State v. Abbott

• Decision Date: 25 September 1978
• Docket Number: No. 10601,10601
• Citation: 571 S.W.2d 809
• Parties: STATE of Missouri, Respondent, v. John ABBOTT, Appellant.
• Court: Missouri Court of Appeals

Page 809

571 S.W.2d 809

STATE of Missouri, Respondent, v. John ABBOTT, Appellant.

No. 10601.

Missouri Court of Appeals, Springfield District.

Sept. 25, 1978.

Gordon Fritz, Malden, for appellant.

John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before BILLINGS, C. J., and HOGAN and TITUS, JJ.

HOGAN, Judge.

A jury has found defendant John Abbott guilty of first-degree murder as an abettor in the killing of John Frank Holder, who was robbed and shot to death outside his liquor store near Clarkton, Missouri, during the early morning of February 24, 1976. Defendant's punishment has been fixed at imprisonment for life. He appeals. ¹

The sufficiency of the evidence is not challenged, and defendant has made no allegation of error respecting the sufficiency of the information, the verdict or the judgment and sentence. The only two assignments of error briefed by the defendant are, as stated: (1) "The Court erred in admitting as evidence the boots taken from Defendant at the time of his arrest because the arrest was illegal in that the officers did not have probable cause to believe that the Defendant had committed a crime"; and (2) "The Court erred in overruling Defendant's Motion to Suppress and (in) admitting as evidence the oral statement made by Defendant subsequent to Defendant's arrest for Investigation of Robbery and Murder because an arrest for investigation of a crime is not an arrest for a legal crime and is illegal." Rule 28.02, V.A.M.R. limits our review to the allegations of error briefed on appeal and we may consider only the two points briefed. State v. Umfleet, 538 S.W.2d 55, 60(13) (Mo.App.1976).

The defendant was charged on March 24, 1976. On November 17 thereafter defendant filed a motion to suppress, alleging: (1) that he was taken in custody on February 24, 1976, in connection with the murder of John Frank Holder; (2) that the officers who took defendant in custody had neither a warrant for his arrest nor probable cause to believe he had committed a crime; (3) that subsequent to defendant's arrest, the arresting officers unlawfully seized defendant's boots and took currency from his possession; and (4) that subsequent to his arrest, defendant made a statement but the statement was not, for various reasons, voluntarily made. Obviously, the defendant has shifted his ground of objection to the use of his statement in evidence; before the trial court, his objection was that the statement was inadmissible because it was Involuntary (our emphasis); in this court, defendant's point is that the statement was inadmissable because he was unlawfully in custody. Generally, a defendant may not shift or broaden his objection to the admissibility of evidence on appeal, State v. Jones, 515 S.W.2d 504, 506(3, 4) (Mo.1974); State v. Brookshire, 353 S.W.2d 681, 688(17) (Mo.1962); State v. Adams, 531 S.W.2d 763, 765(4) (Mo.App.1976), and defendant's objection to admission of the statement might be disregarded because the ground of objection here is not the same as that presented in the trial court. Nevertheless, because of the gravity of the offense charged and the length of the sentence imposed, we prefer to consider the defendant's assignments of error on their merits.

The trial court conducted a suppression hearing prior to trial, in chambers and out of the hearing of the jury. As received, the evidence is somewhat difficult to follow, chronologically. However, in reviewing the record on the issue of probable cause, we have borne in mind: (1) that we are limited to a consideration of the facts known to the arresting officers at the time of the arrest, State v. Hicks, 515 S.W.2d 518, 521(1) (Mo.1974); State v. Kelley, 473 S.W.2d 707, 710(3) (Mo.1971), but nevertheless (2) all the information in the officers' possession, including fair inferences therefrom, may be considered. State v. Wiley, 522 S.W.2d 281, 287(5) (Mo.banc 1975); State v. Kelley, supra, 473 S.W.2d at 709. These principles considered, the record justifies the following statement: On February 24, 1976, state and local peace officers were summoned to investigate an apparent robbery and murder at John Frank Holder's liquor store near Clarkton. The fact that no wallet was found on Mr. Holder's person taken with the fact that Mr. Holder "(was) always known for carrying large sums of money" indicated that the victim had been killed in the course of an armed robbery. Deputy Sheriff Bob McDonald, a peace officer with "over sixteen years' " experience, was one of the first officers to arrive upon the scene. He observed Mr. Holder's car parked in front of the liquor store, saw the victim "laying on the ground near his front doorsteps," saw what appeared to be a bullet wound upon the victim's person, and observed what seemed to be bullet holes "in some boards there . . . next to the doorstep."

Further investigation on McDonald's part disclosed "two sets of footprints that appeared to be (made by) boots." These footprints, or bootprints, led "from the crossroads down there southwest of the building, and of course, we tracked them . . . the fill was . . . soft and everything and we tracked them right up to the scene of the crime . . . very good footprints." McDonald testified "you could see in the footprints to where there was a slight flaw in one of the boots . . . its got a piece off of it."

Trooper Larry Plunkett, a member of the State Highway Patrol, also participated in the investigation at the scene. Trooper Plunkett testified at the suppression hearing that he observed footprints on the morning of February 24; the "imprints" indicated "a real heavy cord . . . (that of) a fairly new boot, around the edge of the sole." It is readily and directly inferable from the record that both officers believed the footprints were made by the high-arched, high-heeled sort of boot commonly known as a "cowboy" boot. McDonald testified that when he saw the bootprints, the defendant came to mind as a possible suspect because he knew the defendant habitually wore cowboy boots, and, some years earlier, defendant had been convicted of felonious assault upon the person of the victim's father. One Coby Edmond, "the chief of police . . . at Clarkton," "brought up" the fact that the defendant was "back in the area."

Having arrived at the Holder Liquor Store about 7:00 a. m., Deputy McDonald and Trooper Plunkett left there about 9:30 to investigate local ". . . suspects that we figured might be involved . . . ." They contacted one Charles Beck, a known associate of the defendant's, who informed the officers "that (defendant) and his brother-in-law had been to see (him) the day before about borrowing some money." This, in Deputy McDonald's words, ". . . let us know for sure that (defendant) was back in the area and apparently he was broke the day before this robbery occurred."

In this connection, the record of the suppression hearing has a curious aspect. Upon direct examination, Deputy McDonald was asked a number of questions about his investigation of the crime prior to the defendant's arrest. Specifically, McDonald was asked the following questions and gave the answers indicated:

"Q. Did your investigation disclose whether Wheelis (defendant's brother-in-law) and the defendant were in the Clarkton area prior to the finding of Mr. Holder dead? A. Yes, sir.

Q. What did your investigation disclose as to that? A. It disclosed that Leroy Wheelis, Jr., and (defendant) came to the Clarkton area on the afternoon before this offense taken place and that they got together with other codefendants (sic) and drove out just north of Clarkton . . . and all . . . got in one car and drove around to the northwest of Clarkton and discussed the robbery of Johnny Holder and other robberies that they might commit . . ."

The record does not make it entirely clear when this information came to Deputy McDonald, and is utterly silent as to its source. Presumably it came from an informant; if so, he is not identified and there is no indication whether the informant or the information was reliable and for these reasons, the questions and answers quoted have been largely discounted in determining the existence of probable cause even though a peace officer may properly rely on information received from an informer if there is a substantial basis for crediting the hearsay evidence thus obtained. State v. Wiley, supra, 522 S.W.2d at 287-288(10).

In any event, the transcript makes it quite clear that in talking to Beck and to a Mrs. Weaver, officers McDonald and Plunkett obtained information which led them to believe defendant and his brother-in-law were living at Bernie, Missouri. The officers then contacted the chief of police at Bernie and discovered that Wheelis, the brother-in-law, had "rented a house and had a meter put into it . . ." McDonald, Plunkett, and two other officers went to the Wheelis residence. Officers McDonald and Plunkett went to the front door, knocked, and when Wheelis came to the door, "stated our business" and ". . . asked him for permission to search (the) house." Wheelis replied ". . . that (defendant) wasn't there, he had . . . went to find some work, and that we could search (the Wheelis) house." Trooper Plunkett's version of the entry was that he and McDonald (and perhaps) one other officer knocked at the door of the Wheelis residence and were admitted to the premises. According to Plunkett, the officers asked to look around the house, and were told that would be "all right." The officers were not asked to produce a search warrant.

In searching the house, the officers "worked (their) way back to the bathroom, at the rear of the house, and found the bathroom was locked "from the inside. " Believing the defendant to be in the bathroom, the officers called for him to come out. Very shortly the defendant emerged, and as McDonald put the matter, " we noticed that he was barefooted. " ² As the defendant walked out of...