¶1Judge, concurring.
¶2I concur. In the first appeal of this case, State v. Finster, 963 S.W.2d 414 (Mo.App.1998), I expressed the opinion that the rationale of State v. Mitchell, 611 S.W.2d 211 (Mo. banc 1981), permitted the case to be remanded for an evidentiary hearing on the motion to suppress if the witnesses who testified at the initial hearing were available. See Finster, 963 S.W.2d at 419 (Parrish, P. J., concurring).
¶3The record on appeal from the hearing that occurred after the remand indicates some confusion about who testified at the first hearing, the one in which the court reporter’s records cannot be found. I find no indication, however, that any witness who testified at the first suppression hearing was not available to testify at the second. For that reason, based on the rationale of Mitchell, I am compelled to concur. I feel equally compelled, however, to sound words of caution concerning the use of this procedure in cases in which, unlike in Mitchell, there was a hearing conducted before trial, the record of which, through no fault of a defendant, cannot be found. Remand under those circumstances can, in my opinion, give rise to a possibility of abuse by prosecuting officials that would thwart a defendant’s right to due process of law.
¶4My concern is that a prosecuting officer possessed with extraordinary hindsight vision might be tempted to create a record unlike that of the first hearing; that a decision on the voluntariness of a defendant’s statement could be based on factors other than those that were before the court at trial. In my opinion, determination that a statement was voluntary must be based on evidence before a court at the time of trial, not on post-trial diatribe. It does not appear to me that this potential danger manifested itself in this case. For that reason I concur.