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06/05/90 STATE MISSOURI v. JOEY R. CORPIER

June 5, 1990

STATE OF MISSOURI, RESPONDENT,
v.
JOEY R. CORPIER, APPELLANT



Appeal from the Circuit Court of Buchanan County, Missouri; Honorable Frank D. Connett, Jr., Judge.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 1990.

Turnage, P.j., Lowenstein and Fernando J. Gaitan, Jr., JJ., all concur.

The opinion of the court was delivered by: Gaitan

Defendant, Joey Ray Corpier, was convicted by a jury of second degree murder, in violation of Mo. Rev. Stat. § 565.021 (1986). Based on the jury's recommendation, the trial court sentenced the defendant to life imprisonment. The defendant filed an appeal of conviction to this Court in February of 1988. Upon notice of the defendant's filing of a Rule 29.15 motion, the Court suspended the appeal pending resolution of the motion. Defendant now reinstates his original appeal although he declines to appeal the motion court's denial of the Rule 29.15 motion without an evidentiary hearing.

The defendant raises fourteen points of alleged trial error which may be summarized as follows: (1) the admission of a confession and physical evidence which were the product of an unlawful arrest; (2) instructional error; (3) the admission of testimony which made improper reference to defendant's post-arrest silence; (4) the admission of inflammatory and prejudicial photographs of the deceased victim; (5) improper expert testimony by the medical examiner; and (6) improper comments by the prosecutor during closing arguments. We affirm.

The defendant does not challenge the sufficiency of the evidence adduced at trial. The evidence showed that on March 14, 1987, John Anderson was killed as a result of gunshot wounds inflicted by the defendant. At the time of the shooting, the victim lived with his wife, Lana, and their four children at a residence northeast of the city of Sedalia, in Pettis County.

At approximately 4 a.m. on March 14, 1987, Deputy Joe Potter of the Pettis County Sheriff's Department was dispatched to the Anderson residence. When he arrived, he found Mrs. Anderson, the four children, and the body of the victim in a hallway of the home. Deputy Potter observed four red, spent .12 gauge shotgun shells near and to the left of the head of John Anderson's body, as well as several shotgun shell waddings near the feet of the body.

On March 15, 1987, between 4 and 5 p.m., Gene Darnell, Sheriff of Lafayette County and officer in charge of the Mid-Missouri Rural Major Case Squad, heard Lana Anderson orally confess that the defendant, Joey Corpier, agreed to kill John Anderson for a price. Based on this information, Deputy Potter was instructed to find and arrest the defendant. While searching for defendant Corpier, Deputy Potter stopped an automobile in which the defendant's wife, Brenda Corpier, was a passenger. At the request of Deputy Potter, Mrs. Corpier accompanied police back to the Sheriff's Department. During the next hour, while still at the department, Deputy Potter received a telephone call from a known informant who told him where the defendant could be found.

At approximately 8 p.m., Deputy Potter, accompanied by another deputy, proceeded to an apartment at 339 Buckner Court in Sedalia. Deputy Potter knocked at the door; a young male, later identified as Larry Tyler, the boyfriend of the lessee of the apartment, Sheila Oldenberg, answered the door. Deputy Potter, not dressed in uniform, identified himself as a deputy sheriff of Pettis County and asked for the defendant. Tyler looked back into the apartment. The deputy could see from his position outside the entry, five or six individuals in the living room area. One of these individuals, a young blond-headed male, raised his hand and said, "I'm Joey Corpier." Upon hearing the defendant's acknowledgment, Deputy Potter reached underneath his coat, cleared his gun from his holster, and held it at his side, pointed at the ground. At the same time, Tyler stepped back from the door. Deputy Potter stepped approximately three feet into the apartment and stated, "Alright Mr. Corpier, stand up and keep your hands in plain sight. You're under arrest. Come on outside."

Once outside the apartment, Deputy Potter frisked the defendant, handcuffed him, and informed him that he was under arrest for first degree murder. Defendant Corpier was then transported to the Pettis County Courthouse, where Deputy Potter read and explained to the defendant his Miranda rights. At 8:45 p.m., the defendant read and signed a "rights waiver" sheet.

After approximately one hour of interrogation, the defendant signed a consent form, allowing a search of his residence at Lot 19, Homestead Trailer Park in Sedalia. The defendant accompanied several members of the Rural Major Case Squad during their search. The officers found a plug for an Ithaca .12 gauge repeating shotgun, a full box of red .12 gauge shotgun shells, three high velocity, green shotgun shells, and balloon pieces.

The defendant was then taken to the Pettis County Jail for further interrogation. There, at approximately 11 p.m., the defendant confessed to killing John Anderson. In his statement, the defendant stated that for the last month, Lana Anderson had sought to have him kill her husband for ten thousand dollars. The defendant was also approached to kill Anderson by Jimmy Quick, Lana Anderson's boyfriend, who "wanted Lana Anderson for himself." On March 12, a female friend of Lana Anderson's gave the defendant a .12 gauge shotgun and shotgun shells. On Friday, March 13, the defendant, along with Quick and another co-conspirator, Rick Miller, discussed killing Anderson by "blowing up his car." They experimented with Draino, gasoline, and balloons, but gave up the idea when the concoction failed to explode. Later on Friday, Quick spoke with Lana Anderson regarding a plan to kill John Anderson on Saturday, March 14 at approximately 3 a.m. The plan called for John Anderson's throat to be cut, the house to be ransacked, and Quick to engage in sexual intercourse with Lana Anderson to create the appearance of a break-in and rape. The defendant, Quick, and Miller drove to the Anderson residence around 3 a.m. Lana Anderson's pickup truck was not in the driveway. The three men entered the house; John Anderson started up the hallway towards them. The defendant panicked and shot Anderson several times. The three men then fled the home.

After confessing to the Anderson murder, the defendant returned to his residence with officers of the Rural Major Case Squad. The defendant showed the officers where he hid the shotgun, inside a mattress, that was stored in a shed outside of the trailer.

At trial, Jay Dix, the Medical Examiner for Boone County, testified that John Anderson died as a result of four shotgun wounds to the chest, groin, left leg, and left buttock. August Nilges of the Missouri State Highway Patrol testified that the markings on the base of the shell casings found near the victim's body matched the markings made by the breech face and firing pin of the shotgun found in the mattress at defendant Corpier's residence. The defendant did not testify on his own behalf.

I.

The defendant contends that the trial court erred in denying his pre-trial motion, preserved by proper objections at trial, to suppress the admission of his confession and physical evidence recovered in his home pursuant to his consent to search; that such evidence was tainted by his illegal arrest.

Our review of a ruling on a motion to suppress and the admissibility of evidence at trial is limited to a determination of whether the evidence was sufficient to sustain the trial court's findings. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985); State v. Luleff, 729 S.W.2d 530, 533 (Mo. App. 1987). The ruling of the trial court was as follows:

THE COURT: Well, the Court finds that he had no expectation of privacy. This was not his residence. If he had any expectation of privacy, it might have been in the bedroom or something, or if he had hid in there, something like that, but here's a whole bunch of people with a party going on in this house with this fellow there, and he stood up. So I don't have any problem with that at all. I'm satisfied at least that they did not violate his constitutional rights; that he didn't have any expectation of privacy sitting there in the living room with all the other guests, so there's nothing wrong with them taking him into custody. And there was a consent to search, so everything else is all right about it.

The only other problem we have then is the voluntariness of the confession. And the Court finds from the evidence presented that the confession was voluntary and would be admissible. You, of course, can make your objection again, but we won't have to send the jury out and hear this all over again. At least that's my understanding of the law.

Both our federal and state constitutions protect citizens from unreasonable searches and seizures by requiring authorities to secure a warrant based on probable cause. *fn1 U.S. Const., amend. IV; Mo. Const. art. I § 15. A basic premise of fourth amendment law is that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 100 S. Ct. 1371(1980). In Payton, the United States Supreme Court held that the fourth amendment prohibits the police from making warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest, even if probable cause exists. Absent exigent circumstances or consent, the threshold of a dwelling may not be reasonably crossed without a warrant. Id. at 590.

In order for Payton to be applicable in this case, the defendant has the burden of showing that he had a legitimate expectation of privacy *fn2 in the apartment in which he was arrested so as to confer upon him standing to challenge the entry and arrest. Rakas v. Illinois, 439 U.S. 128, 131, 58 L. Ed. 2d 387, 99 S. Ct. 421(1978). We believe that the defendant has met that burden.

The state, while not specifically citing to Rakas or related cases, argues that defendant Corpier's relationship to the 339 Buckner Court apartment did not establish circumstances so as to create a legitimate expectation of privacy. *fn3 The recent United States Supreme Court decision of Minnesota v. Olson, U.S. , S.Ct. , 58 U.S.L.W. 4464 (1990), is dispositive of this issue. In Olson, the police sought the defendant in connection with a robbery-murder. The defendant spent the night at a residence other than his own with the permission of the lessee. The following day the defendant left for a time and then returned to the apartment in the afternoon. Without a warrant, without permission, and with guns drawn, the police entered the residence and placed the defendant under arrest. The Court held that an individual's status as an overnight guest in a home was alone sufficient to show an expectation of privacy in a home that society is prepared to recognize as reasonable; that factors noted in Rakas and Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725(1960), were not legally determinative; and that a place need not be one's "home" in order to have a legitimate expectation of privacy. Id. at , , 4466. The Supreme Court's decision was based on the concept that "society recognizes that a houseguest has a legitimate expectation of privacy in his host's home." Id.

We recognize that a determination of whether an individual has standing to allege a fourth amendment violation pursuant to Payton must be resolved by assessing the specific facts of each case. See United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988); United States v. McIntosh, 857 F.2d 466 (8th Cir. 1988); State v. Adkins, 346 S.E.2d 762 (W.Va. 1986). The evidence in this case showed that, although married with children, defendant Corpier was engaged in a relationship with a young woman who lived with her mother at 333 Buckner Court. Through his relationship with the girl, the defendant met Larry Tyler, who frequently stayed with his girlfriend, Oldenberg, in her apartment at 339 Buckner Court. Tyler and the defendant became friends and spent a considerable amount of time at the Oldenberg apartment.

The defendant testified at the suppression hearing that Tyler gave him permission to use the apartment for liaisons with his girlfriend. He further stated that he spent three to four nights a week at the apartment; that he and his girlfriend were allowed to use an extra bedroom at the apartment; that he ate at least one meal a day at the apartment; and that he kept a shirt and coat at the apartment. The testimony of Tyler and Oldenberg at trial indicate that the defendant spent a great deal of time at the apartment and was an occasional overnight guest.

On the evening before his arrest, defendant Corpier was present at the apartment. Sometime during the night, the defendant left the apartment and went to his trailer for approximately two to three hours. The defendant then returned to the apartment early the morning of March 15. Other than a short time when he and Tyler left the apartment to buy marijuana, the defendant remained at the apartment until his arrest at 8 p.m.

The trial court found that the defendant had no expectation of privacy in the apartment because it was not his residence. This finding is clearly erroneous under Olson. The trial court further held that even if the defendant had any expectation of privacy, it was diminished because he was in a common area of the apartment with several other persons. We disagree. The fourth amendment protects people not places. Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507(1967). Thus the focus should not be on the area but rather the defendant's actual expectation of privacy and the reasonableness of such. Id. at 361 (Harlan, J. Concurring). An individual's legitimate expectation of privacy is not diminished nor determined by the presence of others. Thus an individual may have a reasonable expectation of privacy to be free from unreasonable searches and seizures whether he is alone or if others are present.

It is clear from the facts in this case that the defendant was more than a casual guest or visitor. Therefore, we find that the defendant had a legitimate expectation of privacy in the apartment at 339 Buckner Court and as such has standing to challenge his arrest under the fourth amendment and the requirements set forth in Payton.

In concluding that defendant Corpier had a legitimate expectation of privacy in the apartment, our focus turns to whether the unlawful entry was excused under an exception to the warrant requirement. The trial court did not find and the state does not contend on appeal that exigent circumstances existed which excused the lack of a warrant to arrest. We decline to review the issue of exigent circumstances sua sponte.

The state does, however, argue that a warrant was not necessary because the deputy had a valid consent to enter the residence; that Tyler consented to the entry of the police when he stepped away from the door. The fourth amendment permits consensual searches conducted without a warrant so long as the consent to search is voluntary and not the product of duress, coercion, or fraud. Whether the consent was voluntary is to be determined by the totality of the circumstances. State v. Johns, 679 S.W.2d 253, 261 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 84 L. Ed. 2d 796, 105 S. Ct. 1413(1985). A consent to search may be given by a third party with joint access or control over property, or who has authority to allow entry. State v. White, 755 S.W.2d 363, 366-67 (Mo. App. 1988); State v. Powell, 728 S.W.2d 622, 625 (Mo. App. 1987). When the state seeks to justify a warrantless search on the basis of consent, it must prove by a preponderance of the evidence that the consent was voluntary. State v. Hernandez, 776 S.W.2d 34, 38 (Mo. App. 1989).

In the instant case the evidence showed that although Deputy Potter identified himself, he failed to provide notice of his purpose to arrest the defendant as required by Mo. Rev. Stat. § 544.200 (1985). See State v. Peters, 695 S.W.2d 140, 146 (Mo. App. 1985). The deputy acknowledged at the suppression hearing that no one in the apartment, including Tyler, verbally invited him into the residence. Deputy Potter stated that he interpreted Tyler's action, stepping away from the door, as an invitation to enter.

Given the totality of the circumstances, we hold that insufficient evidence existed to support the trial court's determination that Tyler consented to the entry. The record reflects that Deputy Potter never requested admittance into the apartment or advised Tyler that he had a right under the fourth amendment to refuse the request. See State v. Witherspoon, 460 S.W.2d 281, 287-90 (Mo. 1970). There is no evidence that Tyler knew or understood that he had such rights. Id. at 289. Tyler never verbally consented to the entry. While consent may be nonverbal, see State v. Powell, 728 S.W.2d at 625. (appellant's wife did not respond to police questions regarding disturbance but led police into the house), in the present case, the lack of request coupled with no verbal response, vitiates the reasonableness of the deputy's belief that Tyler was "inviting" him into the apartment. Further Deputy Potter drew his gun at approximately the same time that Tyler stepped away from the door, and prior to stepping over the threshold. While consent may still be voluntary after officers have drawn their guns, see State v. Hernandez, 776 S.W.2d at 40, after reviewing the circumstances surrounding Tyler's alleged consent, we believe the display of a weapon was a controlling factor in the validity of the consent. In light of the evidence we find that the state failed to meet its burden in demonstrating that the consent was voluntary.

In finding that the arrest inside the apartment was unlawful, the defendant would ask this Court to suppress his confession and the physical evidence obtained after he provided a written consent to search, as fruits of the illegal arrest. This Court declines to do so.

In New York v. Harris, U.S. , 110 S.Ct. 1640, 58 U.S.L.W. 4457 (1990), the Supreme Court held that where police have probable cause to arrest a suspect, the exclusionary rule does not bar the state's use of a statement made by the defendant outside his home, even though the statement is taken after an arrest made in the home in violation of Payton. In Harris, police officers, having probable cause to believe that Harris committed a murder, entered his home without a warrant in clear violation of Payton. While still at the house and after having been advised of his Miranda rights, Harris confessed to the murder. The defendant was arrested, taken to the police station, and again given his Miranda rights. Harris signed an inculpatory statement. Police then read Harris his Miranda rights for a third time and proceeded to videotape an incriminating interview between Harris and a district attorney, although Harris asked to end the interrogation. The first incriminating statement was suppressed as the fruit of the unlawful arrest and the third statement suppressed as a violation of Harris' fifth amendment right. However, the Supreme Court found that the second statement, made at the police station after being informed of his fifth amendment rights, was not the exploitation of an illegal entry, not the product of being in unlawful custody, and not the fruits of being arrested in the home rather than somewhere else.

The Court distinguished Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254(1975), Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248(1979), and Taylor v. Alabama, 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664(1982), cases where evidence was suppressed as fruits of illegal arrests, in that in each of these cases, the police lacked probable cause to make the arrest. Thus the focus was on unlawful detention rather than illegal arrest. The Court further found that the need for an attenuation analysis is only appropriate where the challenged evidence is the product of illegal government activity. In Harris, the detention was lawful because police had probable cause, even if the entry into the residence to arrest was illegal. Thus in cases where the evidence is not the product of an exploitation of the defendant's fourth amendment rights, an attenuation analysis is unnecessary.

As previously noted, our review of the record clearly indicates that police had probable cause to arrest defendant Corpier for the murder of John Anderson. The confession and consent to search were freely given by the defendant after voluntarily waiving his Miranda rights. *fn4 The physical evidence obtained from the defendant's trailer was the fruit of a voluntarily provided consent to search. We therefore hold, as in Harris, that the police had probable cause to arrest the defendant prior to the unlawful entry and arrest at the apartment, that the defendant's post-arrest detention was lawful, and thus the subsequent confession and consent to search, not obtained at the apartment, were not the fruits of the illegal arrest. The trial court did not err in admitting the confession and physical evidence obtained pursuant to the consent to search.

II.

In his third point on appeal, the defendant argues that the trial court erred in submitting MAI-CR3d 300.02 and 302.04 because the instructions improperly defined reasonable doubt as doubt that leaves a juror "firmly convinced" of defendant's guilt, therefore reducing the state's burden of proof. The defendant contends that the trial court should have submitted his proffered modified instruction which defined reasonable doubt ...


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