author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Steven Lydell WILLIAMS, Appellant.
    No. KCD 29144.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Bruce W. Simon, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.

      Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Following a jury trial, defendant was found guilty of felony murder and sentenced to life imprisonment. He assigns the following points on this appeal: 1) the court erred in failing to declare a mistrial when witness Falkner testified that he and defendant had planned another robbery different from the one which led to this fatal shooting, because that evidence constituted proof of separate criminal activity unrelated to the issue of trial; and 2) the court erred in admitting certain exhibits on behalf of the State. Neither point is well taken, and we therefore affirm.

Defendant does not undertake the impossible task of challenging the sufficiency of the evidence to support the conviction, so it is necessary only to recite enough of the evidence to place the issues stated above in factual context. James Falkner was the chief architect of a plan to rob North Hills Bank in Clay County, Missouri, and he enlisted a group of young men, including defendant, for that purpose. These men met in a Kansas City apartment, where Falkner outfitted defendant and two others with guns, coveralls, gloves and ski masks. Those three then drove to Clay County where they entered the Bank and commenced upon the planned robbery. However, the Bank guard resisted, whereupon defendant shot the guard who later died from the wounds.

Immediately after this shootout, the three robbers fled the scene. One was seen running uphill away from the Bank and struggling out of a suit of coveralls. The other two were seen fleeing in an automobile, one of them wearing sun glasses. Various members of the group were soon apprehended. Falkner turned State’s evidence and testified in great detail as to the above facts.

With respect to defendant’s first point, the testimony which defendant claims gave him a right to a mistrial occurred during the cross-examination of Falkner: “Q. After you and Mr. Berry and Mr. Rollie set up this bank deal, how many people did you discuss it with ? A. Just Mr. Williams, really Mr. Williams. Mr. Williams was supposed to have been advised of another bank, but it was scratched.”

Defendant’s counsel moved to strike that answer as not responsive and further requested a mistrial on the ground that the testimony purported to involve the defendant in another and different bank robbery. The trial court did order the testimony stricken and advised the jury to disregard the answer; but the court denied the motion for a mistrial.

It is not necessary to decide whether this testimony did in fact interject evidence of another crime, as claimed by defendant, or whether on the other hand (as claimed by the State) the testimony showed no crime because the prior contemplated bank robbery had been “scratched” and therefore such a separate crime never actually occurred. Assuming, however, that this testimony should be deemed in effect evidence of other unconnected criminal activity, still the court’s refusal to grant a mistrial was not reversible error.

The grant of a mistrial constitutes drastic action which is to be used only under extraordinary circumstances; whether the situation does rise to such a level of prejudice rests largely in the discretion of the trial court and is to be reviewed on appeal only for abuse of discretion. State v. Lewis, 482 S.W.2d 436 (Mo.1972); State v. Barnes, 535 S.W.2d 602 (Mo.App.1976).

Under the circumstances here, the trial court did not abuse its discretion in denying the mistrial. The statement in question was volunteered by the witness, and it slipped in unintentionally with no showing or even any claim of connivance on the part of the prosecuting attorney. The court promptly sustained a motion to strike and ordered the jury to disregard. The testimony in question was not intensive nor inflammatory and no attempt was made by the prosecuting attorney to pursue the matter. Under similar circumstances, it has frequently been held that a denial of mistrial is not error. State v. Walker, 531 S.W.2d 55, l.c. 57 (Mo.App.1975) and cases there cited.

Defendant’s second point relates to the admission of exhibits consisting of a pair of coveralls, a pair of gloves, a ski mask, a pair of sun glasses and an automobile key. These items were found by the police in the course of their investigation immediately following the robbery, 55 to 75 feet west of the Bank in the uphill direction in which one of the robbers had been seen fleeing. Defendant objects that the State introduced no evidence connecting those exhibits with him because he was never identified as the robber running uphill and there is no charge that defendant was acting in concert with anyone else in committing the murder. Defendant further argues that the exhibits have not been connected with the crime.

It can be assumed for the purpose of this decision that the exhibits in question were never directly connected to defendant. Nevertheless, defendant’s argument is in error when he says that these exhibits were not connected with the crime.

Ample evidence showed that the three active robbers were wearing coveralls, ski masks, and gloves. One of the robbers was seen running uphill from the Bank struggling out of his coveralls. Very soon thereafter coveralls meeting the description were found 55 to 75 feet west of the Bank, together with gloves and ski mask. This combination of circumstances brings the case within the rule stated in State v. Rains, 537 S.W.2d 219, l.c. 225 (Mo.App. 1976):

“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.”

Moreover, the coveralls, gloves and ski mask served to corroborate the testimony of the prosecution’s key witness, Falkner, who had testified that he had outfitted the three robbers with coveralls, gloves and ski masks. State v. Broadnax, 572 S.W.2d 224, (Mo.App.1978).

The automobile key and perhaps also the pair of sun glasses did not quite fit within the rules just stated. However, the admission of neither of these two items was of any significant importance and qualify beyond reasonable doubt as harmless error. See State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978).

Affirmed.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Edward B. BARBER, Appellant.
    No. KCD 29177.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Mark D. Johnson, Public Defender, Sixth Judicial Circuit, Platte City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

Appellant (defendant) was convicted of the molestation of a female minor child, Section 563.160 RSMo 1969, by information filed September 2, 1975. This information alleged that the criminal act charged occurred on August 17, 1975. The defendant waived trial by jury and was tried on October 12, 1976 and found guilty and was sentenced to two years imprisonment. His after-trial motions were denied and this appeal followed.

The single point of error raised by defendant, in summary, is that he should have been discharged after all of the evidence for the reason that no evidence was adduced to establish that the criminal act charged had occurred on August 17, 1975. This point is devoid of merit.

An extended recitation of the facts is unnecessary, but those bearing upon the date of the molestation should be briefly noted.

The evidence adduced hy the state and from the testimony of other witnesses, including the defendant, clearly established, that B- K- M_, a female then 9 years of age, her mother, two brothers, her sister, and a man named Driscoll, who later became her stepfather, attended a “Funfair” at Sugar Creek, Missouri, held for the benefit of a Muscular Dystrophy fund on August 16, 1975. After the carnival the group returned to the Great Plains Motel at Platte City, Missouri around midnight and the children were put to bed in a camper sleeper parked at that location. Shortly thereafter the defendant, an acquaintance of the family, who was also at the “Great Plains” went to the camper to “check on the children”, crawled inside and the molestation occurred, the sordid details of which need not be related. Shortly thereafter Driscoll went to the camper also to check the children, and found the defendant inside, on top of B_ K_ M-At that time, defendant said to Driscoll, “This is not what you think” and Driscoll ordered him out of the camper. The mix-up in the date of these events came about when during her examination at the trial B_K_M_, then 11 years of age and the victim-prosecutrix, was asked and answered as follows:

“Q. Now, did you in August of this year, 1976 go to a Funfair in Sugar Creek, Missouri?
A. Yes.”

She then related the facts of the molestation.

B-K-M_⅛ mother testified that this event and the family’s attendance occurred on Saturday, August 16,1975, as did Driscoll. The defendant, although testifying at one point that the events occurred on August 12, 1976 after a Funfair benefit, at another point testified the date as Saturday, August 16th. He admitted his presence in the camper on an occasion, but denied the molestation. Defense witness Cox stated the Funfair was on Saturday, August 16, and witness Lakey stated it occurred on a Saturday. It was stipulated that defense witness Bowman would testify that the Funfair date was August 16, 1975.

Finally, the court called defense counsel’s attention to the fact that the Funfair was held on Saturday, August 16, and defense counsel acquiesced and acknowledged that such was a fact and was the date he was referring to in his interrogation of the witnesses.

This Court and the court below can take judicial notice that August 16 fell on a Saturday in 1975, and on a Monday in 1976. Courts can take judicial notice of the calendar. Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1 (1910); Kuczma v. Droszkowski, 243 Mo. 57, 147 S.W. 1000 (1912); City of Gladstone v. Knapp, 458 S.W.2d 885 (Mo.App.1970).

The testimony of the 11-year old prosecutrix that the events related by her occurred in 1976, in response to a leading question in a situation fraught with novelty and accompanying excitement and nervous tension must be considered a natural mistake in view of the overwhelming evidence that the events leading up to and surrounding the molestation occurred in 1975. It is the general rule that “the testimony of either of two or more witnesses testifying to the same occurrence may be looked to in order to identify the time of the offense”. 28 C.J.S. Criminal Law § 915, p. 622; State v. Jackson, 519 S.W.2d 551 (Mo.App.1975).

The fact that the prosecuting witness may have been uncertain or mistaken as to the exact date is of no significant importance in this case so long as there is competent evidence that the crime occurred before the information was filed and was not barred by the three-year statute of limitations. State v. Summers, 489 S.W.2d 225 (Mo.App.1972); State v. Garner, 481 S.W.2d 239 (Mo.1972), a child molestation case. Hence, there was strong, competent and convincing evidence to sustain the conviction in this case and to repel the sole contention that the time of the offense was not established.

The judgment is affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Delroy DOUGLAS, Appellant.
    No. KCD 29331.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      David M. Strauss, Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Appellant, by the verdict of a jury, was found guilty of the crime of robbery in the first degree. Upon a finding that he was a second offender, the court sentenced him to 25 years confinement in the Department of Corrections, with credit for 241 days spent in jail before sentencing.

The sole point presented is: “The court erred in overruling the defendant’s motion for a directed verdict at the close of the state’s case because hearsay evidence was admitted over the timely objection of the defendant and said evidence was a crucial link in the state’s identification of the defendant as the man who robbed Mr. Gersh.”

Appellant made no timely objection to the evidence; he did not renew his motion for directed verdict after the close of the whole case, he having presented evidence after the state rested; he did not raise the point in his motion for new trial; and the motion for new trial was itself not timely filed.

The point, although the other evidence of guilt is overwhelming, will be reviewed under the plain error rule, Rule 27.20(c), inasmuch as it questions, basically, the sufficiency of the evidence to sustain the conviction. State v. Dupree, 477 S.W.2d 129, 130[1—3] (Mo.1972); State v. White, 439 S.W.2d 752, 753[1-2] (Mo.1969); State v. Asberry, 559 S.W.2d 764, 768[5] (Mo.App.1977); and State v. Covington, 559 S.W.2d 78, 79[1] (Mo.App.1977).

The victim of the robbery, Charles Gersh, was visiting in Columbia, Missouri, where he met appellant in a bar. Appellant introduced himself as “Dale”. The two men spent the evening together at various bars, and at one point conversed with a waitress, Millie Ortiguero. Gersh gave appellant a ride to a house at 314 Bryant Street, where appellant left for 3 to 5 minutes and returned to the car and got in on the passenger side. He pointed a pistol at Gersh saying, “Get moving”, and subsequently relieved him of $37.00. Gersh made both a pre-trial and an in-court identification of appellant as the man who robbed him.

Millie Ortiguero identified appellant as the man she saw with Gersh in the bar. Her further testimony, here objected to as being hearsay going to identification, was this: “Q. [By Mr. Harper] Did you know what his name was or nickname? A. Not his real name. I didn’t know it was Delroy. Q. At the time before the fifteenth? A. Uh-huh [affirmative]. I did not know his name but I thought maybe his name was Dale. I wasn’t sure. Q. You didn’t know his real name? A. That’s what some people called him.” The objection then followed.

The rule is well established that evidence of the name by which a person is known is not within the rule excluding hearsay evidence. State v. Francies, 295 S.W.2d 8 (Mo.1956); State v. Pitchford, 324 S.W.2d 684 (Mo.1959); State v. Valentine, 506 S.W.2d 406 (Mo.1974); Vol. II, Wigmore on Evidence, 3rd Ed., § 667(a). Thus, there was no error at all in admitting Millie Ortiguero’s testimony as to the name by which appellant was known.

The judgment is affirmed.

All concur.


author: SHANGLER, Judge.

text:
    Walter R. WILLIAMS, Appellant, v. BOARD OF EDUCATION, CASS R-VIII SCHOOL DISTRICT, Respondent.
    No. KCD 29389.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      George E. Kapke, Piedimonte & Cochran, Independence, for appellant.
    Elvin S. Douglas, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, DIXON, PRITCHARD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SHANGLER, Judge.

This appeal comes from the judgment of the Circuit Court which affirmed the decision of Board of Education of the Cass R-VIII School District to terminate Walter R. Williams as principal of the high school and to demote him to the status of classroom teacher.

The appellant Williams was principal of the high school of the School District since the 1972 academic year. In March of 1976, he was informed by letter from the superintendent of schools that the Board of Education had voted that his contract as principal would not be renewed for the coming school year, and offered instead the position of tenured teacher. The appellant requested a written statement of reasons as allowed a certain status of employment by § 168.101.-6, RSMo 1975 Supp. The reason the Board issued for failure to reemploy was: “We strongly feel that you are allegedly incompetent and inefficient in your line of duty as a principal.” The appellant Williams thereupon requested, and was granted, a public hearing before the Board. Williams was there represented by counsel, presented evidence, and cross-examined the witnesses against him. At the conclusion, the Board terminated his employment as principal and demoted him to the status of tenured teacher. This decision was accompanied by a statement of findings of fact and conclusions of law.

The appellant makes two essential contentions on this appeal: First, that he was denied due process of law in particular and, second, that the action of the Board was unsupported by substantial and competent evidence.

The first contention of error subsumes three elements, all couched in the due process terms of the Fifth and Fourteenth Amendments and of Article I, § 10 of the Missouri Constitution: 1. that the Board did not give Williams specific written reasons for nonreemployment as principal and demotion to teacher; 2. that the Board was not a fair and impartial tribunal; and 3. that the evidence against him was by witnesses who merely narrated accounts received from other persons whose identities were refused him, thus he was effectively denied cross-examination.

The procedural safeguards of the Fourteenth Amendment follow to protect a substantive right — within constitutional terms — to property or liberty. The claim of a public school teacher or administrator to the protection of due process in continued employment, therefore, depends upon whether that interest amounts to a right of liberty or property within the compass of the Fourteenth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569[1], 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Roth and Sindermann, argued and decided concurrently, were suits by teachers at public universities whose expired contracts were not renewed. The cases both raised the question: whether the claim of each to reemployment was an interest protected by Fourteenth Amendment procedural due process and so entitled them to a statement of the reasons for nonrenewal and opportunity to be heard.

Roth was a teacher without tenure who was hired by a Wisconsin university for one academic year. That state provided procedural protection against nonrenewal for cause only for those under tenure. Roth was notified, without explanation or opportunity to be heard, that he would not be rehired for the following year. Roth contended that he was thereby denied right to procedural due process.

Sindermann was a member of a Texas college faculty. He also was notified, without explanation or prior hearing, that his one-year contract would not be renewed. He also contended he was denied thereby procedural due process.

The United States Supreme Court held that the protections of procedural due process apply “only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property — [then]—the right to some kind of prior hearing is paramount.” Roth, supra, 408 U.S. 1. c. 569, 92 S.Ct. 2705, Sindermann, supra, 1. c. 597, 92 S.Ct. 2694 et seq. As applied to property interests

[t]he Fourteenth Amendment’s procedural protection . . . is a safeguard of the security of interests that a person has already acquired in specific benefits. [Roth, supra, 408 U.S., 1. c. 576, 92 S.Ct. 2708]
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. [Roth, supra, 1. c. 577, 92 S.Ct. 2709]

A contract for employment as a public teacher without provision for tenure creates no property interest in reemployment protected by procedural due process. Roth, supra, 408 U.S., 1. c. 578, 92 S.Ct. 2701. Nor is a teacher who is not rehired but remains free to seek other employment— without more — deprived of his liberty either within the meaning of the Fourteenth Amendment. Sindermann, supra, 408 U.S., 1. c. 599, 92 S.Ct. 2694. It is clear, however, that even absent a legitimate claim of property right — as in the case of a nontenured teacher or principal — where the nonrenewal of employment, whether tenured or nontenured, involves an interest in liberty due process requires opportunity to refute the charges. Roth, supra, 408 U.S., 1. c. 572, 92 S.Ct. 2701.

The property interest in reemployment which due process will protect takes many forms: dismissal from an office held under tenure; a dismissal during the contract term; dismissal where continued employment is clearly implied even without formal contract or tenure [Roth, supra, 1. c. 573, 576, 92 S.Ct. 2701] and dismissal from a position of de facto tenure [Sindermann, supra, 408 U.S., 1. c. 602, 92 S.Ct. 2694]. Any such legitimate expectation to renewal of employment establishes a property right which cannot be dismissed without a statement of reasons and opportunity to be heard. See also: Recent Cases, 38 Mo.L. Rev. 279 (1973); Comment: 61 Ky.L.J. 830 (1973); Case Comment: 25 U. of Fla.L.Rev. 624 (1973).

The appellant Williams can make no claim of de jure tenure because his employment is denied “permanent status” by express provision of statute. Section 168.104.-4. He does not claim de facto tenure nor an implied promise of continued employment. Nor does the nonrenewal by the Board rest on a stigma of reputation or other obloquy such as to foreclose other employment opportunities. Roth, supra, 408 U.S., 1. c. 572, 92 S.Ct. 2701. In other words, Williams has no claim to constitutional procedural due process, and the only process he can claim is whatever may be due under the statute.

The Missouri Teacher Tenure Act, §§ 168.102 to 168.130, added by the Laws of 1969, defines permanent status and the procedure for termination of a teacher with such tenure. In these express terms it denies tenure to a principal [§ 168.104.4]:

Any permanent teacher who is promoted with his consent to a position of principal or assistant principal, or is first employed by a district as a principal or assistant principal, shall not have permanent status in such position but shall retain tenure in the position previously held within the district, or, after serving two years as principal or assistant principal, shall have tenure as a permanent teacher of that system. [Emphasis supplied.]

The provision which excludes a principal from tenurial employment in that position but allows him status as a teacher, shows a legislative intention for flexibility and change in key administrative positions while at the same time affords a principal a certain degree of employment security — as a tenured teacher.

If, however, appellant Williams means to claim a de facto property right to employment [under Sindermann] on the year-to-year language of § 168.101.2, that contention is immediately dispelled by § 168.101.6 which provides that personnel with an even greater interest than he can show [those who have been reemployed five times or more] may be terminated by simple notice. The provisions of § 168.101.2 are by express terms made “subject to the regulations hereinafter set forth” — including the notice method of § 168.101.6 that the school authority shall merely inform the employee “of demotion or lack of reemployment on the same terms and in the same position” in order to effectuate nonrenewal of employment. These statutes are to be read together to find the legislative intent for nonrenewal of nontenured employment. A public employee may not formulate a de facto expectancy of property right in the face of a contrary positive enactment.

The employment and reemployment of a principal, therefore, are governed not by The Teacher Tenure Act which specifically excludes that position from its terms, but necessarily by § 168.101 which concerns all certificated employees ineligible for permanent status under The Teacher Tenure Act. That statute [§ 168.101.2] specifies that “after the original employment of a certificated employee . under this section, his employment shall continue in the same staff position from year to year [emphasis added] subject to certain other regulations.” The recourse for a nontenured employee who faces demotion or nonrenewal of employment is by § 168.101.6 which requires the Board to give, upon request, a statement of reasons and hearing with access to counsel to present evidence and cross-examine adverse witnesses. The appellant, however, has no status for the procedure of § 168.101.6 which is accorded by its terms only to certificated personnel who have been reemployed five times within the district.

In the course of exchange whereby the Board notified Williams he would not be reemployed as principal, Williams requested the reasons for the nonrenewal, and the Board [apparently under the misconception of the published statute] responded:

We strongly feel that you are allegedly incompetent and inefficient in the line of your duty as principal.

Williams contends that these reasons are not sufficiently particular under the statute. This contention proceeds on the premise that he was entitled to the statement of specific reasons prescribed by The Teacher Tenure Act, but we have already concluded that he was entitled neither to that procedure nor that of § 168.101.6.

In the absence of the protection of statute — or special constitutional consideration — a school authority need not assign cause or state reasons for the nonrenewal of nontenured employment, nor allow a hearing or opportunity to explain. Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Case Comment: 25 U. of Fla.L.Rev. 624, 625 (1973). A statute which requires notice of intention not to renew a temporary public school employment does not create thereby a system of tenure [Bergmann v. Board of Education of Normandy Consolidated School District, 360 Mo. 644, 230 S.W.2d 714, 720[2] (1950)] but means only that the reasons given be advanced in good faith. 78 C.J.S. Schools and School Districts § 197. And the hearing under such a statute is the means whereby the Board explains the grounds for the notice of nonrenewal and the nontenured employees test the good faith and sufficiency of those grounds. 78 C.J.S. Schools and School Districts §§ 196, 197. Williams, however, has no cause for complaint concerning noncomplianee with statutory procedures for nonrenewal of employment which, in any event, are not accorded his status.

The appellant Williams contends next that he was not accorded a fair hearing before an impartial arbiter as required by due process of law. That complaint rests on the nature of the functions whereby the Board investigates, accuses and adjudicates, all in the role of administrative tribunal. Our courts have heard and dismissed the same complaint before. Harrisburg R-VIII School District v. O’Brian, 540 S.W.2d 945, 950[5] (Mo.App.1976); Moore v. Board of Education, 547 S.W.2d 188, 191[6] (Mo.App.1977). The adjudication of such an administrative tribunal, as that of any court, rests on the presumption that the adjudicators have decided honestly and with integrity. The contention that the combination of functions conferred on the Board poses a risk of actual bias or prejudgment, therefore, rests on the contestant of the Board decision. Withrow v. Larkin, 421 U.S. 35, 47[8], 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).

At the outset of hearing before the Board, counsel for Williams probed the individual members of the Board for disposition to prejudgment or bias from their prior investigations of the conduct then under examination for their adjudication. No cause for disqualification was disclosed and counsel proceeded to hearing without further objection. That forecloses assertion here of prehearing prejudice on that account. Nor does the record reflect that attitude of preconception by the Board against Williams during the proceedings which the appellant now claims. Saunders v. Reorganized School District No. 2 of Osage City, 520 S.W.2d 29, 36[4] (Mo.1975).

Williams contends also that he was denied the due process right to cross-examine adverse witnesses. He means by this, essentially, that witnesses called by the Board were allowed to repeat narrations of his conduct from others whose identities were kept secret. The proof of the incompetency and inefficiency as principal- — the reasons stated for nonrenewal of employment — was undertaken by evidence as to his conduct with the faculty and his conduct with the students. The members of the faculty appeared in person at the hearing to relate their complaints of his ineptness as administrator. This testimony was for the most part on personal knowledge. The members of the faculty also gave testimony that Williams was held in disrespect by many of the students — that he went among them by the derisive sobriquet Zombie — that his ineffective discipline was an object of their ridicule, and other such incidents of both more and less serious import. Much of this testimony was not on personal knowledge but merely repetitions of what was learned from students. Thus, teacher Wilson related how students had told him Williams had changed his decision at least four times on the policy of whether students should be allowed to drive cars — -but refused to identify the student sources. Teacher Carolyn Southers also related what she had learned from students about his lack of decision as to the purchase of lunch tickets, but refused to disclose the identity of the student sources. At least ten such narrations were allowed over objection of counsel for Williams. The Board refused to require the disclosure of the names of the students on the premise that identification would injure the teacher-student relationship. The appellant argues due process grants him unqualified right to confront and cross-examine the witnesses against him in order to establish the falseness of that evidence and that the policy of the Board to deny him access to the students denied him that right. He supports that contention by Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

Goldberg involved the termination of welfare benefits established by statute without prior evidentiary hearing. The court held that the benefits were created by statute as an entitlement for persons qualified to receive them and that their termination involved state action that adjudicated an important right and so was protected by the due process requirement of a prior evi-dentiary hearing. The opinion determined that the loss to the recipient was sufficiently grievous so that such a significant right could be deprived not only by adequate notice with reasons for the proposed termination but also with [1. c. 268, 90 S.Ct. 1020] “an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.”

Thus appellant Williams continues to assume that the renewal of his unte-nured employment as principal was akin to a property right entitled to the protection of due process. We repeat simply that the procedural requirements for nonrenewal of public school employment depend altogether upon the interest at stake. The appellant Williams claims he was deprived of his property interest in continued employment as principal and so is entitled to full procedural due process. A property interest, however, is a creature of state law and any entitlement to the public employment Williams claims must arise from statute. Sindermann, supra, 408 U.S., 1. c. 599-603, 92 S.Ct. 2694; Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 [1978]. It is clear from § 168.101 and the Teacher Tenure Act [§§ 168.102 to 168.130] that a non-metropolitan school district principal has no tenure — nor possibility of tenure — in that position. It is also clear that Williams lacks the reemployment status for the procedures of § 168.101.6 and so, even if that statute can be understood to protect an interest in continued employment — which we do not decide — he cannot claim the efficacy of whatever due process of law that procedure commands.

We would agree with appellant Williams that were his interest that of a tenured employment — which he erroneously assumes — so that the proceeding was that provided by The Teacher Tenure Act, the harm threatened by the termination of employment would be so grievous that constitutional due process would require the right of full cross-examination of adverse witnesses and confrontation of those whose statements are offered as evidence. Goldberg v. Kelly, supra, 1. c. 268, 90 S.Ct. 1011; Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Roth, supra, 408 U.S., 1. c. 577, 92 S.Ct. 2701; Sindermann, supra, 408 U.S., 1. c. 597, 92 S.Ct. 2694; In Re S_M_ W_, supra.

The appellant Williams makes the final contention that the decision of the Board was unsupported by substantial and competent evidence and therefore should be set aside. The decision of the Board is accompanied by thirty-two specific findings of fact which tend to demonstrate that appellant was an inefficient and incompetent high school principal. The decision was merely the culmination of the original misconception that § 168.101.6 compelled the formality accorded nonrenewal of the Williams employment. The ceremony was gratuitous.

The judgment of the Circuit Court to sustain the decision of the Board is affirmed.

All concur.

      . The claim of appellant Williams to more specific reasons for nonrenewal of employment as principal and for full right of cross-examination of adverse witnesses admixes constitutional arguments of due process with a contention of a protectible property interest in reemployment granted [as he assumes] by § 168.101.6 to certificated personnel reemployed three times within the district. That statute, enacted by the Laws of 1973 and as enrolled by the General Assembly and as approved by the Governor, accords the procedure for notice, hearing and statement of reasons to a certificated employee who has been reemployed five times within the district. That statute, as it appears in the 1978 Cumulative Supplement to the Revised Statutes of Missouri, erroneously publishes the three times qualification and appellant Williams, himself reemployed three times within the district, has unwittingly adopted the error.

      . More recent legislation has undertaken to sever the dual role of prosecutor and judge of a school board in order to remove even the possibility of prejudicial influences on hearings for dismissals of tenured public school personnel. Cal.Educ.Code § 13412-13; New Jersey Stat. Ann. § 18A:6-10; Colo.Rev.Stat.Ann. § 123-18-17; Oregon R.S. §§ 342.805 to 342.955.

      . The United States Supreme Court has not yet declared a per se rule that the opportunity to cross-examine and confront witnesses in civil proceedings is an element of procedural due process. Aniteau, Modern Constitutional Law, Volume 1 § 5:77. Goldberg accords them in administrative and regulatory actions where grievous loss could result and so falls in the line of other decisions: Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) which accords cross-examination and confrontation in a Defense Department proceeding to revoke security clearance, and Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63 (1949) where that procedure was accorded as a right against administrative charges of serious fraud. The rights of cross-examination and confrontation are recognized, as of course, in Missouri in formal civil litigation [Pettus v. Casey, 358 S.W.2d 41, 44[8, 9] (Mo.1962)] and in special actions where the interest — such as termination of parental rights — is so cogent as to come under the protection of constitutional due process. In Re S_ M_ W_, 485 S.W.2d 158, 163[3-5] (Mo.App.1972).


text:
    Al KRANZ, d/b/a Kranz Construction Company, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
    No. KCD 29420.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Aaron A. Wilson, City Atty., James A. Burr, Asst. City Atty., Kansas City, for appellant.
    Charles R. Svoboda, Fred A. Murdock, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Respondent recovered a judgment, pursuant to the verdict of a jury, for $39,300 for additional compensation, above an original contract price, for re-excavation and re-repair of a sewer project.

Appellant’s first sub-point of Point I involves Exhibit 23 which compositely sets forth the amounts of respondent’s expenses in connection with re-excavation and re-repair. It is contended that there was no evidence that labor, materials and equipment listed in Exhibit 23 were furnished to respondent; that there was no evidence that Exhibit 23 was a true and accurate rendering of the account; that there was no evidence to show the reasonable value of the labor, materials and equipment furnished; and therefore the verdict was not supported by any competent evidence; and “(2) The verdict is contrary to the greater weight of all the evidence.” Point II is that the court erred in inserting the words “emergency repairs” in Instruction No. 2, it being an improper modification of MAI 26.-05, making it argumentative. Point III involves contended error in the court's failure to read entire Instruction No. 4 to the jury. The error contended in the giving of Instruction No. 5 is that the evidence shows that some work had been paid for by appellant, and that it instructed the jury to find what, if any, and the reasonable value of labor, materials and equipment furnished to appellant, without excluding previous payments.

Respondent was the lowest bidder for the repair of a sewer line, which had collapsed in 1969, and which served the Blue River Treatment Plant. The line was 24 inches in diameter and was about 20 feet below the surface in the “river bottom”. The earth to be excavated was primarily of silt and sand. The water table was about 5 feet below the surface.

The contract, with plans and specifications prepared by appellant, required respondent to excavate the damaged sewer line, and replace the damaged portion; to remove ground water; properly to bed and backfill the new pipe; to backfill the excavation to ground level; to re-pave and re-fence the site; and to clean up the surrounding area. It required that normal sewage flow be maintained during repairs.

Respondent completed all the work in accordance with plans and specifications, except for street re-paving, fence re-installation and site cleanup on Friday, November 14, 1969. He checked the site on Sunday afternoon, November 16, and observed that an 8 inch water main which ran perpendicularly across the excavation and about 4 feet below the surface had ruptured. The following day it was determined that the new sewer line had collapsed. Respondent informed Robert L. Brown, Chief of the Maintenance Division of the Pollution Control Department, of the collapsed sewer line. Brown said, “Well, we will have to get it fixed,” and later appellant was told by Pollution Control “we have got to have the line in. You know this was an emergency deal. And this line has got to be done.” Appellant’s representatives told respondent that they would take up the matter of his compensation for extra work at a later time, but indicated it was up to him to fix it, and told him he would not be paid for the work already performed until he reconstructed the sewer line damage of November 14.

Respondent commenced re-excavation December 1, 1969, using a different method of installing the line pursuant to a letter from Brown of Pollution Control. Although he requested a change order for the repair work, no response thereto was made. The repair project was completed on February 13, 1970, and was accepted by appellant March 19, 1970, and it paid the contract price, plus two minor changes in the amount of $23,081.10.

Appellant’s first contention that there was no evidence that labor, materials and equipment, shown on Exhibit 23, were furnished it, must be overruled, because appellant admits in its brief that respondent excavated and did the re-repair work, and the transcript is replete with evidence that he furnished the necessary labor, materials and equipment to do so. The real issue presented by appellant is whether there was a true and accurate rendering of the account, and whether evidence was necessary to show the reasonable value of labor, materials and equipment furnished. Exhibit 23 was admitted into evidence without objection or question. Respondent’s offer was “MR. SVOBODA: At this time I would like to offer Plaintiff’s Exhibit Number Twenty-three as a computation of the charges for extra work performed by the Kranz Construction Company between December 1st, 1969, and February 5th, 1970, on the sewer line, in which charges for extra work are computed in accordance with the formula as set forth as the force account method in the exhibit, Plaintiff’s Exhibit Number Two. MR. BURR: I have no objection, Your Honor.” In addition to the admission, above, and the other evidence of the furnishing of labor, materials and equipment, counsel’s offer into evidence clearly shows that Exhibit 23 was a computation of the charges for the extra work. The exhibit itself shows that computation, broken down into categories: A. Wages, $6,306.09; B. Material, $1,567.54; C. Equipment Rental, $16,100.42; D. Contract Labor, $95.94; total charges, $24,-069.99, to which is added E. Fee, $3,859.17 [15% of total charges]; and the total due, $27,929.16. The hours and rates per hour for wages and equipment rental are set forth in Exhibit 23. These computations are substantially in accordance with the contract, Exhibit 2, Section 1903, “Payment for Extra Work”, and Section 1903.3, “Force Account: When work is authorized by Change Order to be done by Force Account, accounting procedures for such work, satisfactory to the Director, shall be installed by the contractor. The final amount to be paid the contractor as full compensation for furnishing all labor, equipment and materials, and for performing such work, shall be the sum of the amounts of cost for each of the following items actually incorporated in or required by the work. A. Wages: [The actual payroll costs plus fringe benefits of all workmen * * *.] B. Material: [Net costs for materials and supplies] C. Equipment Rental: [The rental charges for vehicles, construction machinery and equipment, * * *.] D. Taxes and Insurance: [Payroll taxes, bond premiums, workmen’s compensation, social security, etc.]” (Bracketed paraphrasing added.) (On Exhibit 23, “D” is listed as Contract Labor, but this item is not questioned by appellant.) Appellant admitted: “the formula set forth in General Provisions and Covenants paragraph 1903.3 under Force Account sets forth a formula for determining the fair and reasonable value of extra work performed by a contractor.” There were in evidence voluminous records of invoices representing expenditures by respondent in the course of the repair work. Exhibit 23 was but a summary of those records. No objection being made to Exhibit 23, it was before the jury for consideration as to whatever value it deemed should be given it, and it was competent to prove the matters set forth therein. See State ex rel. State Highway Commission v. Cone, 338 S.W.2d 22, 25, 26 (Mo.1960). That case holds also that if a party believes that an insufficient or improper foundation of a summary of voluminous records was made, an objection should be made to the offer in evidence of the summary, otherwise the question is not preserved for review. Appellant here did not question the veracity of Exhibit 23, or any foundation of any records upon which it was based. But moré importantly to the issue of whether respondent should have produced evidence of the fair and reasonable value of his charges is the case of Haughton Elevator Co. v. C. Rallo Contracting Co., 395 S.W.2d 238, 245[7-9] (Mo.App.1965), where it was said: “The contract provided that under the conditions encountered [requiring extra work] the contract price would be increased by the actual cost of labor and material, plus 10% and 10%. The law is well settled that where a contract contains an express stipulation as to the amount of compensation to be paid for its performance, such stipulation is conclusive on the parties and determines the amount of recovery. 17A C.J.S. Contracts § 362, p. 366; Isaac T. Cook Company v. Bank of St. Louis, Mo.App., 297 S.W.2d 607. * * * It is the general rule that in an action in an express contract where the amount of compensation is fixed, evidence of the reasonable value of the services rendered under the contract is inadmissible. [Citing cases]”; and notably the quotation from 17A C.J.S. Contracts § 601, p. 1174: “ ‘ * * * Thus, where price to be paid for work performed is ascertained by a method of measurement specified by the contract, it is not open to one party to the contract to introduce evidence as to another method of measurement for the purpose of showing that a different price should be paid.’ ” See also 17 Am.Jur.2d Contracts, § 82, p. 423, “Where the contract appoints the mode of determining the price, and the price is determined according to that mode, the contract becomes perfect and complete in that respect, as if it had been originally fixed in the writing.”

Appellant's cited cases may be distinguished. In Curators of University of Missouri ex rel. Shell-Con, Inc. v. Nebraska Prestressed Concrete Co., 526 S.W.2d 903 (Mo.App.1975), Shell-Con conceded that invoices were estimates at the time they were written and did not reflect actual work completed at the end of a particular month, and the invoices were indefinite and unexplained. In Bybee v. Dixon, 380 S.W.2d 539 (Mo.App.1964), there was no evidence that materials listed in a lien account were fair and reasonable charges, as contrasted here to the conceded fact that the method of computing charges for extra work was fair and reasonable, which resulted in the composite summary, Exhibit 23, being admitted without objection. Neither of these cases involved a formula for computing the compensation due.

The second portion of Point I is without merit because this court does not weigh the evidence in a case tried to a jury. Herrman Lumber Co. v. Cox, 521 S.W.2d 4, 5[1, 2] (Mo.App.1975), and cases cited and quoted.

As to inclusion of the words “emergency repairs” in Instruction No. 2, it was without doubt a departure from MAI 26.05, and thus is error. It is not comparable, however, to the abolished (MAI 1.04) inclusion of “sudden emergency” instructions, which are applicable only to negligence cases. The evidence here clearly shows, as the jury could find, that there was an emergency requiring immediate repairs because of the ruptured water line which caused the collapse of the sewer line. The words “emergency repairs” were not argumentative, under the facts here, as contended. There was no dispute that an emergency in the sense of requiring immediate repairs existed. Respondent perhaps assumed an unnecessary burden by the inclusion of the words. In any event, no prejudice to appellant is apparent, and the point is overruled.

The fourth point pertains to the failure of the trial judge completely to read the entire Instruction No. 4 to the jury. The transcript shows this “(The following sentence was included in the instruction taken by the jury to the jury room but was not read by the Court.) If the evidence in the case does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that por position. (MAI-3.01 Plaintiff)” This omitted sentence applies equally to respondent and appellant and the omission to read it to the jury before it retired could not be more prejudicial to one than to the other. Besides, the jury took with it the entire instruction to the jury room where it will be presumed to have been considered in its entirety in reaching the verdict. The point is overruled.

The gist of appellant’s last point is that Instruction No. 5, on damages, failed to exclude cost of paving and fence installation for which respondent had already been paid. Suffice it to say that the jury could not have been misled nor appellant prejudiced. The jury’s verdict, without interest, was $29.16 less than the total amount shown to have been due by Exhibit 23 for the extra work. That exhibit was before the jury without objection, and it is ruled above that no other evidence as to reasonable value of the work was necessary in view of the “force account” provisions.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    The CECO CORPORATION et al., Plaintiffs, v. PLAZA POINT, INC., et al., and Argonaut Insurance Company et al., Defendants-Respondents, and Premier Stove Company, Intervenor-Appellant.
    No. KCD 29471.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Walter K. Disney, Kansas City, for inter-venor-appellant.
    F. Philip Kirwan, Kansas City (of counsel, Margolin & Kirwan, Kansas City, for respondent, Argonaut Ins. Co.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This complex litigation arising from claims for payment and liens on a large apartment building has narrowed to a single claim by Premier Stove as a supplier of stoves for the project against defendant Argonaut as the bondsman on a payment bond.

The sole issue raised by appellant from an adverse judgment of the trial court is that the trial court erred as a matter of law in finding appellant’s claim not covered by the payment bond.

For understanding of the issue posed, some extensive recitation of the facts is necessary. Plaza Point, Inc. is a Missouri corporation which was formed to build a high-rise apartment building in Kansas City. Mel Kleb was the sole owner of Plaza Point. On December 1, 1969, Plaza Point entered into a joint venture with J. R. Seal-Wells Construction Company to construct the building as an “FHA” project. The joint venture was called “Seal and Point.” The apartments would be owned by Plaza Point, and all of the documents refer to Plaza Point as owner.

On June 10, 1970, Plaza Point as owner entered into a contract with Seal and Point as contractors to secure the construction of the apartment building. On the same day, Seal and Point executed a payment and a performance bond through Argonaut Insurance Company relating to this project. The payment bond refers to Seal and Point as the principal, Plaza Point as owner, and Argonaut as the surety.

The terms of the payment bond were that Argonaut would make payments to claimants under the bond if Seal and Point failed to do so — provided certain conditions of the bond were met. To qualify as a claimant under the bond, one needed to have a “direct contract with the principal or with a subcontractor of the Principal for labor, material or both . . . ”

The record indicates that as early as August of 1970, J. R. Seal-Wells was experiencing financial difficulties. In July of 1971, Plaza Point notified Argonaut of Seal-Wells’ default and of their intention to complete the project alone. From the record, it is not entirely clear at what point between these two dates that Plaza Point totally took over the project. The record reveals no participation by J. R. Seal-Wells after August of 1970.

Plaza Point contracted with Premier Stove on April 9, 1971 for the purchase of 99 stoves to be used in the apartment building. All of appellant’s contact in relation to this contract was through Plaza Point. The order for the stoves denominated Plaza Point as the buyer and required shipment and charges directed to Plaza Point. Appellant’s subsequent lien statement and all correspondence relating to the stoves was with reference to Plaza Point. Appellant received a note dated April 27, 1972 for the purchase price from Plaza Point, Inc., which was guaranteed by Kleb. The liability of Plaza Point and Kleb is not here in issue; the trial court noted that such liability would be the subject of separate litigation.

It is well settled that the right of a supplier of materials or of labor to recover under a contractor’s bond is one based on the contractual concept of a third-party beneficiary. Before a supplier is found to be a third-party beneficiary, it must be shown that the surety contract was entered into with the intention to benefit such third parties. An intention to benefit third parties is found by the courts to exist more frequently in payment bonds than in performance bonds. Wilbur Waggoner Equipment Rental and Excavating Company, Inc. v. Bumiller, 542 S.W.2d 32, 36 (Mo.App.1976). Murray on Contracts, § 280 (1974); Restatement 2d, Contracts, § 133 Comment d (1973). (Tentative Drafts No. 1-7).

There are limits on the rights of the third-party beneficiary to recover on such a contract. One suing on a contract made for his benefit as a third-party beneficiary must accept the contract as it was made by the parties thereto. Stephens v. Great Southern Savings and Loan Association, 421 S.W.2d 332, 337 (Mo.App.1967). Laclede Inv. Corp. v. Kaiser, 541 S.W.2d 330, 338 (Mo.App.1976). A third-party beneficiary’s rights on a surety contract are delineated by the specific terms contained in the contract, and his rights are no greater than those of the contracting party through whom he asserts the right or claim. Stephens, supra.

The payment bond in this case appears to exclude appellant from recovery by its terms. The payment bond specifies a fund for the “use and benefit of claimants as hereinafter defined” and then proceeds to define a claimant as “one having a direct contract with the principal or with a subcontractor of the principal for labor, material, or both . . . Appellant entered into a direct contract with Plaza Point, Inc. who was designated as owner, and not as the principal on the payment bond. The payment bond labeled Seal and Point, the joint venture, as principal. There is no evidence that Plaza Point, Inc. was a subcontractor of the joint venture. All of the indicia of the arrangement between appellant and Plaza Point points to Plaza Point acting as owner and not as a part of the joint venture which was the principal on the bond. Appellant does not plead or prove that Plaza Point was acting as agent for the joint venture, nor is there any proof of such a relationship. Appellant does not plead or prove that Plaza Point was the surviving partner and so acting. No claim is made of an estoppel.

Appellant says the crux of the case is whether the notice by Argonaut to Plaza Point as owner terminating its bond can end Argonaut’s liability. It may be conceded that it did not and still appellant obtains no relief. The bond did not cover appellant’s claim by its terms, and appellant has offered neither theory nor proof to bring the claim within the bond.

The judgment of the trial court is affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Richard Charles CONTI, Appellant.
    No. KCD 29485.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      C. B. Fitzgerald, Warrensburg, for appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

On this appeal from conviction and imposition of a two year sentence for possession of Lysergic Acid Diethylamide (L.S.D.), a Schedule I controlled substance, defendant claims error (1) in admitting the L.S.D. in evidence because it was obtained by a constitutionally impermissible warrantless search, and (2) in giving Instruction No. 5, the state’s verdict director, because it was unsupported by any evidence that defendant had “actual or constructive possession” of the L.S.D. or that defendant “was aware of the character” of the L.S.D. and “intentionally and knowingly had it in his possession.”

The facts upon which defendant’s first point turns are gleaned primarily from evidence adduced at a pre-trial hearing held on a motion to suppress filed by defendant. No detail will be spared in setting this evidence forth as judicial determination of constitutionally proscribed “unreasonable searches and seizures” necessarily turns on the “concrete factual context of the individual case”. Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 1901, 20 L.Ed. 917 (1968).

On the night of July 4, 1975, at approximately 11:55 P.M., Officer Brooks, age 24 and a member of the Warrensburg, Missouri, Police Department, was on routine patrol within the city limits in a marked patrol car. He was alone, in uniform and carrying a handgun in a hip holster. During the course of his patrol he turned off Holden Street onto West Culton Street, a one-way street carrying westbound traffic. He then proceeded west on West Culton Street at a speed of three to five miles per hour. The headlights of his patrol car were on low beam. As he was cruising west on West Culton Street he observed defendant standing in the street alongside a green Chevrolet van which was parked on the south side of West Culton Street, headed west, in the fourth parking space west of Holden Street, and across from the “Abode”. More particularly, the right front door of the van was open at a 45° angle and defendant was standing in the street, facing toward the southwest, with his body positioned between the right front door of the van and the right front entranceway to the van. The only artificial light in the area consisted of a streetlight “to the west of the van . When Officer Brooks reached a point approximately twenty feet east of where defendant was standing he observed that defendant had both hands above his head and appeared to be rolling a cigarette. Officer Brooks kept defendant in view as he drove past, and then stopped his patrol car at a point approximately ten feet west of where defendant was standing. At that point, according to Officer Brooks, defendant glanced at the patrol car, then looked back to what he was doing, then glanced back at the patrol car, and then brought the cigarette he was rolling down and out of view. This prompted Officer Brooks to back the patrol car up and bring it to a stop opposite where defendant was standing. The windows of the patrol car were down at the time, and Officer Brooks, after the patrol car was brought to a stop, asked defendant what he was doing. Hearing no response to his inquiry, Officer Brooks got out of his patrol car and approached to within two or three feet of defendant. While in that position, Officer Brooks again asked defendant what he was doing. Defendant’s response was an “unintelligible” mumble. Simultaneously, Officer Brooks observed defendant move and place his right foot over a “handrolled” cigarette which was lying in the street and with his left foot kick at a “canvas-like” green bag which was lying in the street and partially beneath the right side of the van. Defendant kicked at the “canvas-like” green bag three or four times in succession and moved the “canvas-like” green bag some six inches to one foot further under the van. Officer Brooks then moved to within a foot or two of defendant, at which time he was able to see inside the van. From this latter vantage point, Officer Brooks observed a crumpled cigarette paper, a package of cigarette papers, and a clear, plastic “baggie” containing a “green leafy substance” which he “believed” to be marijuana lying on the right front seat of the van. Officer Brooks then placed defendant under arrest for possession of marijuana, took possession of the cigarette papers and clear plastic “baggie” which he had observed lying on the right front seat of the van, and picked up the hand rolled cigarette from where it was lying in the street. After doing so, the van was moved to a “bank parking lot” which was located on the south side of West Culton Street and adjacent to where the van had been parked. After the van was moved, Officer Brooks picked up the “canvas-like” green bag, which was open at one end, from where it was lying in the street and then radioed for “back-up assistance”. Two patrol cars responded to Officer Brooks’ request for assistance. The driver of one of the patrol cars testified that he responded to Officer Brooks’ request for “back-up assistance” at approximately 12:00 midnight. After the backup assistance arrived, defendant was given a “Miranda warning”, the contents of the “canvas-like” bag were removed and observed, a “preliminary search” of “defendant’s person” was conducted, and a “preliminary search” of the van was conducted. This all occurred at the situs of defendant’s arrest. Defendant and the van were then removed to police headquarters. The controlled substance (confirmed by laboratory tests as being L.S.D.) which defendant was charged and convicted of possessing was among the contents of the “canvas-like” green bag. Prior to observing defendant standing alongside the green Chevrolet van, Officer Brooks “had no reports” of “any illegal activity of any kind” in the vicinity. Defendant was a total stranger to Officer Brooks and the green Chevrolet van was an “unfamiliar” vehicle. During the entire span of events which unfolded, Officer Brooks never sensed or felt any cause to be fearful of defendant. Defendant had long blond hair, a mustache, and was wearing wire rimmed gold glasses. A dispassionate view of this evidence leaves no doubt that Fourth Amendment issues of an exceedingly subtle nature may well reach fruition on this appeal.

An innovative argument is tendered by defendant in support of his first point, and one which touches upon seldom encountered ramifications of the Fourth Amendment. Defendant assumes that a seizure of his person within the context of the Fourth Amendment occurred when the police officer initially stopped his patrol car and first placed defendant under observation. After making this broad, sweeping assumption, he argues that seizure of his person was constitutionally unreasonable as measured by the standards articulated in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and all evidence subsequently obtained by the police officer was inadmissible as fruits of an unreasonable warrant-less seizure of his person. The state, with considerable aplomb, virtually skirts the difficult, underlying issue raised by defendant by arguing that the controversial evidence was admissible under the “plain view” or “incident to lawful arrest” exceptions to the warrant requirements of the Fourth Amendment.

The fatal flaw in defendant’s argument is the false assumption upon which it rests. If there was no seizure of defendant’s person within contemplation of the Fourth Amendment up to and including the moment the police officer observed what he believed to be contraband in plain view, then, as hereinafter demonstrated, defendant’s arrest for possession of marijuana was justified and taking possession of the “canvas-like” green bag thereafter and ascertaining its contents may be constitutionally validated as being incident to defendant’s lawful arrest. Thus, events leading up to and underlying the moment the police officer observed the clear plastic “baggie” lying on the right front seat of defendant’s van become the ultimate focal points of this case. If the police officer’s observation of the contraband was had from a lawful vantage point it could be relied upon to provide probable cause for defendant’s arrest. “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (Emphasis added.) Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 993, 19 L.Ed. 1067 (1968).

Street encounters between police and citizens of less magnitude than traditional arrests and Terry type restraints occupy the twilight zone of Fourth Amendment jurisprudence. Although the majority in Terry realistically recognized that “[sjtreet encounters between citizens and police officers are incredibly rich in diversity”, 88 S.Ct. at 1875, and that all “personal intercourse between policemen and citizens” does not involve “ ‘seizures’ of persons”, 88 S.Ct. at 1879, n. 16, restraint was carefully exercised to avoid laying down any definitive guidelines as to police conduct which falls short of seizure of a citizen within the perspective of the Fourth Amendment. The majority in Terry did, however, skele-tally spell out police conduct short of traditional arrest which constitutes seizure of a citizen cognizable under the Fourth Amendment. As unequivocally stated in Terry, “[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person”, 88 S.Ct. at 1877, and no room was left to entertain any doubt that seizure of an individual within the scope of the Fourth Amendment could be effected “by means of physical force or show of authority”, 88 S.Ct. at 1879, n. 16. Bearing in mind court-recognized realities surrounding street encounters in general between police and citizens, and reasoning inversely from the absolute principles that herald seizures cognizable under the Fourth Amendment, this court concludes that defendant’s person had not been seized in a constitutional sense when the police officer observed the clear plastic “baggie” containing what he believed to be marijuana.

Encounters between police officers and citizens run the gamut from inoffensively conducted police investigations and constitutionally permissible searches and seizures to offensive harassment and constitutionally impermissible searches and seizures. The former is conventionally lauded as “good police work” and the latter is properly condemned as doing violence to the Fourth Amendment. A hazy line exists between the two when an encounter stops short of a traditional arrest or Terry type restraint. On such occasions, practical considerations must not be totally obliterated. Police officers are not scientifically programmed robots. If they were, they could be programmed for constitutional perfection and Fourth Amendment issues would automatically be precluded by scientific precision. However, the duties of police officers on patrol are not performed in controlled scientific atmospheres, but rather in the hurly-burly of the streets. Virtually their only tools in ferreting out and combating crime on many occasions are experience, intuition, and inquisitiveness. If these are taken away, even when constitutionally kept in check, police patrols will become little more than ceremonies and those performing them might just as well enjoy the safety and comfort of the station house.

In the instant case a uniformed police officer was on routine patrol in a marked police car a few minutes before midnight when he observed a stranger, who turned out to be the defendant, standing alongside a van in the public street with both hands above his head and apparently engaged in rolling a cigarette. Not being of the Bull Durham generation, and perhaps suspicious of habits pervading the drug culture, the police officer’s curiosity was piqued and he stopped and asked defendant what he was doing. Hearing no response he got out of his patrol car, approached defendant on foot, and at closer range again asked him what he was doing. Although defendant was not obliged to respond to the police officer’s inquiry, an “unintelligible” mumble was uttered. Simultaneously, the police officer observed defendant place his right foot on a hand rolled cigarette lying on the pavement and with his left foot furtively kick at a “canvas-like” green bag lying on the pavement. The police officer then moved to within a foot or two of defendant at which time he observed through the open door of the van a clear plastic “baggie” containing what he believed to be marijuana lying on the right front seat. In a broad sense, the police officer was in a place where he had a right to be, a public street, when the clear plastic “baggie” containing what he believed was marijuana fell in plain view. In the more narrow sense addressed by defendant, the police officer was also in a place where he had a right to be when he “plainviewed” the contraband. Assuming, arguendo, a lack of articulable facts from which the police officer could reasonably have concluded in light of his experience that criminal activity was afoot up to and including the moment the contraband fell into view, Terry v. State of Ohio, supra, 88 S.Ct. at 1884, the conduct of the police officer up to and including the moment he occupied his vantage point nevertheless fell short of either actual or constructive restraint of defendant, i. e. a seizure of defendant, and, concomitantly, was not tantamount to a seizure of defendant within the purview of the Fourth Amendment. However close the encounter may have come to a constitutionally forbidden precipice, no physical, i. e. actual, restraint of defendant occurred, nor was there such a show of authority as to work a constructive restraint. A panoply of reasons auger against characterizing the encounter up to that point as so police dominated as to be equivalent to constructive restraint of defendant by a show of authority: (1) it was a one on one encounter; (2) the question which the police officer posed to defendant was facially innocuous and inoffensive; (3) the police officer at no time drew a weapon or flashed any indicia of authority; (4) objectively, no effort was made to hassle, harass or intimidate defendant, and there is no evidence to suggest or intimate a disguised effort to do so; and (5) laying aside speculation, there is nothing to suggest that defendant reasonably believed that he could not walk away from the scene and refuse to answer the police officer’s simple inquiry. Relying upon the Terry rubric that all “personal intercourse” between police officers and citizens during street encounters does not rise to “seizures” of Fourth Amendment dimensions, and after juxtaposing the salient facts, concepts of actual and constructive restraint in the constitutional sense of “seizure”, and the inescapable fact that police officers react humanly rather than mechanically to the diverse exigencies that stalk the streets, this court concludes that up to and including the time the contraband fell within plain view of the police officer no unconstitutional intrusion upon defendant’s rightful expectation of privacy had occurred. This court is unswayed by broad, sweeping arguments frequently made that every indulgence of inquisitiveness and every response to curiosity by police officers transcend constitutional limitations. Placed in proper perspective, the exclusionary rule serves a double purpose, the deterrence of lawless police conduct, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914), and the “imperative of judicial integrity”, Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960). Neither purpose is offended by this court’s conclusion that no actual or constructive seizure of defendant had taken place when the contraband fell within plain view of the police officer. Parenthetically, this court wishes to emphasize that its conclusion should not be construed as minimizing the warrant requirements of the Fourth Amendment and its proscription against unreasonable searches and seizures, as time has demonstrated that the Fourth Amendment is the American citizen’s staunchest ally in warding off the evils of totalitarianism. By the same token, this court is not so naive as not to be aware that time has also hinted that there may be nothing left to save if all police conduct is suspect and indiscriminately struck down for nonexistent constitutional reasons.

It is well established that probable cause for defendant’s arrest existed the moment the clear plastic “baggie” containing what the police officer believed to be marijuana fell into plain view. As the search under scrutiny antedated United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the police officer, after placing defendant under custodial arrest at the scene for possession of marijuana, was justified under the facts confronting him and the then existing law in reasonably believing in good faith that he could rightfully take possession of the “canvas-like” green bag as incident to defendant’s arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and United States v. Battle, 166 U.S.App.D.C. 396, 398-9, 510 F.2d 776, 778-9 (1975), and after reducing it to his possession could delay ascertainment of its contents for a reasonable period of time, United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), and United States v. Battle, supra. Although the more recent decision of the Supreme Court in United States v. Chadwick, supra, might arguably render the aforementioned precedents open to attack, its holding can safely be pretermitted because it has been held that Chadwick is not to be applied retroactively. Relying upon United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), which squarely faced the problem of retroactive application of the exclusionary rule, the following cases expressly hold that Chadwick is not to be applied retroactively: United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Reda, 563 F.2d 510 (2nd Cir. 1977), cert. denied 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978); and United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977). The trial court, contrary to the position taken by defendant in his first point, properly admitted the L.S.D. in evidence.

Defendant’s second and final point is a broadside attack upon the sufficiency of the evidence to support the giving of Instruction No. 5, the state’s verdict director. Under the prevailing case law of this state, which Instruction No. 5 properly reflected, it was incumbent upon the state to prove beyond a reasonable doubt that defendant “had knowledge of the nature and presence of the substance and that he had some conscious control [of it] either actual or constructive.” State v. Stewart, 542 S.W.2d 533, 538 (Mo.App.1976), and cases therein cited. Actual possession is not demanded, and constructive possession will suffice. State v. Worley, 375 S.W.2d 44, 47 (Mo.1964); State v. Mulkey, 523 S.W.2d 145, 148 (Mo.App.1975); and State v. Davis, 515 S.W.2d 773, 777 (Mo.App.1974). Possession may be proven circumstantially. State v. Davis, supra, at 777; State v. Mulkey, at 148; and State v. Stewart, at 538. Likewise, knowledge of the nature and presence of an offending substance may be circumstantially proven. State v. Scarlett, 486 S.W.2d 409 (Mo.1972); State v. Lewis, 526 S.W.2d 49 (Mo.App.1975); and State v. Hedrick, 534 S.W.2d 578, 585 (Mo.App.1976).

When the above legal principles are wedded to certain evidence presented to the jury in this case, the untenability of defendant’s final point becomes obvious. Certain mannerisms and conduct of defendant — the “double-take” he did when he first observed the police officer and his attempt to secrete the “canvas-like” green bag by kicking it under the van — permitted the jury to reasonably infer that defendant had both possession of the “canvas-like” green bag and knowledge of the illicit nature of its contents. In summation, sufficient evidence was produced by the state to make both possession and knowledge questions of fact for the jury.

Judgment affirmed.

All concur.

      . See generally, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . Made applicable to state court proceedings by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961).

      . 97 S.Ct. at 2485: “Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”

      . 95 S.Ct. at 2317: “[l]f the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of judicial integrity’ is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner.”
      95 S.Ct. at 2320: “If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”


text:
    In re MARRIAGE OF Shirley T. MORRISS and George F. Morriss. Shirley T. Morriss, Petitioner-Appellant, and George F. Morriss, Respondent-Respondent.
    No. KCD 29529.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Hugh D. Kranitz, Kranitz & Kranitz, St. Joseph, for petitioner-appellant.
    Don Pierce, St. Joseph, for respondent-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This is an appeal by the wife from the award of a $150 attorney’s fee in a civil contempt action arising from a show cause order issued at the instance of the husband asserting the wife had willfully disobeyed a visitation order.

The trial court found that the wife had willfully violated the visitation order and that finding is not contested. The sole issue is the propriety of the award of the attorney’s fee.

The wife asserts in a single point that there was no “prayer” or allegation for such “relief” and that the court erred in failing to receive evidence on the issue of the wife’s ability to pay.

Preliminarily, the trial court had authority to assess an attorney’s fee in a civil contempt case. The most recent authority is Keltner v. Keltner, (Mo.App.1978) [Nos. 38957 and 39780, filed August 15, 1978, but not yet officially reported], which cites both Frankel v. Moskovitz, 503 S.W.2d 428 (Mo.App.1973) and R. E. Harrington, Inc. v. Frick, 446 S.W.2d 845 (Mo.App.1969). See also 43 A.L.R.3d 793, “Allowance of Attorney’s Fees in Civil Contempt Proceedings.” The allowance of such fees is a departure from the “American rule.” However, one of the exceptions to the “American rule” is for the “willful disobedience of a court order . . . Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240, 258, 95 S.Ct. 1612,1622, 44 L.Ed.2d 141 (1975). Recent federal and state cases have followed the reasoning of Alyeska. In Cook v. Ochsner Foundation Hospital, 559 F.2d 270 (5th Cir. 1977), the following cogent explanation appears:

“Courts have, and must have, the inherent authority to enforce their judicial orders and decrees in cases of civil contempt. Discretion, including the discretion to award attorneys’ fees, must be left to a court in the enforcement of its decrees. The theory for allowing attorneys’ fees for civil contempt is that civil contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance.” Cook, supra at 272.

See also Andre Matenciot, Inc. v. David and Dash, Inc., 422 F.Supp. 1199 (S.D.N.Y.1976); State ex rel. Fraternal Order of Police, Cap tain John C. Post Lodge No. 44 v. City of Dayton, 49 Ohio St.2d 219, 361 N.E.2d 428 (1977).

Turning now to the dual issue posed by the wife, the first claim that the fees were not requested by the “prayer” or “allegation” of the petition must be denied. There are two reasons why the assertion is unavailing. First, the issue was not raised in the trial court. No objection, statement, or claim by the wife raised the issue in the trial court; it is raised for the first time in the brief. So raised, it is too late and will not be considered. Second, it is clear from the cases cited that the imposition of attorney fees and costs in a civil contempt case is a form of relief within the discretion of the court as a part of the inherent power of the court to enforce its orders. To that extent, it is not a matter of pleading but of the shaping by the court of the ultimate relief. The prayer of the husband’s petition concluded with a request for “such further orders as may be just and proper in the premises considered.” In an analagous situation involving an allowance for interest, it has been held that such a prayer for general relief was sufficient. A quotation from that case seems relevant and controlling in this case:

“As to the failure to pray for interest: The plaintiffs did not make a specific request for allowance of interest. They did incorporate a prayer for general relief —‘such further orders and judgments as shall be meet and proper in the premises.’ The prayer is not strictly a part of the pleading and does not bind a court of equity. A general prayer for relief permits the balancing of all the equities which are within the scope of the pleadings and the evidence; for once rightfully in possession of a case the court will not relinquish it short of doing complete justice, so that there may be a full and complete determination of the rights and liabilities of the parties in respect to the controversy involved.
. We think that the allowance of interest was within the general purview and scope of the pleadings and the evidence.” Cannon v. Bingman, 383 S.W.2d 169, 173 (Mo.App.1964).

On the second portion of the wife’s point of error, that evidence of her ability to pay should have been received, the law is to the contrary. This is not a case brought under the Dissolution of Marriage Act which would require some consideration of the appellant’s ability to pay. See § 452.355 RSMo Supp.1975. This is a contempt proceeding, brought to enforce the visitation rights of the father. As such, the instant case is distinguishable from Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976), where the order of imprisonment for failure to pay maintenance and child support was reversed because of failure of proof in the issue of the contemnor’s ability to pay. The Teefey case was tried under the authority of § 452.345 RSMo Supp.1975, and the need to consider ability to pay was part of the statutory mandate. There is no similar statute requiring a consideration of ability to pay an award in a contempt case involving child visitation. The instant case is more closely analogous to the Keltner case supra, which was a contempt case based on a failure to pay statutory alimony and, therefore, was not covered by the provisions of the Dissolution of Marriage Act § 452.355. In Kelt-ner, the court states that, “Need is not a factor in awarding attorney’s fees in a contempt proceeding.” Cases in other jurisdictions support the conclusion that ability to pay is irrelevant to the determination of a contempt award. See In re Marriage of Weisbart and Weisbart, 564 P.2d 961 (Colo.App.1977); Lasky v. Quinlan, 426 F.Supp. 682 (S.D.N.Y.1976).

The trial court properly awarded the attorneys’ fee as part of its inherent power in a contempt case to fashion its remedy to coerce compliance with its order and properly excluded evidence of the appellant’s ability to pay the fee.

Affirmed.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. James J. GIVAN, Appellant.
    No. KCD 29621.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Mark D. Johnson, Public Defender, Platte City, for appellant.
    John D. Ashcroft, Atty. Gen., Stanley H. Robinson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J, and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

James Givan was charged with burglary in the second degree, § 560.045, RSMo 1969, and stealing, § 560.156, RSMo 1969. A jury found him guilty of burglary and not guilty of stealing. On the failure of the jury to agree on punishment, the court sentenced Givan to six years in prison. The sole contention on this appeal is an infringement of his right to remain silent on arrest. Reversed and remanded.

On September 1, 1976, Barbara Boydston lived in a trailer on a county road in Platte County. On that morning she left the trailer to visit her mother and upon returning a few minutes later, saw a blue and white Cadillac parked in the driveway. She drove a short distance up the driveway and through her windshield from about 75 feet observed a man “leaning” out of one of the two doors of the trailer. After observing only this one man at the scene, who she described as being a heavy set black wearing a flowered shirt, Ms. Boydston drove to her grandmother’s house and called the sheriff’s office. Ms. Boydston returned to the trailer after reporting the incident and discovered that a .22 single shot pistol which had been on a nightstand next to her bed was missing.

Other witnesses also testified to seeing a blue and white Cadillac occupied by two black men with a Kansas license plate in the general vicinity of the Boydston trailer that morning but none identified Givan. Ms. Boydston had not observed the license plate because the car she saw did not have one on the front.

About an hour and a half after the crime was reported, Trooper Cossins of the Missouri Highway Patrol stopped a blue and white Cadillac with a Kansas license plate near Paradise in Clay County, nineteen miles from the Boydston trailer. Trooper Cossins identified Givan, who was driving the Cadillac, as a heavy set black who was wearing a dark sweatshirt at the time of his arrest. Cossins informed Givan he was being stopped because of a burglary. The Boydston pistol was not found at the time of the arrest, nor was it thereafter located.

The single assignment of error involves around the following question and answer during the State’s examination of Trooper Cossins relating to events at the time of the arrest:

Q. Do you recall if they made any statements at that time?

A. Yes. They did not make any statements. I read both of them their rights, and neither one of them made any statements at that time.
MR. ESKRIDGE: Your Honor, at this time I’m going to object to the question, and ask the court to declare a mistrial. This is improper comment on the defendant’s Fifth Amendment right against self incrimination. I believe the officer is entitled [sic] to inform the jury whether or not the defendant made a statement. He’s under no obligation to make any statement, and I think that is an improper comment on his right to refuse to talk to a policeman under the Fifth Amendment, and for that reason I ask at this time that the court declare this a mistrial. I think this evidence is totally inadmissible and inappropriate at this time.
THE COURT: The objection is overruled. The jury is instructed to disregard the last question and the answer thereto, as to the Trooper’s statement that they made no statement, that he read their constitutional rights to them and they declined to make any statement; and the jury will disregard that question and the answer thereto and not consider it at all in their deliberations. As to your requesting a mistrial, Mr. Eskridge, that is denied.

Givan asserts the court erred in overruling his motion for a mistrial because the question and answer violated Givan’s right to remain silent and deprived him of due process.

In State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970) a juror asked a police officer witness if the accused made any claim to coins found in his possession at the time of his arrest. The officer replied the accused had not. The court held “that an accused’s failure to volunteer an exculpatory statement is not admissible as an admission; that it may not be shown that by his silence he failed to deny or explain while under arrest an incriminating fact as to which no question was asked.” 456 S.W.2d 22[3, 4].

In view of Stuart, State v. Elmore, 467 S.W.2d 915 (Mo.1971); State v. Butler, 512 S.W.2d 466 (Mo.App.1974); State v. Pogue, 563 S.W.2d 544 (Mo.App.1978) and State v. Roth, 549 S.W.2d 652 (Mo.App.1977) the State concedes the question was error which elicited the response from Trooper Cossins that Givan did not make a statement when arrested. The State correctly asserts under Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and State v. Peters, 545 S.W.2d 414 (Mo.App.1976) the only question is whether or not the error is harmless beyond a reasonable doubt.

It should initially be noted that the defense counsel made only a general objection to the question, immediately requested the court to declare a mistrial, and concluded this request with a full explanation it was grounded on the Fifth Amendment right against self-incrimination. As pointed out in Roth, counsel was correct as to the Fifth Amendment ground and in addition could have pointed to a violation of Givan’s rights under Art. 1, § 19 of the Missouri Constitution. Further, since Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) such question and answer also violates the defendant’s rights to due process under the Fourteenth Amendment.

While counsel did not make any specific objection to the question or request the court to instruct the jury to either disregard or to strike the answer, the motion for mistrial adequately preserved Givan’s objection to the question and answer. State v. Cuckovich, 485 S.W.2d 16, 23 and 24[13] (Mo.banc 1972). Cuckovich points out that while it is preferable for counsel to object to a question and request relief short of a mistrial, the failure to so object and request other relief does not preclude a request for a mistrial. Thus, even though the question was answered prior to any objection, the request for a mistrial reaches the vice inherent in the question and answer. Therefore, the assignment of error will be considered as preserved.

Establishing the existence of error now leaves for disposition only the question of whether such error was harmless beyond a reasonable doubt, thereby necessitating an examination of the evidence. Although a blue and white Cadillac with a Kansas license and two black male occupants had been observed in the vicinity of the Boyd-ston trailer at about the time Ms. Boydston observed such a car in her driveway, the only evidence placing Givan at the scene was Ms. Boydston’s identification of him while she remained seated in her car about 75 feet away. The shirt she described did not match the description of the shirt Givan was wearing at the time of his arrest and there was no other mention in evidence of a flowered shirt. Moreover, there was no license number obtained from the Cadillac sitting in the Boydston drive, nor was there a precise number obtained of the blue and white Cadillac observed in the vicinity. While Ms. Boydston observed only one person around the car and trailer, there were two observed at other times and Givan was accompanied by Jesse Mayes at the time of his arrest.

Givan did not testify, but Mayes, testifying he had been with Givan that morning, denied they had been at the Boydston trailer and broke into it or stole anything. Mayes also testified he was driving the car at the time it was stopped, but Trooper Cossins testified Givan was the driver. As previously noted, the gun reported stolen was never recovered. Thus, the State’s evidence consisted only of Ms. Boydston’s observation for about one minute from a distance of about 75 feet, together with a shirt description which did not match that worn by Givan at his arrest. The arrest took place some 19 miles distant, approximately an hour and a half after the burglary.

When the prosecutor asked Trooper Cos-sins if either Givan or Mayes made a statement, he knew they had not. Thus, the only reason for asking the question was to plant some impression in the jury’s mind that when stopped and informed they were being arrested for burglary, Givan and Mayes failed to deny any knowledge or participation. In short, it is apparent the State was attempting to use Givan’s silence as a tacit admission.

The trial court overruled the objection and instructed the jury to disregard the answer that no statement was made by either Givan or Mayes. The court then overruled the motion for a mistrial. While the method of instructing the jury to disregard a particular question or answer is undoubtedly left to the sound discretion of the trial court, in the circumstances of this case this court concludes that the repetition by the trial court of the substance of the question and answer did not correct the error but only served to emphasize the fact no statement was made. After the question and answer was thus reinforced by the court’s instruction, the fact Givan and Mayes did not make any statement to the Trooper was indelibly stamped on the jury’s mind.

This court cannot find as a matter of law the failure of Givan to volunteer a denial of the burglary on his arrest did not enter into the verdict. As a result, this court cannot hold the admitted error was harmless beyond reasonable doubt.

The judgment is reversed and the cause remanded.

All concur.