State v. Allen, 47811

• Citation: 684 S.W.2d 417
• Decision Date: 20 November 1984
• Docket Number: No. 47811,47811
• Parties: STATE of Missouri, Respondent, v. George ALLEN, Jr., Appellant.
• Court: Court of Appeal of Missouri (US)

Page 417

684 S.W.2d 417

STATE of Missouri, Respondent, v. George ALLEN, Jr., Appellant.

No. 47811.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 20, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 7, 1985.

Application to Transfer Denied

Feb. 26, 1985.

John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.

Douglas L. Levine, Public Defender, 20th Judicial Court, Union, for appellant.

SIMON, Presiding Judge.

A jury found defendant guilty of capital murder, rape, sodomy, and burglary. Judgment and sentence were assessed at life imprisonment without the possibility of parole for 50 years on the capital murder and at 15 years on each of the three remaining convictions to be served consecutively. We affirm.

Defendant claims the trial court erred: (1) in failing to exclude his confession because it was both the fruit of an unlawful arrest and also involuntarily given; (2) in permitting the state in its case in chief to present alibi testimony for one of its own witnesses, a possible suspect in the crime; (3) in permitting the state to introduce certain hearsay testimony; and (4) in submitting the case to the jury because of the insufficiency of the evidence.

On appeal, the evidence and its reasonable inferences shall be examined in a light most favorable to the state; all contrary evidence will be disregarded unless it supports the verdict. State v. Van Doren, 657 S.W.2d 708, 711 (Mo.App.1983).

Applying this standard, the following account is adduced from the evidence. Mary Bell, the homicide victim, a thirty-one year old court reporter, lived with her boyfriend, a lawyer, in her apartment at 1014b Marion in the City of St. Louis. Both had separated from their respective spouses, but neither was divorced. On Thursday, February 4, 1982, after a two day snow storm, her boyfriend awakened around 7:00 a.m., ate breakfast with Mary and left for his downtown law office around 9:00 a.m. As he left, he locked the deadbolt on the front door. Mary's next door neighbor in the adjoining apartment heard the boyfriend as he shut the front door and saw him leave the apartment around 9:00 a.m. Sometime after 10:00 a.m., the neighbor heard a woman crying and sounds of an argument between a man and a woman emanating from Mary's second floor kitchen and bedroom area. The disturbance lasted about ten minutes. Around 10:30 a.m., the same neighbor heard knocking on a door. Unable to distinguish whether it was Mary's or her front door, neighbor answered her door and saw a woman walking on the sidewalk going out from Mary's adjoining porch. Pamela Richardson, the woman the neighbor saw leaving, typed transcripts for Mary. She had called Mary sometime between 10:00 a.m. and 10:15 a.m. that morning from a downtown office. Mary interrupted their telephone conversation, explaining she had just taken a shower and needed to put on a robe. When she returned to the telephone, they agreed for Pamela, since she was already downtown and fairly close to Mary's apartment, to come to the apartment and pick up some additional tapes to type. When Mrs. Richardson arrived at Mary's house, she knocked several times and waited for Mary to answer. She knocked harder, hearing muffled bumping sounds coming from inside. She stepped back and called out Mary's name two or three times to the window above. She knocked loudly a few more times and, receiving no reply, left. She tried unsuccessfully several times later that day to reach Mary by telephone.

Mary's boyfriend had also telephoned her several times during the day but received no answer. When he arrived at the apartment around 6:00 p.m. that evening, he found the apartment door shut but unlocked. Although Mary's car was in the parking lot, he saw no sign of her nor did she answer his calls. After a cursory perusal of the apartment without finding her, he went to the apartment manager, a good friend of Mary's, to help him figure out where Mary was. Together they looked through the apartment. Her boyfriend, after looking more carefully, discovered Mary's unclad body lying outstretched in a pool of blood in her bedroom between her bed and the wall. The police were called and discovered her throat had been cut, almost severing her head. She had died from multiple stab wounds, including fourteen stab wounds to her back. Anal and vaginal swabs from her body revealed human seminal fluid as did tests on her robe, a director's chair in the kitchen, and a pair of her pants. While no evidence of trauma to the vagina existed, an examination did show anal lacerations. Blood was found in the bedroom on the sheets, wall, and carpet. Traces of blood were also in the bathroom and on a director's chair and her robe in the kitchen. A butcher knife, recovered from inside a closet wrapped in a towel in a cooler, had only Mary's blood on it. All blood analyzed was Mary's blood type. No prints were recovered from the knife. Of twenty-seven prints found within the victim's house, twenty were identified. Nineteen of those belonged to Mary's boyfriend and one to an investigating officer. No fingerprints or microscopic fibers from Mary's house compared with those eventually taken from defendant.

Defendant was arrested at approximately 10:45 a.m. on Sunday morning, March 14, 1982, walking in the 1900 block of Park Avenue, about nine blocks from Mary's apartment, by two police officers on routine patrol in that area. Unable to produce identification satisfactory to the officers, defendant agreed to accompany the officers to the police station for further verification of his identity. While in custody, he was taken from the third district by the police officers to police headquarters for questioning by a sex offense detective around noon, followed later by a homicide officer's questioning of him.

After the homicide detective established defendant was not the man wanted for questioning in Mary Bell's murder, defendant was released. Defendant's remarks before leaving that he had been in Mary Bell's neighborhood on the day of her murder prompted the detective to detain defendant for further questioning. Defendant confessed to the murder of Mary Bell in a taped statement given to the homicide detective. In defendant's taped statement to the detective, he acknowledged that he had been at Mary's apartment complex in February, at the time of the "big snow", the day of her murder. He knocked on her door and when she opened it, forced his way in. He followed her up the stairs where she tried to hold the bedroom door shut against him. He remembered chasing her through the kitchen, also on the second floor, across from the bedroom. In the kitchen she grabbed a butcher knife, about 12 inches long. While grappling with her, he knocked it from her hand. He admitted she was stabbed during the fight and that he had sex with her on her brass bed or on the floor. While in the apartment, he heard knocks and then banging on the front door and a woman's voice calling out "Sherry" or "something like that." He thought the knocking on the door was from next door when he heard the next door neighbor open and close her door. He described Mary as white with dark hair, about 20 to 25 years old, with large breasts. Then, when shown a picture of Mary Bell, he admitted she was the woman he had stabbed and killed.

Defendant's first point contends his confession should have been excluded in response to his motion to suppress and timely trial objections, arguing that the initial warrantless arrest, resulting in his subsequent confession, was not based on probable cause. He also claims his confession was involuntary.

The existence of probable cause for an arrest without a warrant depends on the particular circumstances and the particular offense involved, the question being determined by factual and practical consideration of everyday life on which reasonable and prudent men act. State v. Johnson, 670 S.W.2d 882, 884 (Mo.App.1984). Probable cause requires a reasonable ground for belief of guilt. Id. In the first instance, arrest by law enforcement officers is not always required to be by warrant; rather, the question is premised upon whether a warrantless arrest was premised upon probable cause. State v. Smith, 588 S.W.2d 139, 142 (Mo.App.1979). That probable cause exists and that it must be reasonable necessarily depends upon the facts of each case. Id. . At the heart of the question is the issue whether the two police officers who picked him up had information sufficient to warrant belief by a man of reasonable caution that defendant had committed the offense under investigation.

We now detail additional facts surrounding defendant's arrest. The two officers on routine patrol in the area of the housing projects where they arrested defendant knew there had been a rash of rapes in that area occurring on the weekends in the early morning hours. The rape suspect was described as a negro male in his early 20's, approximately 5'10"', 5'11"', 150-160 pounds, medium to light skinned, soft spoken and bald or shaved head. The officers also knew a man named Kirk Eaton was wanted for questioning by police concerning Mary Bell's homicide, because Eaton, a prior sexual offender, had been seen in her neighborhood several weeks prior to her murder. The officers had received an inter-departmental police memorandum with a photograph of Eaton attached, describing him as approximately 5'11"', 150 pounds, negro male, early 20's, with facial hair. When the police officers drove slowly up to defendant that Sunday morning, they observed him to be approximately 5'9"', 165 pounds, and in his 20's. They asked him for identification. Defendant identified himself as George Allen, Jr., that he lived in University City and was 26 years old, but could produce no identification with a photograph. Noticing that his head was shaved, as well as his eyebrows, in addition to his being soft spoken, the...