District armed with a pistol.

Officer Frank Stubits, a St. Louis City police officer assigned to the laboratory division, testified that he examined State’s Exhibit No. 1, the .25 caliber pistol, test fired it and found it to be in proper working order.

The state rested its case, and the court denied appellant’s motion for directed verdict of acquittal at the close of the state’s case.

The appellant called two witnesses to testify on his behalf. The first witness, Sonia Little, testified that she witnessed the appellant’s arrest as she stood in the doorway of the apartment house at 2123 Bremen St. She saw the officer’s search the appellant, handcuff him and place him in the police squad car. She did not observe the officers take a gun or anything else from the appellant during their search in front of the apartment building.

The second witness, George Karsch, testified that he also witnessed the appellant’s arrest. He stated that he heard the police officers order the appellant to leave the landing of the building. He observed the police handcuff and frisk the appellant and place him in the squad car. He did not see the officers recover a gun or any other item from the appellant while they searched him. Mr. Karsch then observed one of the officers search the maroon olds-mobile. He heard the officer explain that he found a gun inside the “glove” of the car. He observed the officer lift the gun out of the car and show it to the other officer. Mr. Karsch testified that the gun he saw the officer holding was a pistol.

After Mr. Karsch’s testimony, the defense rested its case. After instructions by the court, the jury retired to deliberate and returned a verdict of guilty.

In his sole point on appeal, appellant challenges the trial court’s denial of his motion to suppress evidence discovered incident to his arrest. He contends the state failed to demonstrate that the warrantless arrest was based on probable cause1 be[200] cause the state failed to establish the underlying facts and circumstances that supported the radio broadcast. Therefore, he concludes that the trial court’s denial of his motion to suppress “was manifestly erroneous”.

In response, the state asserts that the ruling on the motion to suppress has not been preserved for review because the appellant failed to object when the state introduced the evidence at trial. Additionally, the state contends that the proper resolution of this case rests not upon a probable cause analysis but upon the stop and frisk doctrine established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the alternative, it argues that a probable cause analysis demonstrates that probable cause to arrest the appellant did exist but that the appellant failed to properly raise the issue whether the radio broadcast was based on probable cause.

Appellant replies that the ruling on the motion to suppress was preserved for review since he had no duty to object to the evidence at trial. Alternatively, he argues even if the pretrial ruling was not preserved for review, the state’s use of illegally obtained evidence to convict him of the offense constitutes plain error.

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State v. Mills, 735 S.W.2d 197, 1987 Mo. App. LEXIS 4582 (Mo. Ct. App. 1987).

735 S.W.2d 197 (State v. Mills) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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