State v. Lane

Citation551 S.W.2d 900
Decision Date02 May 1977
Docket NumberNo. KCD,KCD
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Bobby LANE, Defendant-Appellant. 27609.
CourtCourt of Appeal of Missouri (US)

Paul R. Hales, St. Louis, William Kunstler, New York City, for defendant-appellant.

John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before SWOFFORD, P. J., and SHANGLER and DIXON, JJ.

DIXON, Judge.

Defendant appeals his conviction of first degree murder in connection with a robbery and a mandatory sentence of life imprisonment. This appeal is from the third trial of defendant for the murder of Officer Ronald Yoakum of the Kansas City, Missouri, Police Department, on November 26, 1968. The first trial resulted in a conviction set aside by the trial court on defendant's motion. A conviction of conventional first degree murder in defendant's second trial was affirmed by the Supreme Court in State v. Lane, 475 S.W.2d 91 (Mo.1971), but the defendant's 27.26 motion was sustained by the trial court. In this appeal, as in his appeal to the Supreme Court on the second trial, defendant argues the sufficiency of the evidence to sustain the conviction.

Where a question of sufficiency is raised, this court must consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom, State v. Thomas, 309 S.W.2d 607 (Mo.1958); State v. Taylor, 324 S.W.2d 643 (Mo.1959); and evidence and inferences to the contrary are rejected. State v. Colton, 529 S.W.2d 919 (Mo.App.1975).

So viewed, the evidence showed that defendant and a man later identified as Carl Primous went to an apartment building where defendant had previously occupied an apartment. Defendant had not been to his apartment for four to five weeks, and the landlord had since commenced an eviction proceeding against defendant and changed the lock. The resident manager, Mrs. Lewis, did not have a key to the apartment, but informed defendant that he should get his things out of there. Mrs. Lewis reentered her apartment, and the defendant and Primous started up to the second floor. They then borrowed a table knife and a butcher knife from a second floor tenant and proceeded to defendant's third floor apartment. Some girls living across the hall who had observed defendant and Primous attempting to "jimmy" the door informed Mrs. Lewis that someone was trying to break in to that apartment, and Mrs. Lewis called the police.

Officers Mynatt, Smith, and Yoakum of the Kansas City, Missouri, Police Department were dispatched in response to Mrs. Lewis' call. Officer Mynatt arrived first and was directed to the third floor by Mrs. Lewis. He started up the stairs with his service revolver drawn; and, as he approached the third floor, he saw defendant with a table knife in hand. He ordered defendant to drop the knife, and he did so. When Officer Mynatt reached the top of the stairs, he saw Carl Primous with a butcher knife. When Officer Mynatt told Primous to drop the knife, both Primous and the defendant lunged at him grabbing his service revolver. He was struck in the neck and chest by both men. Primous was able to disarm Officer Mynatt after kicking him in the head. Primous was holding the gun to Officer Mynatt's head when the defendant told him to leave the officer alone and then said, "Let's get out of here." The defendant and Primous then both ran down the stairway, Primous still carrying the service revolver when last seen by Officer Mynatt.

Officers Smith and Yoakum were just arriving when the defendant and Primous started for the first floor. Officer Smith was standing in the doorway behind Officer Yoakum when he observed the defendant running down the stairs followed by Primous carrying an automatic. Defendant jumped on Officer Yoakum, and they both fell to the floor struggling. Primous also fell and, from a sitting position approximately three feet from defendant and Officer Yoakum, aimed the automatic at them. Officer Smith heard a shot and shot at Primous who then aimed at Officer Smith. Officer Smith then heard another shot and shot again at Primous who fell back. Primous then ran down the hallway, turned and aimed again at Officer Smith who ran up seven or eight steps and then shot Primous twice. The defendant then got up from struggling with Officer Yoakum and grabbed the cylinder of Officer Smith's gun, after which more police officers arrived and subdued him.

A .380 automatic was found in Primous' hand, and two service revolvers, one belonging to Officer Mynatt and one belonging to Officer Yoakum, were found in the hallway. Officer Mynatt's service revolver had been fired six times and Officer Yoakum's one time. Lint in the barrel of the automatic as well as an imprint on one of the cartridges indicated that it had not been fired at all.

Officer Yoakum died as a result of three gunshot wounds, in the lip, near an armpit and near the breastbone. Bullet fragments recovered from Officer Yoakum's body were fired from Officer Mynatt's service revolver. Powder burns on Officer Yoakum's clothing indicated that he had been shot from less than four feet, and there was evidence that the breast wound was a contact wound from a gun fired at less than a foot.

Defendant in the brief premises his argument as to submissibility on a failure of the State to prove that he shot Officer Yoakum. Under the felony murder rule, the felonious intent necessary to a murder conviction may be shown by the perpetration of a felony. State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976). If the evidence was sufficient to make a submissible case that defendant and Primous robbed Officer Mynatt and that "the killing occurred 'in flight from the scene of the crime to prevent detection or promote escape' ", then it was adequate to support his conviction under the felony murder submission. State v. Johnson, 524 S.W.2d 97, 100 (Mo. banc 1975). The evidence viewed most favorable for the State was clearly sufficient to support a first degree felony murder conviction. Adopting the language of the Supreme Court in State v. Lane, supra, we find that, "The trier of facts reasonably could find that the killing of Officer Yoakum during a fight with defendant was a part of one continuous episode and the result of a joint effort and common purpose of defendant and Primous to escape, by use of whatever means necessary, after their joint assault upon and robbery of Officer Mynatt, . . . " State v. Lane, supra, at 95.

Prior to a consideration of the principal point briefed and argued by the defendant, a congerie of issues need some consideration; and, although they were not argued, most of them were submitted by counsel on the basis of the briefing with the tacit admission that some of these issues were not properly raised. These will be referred to under the numbered point in which they appear in defendant's brief.

The first of these is defendant's Point III, that a manslaughter instruction should have been given. This was not properly raised in the motion for new trial, the only mention of this instruction in the motion being a contradictory one and not specific enough to properly raise the issue. State v. Cheek, 413 S.W.2d 231 (Mo.1967); State v. Schulten, 529 S.W.2d 432 (Mo.App.1975).

In any event, there is no error, the defendant's reliance upon State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), to support an automatic submission of manslaughter being misplaced, since only cases tried after the March 1, 1975 amendments to the Notes on Use to MAI-Cr 6.02 require automatic submission of manslaughter. State v. Mudgett, 531 S.W.2d 275, 280 (Mo. banc 1975). It is clear that there is no evidentiary basis for the submission of manslaughter in this case. The defendant's theory that the manslaughter instruction was required is based upon a sudden encounter with uniformed police officers. In such circumstances, under the law prior to Stapleton, evidentiary support is required before the necessity of giving of a manslaughter instruction arises. These facts do not give rise to any submissible issue of manslaughter. State v. Spaugh, 200 Mo. 571, 98 S.W. 55 (1906); State v. Duncan, 116 Mo. 288, 22 S.W. 699 (1893), appeal dismissed 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894).

Defendant raises as his fourth point that the trial court erred in proceeding on an amended information in lieu of indictment because the State had not been granted leave to file an amended information, and defendant was not granted a preliminary hearing. Defendant admits that he would not be entitled to a preliminary hearing if the trial court did grant the State leave to amend. No error is shown. "Appellant complains that no leave was sought or granted for filing the second information, but where the record reflects the filing of such information, as it does here, it is 'presumed the trial court " permitted" the filing in accordance with Rule 24.02.' " State v. Colbart,411 S.W.2d 92, 95 (Mo.1967); State v. McCrady, 416 S.W.2d 175 (Mo.1967).

During oral argument, counsel for defendant stated that while he does not waive his fifth point (The court erred in overruling appellant's application for a change of venue) and his sixth point (The court erred in failing to conduct an evidentiary hearing on defendant's assertion that the jury panel was not representative of the community in that black persons were excluded in violation of his right to equal protection), but admitted that the points lack adequate buttressing in the record to be considered by this court.

The record has been examined and on the issue as to the racial composition, the defendant never requested an evidentiary hearing. Absent that request and a record basis for review of the contention, the issue is not before this...

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  • Presley v. State
    • United States
    • Court of Appeal of Missouri (US)
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    ...S.W.2d 290 (Mo.App.1982); State v. Dodson, 595 S.W.2d 59 (Mo.App.1980); State v. Marshall, 571 S.W.2d 768 (Mo.App.1978); State v. Lane, 551 S.W.2d 900 (Mo.App.1977); State v. Morrison, 545 S.W.2d 376 (Mo.App.1976); State v. Gamache, 519 S.W.2d 34 (Mo.App.1975). In McWilliams, Naylor, Woods,......
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