author: STEPHENSON, Justice. LUKOWSKY, Justice,

text:
    David RAWLINGS, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    May 1, 1979.
    Ronald R. Parry, Harry P. Hellings, Jr., Jolly, Johnson, Blau & Parry, Newport, Kelly D. Thompson, Jr., Bowling Green, for movant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for respondent.
   STEPHENSON, Justice.

David Rawlings was convicted of the possession of controlled substances for the purpose of sale, KRS 218A.990, and sentenced to a term of five years’ imprisonment in the penitentiary. The Court of Appeals, February 17, 1978, affirmed. We granted discretionary review and affirm.

Police officers with a warrant for the arrest of a Lawrence Marquess forcibly entered his residence. Five individuals, including the movant David Rawlings, were found in the living room of the residence. During the course of the search of the residence for Marquess, the officers noted the odor of marijuana and in another room observed marijuana seeds on a mantel. The officers then determined that a search warrant was indicated, and one or two of the officers left to procure a search warrant. During the period of forty-five minutes wait for the two officers to obtain the search warrant, the five individuals, including Rawlings, were detained in the living room and were informed by íhe officers that they could not leave the room unless they consented to a search of their person; two of the individuals were permitted to leave after submitting to a search. After the indicated lapse of time, the officers returned with a search warrant, authorizing a search of the premises. There was no authority for the search of individuals on the premises.

One of the individuals remaining in the living room, a Vanessa Cox, was seated on a couch with her purse lying on the couch between her and Rawlings. The officers ordered Vanessa Cox to stand and empty her purse on the table. The purse was emptied of a large amount of controlled substances, and Vanessa Cox informed the officers that the drugs belonged to Rawl-ings. Rawlings admitted to the officers that he was the owner of the drugs. Rawl-ings, prior to the arrival of the police officers, had placed the drugs in the purse belonging to Vanessa Cox.

From our review of the record, when the officers returned with the search warrant for the premises, they decided to search all the individuals. While the purse belonging to Vanessa Cox was being emptied, Rawl-ings was asked to stand. Then came the admission as to being the owner of the drugs. Thereupon Rawlings’ person was searched. The search yielded a wad of bills, in the amount of $4,500, and a knife in a sheath. Rawlings was then placed under arrest. The exact sequence of events here is not clear from the record.

At a pretrial suppression hearing, the trial court ruled that the drugs and money were admissible into evidence. During the course of the trial, both the drugs and the money were the subject of testimony and both were introduced as exhibits.

The concept of “standing,” to raise a Fourth Amendment violation argument with respect to the drugs in the purse, occupies a great deal of the argument by both Rawlings and the Commonwealth. The trial court determined that Rawlings did not have “standing.” The Court of Appeals, after a lengthy analysis of case law, determined that Rawlings did have “standing” but decided that the search of the purse was not invalid and affirmed the judgment of the trial court.

The central issue in this case is the warrantless search of Vanessa Cox’s purse. In resolving this issue, we are confronted with the proposition of “standing” on the part of Rawlings to raise the Fourth Amendment issue and the ultimate issue— the merits of the Fourth Amendment argument. “Standing” is a largely theoretical concept. Learned texts on the subject abound. The United States Supreme Court has written many times and at length on the subject. It is almost impossible to separate the concept of “standing” and the principles of law on the merits. The concept of “standing” is theoretically separate from a defendant’s rights under the Fourth Amendment- but is so interwoven that discussion of one overlaps the other. All in all we confess that we find the concept of “standing” totally incomprehensible and, to the extent of overlap with Fourth Amendment rights, equally incapable of understanding. So in approaching the central issue in this case, we prefer to speak in terms of substantive right under the Fourth Amendment. We have considered Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); U. S. v. Johnson, 154 U.S.App. D.C. 393, 475 F.2d 977 (1972); and Sumrall v. United States, 382 F.2d 651 (10th Cir. 1967). We are of the opinion the evidence obtained by the search of Vanessa Cox’s purse was properly admitted at trial. We feel that Rawlings probably does not have standing to raise the issue here. Jones apparently would confer standing on the theory that possession of the drugs both convicts and confers standing since the offense here is possession, admitting ownership is admitting guilt. Here the defendant did not find himself in that dilemma, he admitted ownership of the drugs when they appeared from the purse and Vanessa Cox stated the drugs belonged to him. Further, Simmons established that evidence to show standing is not admissible, over objection, on the issue of guilt. We are not sure of the effect of Rakas although it seems to reject the theory of Jones on “standing.” We are of the opinion that the search of Vanessa Cox’s purse did not violate Rawl-ings’ legitimate or reasonable expectation of freedom from governmental intrusion.

For what it is worth, Rawlings testified at the suppression hearing that when he placed the drugs in Vanessa Cox’s purse, he did not expect or feel that the purse would be free from the intrusion of the officers. There is the factor of the risk that Vanessa Cox might consent to a search of her purse together with the always present possibility of inadvertent exposure of the drugs. Considering the totality of the circumstances, we are of the opinion the search did not violate Rawlings’ legitimate or reasonable expectations of freedom from governmental intrusion into the purse and that Rawlings has not made a sufficient showing that his legitimate or reasonable expectations of privacy were violated.

The money found on Rawlings’ person was admitted into evidence at trial, the knife was not. This search was not explored in detail at the suppression hearing, other than a denial of the motion to suppress. This issue does not involve such complicated principles as the search of the purse, and we prefer to validate this search on the theory of a search incident to a valid arrest. In arriving at this conclusion, we disregard as irrelevant the detention during the period in which the officers were procuring a search warrant. As we have said, the sequence of the search of the purse and Rawlings’ admission of ownership of the drugs is not clearly established in the record. Clearly, after Rawlings admitted ownership of the drugs, the officers were entitled to arrest and search the person, or search and then arrest. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).

The opinion of the Court of Appeals is affirmed.

All concur except LUKOWSKY, J., who dissents.

LUKOWSKY, Justice,

dissenting.

The majority opinion holds that the search of Cox’s purse did not violate “Rawl-ings’ legitimate or reasonable expectation of freedom from governmental intrusion” under the Fourth Amendment even though the items seized belonged to Rawlings and had been placed in Cox’s purse with her consent for safekeeping. I am compelled to dissent for two reasons.

I

The searches and seizures which occurred were the fruits of unlawful arrests and should be suppressed. Wong Sun v. United States, 371 U.S. 481, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). After lawfully entering the premises to arrest Marquess the police officers decided that they had probable cause to obtain a warrant to search the premises for marijuana. While some of the police officers went to obtain the search warrant, the remaining police officers would not allow those present to leave the room or the premises unless they would submit to a search. This constituted an arrest because it significantly deprived those individuals of their freedom of action. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It was not an investigatory stop but an arrest because the detention here went well beyond the bounds of permissible investigatory stops. See, e. g., United States v. McCaleb, 6th C.A., 552 F.2d 717, 720 (1977); Manning v. Jarnigan, 6th C.A., 501 F.2d 408, 410-411 (1974). See also Dunaway v. New York, - U.S. -, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

The arrest of Rawlings and the other people present at 1264 Adams Street was unlawful because no misdemeanor had been committed in the presence of the police officers. KRS 431.005. The facts that the police officers smelled the odor of burnt marijuana and inadvertently discovered a few marijuana seeds in “plain view” in Marquess’ room created probable cause for the police officers to obtain a search warrant for the premises, but did not establish that a misdemeanor was being committed in their presence by any of the individuals on the premises. See, e. g., Marsh v. Commonwealth, 255 Ky. 484, 74 S.W.2d 943 (1934). The odor of burnt marijuana is merely evidence that marijuana has been smoked on the premises at sometime in the past. It does not establish that marijuana is present on the premises at the time the odor is detected. Only the odor of either unburned marijuana or burning marijuana would indicate the actual presence of marijuana on the premises. The presence of the seeds in Marquess’ room did not create probable cause to believe that any of the individuals in the living room possessed marijuana even with the presence of the odor of burnt marijuana. See, e. g., People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978); State v. Schoendaller, Mont., 578 P.2d 730 (1978). The possession of the odor of burnt marijuana is not an offense in this Commonwealth hence no misdemeanor was committed in the presence of the police officers.

But for the unlawful detention of Rawl-ings and the others present in the house, the police would not have discovered any evidence against Rawlings. All evidence discovered was a result of this unlawful detention and should be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, supra ; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, supra.

II

Even if Rawlings and the others present had not been arrested by the police when they detained them for forty-five minutes, the search of Cox’s purse was unlawful because the search was beyond the perimeter of the search warrant and consequently unreasonable under the Fourth Amendment. The real issue here is whether Rawlings should be permitted to raise the clear violation of Cox’s Fourth Amendment rights as a violation of his own on the basis that he owned the property seized and the offense charged is the possession of that property.

The majority opinion concludes “that Rawlings probably does not have standing to raise the issue . . . ’’’tof the illegality of the search of Cox’s purse. (Emphasis added). This conclusion is apparently based on Rakas v. Illinois, - U.S.-, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Rakas is substantially different from the instant case. It involved a non-possessory offense and the articles seized were not owned by or in the possession of the defendants. Id.-U.S. at-n.l, 99 S.Ct. at 423 n.l, 58 L.Ed.2d at 393 n.l. Rakas reformulated the test for standing to contest the legality of a search. It held that standing and the substantive Fourth Amendment question of whether a reasonable expectation of privacy exists are the same. That is to say, if there is standing there is a legitimate expectation of privacy and vice versa. However, it left undisturbed the automatic standing rule articulated in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), for possessory offenses. I do not read Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), as undermining this rule but as a reaffirmation of it. Rakas v. Illinois,-U.S.-, -n.6, 99 S.Ct. 421, 439 n.6, 58 L.Ed.2d 387, 412 n.6 (1978) (White, J., dissenting); See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

Rawlings is charged with a possessory offense and the Commonwealth should not be heard to say that his possession of these drugs is sufficient to support his conviction but insufficient to support a reasonable expectation of privacy when they are concealed in the purse of a companion. He was entitled to expect that governmental officials would/intrude into the purse only with consent or by complying with the Fourth Amendment. Rakas v. Illinois, - U.S. -, -, 99 S.Ct. 421, 441, 58 L.Ed.2d 387, 414 (1978) (White, J., dissenting). Jones v. United States, supra, recognizes his standing to raise the illegality of the search and seizure of the evidence from Cox’s purse. Rakas v. Illinois, - U.S. -, - n.4, 99 S.Ct. 421, 426 n.4, 58 L.Ed.2d 387, 396 n.4 (1978). Because the search of Cox’s purse was an unreasonable search and seizure its results should be suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Further, the search of Rawlings’ person was unlawful because it was not incident to a valid arrest. The “second” arrest upon which the search was based was itself unlawful because it was based upon the fruits of the illegal search for and seizure of the drugs in Cox’s purse.

I would reverse the judgment and remand the case to the circuit court for a new trial with directions to suppress the evidence discovered by the unlawful searches.

      . Although not articulated in the majority opinion it must be assumed from its tenor that if Cox had been challenging the validity of the search instead of Rawlings the court would have held the search to be unreasonable under the Fourth Amendment and ordered the evidence suppressed. United States v. Micheli, C.A. 1st, 487 F.2d 429 (1973); United States v. Hooper, E.D.Tenn., 320 F.Supp. 507 (1969); Parker v. State, 177 Tenn. 380, 150 S.W.2d 725 (1941).

      . The first offense of possession of marijuana for sale is a misdemeanor. KRS 218A.990(4). There is nothing in the record to indicate that any of the individuals present had been previously convicted of this offense so as to provide the police officers with reasonable grounds to believe a felony had been committed by anyone.

      . The possession of marijuana for personal use is a misdemeanor. KRS 218A.990(7).

      . The Commonwealth’s evidence established that it had been at least twenty-four hours since marijuana had been smoked on the premises.

      . Supra note 1.

      . Because of the limitations imposed on federal review of Fourth Amendment issues by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), I am disturbed that my colleagues are willing to affirm a conviction which rests upon allegedly illegally obtained evidence when they confess in the majority opinion that they find the concepts of law involved to be “totally incomprehensible.” Collins v. Commonwealth, Ky., 574 S.W.2d 296, 298 n.1 (1978) (Lukowsky, J., dissenting).

      . Simmons v. United States holds that when possession of the seized evidence is in itself an essential element of the offense with which the defendant is charged the prosecution is pre-eluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence.


source: Caselaw Access Project

author: LUKOWSKY, Justice. STEPHENSON, Justice, CLAYTON, Justice,

license: Public Domain

text:
    Ed Anthony WAGNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 1, 1979.

      Terrence R. Fitzgerald, Daniel T. Goy-ette, Donald E. Dawson, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Wagner was convicted of first-degree rape, KRS 510.040 and third-degree assault, KRS 508.030. The jury fixed his punishment at fifteen years in the penitentiary for rape and at one year in the county jail for assault. The indictment also charged that he was a first-degree persistent felony offender, KRS 532.080(3). In order to settle this issue the second stage of a bifurcated trial required by KRS 532.080(1) was held. The jury found Wagner to be a first-degree persistent felony offender and, consequently, enhanced his punishment to life imprisonment. He appeals. We reverse and remand.

The case for the prosecution may be summarized as follows:

At approximately 3:30 on the afternoon of January 26, 1978, Amy Morrison was waiting for a bus at the corner of Fourth and Chestnut Streets in Louisville to take her to work at Suburban Hospital. A car drove by and stopped. Wagner got out of the car, approached her, and told her that he was from the Courier-Journal and wanted to ask her some questions about her work and the bad weather. Wagner told her that he was on his way to St. Matthews and offered her a ride to Suburban Hospital. Amy accepted because Wagner appeared to be a nice man and because of the frigid weather conditions in which she had been waiting for her bus.

After they got in Wagner’s car he drove down Bardstown Road where he stopped, in an alley near an overpass, and asked Amy if she would mind waiting while he attempted to get a check cashed by a friend. She had no objection. Wagner left but was gone only a few minutes. He told her that his friend wasn’t home but would be back at 4 p. m. and again requested that they wait. While they waited Wagner gave her a candy bar and they talked on his C-B radio.

Wagner suddenly pulled out a knife and placed it at Amy’s throat. He told her “Don’t move or I’ll slit your throat.” She was surprised at this and jumped. The knife cut her finger. He tied her hands behind her back with a scarf which had been hanging from his rear view mirror. He took another scarf and tied one end around her throat and the other end to the scarf holding her hands. He told her not to struggle or she would choke herself to death. He made her lie down on the front seat of the car and as he kissed her he pulled up her shirt and placed the knife on her stomach indicating that it would be within easy reached if he needed it.

He demanded that she shut her eyes and after she did so he placed a gluey substance on them. This substance sealed her right eye shut and she could barely open her left eye. He kissed her breasts and at approximately 4:30 p. m. he drove Amy to a house near the Cherokee Park area of Louisville where he had a rented room. He took Amy to his room and during the course of the next 2 and ½ hours he raped her twice.

Amy assured Wagner that she would not tell anyone about the incident and was able to persuade him to take her some place where she could remove the gluey substance from her eyes. He drove her to a Convenient Food Mart located at Fourth and Oak Streets. He got out of the car, left his keys in the ignition and went inside to purchase something that would help her cleanse her eyes. After he entered the store she took the car keys, jumped out of the automobile and hurried into the store. Once inside she accused Wagner of raping her and began crying. He denied this, demanded his keys and apparently attempted to leave the store but some of the customers in the store crowded around the exit and refused to let him leave until the police arrived.

When the police arrived they interviewed both Amy and Wagner. They accompanied Wagner and Amy to Wagner’s car and permitted him to lock and secure the car. While this was being done Amy pointed through the windows to the scarves and to a spot on the upholstery which she said was blood from her cut. They took Amy to General Hospital for an examination and Wagner accompanied them to police headquarters for questioning. During the questioning the police had Wagner’s car removed to police headquarters. At the conclusion of the questioning the police formally arrested Wagner for the crimes of rape and assault. After the arrest the police conducted an “inventory” search of Wagner’s car for the purpose of “looking for evidence.”

The case for the defense may be summarized as follows:

Amy flagged Wagner down as he was driving past the bus stop in his car. She had a small cut on her hand and asked him to take her to Suburban Hospital where she worked. During the trip she offered to have intercourse with him for ten dollars. She gave Wagner some kind of pill and he accepted the offer. He took her to his apartment where they had sexual relations. During her stay in the apartment Amy went into the bathroom to put on her false eyelashes. Her eyelids became stuck together when she put them on and she asked him to take her to a store to obtain something to unstick them. Wagner then took her to the Convenient Food Mart to purchase something to clean her eyelids and to obtain change for a twenty dollar bill so he could pay her. She then demanded fifty dollars and they argued about the price. This argument resulted in Amy’s entering the store and accusing Wagner of rape.

Prior to trial Wagner moved the court for an order directed to Our Lady of Peace Hospital authorizing him to examine all psychiatric records pertaining to Amy. This motion was denied and properly so. The perimeter of pretrial discovery in a criminal case is established by RCr 7.24(1) and (2). The only materials discoverable under the rule are those within the possession, custody and control of the Commonwealth. The records of a private, charitable hospital certainly are not encompassed within the boundaries fixed by this rule.

At trial the Court refused to permit Wagner to cross-examine Amy about her psychiatric history. In an avowal he was able to establish that Amy had been committed to a psychiatric hospital prior to the events in issue for attempted suicide, severe depression and drug abuse, and that she was presently under psychiatric care and was receiving shock treatments which were affecting her memory. The proffered testimony was relevant and competent and should have been received because it tends to impeach Amy’s credibility. In a swearing match such as this the weight to be given to the testimony of the prosecuting witness is a crucial issue. Consequently, the exclusion of this evidence requires reversal and a new trial. See Mosley v. Commonwealth, Ky., 420 S.W.2d 679 (1967); Anno., Witnesses — -Mental State or Condition, 44 ALR 3rd 1203 (1972).

Wagner insists that the fruits of the war-rantless search of his automobile hours after its impoundment on the parking lot of the Convenient Food Mart and its removal to the police station should have been suppressed. He maintains that this search violated his rights under both the Fourth Amendment of the Constitution of the United States and Section 10 of the Constitution of the Commonwealth of Kentucky. We thought that in City of Danville v. Dawson, Ky., 528 S.W.2d 687 (1975), we laid to rest the circumstances under which motor vehicles could be impounded and their interiors searched or inventoried. Such is not the case because the Supreme Court of the United States has since decided South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and because our language in City of Danville v. Dawson, supra, failed to make it perfectly clear that we were interpreting Section 10 of our constitution as well as the Fourth Amendment of the federal constitution. To eliminate this confusion we now find it necessary to restate our views and rest our holding solely upon Section 10 of our constitution.

A vehicle may be impounded without a warrant in only four situations:

1. The owner or permissive user consents to the impoundment;

2. The vehicle, if not removed, constitutes a danger to other persons or property or the public safety and the owner or permissive user cannot reasonably arrange for alternate means of removal;

3. The police have probable cause to believe both that the vehicle constitutes an instrumentality or fruit of á crime and that absent immediate impoundment the vehicle will be removed by a third party; or

4. The police have probable cause to believe both that the vehicle contains evidence of a crime and that absent immediate im-poundment the evidence will be lost or destroyed.

So long as the only potential danger that might ensue from non-impoundment is danger to the safety of the vehicle and its contents no public interest exists to justify impoundment of the vehicle without the consent of its owner or permissive user. Because the vehicle is legally in his custody the driver, even though in police custody, is competent to decide whether to park the vehicle in a “bad” neighborhood and risk damage through vandalism or allow the police to take custody. Only when the vehicle if not removed poses a danger to other persons, property or the public safety does there exist a public interest to justify im-poundment if the owner or permissive user is unable to reasonably arrange for a third party to provide for the vehicle’s removal. City of Danville v. Dawson, supra at 690-691.

The more difficult question is the legality of a routine police inventory of a vehicle subsequent to a lawful impoundment. Mere legal custody of an automobile by law enforcement officials does not automatically create a right to rummage about its interior. A routine police inventory of the contents of an impounded vehicle constitutes a substantial invasion of the zone of privacy of its owner or permissive user. It is an invasion additional to the intrusion upon his privacy interests occasioned by the impoundment itself. Consequently, such an inventory is impermissible unless the owner or permissive user consents or substantial necessities grounded upon public safety justify the search.

If a vehicle is legally impounded and its owner or permissive user is present or otherwise known at the time the vehicle is seized no such need is ordinarily manifest. If the owner or permissive user does not consent to the routine inventory he will assume the risk that items obtained in the vehicle will be lost or stolen. The police in such a case merely lock up the vehicle and leave it in place until the owner or permissive user makes suitable arrangements for its removal. Concomitant with this right to prevent a routine inventory is the owner’s or permissive user’s right to have a representative present during any inventory that is authorized and his right to limit the inventory to only specific portions of the vehicle.

If the police have probable cause to believe that the vehicle contains evidence or constitutes a fruit or instrumentality of a crime they must procure a warrant in order to conduct a search in the absence of the consent of the owner or permissive user. In such a case the police can prevent the removal of the vehicle until a reasonable time has elapsed in which a warrant can be secured. Because the vehicle is in police custody there is no danger that any evidence it contains will be lost or stolen and hence no necessity to depart from the warrant requirement. If a warrant cannot be obtained no inventory can be undertaken unless the owner or permissive user consents. In this case the owner-driver of the seized vehicle was at police headquarters at the time of impoundment. Because neither a search warrant nor his eon-sent was obtained prior to the routine inventory search for evidence rummaging through the interior of the car constituted an illegal search even though the car had been lawfully impounded. The evidence uncovered by the illegal activities of the police will be suppressed and not used at the new trial.

A determination of the circumstances which would justify an inventory of a lawfully impounded vehicle whose owner or permissive user is not present or whose owner or permissive user may not be reasonably contacted at the time the impoundment is a matter which we reserve until we are presented with a case which squarely presents the issue.

During the persistent felony offender stage of the bifurcated trial Wagner sought to introduce into evidence before the jury prior lunacy adjudications as a defense to the persistent felony offender charge. The trial court refused to permit the introduction of this evidence. The trial court quite correctly found that these lunacy adjudications were completely irrelevant to the factual issues which would have to be answered by the jury at the persistent felony offender stage of the trial, KRS 532.-080(1) and (2). The only relevance which these lunacy adjudications could have had at the persistent felony offender stage of the trial could have been as a justification for the trial judge to refuse to submit the prior felony convictions to the jury on the basis that they were void because Wagner was convicted while he was incompetent to stand trial. Unfortunately for Wagner that issue was conclusively determined against him in Wagner v. Commonwealth, Ky., 379 S.W.2d 731 (1964).

Before the persistent felony offender issues were submitted to the jury Wagner requested that the trial court instruct the jury on the presumption of innocence. The request was denied. He neither received nor requested such an instruction at the first phase of the bifurcated trial at which the issue of guilt or innocence was determined. RCr 9.56 now requires that such an instruction be given at the guilt stage of every trial. Because this case will be tried again and this instruction will be given in accord with the rule at the guilt stage of the trial we see no reason to agonize over Wagner’s submission. Suffice it to say that if the instruction is given at the guilt stage of the trial it need not be repeated at the persistent felony offender stage.

Wagner’s remaining assignment of error is patently without merit and need not be discussed.

The judgment is reversed and the cause is remanded to the Jefferson Circuit Court for a new trial.

All concur except CLAYTON and STEPHENSON, JJ., who dissent.

STEPHENSON, Justice,

dissenting.

I am unwilling to agree with any enlargement of Fourth Amendment rights over and above the minimum standards prescribed by the United States Supreme Court.

The present state of the law of Fourth Amendment rights is already too complicated. The majority opinion promulgates yet another set of rules or standards to further complicate this field of law.

CLAYTON, Justice,

dissenting.

I respectfully dissent from that part of the majority opinion regarding the search of appellant’s automobile. I see no reason why § 10 of the Kentucky Constitution should be interpreted so as to impose a more stringent standard than the Fourth Amendment of the Federal Constitution.

      . Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) (a state constitution may impose a more stringent standard than the federal constitution).

      . An illegally parked vehicle would constitute a danger to public safety under this exception to the warrant requirement and could be lawfully impounded.

      . See, e. g., South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, on remand, State v. Opperman, S.D., 247 N.W.2d 673 (1976) (inventory of the contents of an illegally parked car after it was impounded held to violate the state constitution); Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), reh. denied, 423 U.S. 1081, 96 S.Ct. 869, 47 L.Ed.2d 91 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh. denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970); State v. Cress, Me., 344 A.2d 57, 62-64 (1975).

      . See note 3, supra.

      . See, e. g., Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971); State v. Bradshaw, 41 Ohio App.2d 48, 322 N.E.2d 311 (1974).

      . Youman v. Commonwealth, 189 Ky. 152, 244 S.W. 860 (1920). This would not include the alleged blood stain or the scarves because they were in plain view of the police officers at the time the car was closed and locked. City of Danville v. Dawson, supra at 691.


author: GANT, Judge.

text:
    CITY OF FRANKLIN, Kentucky, Appellant, v. DEPARTMENT FOR HUMAN RESOURCES, William Ray Graves, Faye B. Graves, the Ohio Casualty Insurance Co., and Workmen’s Compensation Board, Appellees. DEPARTMENT FOR HUMAN RESOURCES and Ohio Casualty Insurance Company, Cross-Appellants, v. William Ray GRAVES, (Deceased), Faye Brown Graves, (widow), City of Franklin, Kentucky, Workmen’s Compensation Board, William L. Huffman, Director, Cross-Appellees. and William Ray GRAVES, (Deceased), and Faye Brown Graves, (widow), Cross-Appellants, v. DEPARTMENT FOR HUMAN RESOURCES, the Ohio Casualty Insurance Company, City of Franklin, Kentucky, Workmen’s Compensation Board, and William Huffman, Director, Cross-Appellees.
    Court of Appeals of Kentucky.
    May 4, 1979.

      J. Marshall Hughes, Bowling Green, for appellant and cross-appellee, City of Franklin.
    James H. Lucas, Bowling Green, for ap-pellee and cross-appellants, Department for Human Resources, Commonwealth of Kentucky, and The Ohio Casualty Ins. Co.
    J. Richard Downey, Franklin, for appel-lees and cross-appellants, William Ray Graves, Deceased, and Faye Brown Graves, widow.
    Before GANT, HOWARD and HOWER-TON, JJ.
   GANT, Judge.

This workmen’s compensation appeal arises from a decision of the Simpson Circuit Court which affirmed an award of the Workmen’s Compensation Board. The Board assessed the liability for the work-connected death against the City of Franklin (City) as the employer. The City now brings this appeal. William Ray Graves was a CETA (Comprehensive Employment and Training Act) employee. He was hired by Simpson County Judge Executive, Joe James, who was the agent in Simpson County for the program which was administered by the Department for Human Resources (Department) in the state. Once hired, he was assigned to work for the City on its road crew. Approximately one month after he began work under the program, he was killed when the walls caved in on the ditch in which he was working. His widow filed an adjustment for a claim of workmen’s compensation benefits.

Initially, the suit was brought against only the Department for Human Resources and its insurer. After a period of time in which negotiations took place, the insurance company moved the Board to join the City as a party/defendant, and the motion was granted.

Two issues were before the Board— whether Faye Brown Graves’s children by another marriage were wholly dependent on the deceased, and who the proper employer was for liability purposes. The Board decided that the stepchildren were dependent and that the City was liable. Only the issue dealing with the employer is here on appeal. There are other sub-issues which will be resolved by a determination of this question.

The CETA program was developed by the United States government to provide opportunities for unemployed and underemployed persons in public service jobs or training. 29 U.S.C. § 801, et seq. Each state could act as a prime sponsor for counties or cities within its political jurisdiction, but did not qualify on their own under the prime sponsor requisites contained in the statute. 29 U.S.C. § 812. In Kentucky, the prime sponsor for the majority of the state is the governor, who has designated the Department for Human Resources as the administrator of the program. The Department has designated county judge executives as their local representatives to hire personnel that meet the qualifications for employment. In the instant action, Judge James did the hiring for the available jobs in Simpson County. CETA employees could be assigned to any of a number of areas of employment (City of Franklin, Simpson County, Federal Housing Authority, and Franklin-Simpson School District.) Graves was assigned to the City.

According to the testimony in the record, the City directed the actual work done by Graves. His hours and the type of work that was to be done were set by the City. All the particulars of his work duties were directed by the City or its representative. The City compiled his work hours on a bi-monthly basis, and this information was given to the Bureau for Manpower, which forwarded the information to Frankfort, where a check was issued. In essence, he received his pay from the Department for Human Resources.

A CETA employee is to be treated as any other employee in the organization in which he works. Although his pay comes from a different source, all other benefits are to be the same. It is best stated by the enacting statute, 29 U.S.C. § 848(a)(4):

all persons employed in public service jobs under the Title (29 U.S.C. § 841-851) will be assured of workmen’s compensation, health insurance, unemployment insurance, and other benefits at the same levels and to the same extent as other employees of the employer and to working conditions and promotional opportunities, neither more nor less favorable than such other employees enjoy.

Part of this requires that employees be covered by workmen’s compensation. However, the statute does not direct who is to provide the workmen’s compensation.

Judge James in his testimony stated that he was aware of the requirement that OSHA and workmen’s compensation standards must be met with regard to CETA employees. However, he also stated that he was told that the Department would cover these employees within their workmen’s compensation policy. There was no written agreement to this effect. Some question was raised about when the program initially began; the local agencies had signed some agreement in order to become a part of the program. This was brought out in Judge James’s testimony, but nothing firm was ever concluded on its existence, and if there was one it was not included as part of the evidence. Had there been an agreement of some sort, it might have elucidated upon the responsibilities of the various parties in this action.

We are of the opinion that the decision of the Board and the circuit court was correct to the extent of assessment of liability. The City controlled and directed all work activities of Graves. Although they did not participate directly in the hiring or paying of the deceased, they kept records of the number of hours he worked and were therefore indirectly in control of his wages. They were under the mandate of the Act and required to treat him as any other employee.

In other jurisdictions, cases of this sort arose during the 1930’s and 1940’s with respect to government relief programs involving the Works Project Administration and the National Youth Administration; the liability was assessed against the federal agency. Dempster Mill Manufacturing Company v. Lester, 131 S.W.2d 254 (Tex.Civ.App., 1935) (WPA), and Sweet v. Board of Education of Union Free School, 290 N.Y. 73, 48 N.E.2d 266 (1943) (NYA).

The method of operation under those programs, however, was decidedly different than with CETA. Supervisors were provided from within the program, and the program director decided how and where the individuals would work. There was no exercise of control from outside of the program itself. These cases are of benefit only in their difference from this action.

The only Kentucky case that is closely in point is Carnes v. Dept. of Economic Security, Ky., 435 S.W.2d 758 (1968), which was a tort action. There, the employee was hired under the Work Experience and Training Program which, like CETA, provided jobs for unemployed individuals. The parties there were trying to determine who was the employer for the assessment of liability. However, the question concerned the negligent act of an employee and the employer that would be responsible for that act. Although hired and paid through the Department of Economic Security, the individual worked for the City of Manchester. There it was held that the City of Manchester was responsible as employer for the negligent act of these employees. The court applied the “loaned servant doctrine.” In assessing liability against the City of Manchester, the court said:

In the case now before us, the work was not being performed by, for, or under the control of the department when Carnes’ ramp burned. The City of Manchester exclusively had the right to start, stop, and direct the manner in which it was done. The Department was not liable to Carnes. Id. at 764.

The same thing can be said with respect to Graves’s activity here. The principles of law are somewhat different, but generally we are of the opinion that that case applies here, with one difference. As with the contractor-subcontractor liability, KRS 342.-610(2), the Department could be liable secondarily. If the City had not covered its workers under workmen’s compensation, then the Department would be liable. However, we are of course not faced with such a fact situation.

Accordingly, the judgment of the lower court is affirmed insofar as it pertains to the liability of the City for the compensation payments to the employee, and this case is remanded for the purpose of amending the judgment herein to require the City to reimburse the Department or its carrier, Ohio Casualty Insurance Co., for the funeral expenses mistakenly paid.

All concur.


author: SIMEONE, Judge.

text:
    STATE ex rel. Lawrence SPERANDIO, Relator, v. Honorable Lewis W. CLYMER, Judge, 16th Judicial Circuit, Respondent.
    No. 60411.
    Supreme Court of Missouri, En Banc.
    May 17, 1979.

      John C. Milholland, Harrisonville, E. J. Murphy, Butler, for relator.
    Jack G. Beamer, Jerry M. Drewry, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for respondent.
   SIMEONE, Judge.

This is an original proceeding in mandamus brought by relator Lawrence Speran-dio against the respondent, judge of the 16th circuit, commanding him to set aside an order of dismissal made on September 19,1977, dismissing a Utah physician from a cause pending in the court. We have original jurisdiction. Art. V, § 4, Mo.Const.

Relator, Mr. Sperandio asserts that the service of process on Dr. Paul Pemberton, a Utah physician, was proper under the provisions of § 506.500, RSMo 1969 (Rule 54.06) which reads in part as follows:

“1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts: ******
“(3) The commission of a tortious act within this state;”.

Mr. Sperandio suffered from a pain producing but non-disabling condition of sublu-xation of his hip joints. Upon referral by his family physician on or about September 12,1967, he consulted and engaged the services of Dr. Harvey R. Michael and Dr. Daniel L. Yancey concerning the condition. The petition filed by plaintiff alleges that Drs. Michael and Yancey told plaintiff that he was afflicted with a deformity of his hips “with a resulting condition of subluxation of the femoral heads” and that unless he submitted to surgery to remedy the condition, the pain would grow progressively worse.

On September 14, 1967, Dr. Michael forwarded a letter to Dr. Paul Pemberton, an orthopedist in Salt Lake City, Utah. Dr. Pemberton is apparently an expert in a surgical operation procedure which he developed and which is commonly called the “Pemberton Procedure.” This procedure was developed for use on children. In the letter, Dr. Michael wrote that during his residency at medical school he became interested in the problem of “congenital hip dislocation.” He informed Dr. Pemberton that Mr. Sperandio represents “an old congenital dysplasia with residual shallow ace-tabula.” The letter described the condition of Mr. Sperandio and referred to x-rays which were also forwarded. The letter indicated subluxation of both femoral heads. Dr. Michael asked Dr. Pemberton his “opinion” as to “what you think the etiology of his present hip problem is as well as what you would consider the most satisfactory treatment. I know that you have mentioned, during your visits to Oklahoma City, [where Dr. Michael was a resident and where Dr. Pemberton made instructive visits] doing periaceabular osteotomy in adults. I think I am fairly familiar with this procedure in children, but I know that the operation must be altered when done in the adult patient. I would like, first of all, to have your opinion as to whether you feel this operation is indicated in this particular patient, and secondly, what alterations in the procedure are necessary in the adult.” The letter to Dr. Pemberton was unsolicited.

On September 21, 1967, Dr. Pemberton replied to Dr. Michael. He concurred in Dr. Michael’s opinion that there was a “bilateral congenital subluxation” of the hip. “The problem as to what should be done here in a man of this age . . . is a serious one . . The operation that I have been doing in the adult has been a modification of the one that I have developed for the congenital hip in a child . . . .” Dr. Pemberton then described the technique of an operation in an adult. On the x-rays he drew “this out on the left hip” and returned the x-rays to Dr. Michael. In the letter, he cautioned Dr. Michael as to certain matters. He indicated that post-operative care would be about what it was in children with two months in a cast and then crutches for about another thirty days. He stated that “I have done quite a number of these now and they have worked out well.” He concluded the letter by stating “Let me know if there is any other question you have about this and also if you do go ahead with this procedure, I would like to hear from you as to how it works out.” There is nothing in the record to indicate that Dr. Pemberton received any fee.

On December 2, 1967, Mr. Sperandio submitted to surgery upon his left hip performed by Drs. Michael and Yancey. When he was discharged, it was alleged that Sper-andio had an infection at the operative site. Not satisfied with the results of the operation, Sperandio filed suit in November, 1969 against Drs. Michael and Yancey in Greene County. In 1972 a deposition was taken of Dr. Pemberton in Utah, and Sperandio’s counsel was present. During the course of the deposition, Dr. Pemberton (1) in response to a question whether he felt that the letter and x-rays were adequate to diagnose that Mr. Sperandio had congenital hip dysplasia, answered, “yes”, (2) stated that the lines on the x-ray indicates the site of the osteotomy which he recommended, and (3) said “. it looks like the bones are where they ought to be.”

Relator learned in May, 1974 that the hip bones remained subluxated and that the surgery had not corrected the condition. He then joined Dr. Pemberton as a defendant in the Greene County suit. This suit was dismissed and on January 3,1975, Sper-andio filed the present action against Drs. Michael, Yancey, Pemberton and others in two counts in Jackson County. The first count was based on medical malpractice and the second count was based on a conspiracy to prevent relator from learning of his true residual condition. Service of process was had on Dr. Pemberton in Utah and Dr. Pemberton moved to quash the process alleging that he has never been a resident of Missouri and the only contact between him and other defendants was the letter of September 14 and his response. Jurisdiction was predicated on § 506.500, and Rule 54.06. On March 7, 1975 the judge sustained Pemberton’s motion to quash. Some two years later, in June, 1977, relator sought mandamus in the Court of Appeals, Western District to reinstate service of process, which was denied on June 23, 1977.

Service of process was again served on Dr. Pemberton in Utah on August 3, 1977. Dr. Pemberton filed a “motion to dismiss” in which he, “appearing specially for purposes of this motion and for no other reason,” moved the court to dismiss him from the case because (1) he was discharged from the lawsuit on March 7, 1975; (2) relator sought a writ of mandamus in the court of appeals which was denied; the petition served on him on August 3, 1977 was the same petition as previously served on defendant and there is “nothing before the court to indicate that any fact has changed” hence the matter is res judicata so as to prevent plaintiff from proceeding further against Dr. Pemberton. On September 19, 1977, respondent judge sustained the motion to dismiss ordering that “Paul A. Pem-berton is dismissed from the captioned petition with prejudice to plaintiff refiling against defendant Pemberton in the State of Missouri.”

It is this order that relator seeks to set aside and to command the respondent to proceed to exercise jurisdiction over the person of Dr. Pemberton. The petition for mandamus was sought in this court on October 17, 1977. Attached to the petition were several exhibits including the petition in damages in two counts. On November 14,1977, we issued our alternative writ, and pleadings joined issue.

On April 10, 1978, we handed down an opinion in which it was held that the alternative writ be made peremptory because there were sufficient minimum contacts with Missouri to make Dr. Pemberton amenable to service of process in this state. State ex rel. Sperandio v. Clymer, 568 S.W.2d 935 (Mo. banc 1978). In that opinion we held that there were sufficient minimum contacts to satisfy due process under International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), since (1) Missouri has an interest in securing redress for its citizen who had had no contact with Utah and who was injured in Missouri and (2) Dr. Pemberton’s acts were performed for the purpose of causing an effect in Missouri.

After a petition for writ of certiorari to the Supreme Court of the United States, that court on October 2, 1978, 436 U.S. -, 99 S.Ct. 69, 58 L.Ed.2d 103 vacated the judgment of this court and remanded the cause “for further consideration in the light of [Kulko v. Superior Court of California, Etc., 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)].

“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co., supra, 66 S.Ct. at 158.

In State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970), this Court declared that the ultimate objective of § 506.500 “was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.”

But despite the expansion of in personam jurisdiction, McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), state courts must heed the admonition of the Supreme Court that “ ‘the flexible standard of International Shoe ’ ” does not “ ‘herald the eventual demise of all restrictions on the personal jurisdiction of state courts.’ ” Kulko, 98 S.Ct. at 1701, quoting from Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

Kuiko is the latest Supreme Court decision discussing and delineating the exercise of in personam jurisdiction over a nonresident.

The precise issue in Kuiko was whether in an action to increase child support, the state of California may exercise in personam jurisdiction over a nonresident father of a minor child. Ezra and Sharon Kuiko were married in 1959 in California during a stopover there enroute to a military base in Texas. They were domiciled in New York. Following the marriage, Sharon returned to New York. Two children were born of the marriage and the family lived in New York until 1972 when they separated. Following the separation, Sharon moved to California. A separation agreement was made under the terms of which the children would remain with their father during the school year but would spend certain vacations with their mother. A divorce was obtained, in Haiti. The children resided with their father during the school year and with the mother during vacations. In 1973, when one of the children was to leave to spend Christmas vacation with her mother, she told her father that she wanted to remain in California after her vacation. The child commenced living with her mother in California and sometime later, the other child also came to California to stay with his mother. The mother commenced an action against the husband to modify the judgment of divorce to award her full custody and to increase support obligations. Extraterritorial service was obtained upon the father in New York. The husband appeared specially and moved to quash the service. The California court denied the husband’s motion to quash reasoning that by consenting to the children living in California, he had caused an effect in the state warranting the exercise of jurisdiction over him.

The Supreme Court reversed, and reviewed the expansion of in personam jurisdiction. The existence of personal jurisdiction depends upon the presence of reasonable notice to the defendant that an action has been brought and a sufficient connection between the defendant and the forum as to make it fair to require defense of the action in the forum.

“. . . [T]he constitutional standard for determining whether the State may enter a binding judgment against [a defendant] is that set forth in this Court’s opinion in International Shoe Co. v. Washington, supra: that a defendant to be bound by a judgment against him must have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ . . . While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff’s forum of choice are of course to be considered, ... an essential criterion in all cases is whether the ‘quality and nature’ of the defendant’s activity is such that it is ‘reasonable’ and ‘fair’ to require him to conduct his defense in that State.” Kulko, 98 S.Ct. at 1697.

The court emphasized that the unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state. “ ‘[I]t is essential in each case that there be some act by which the defendant purposefully avails [him]self of the privilege of conducting activities within the forum State.’ ” Quoting from Hanson v. Denckla, supra, 78 S.Ct. at 1240.

In our opinion, the Supreme Court in Kuiko held that (1) the father who agreed to allow his children to spend more time in California can hardly be said to have purposefully availed himself of the benefit and protection of California laws, (2) the father did not derive any financial benefit as a result of his acquiescence in the daughter’s desire to live in California, (3) the California court’s reliance on the husband having caused an “effect” in California was misplaced, since this is intended to reach wrongful activity outside the state causing an injury within the state, (4) the claim did not arise from the defendant’s commercial transactions and hence cannot be said that commercial benefits were sought and (5) the sending of a child to California is not a commercial act and connotes no intent to obtain nor expectancy of receiving a corresponding benefit in the State that would make fair the assertion of that State’s judicial jurisdiction.

In our opinion, Kulko does not announce new law. Rather, it relies on the long-established rules of International Shoe and Hanson that “a defendant ‘have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ” (Kulko, 98 S.Ct. at 1693 quoting International Shoe). Kul-ko recognized that “ ‘[I]t is essential in each case that there be some act by which the defendant purposefully avails [himjself of the privilege of conducting activities within the forum State . . . (Kulko, 98 S.Ct at 1698, quoting Hanson). The Court stated “In light of our conclusion that appellant did not purposefully derive benefit from any activities relating to the State of California, it is apparent that the California Supreme Court’s reliance on appellant’s having caused an ‘effect’ in California was misplaced.” (Kulko, 98 S.Ct. at 1699).

Kulko also recognized that “Like any standard that requires a determination of ‘reasonableness,’ the ‘minimum contacts’ test of International Shoe is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” 98 S.Ct. at 1697.

While Kulko does not squarely govern this case, the legal similarities and the legal principles embodied therein are sufficient for us to conclude that under the circumstances here, Dr. Pemberton is not subject to jurisdiction in personam in Missouri. Under the facts here Dr. Michael had known of Dr. Pemberton since he was a resident physician; he wrote an unsolicited letter to Dr. Pemberton describing relator’s condition and sought his opinion concerning a procedure to be used on an adult. Dr. Pemberton replied and suggested a technique and drew on the x-rays. As in Kulko, no commercial or financial benefit was received by Dr. Pemberton, nor was there any commercial transaction involved. No fee was sought or requested or offered. There was no doctor-patient relationship between relator and Dr. Pemberton; nothing in the record indicates that Dr. Pemberton knew whether his suggested technique would be followed; there was no correspondence between Drs. Michael and Pemberton after the operation. The unsolicited letter of Dr. Michael and the response was akin to a discussion of a clinical problem similar to discussions among other professional groups. Dr. Pemberton did not undertake to treat relator. It certainly cannot be said that Dr. Pemberton under the principles of Kulko and Hanson, purposefully availed himself of the privilege of conducting activities within the forum state to invoke the benefits and protection of its laws, nor can it be said that there were sufficient minimum contacts with Missouri so as to subject him to in personam jurisdiction.

Neither do we believe that although an “effect” took place in Missouri, that it is reasonable to assert jurisdiction over Dr. Pemberton. This is not a products liability situation or a case similar to Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957), or Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Although an “effect” may have taken place in Missouri because of the correspondence, opinion and suggested tech nique by Dr. Pemberton, this case is akin to decisions dealing with physicians where no in personam jurisdiction was obtained. Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972); McAndrew v. Burnett, 374 F.Supp. 460 (D.C.Pa.1974); Gelineau v. New York University Hospital, 375 F.Supp. 661 (D.N. J.1974) and Kailieha v. Hayes, 56 Haw. 306, 536 P.2d 568 (1975).

In Wright, for example, the United States Court of Appeals held that Idaho did not acquire in personam jurisdiction over a South Dakota physician who treated the patient while a resident of South Dakota and who authorized the refill of a prescription. The court discussed the “effects” rule of the Restatement and whether it may apply that rule in such a fashion so as to confer jurisdiction. The court held it could not, and concluded that no tort was committed in Idaho.

The ultimate question, of course, is one of reasonableness of the forum state to acquire jurisdiction over a nonresident defendant. As to count I, we believe that in this protracted litigation there were not sufficient “minimum contacts” with Missouri to make Dr. Pemberton amenable to service of process here, nor do we believe that Dr. Pemberton purposefully availed himself of the privilege of conducting activities in Missouri thus invoking the benefits and protection of its laws.

Relator further contends that count II alleged a conspiracy to conceal from relator the fact that the surgery did not eliminate the subluxation and that the “charged conspirators” .informed relator that the bones were placed in proper position so that jurisdiction was obtained.

The conspiracy count alleged (1) that defendants are participants in a widespread covert agreement made by many members of the medical profession to conceal knowledge of medical malpractice so that civil justice is defeated, (2) in the alternative, the defendants did intentionally misrepresent and conceal from plaintiff the true nature of the care rendered to him and that it had been proper, (3) in addition to the wrongful concealment of the facts supporting the claim against Pemberton, Drs. Michael and Yancey agreed to conceal all knowledge of the fact that they had failed to achieve the purpose of the surgery to cure the condition of subluxation and effectively deprived plaintiff of future care of the hip condition; (4) each of the defendants acted in concert in furtherance of the object of the conspiracy in concealing the true condition of the hip and as a direct result of the overt acts plaintiff has been deprived of necessary medical treatment; and (5) defendants continue to conceal the fact that the surgery did not remove the condition and falsely represented that such condition was corrected.

The relator relies on Jack O’Donnell Chevrolet, Inc. v. Shankles, 276 F.Supp. 998 (N.D.Ill.1967). In that case, plaintiff, Jack O’Donnell Chevrolet, a dealership with its principal place of business in Illinois sold automobiles to defendant Shankles in Illinois. Shankles executed certain drafts upon the defendant Fort Payne Bank, an Alabama corporation. The drafts were forwarded to an Illinois Bank which in turn forwarded them to the Fort Payne Bank for payment. The Fort Payne Bank, in the regular course of business received the drafts and returned them unpaid because of insufficient funds in the account of Shan-kles. Count IV of the petition charged that Shankles and Fort Payne conspired to the end that the bank would honor and pay only these drafts drawn by Shankles which he or his agents gave authority to honor even though other drafts were properly payable. Plaintiff alleged that pursuant to the conspiracy the defendants caused the drafts payable to plaintiff not to be honored even though properly payable. Fort Payne Bank moved to quash a summons served on it in Alabama on the ground that the service is invalid because the District Court in Illinois lacks in personam jurisdiction. The court held that, assuming the allegations of Count IV to be true, “we believe that when declining to honor and delaying notice of dishonor of the checks payable to plaintiff, the Bank contemplated that such actions would cause injury to an Illinois corporation in Illinois. Conspiracy involves an element of scienter.” 276 F.Supp. at 1002. The Bank, the court held, in dealing with an Illinois bank had available to it the benefit and protection of Illinois.

But under the allegations of this petition which are broad and varied, the record fails to show the allegation of any tortious act of Dr. Pemberton in Missouri, does not show that Dr. Pemberton had the minimum contacts with Missouri sufficient to confer jurisdiction in this state and does not show that the defendant had available to him the benefit and protection of Missouri. Cf. Hardy v. Bankers Life & Casualty Co., 19 Ill.App.2d 75, 153 N.E.2d 269 (1958); annot., 24 A.L.R.3d 532, 574 (1969).

Relator also contends that Dr. Pemberton by filing a motion to dismiss suit waived service of process in Utah. The motion was a special one and moved the court to dismiss because Dr. Pemberton’s previous motion to quash had been sustained in March, 1975 and that the matter was res judicata. While titled a “motion to dismiss” it was not a motion to dismiss for failure to state a claim. The general principle is that if a party takes any action which recognizes that the cause is in court and assumes an attitude that the jurisdiction of the court has been acquired, he is bound thereby and the action amounts to a general appearance. See Germanese v. Champlin, 540 S.W.2d 109, 113 (Mo.App.1976); State v. Weinstein, 411 S.W.2d 267, 273 (Mo.App.1967); and State v. Hawkins, 361 S.W.2d 852, 868 (Mo.App.1976). The “motion to dismiss” here did not recognize the jurisdiction of the court, was not intended as a motion to enter a general appearance, and did not amount to a general appearance subjecting Dr. Pemberton to the jurisdiction of the court for all purposes.

The alternative writ heretofore issued is quashed.

MORGAN, C. J., and BARDGETT, RENDLEN, SEILER and WELLIVER, JJ., concur.

DONNELLY, J., concurs in result.

      . In an affidavit in support of the motion to quash, Dr. Pemberton stated that he was in the medical corps stationed at Jefferson Barracks from March, 1943 to February, 1944, but had not been present in Missouri at any other time. He indicated he received the letter from Dr. Michael but heard nothing further until advised of the law suit. He stated that he did not see, examine or treat Mr. Sperandio and did not conSult with the other physicians except for the two letters. He was not acquainted with Dr. Michael prior to receiving the letter and never met him prior to the date of the letter. The letter to Dr. Michael was gratuitous he was not paid or promised any compensation “for the letter or for any other matters pertaining to Mr. Sperandio.”

      . Count I was based on medical malpractice. The petition alleged that Drs. Michael and Yan-cey, prior to “committing” surgery on plaintiff, “consulted” with Pemberton and Pemberton “undertook” to offer them education and guidance in their use of the Pemberton Procedure and illustrated the direction and extent of the operation; that Michael and Yancey relied upon the advice; that Pemberton carelessly and negligently failed to properly instruct the physicians in the modification of the technique used in children, and that the negligence of Pemberton combined with the negligence of Michael and Yancey caused plaintiffs damage. In Count II, plaintiff alleged that the defendants misrepresented and concealed from him the true nature and quality of the care and concealed the fact they had failed to achieve the purpose of the surgery to cure the condition of subluxation and the hip continued to be sub-luxated.

      . A motion to quash the alternative writ was filed and a motion to dismiss the mandamus proceeding because relator’s brief failed to comply with Rule 84.04 was also filed.

      . See American Law Institute’s Restatement (Second), Conflicts, § 37 (1971).

      . Even in such situations the Restatement recognizes that there might be circumstances that would render unreasonable the assertion of jurisdiction over the nonresident defendant. In Kulko, it was said “There is no claim that appellant has visited physical injury on either property or persons within the State of California.” 98 S.Ct. at 1699. Although there is such a claim here, the test is whether the assertion of jurisdiction over the nonresident is reasonable.

      .See e. g., Sifers v. Horen, 22 Mich.App. 351, 177 N.W.2d 189 (1970), aff'd. 385 Mich. 195, 188 N.W.2d 623 (1971)— except attorney discussed becoming associated with firm in a negligence case and prepared for trial; Davis v. Superior Court, San Francisco, 62 Cal.App.3d 484, 133 Cal.Rptr. 115 (1976)—Maryland physician who promoted book at medical conventions and had substantial financial interest was held subject to jurisdiction in California.

      . The court in Wright stated: “The balance of factors involved in a due process determination might be different if a doctor could be said to have treated an out-of-state patient by mail or to have provided a new prescription or diagnosis in such a fashion. In that event, the forum state’s interest in deterring such interstate medical service would surely be great.” 459 F.2d 289, fn. 4. In the case at bar, Dr. Pember-ton could not be said to be the treating physician.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Ernest L. PAYTON, Appellant.
    No. 39450.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 14, 1979.

      Quinn & Ground, Paul Ground, Manchester, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Eric Martin, Steve Steinhilber, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Dean Hoag, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his jury conviction of assault with intent to kill with malice and the resultant 15 year sentence imposed by the court pursuant to the second offender act. We affirm.

Defendant raises five points on appeal. Three of those points were not specifically raised in defendant’s motion for new trial and are not therefore preserved for review. We have examined those points under the plain error doctrine and find no basis for invoking plain error.

No question of the sufficiency of the evidence is raised so a brief statement of the facts will suffice. There was evidence that defendant, while at the cashier’s stand of a restaurant, took some umbrage at William Jennings looking at the roll of money defendant was carrying and made a comment to that effect to Jennings. Jennings then moved away from defendant, sat for a minute at a table and then left the restaurant. Defendant followed shortly thereafter, and upon reaching the street fired at least two shots at Jennings as he was entering his car. Jennings, an off-duty policeman, returned the fire. One bullet grazed Jennings’s knee. Two independent witnesses supported Jennings’s account of the incident.

Defendant, and two of his friends, testified that Jennings, without provocation, fired at defendant as he left the restaurant and that defendant returned the fire in self-defense while running away.

Defendant’s first preserved point is that the court erred in refusing to allow him to cross-examine Jennings concerning the report of an incident occurring some five months after the date of the crime with which defendant was charged. The report of the incident appeared in a publication called the “Evening Whirl.” The court also refused to admit into evidence a copy of the paper. Since defendant has failed to file the exhibit with the court, we have no knowledge of the contents of it. Jennings had been questioned on cross-examination on whether he had been involved in any altercations with citizens since the date of the crime and had responded negatively. Not only was the area of cross-examination of dubious relevancy but it was clearly collateral. As such, defendant was bound by the witness’s answers and was not entitled to impeach the witness by extrinsic evidence. State v. Miles, 412 S.W.2d 473 (Mo. 1967) [10]. Defendant’s proffered evidence all related to the extrinsic material contained in the publication. The trial court did not abuse its discretion in sustaining the prosecution objections to the questioning and denying introduction of the exhibit.

Defendant’s remaining point is that the trial court erred in not declaring a mistrial following a question asked of one of defendant’s witnesses during cross-examination because the question referred to matters outside the record. The question was: “Did he (defendant) give you some narcotics that night?” Objection was sustained and the court specifically directed the jury to disregard the question. In addition, the court called to the jury’s attention the previously given instruction that questions have no relevancy except when they pertain to an answer. The question was not answered although one immediately preceding of whether the witness gave the defendant money that night was answered negatively. The record indicates that the prosecutor believed that an earlier witness had testified to some transaction occurring between the witness and the defendant before they entered the restaurant.

Mistrial is a drastic remedy, the necessity of which is a matter resting largely in the sound discretion of the trial court. We do not interfere absent a manifest abuse of that discretion. Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479 (Mo. 1972); State v. Tate, 543 S.W.2d 514 (Mo. App.1976). In view of the isolated nature of the inquiry, the immediate sustaining of the objection and the court’s instructions to the jury concerning the matter, we,do not find a manifest abuse of discretion in the court’s failure to grant a mistrial. See State v. Butler, 549 S.W.2d 578 (Mo.App. 1977).

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.


author: CRIST, Judge.

text:
    John Melvin JONES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40215.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 13, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      John Melvin Jones, pro se.
    Hollander & Vaughan, Toby Hollander, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Richard Thurman, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard Poehling, St. Louis, for respondent.
   CRIST, Judge.

On June 7, 1976, movant pled guilty to murder in the second degree and to attempted robbery in the first degree with a dangerous and deadly weapon. He was sentenced to concurrent terms of sixteen and fifteen years, respectively.

He appeals from the denial without a hearing of his Rule 27.26 motion to vacate his convictions. He claims that his guilty pleas were involuntarily made in that:

(a) THE RECORD OF THE GUILTY PLEA FAILS TO DISCLOSE THAT APPELLANT WAS ADVISED OF THE ELEMENTS OF ATTEMPTED ROBBERY IN THE FIRST DEGREE WITH A DANGEROUS AND DEADLY WEAPON OR FELONY MURDER IN THE SECOND DEGREE, AND HIS PLEA OF GUILTY THERETO WAS NOT VOLUNTARILY AND KNOWINGLY MADE
(b) THE PLEAS WERE COERCED AS A RESULT OF IMPROPER JUDICIAL INTERVENTION IN THE PLEA BARGAINING PROCESS
(c) THE FAILURE AND INABILITY OF APPELLANT’S TRIAL COUNSEL (WHO RECEIVED THE CASE ONE WEEK BEFORE THE PLEAS WERE ENTERED) TO ADEQUATELY AND FULLY PREPARE AND INVESTIGATE APPELLANT’S CASE, BUT RATHER ACTED AS A MERE BARGAINING AGENT, RENDERED APPELLANT’S PLEAS OF GUILTY INVOLUNTARILY GIVEN
(d) THE RECORD OF THE GUILTY PLEA FAILS TO DISCLOSE THAT APPELLANT WAS ADVISED OF THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION

The appeal must be denied. Except for point (d) above, which point was not included in his Rule 27.26 motion, movant’s allegations are refuted by the record in the trial court. Perry v. State, 565 S.W.2d 464 (Mo.App.1978).

Was movant apprised of the elements of the crimes in question? He cites Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) re the due process requirement that he know the elements of the crimes to which he pleaded. In his motion he complained that he was not told that “intent” was an essential element of the crimes. The trial court is not required to explain every element of the crime to which one pleads guilty. Watson v. State, 538 S.W.2d 69 (Mo.App.1976). It is sufficient that the movant, by his answers to questions, expresses an awareness of the nature and elements of the charge to which he pleads guilty. Giles v. State, 562 S.W.2d 106 (Mo.App.1977). The record indicates that movant voluntarily admitted facts in response to questions showing that he understood the charges and that he did in fact commit the offenses. He admitted that he and another went to the victim’s home with the intention of robbing her. She was killed by his compatriot when she would not give them the money they had come to get.' The matter of intention was clearly demonstrated. Murray v. State, 571 S.W.2d 751 (Mo.App.1978); Blade v. State, 558 S.W.2d 352, 355 (Mo.App.1977).

Was movant coerced by the trial judge to plead guilty? He says in his 27.26 motion that the trial judge told movant’s lawyer that he would get 99 years or life if he chose a jury trial as opposed to a sentence of eighteen years if he pleaded guilty. The record of the guilty-plea hearing shows that movant thought he would receive a sentence of sixteen years upon a guilty plea. The record also shows that the judge told movant’s mother, in movant’s presence, that if he chose to be tried by a jury “he might walk out of the court room free, but he also might get life in the penitentiary.” Further, a trial court’s participation in the plea bargaining process does not in itself constitute such coercion'as will render a plea involuntary. Defendant admitted that his guilty pleas were his own free and voluntary act and that nobody forced him to enter them. Defendant was told and said he understood that he was entitled to a jury trial and that until the jury found him guilty he was presumed to be innocent. No prejudice was shown to him. See Toler v. State, 542 S.W.2d 80 (Mo.App.1976); Bonner v. State, 535 S.W.2d 289 (Mo.App.1976).

Movant says his lawyer did not adequately and fully prepare and investigate his case. But the record shows otherwise. Movant claims his lawyer needed additional time without showing how this would have benefited his defense. At the guilty-plea hearing the court meticulously established that movant knowingly, understandingly, and voluntarily entered his pleas of guilty. He was fully satisfied with his lawyer’s advice. The allegations as to ineffective assistance generally concerned counsel’s alleged failure to interview and prepare witnesses and to file pre-trial motions and thus did not attack the voluntariness of the pleas. The issue of effective assistance of counsel is relevant only to the extent it bears on the voluntariness and understanding of the plea. Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977).

Finally, movant says that he was not apprised of his privilege against compulsory self-incrimination. This complaint was not included in his Rule 27.26 motion. Accordingly, there is nothing for review. Maggard v. State, 471 S.W.2d 161 (Mo.1971); Bonner v. State, 535 S.W.2d 289, 296 (Mo. App.1976).

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William T. ALEXANDER, Defendant-Appellant.
    No. 40402.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 20, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Robert C. Babione, Public Defender, Sara T. Harmon, Asst. Public Defender, St. Louis, for defendant-appellant.
    Paul Robert Otto, Steven Scott Clark, Asst. Attys. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, John P. Dockery, Jr., George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury for the offense of stealing property of a value of at least $50.00. (§§ 560.156, 560.161, RSMo 1969). Under the Second Offender Act the court assessed his punishment at seven years imprisonment. On appeal, defendant first contends that the trial court erred in failing to sustain his motion for judgment of acquittal at the close of the evidence, because there was insufficient evidence to make a submissible case.

On August 20, 1977, at approximately 9:30 a.m., James C. Hudson parked his 1977 Cadillac in the Famous-Barr parking garage in downtown St. Louis. All four hubcaps were on the wheels of the vehicle when Mr. Hudson left it.

Officer Thomas Grojean of the St. Louis Police Department was on foot patrol in the garage approximately one hour later. While on the Orange level with the garage manager and a security guard, a passerby recommended that the officer proceed down to the Tan level. There Officer Grojean observed the defendant and another man walking south up the parking ramp carrying four Cadillac hubcaps. While Officer Grojean was observing the defendant, defendant placed the hubcaps on the ground and continued walking south until he was detained by a security guard. The officer testified that, at the time of defendant’s arrest, he observed that a 1977 Cadillac twenty feet north of where the defendant was seen with the hubcaps, was without hubcaps.

Hudson returned to his parked car in the early afternoon, and discovered that all four hubcaps were missing from the wheels. Upon informing the parking attendants of the situation, he was referred to the police station where he identified and received the hubcaps as his own. Mr. Hudson testified that these chrome-spoke wheel covers, characteristic of a 1977 Cadillac Sedan, were worth $104.00 each. On cross-examination, he testified that the hubcaps had no marks on them identifying them as his, but that they were similar to those which had been on his car.

We now consider whether this evidence was sufficient to make a submissible case for the jury. In making this determination, we consider as true the evidence most favorable to the state and all favorable inferences to be drawn therefrom, disregarding evidence to the contrary. State v. Nichelson, 546 S.W.2d 539[3] (Mo.App. 1977).

A submissible case may be made on circumstantial evidence, but to warrant a conviction based on such evidence, the facts and circumstances must be consistent with the hypothesis of guilt, be inconsistent with the hypothesis of innocence, and clearly point to the accused’s guilt so as to preclude any reasonable hypothesis of innocence. However, the circumstances need not demonstrate an absolute impossibility of innocence. State v. Maxie, 513 S.W.2d 338, 343[5] (Mo.1974); State v. Scruggs, 551 S.W.2d 306[6] (Mo.App.1977). Defendant’s conduct after the offense is a circumstance from which defendant’s participation in the crime may be inferred. State v. Nichelson, supra.

Defendant claims that to arrive at its verdict the jury had to rely on prohibited inference-stacking. “An inference may not properly arise which is ‘dependent for establishment of one fact upon inference to be drawn from some other fact shown only by inference’.” State v. Gonzales, 533 S.W.2d 268[4] (Mo.App.1976). However, this prohibition does not apply to drawing several inferences from the same proven facts if each inference is supported thereby. State v. Feger, 340 S.W.2d 716, 722 (Mo. 1960). Nor is an inference based in part upon another inference and in part upon proven facts prohibited, because it is a parallel inference provided it is a reasonable conclusion for the jury to deduce. State v. Holman, 556 S.W.2d 499 (Mo.App.1977).

We cannot agree that the evidence as submitted to the jury required it to pile one inference upon another inference in reaching its verdict. The jury had before it the following evidence:

1. At 9:30 a. m., when Hudson left his automobile, the four hubcaps were on it.

2. One hour later, the hubcaps were gone, and twenty feet from the automobile, the defendant was carrying hubcaps shown to be similar to Hudson’s.

3. When defendant noticed the onlooking police officer he immediately put down the expensive hubcaps and continued on.

From this evidence a jury could reasonably infer that defendant had stolen the hubcaps. Furthermore, the verdict could be reached without relying on inferences arising solely from other inferences. From the fact that the hubcaps were in place at 9:30 a. m. and missing soon after, the inference arises that they were stolen. From the facts that defendant was carrying four hubcaps of the type missing and that he abruptly set the hubcaps down upon detecting a nearby police officer, all approximately 20 feet from the vehicle without hubcaps, arises the reasonable inference that defendant had stolen these items from that vehicle. To consider and base a verdict on the collective impact of these parallel inferences, each supported by testimonial evidence, is not inference stacking. Although relying on circumstantial evidence, the state made a submissible case.

We also reject defendant’s second point wherein he alleges prejudicial error in the admission into evidence of a screwdriver. A security guard found the screwdriver approximately fifteen feet south of where the hubcaps had been laid. It was under another car. Deféndant claims that there was no showing by the state as to any connection between the screwdriver and him or the offense.

In State v. Rains, 537 S.W.2d 219 (Mo. App.1976), the defendant objected to the admission of a screwdriver found approximately 60 feet from the building burglarized in the general direction in which the burglar had made his escape. There was evidence that a metal door had pry marks on it. An officer compared the marks on the door and those on the screwdriver and found them comparable. However, on cross-examination he testified that there was no way he could positively say that the screwdriver was the one used. The Court said in rejecting defendant’s contention at page 225:

Testimony concerning any physical object connected with a crime tending to show the manner in which the crime occurred may be admitted into evidence, and this rule of evidence has a special application when the articles, instruments, or weapons indicative of the crime are found near the scene of the crime subsequent to the commission of the crime upon the theory they may tend to explain the crime, although not otherwise connected with the accused [Citations omitted.]

Also see State v. Champion, 560 S.W.2d 903 (Mo.App.1978), wherein an unconnected screwdriver and comb were admitted into evidence. They were found in the burglarized home. Our court found the screwdriver admissible, and then stated that the admission of the comb, if error, was only harmless error in view of the circumstances.

As in Rains, we believe the screwdriver was admissible when considering the time found, and its proximity to the auto without hubcaps and the location where defendant deposited the hubcaps.

Affirmed.

GUNN and CRIST, JJ., concur.

      . Read State v. Ashcraft, 342 Mo. 608, 116 S.W.2d 128 (Mo. 1938) at page 132 for a good discussion of inference stacking.