State v. Wallace

644 S.W.2d 382, 1982 Mo. App. LEXIS 3782
CourtMissouri Court of Appeals
DecidedDecember 21, 1982
Docket44902
StatusPublished
Cited by7 cases

This text of 644 S.W.2d 382 (State v. Wallace) 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. Wallace, 644 S.W.2d 382, 1982 Mo. App. LEXIS 3782 (Mo. Ct. App. 1982).

Opinion

CRANDALL, Presiding Judge.

Appellant was convicted in a jury trial of possession of more than 35 grams of marijuana, a Schedule I controlled substance, § 195.200, RSMo (1978); and possession of pentazocine a Schedule IV controlled substance, § 195.270, RSMo (1978). The trial court found that appellant was a persistent offender, § 558.016.2, RSMo (1978), and sentenced him to consecutive terms of three and seven years imprisonment. This appeal ensues. We affirm.

Since appellant does not challenge the sufficiency of the evidence, we will briefly review the facts in a light most favorable to the verdict. See State v. Means, 628 S.W.2d 426, 427 (Mo.App.1982). On the morning of February 25, 1981, at approximately 8:30 a.m., Detectives Brocato, Brogan, Magee, Whitling, and Moran and Officers Morbs and Richards of the City of St. Louis Police Department arrived at appellant’s residence to execute a search warrant. Detective Magee knocked on the front door, identified himself as a police officer, and announced that he had a search warrant. Appellant lifted the shade on the front door window, looked at the police officers, and quickly dropped the shade. Magee then heard appellant shout, “[hjurry bitch, it’s the police.”

Fearing evidence would be destroyed, Detective Magee opened an iron security gate with a pry bar, and Detective Whitling forced the door open with a sledge hammer. Detective Magee immediately entered the house, followed by Detectives Brogan, Whi-tling, and Brocato. As they opened the door, appellant ran from the front room, through the central bedroom, towards the kitchen in the rear of the house. Detective Brogan shouted, “[pjolice officer, stop right there,” but appellant ignored him. The detectives apprehended appellant in the kitchen and brought him into the front room. Two women, who were found in the bedroom, were also brought into the front room. The search warrant was then read to them.

While searching the house, Detective Brogan seized pentazocine tablets and two bags *384 of marijuana. Detective Brogan then placed appellant under arrest and advised him of his rights. Appellant admitted that the drugs were his and asked that the women be released.

Appellant’s motion for new trial was not timely filed and therefore preserves nothing for appellate review. Since appellant’s alleged errors have not been properly preserved, this court can only review the points relied on as matters of plain error. State v. Moore, 620 S.W.2d 56, 56-57 (Mo.App.1981). Even if the points had been preserved, we find that they are without merit.

Appellant first contends that the trial court erred in failing to declare a mistrial when the circuit attorney made references to the fact that the police went to appellant’s home to execute a search warrant. Appellant claims the fact that a search warrant was issued is irrelevant to the issue of his guilt and created an impression in the minds of the jurors that his guilt had already been judicially determined when the warrant was issued.

Although evidence of circumstances surrounding the arrest of the accused is inadmissible when the evidence has no probative value in establishing guilt, State v. Myrick, 473 S.W.2d 402, 404 (Mo.1971), the circumstances attending the arrest of the accused may be admissible when they tend to establish an attempt by the defendant to resist, evade, escape, or avoid arrest. State v. Jones, 583 S.W.2d 212, 215 (Mo.App.1979); State v. Campbell, 533 S.W.2d 671, 675 (Mo.App.1976). “The conduct of the accused at the time of his arrest, which shows such attempts, has long been held to be admissible as having probative value on the issue of defendant’s guilt and to constitute proper evidence for a jury’s consideration.” State v. Jones, 583 S.W.2d 212, 215 (Mo.App.1979) (quoting State v. Campbell, 533 S.W.2d 671, 675 (Mo.App.1976)).

Standing alone, the fact that a search warrant had been issued is irrelevant to defendant’s guilt. However, in this case, evidence of the issuance of a search warrant was not used to prove the appellant’s guilt but was presented to show the circumstances surrounding appellant’s attempted flight when the officers identified themselves and announced that they had a search warrant. Therefore, we find that the trial court did not abuse its discretion in failing to declare a mistrial.

Appellant next contends that the trial court erred in prohibiting appellant’s attorney from arguing in closing argument the result of a lie detector test taken by appellant because such evidence was not objected to at trial. Appellant further contends that this error was compounded when the trial court reprimanded appellant’s counsel for attempting to make that argument.

While being cross-examined, the appellant made two references to his passing a lie detector examination concerning whether money and drugs were present in his apartment at the time of his arrest; the State failed to object to either of these references. However, the State did make an objection during cross-examination of a State’s rebuttal witness, Richard Brogen. During Brogen’s testimony, the following occurred:

Q: You said that you saw a few dollars in currency?
A: Yes.
Q: Would you take a lie detector test on that?
A: If he’ll take one about stealing dope.
Q: He took one.
A: What happened?
Q: He passed it.
MR. WARZYCKI: I’m going to object to this and ask that it be stricken from the record. It never occurred.
THE COURT: It will be stricken.
MR. BRADY: It did occur.
THE COURT: Just a minute, please. I’m directing the jury to disregard this conversation that has now taken place between the two of these attorneys relative to any lie detector test taken by anybody or to be taken by anybody. Let’s take that out of your minds and out of this record.
*385 Now I’ve made my ruling. Is there a specific request of either attorney on any aspects of what I have just ruled on, what has just taken place in here?
MR. WARZYCKI: No, Your Honor.
MR. BRADY: No. May we approach the bench?
THE COURT: My first question to you, sir, is, is there any request you wish to make relative to the action that I’ve just taken?
MR.

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Cite This Page — Counsel Stack

Bluebook (online)
644 S.W.2d 382, 1982 Mo. App. LEXIS 3782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wallace-moctapp-1982.