State v. Akers

• Decision Date: 30 September 1986
• Docket Number: No. WD,WD
• Citation: 723 S.W.2d 9
• Parties: STATE of Missouri, Respondent, v. Larry AKERS, Appellant. 36728.
• Court: Missouri Court of Appeals

Page 9

723 S.W.2d 9

STATE of Missouri, Respondent, v. Larry AKERS, Appellant.

No. WD 36728.

Missouri Court of Appeals Western District.

Sept. 30, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 23, 1986.

Application to Transfer Denied Feb. 17, 1987.

Sean D. O'Brien, Public Defender, David Fry, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Lee A. Bonine, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., SHANGLER, J., and NORMILE, Special Judge.

SHANGLER, Judge.

The defendant Larry Akers was convicted by a jury of murder in the second degree and of armed criminal action. The jury returned punishments of thirty years and fifteen years, respectively, which were imposed as consecutive sentences.

The victim, Howard Moore, was found shot and dead on the floor of his office at the Independence Sanitarium and Hospital on February 13, 1984, at 8:35 a.m. Moore was the property manager of Health Care Systems, Inc., a Sanitarium subsidiary, and Akers was a subordinate as a property maintenance supervisor. Interviews at the scene prompted the officers to find Akers for interrogation, and that quest led them first to his home, and then to that of his son. Akers was not to be found at either residence, but a glimpse by Officer Fowler through the back window of a pickup truck parked in the driveway of the latter residence disclosed a long-barreled revolver. The vehicle was entered, and the gun was retrieved. The weapon, a .22 caliber Ruger revolver, had been purchased by Akers on July 13, 1975. The cause of death was injury from a shot to the head of the victim. A forensic expert gave opinion that the bullet removed from the head of victim Moore could have been fired from the weapon seized from the pickup truck.

The defendant Akers contends on appeal--among other grounds--that the discovery and subsequent seizure of the handgun was the product of a search conducted without a warrant, and otherwise not justified by any exception to search without a warrant--and hence the evidence was illegal under the Missouri and Federal Constitutions.

The motion to suppress discloses that the discovery and caption of the handgun by the police culminated from this train of events:

The police were summoned to the eighth floor of the Independence Sanitarium and Hospital where the body of Howard Moore was found on the floor of the office by one Oddo, who came to keep an 8:45 a.m. business appointment on February 13, 1984. The response was by police detectives Pollard, Fowler and Cavanah, who arrived at about 9:15 a.m. They found Moore riddled by three bullets, and already dead. Cavanah learned from Alma Wilkerson, residential property manager under Moore, and from Mark Anderson, property maintenance worker under Akers, that Akers harbored discontent against Moore. Wilkerson related to the police that she had talked to Akers the day before the homicide at church and that Akers "was upset over the fact that their rent had just been raised and that Howard Moore was--he was in charge of raising the rent." ¹ Akers told her then [Wilkerson related to detective Cavanah] that "he was going to go talk to Howard Moore the next morning [February 13, 1984] about if he could get an agreement made where he could get the rent, you know, lowered, and that he was just basically going to talk to Howard Moore the next morning." Anderson informed detective Cavanah, there at the scene of the homicide, that Akers and Moore "did not get along, that they had had problems in the past ... both personal problems and employee-employer problems, but that it was known that they did not get along and that there were problems between them." Anderson informed detective Cavanah also that Akers "should have been there at that time working, and he was a bit concerned that he was not there." Anderson told the detective that he knew Akers "had some personal problems, that he was a heavy drinker, that he was upset over the fact that the rent had been raised, and that his wife had just come into the hospital and that she was very upset and crying." Cavanah shared this information with Fowler. The detectives learned also that Akers was driving "the company truck," described to them as a 1973 Chevrolet Cheyenne Supertech pickup. They were also given the license number. They had no intimation, however, that Akers had access to a weapon. They commenced their quest for Akers as a "possible suspect" in the homicide of Howard Moore, although [as expressed by Cavanah] whether Akers would have been arrested when found "depended on some other variables."

An attempt to interview Ms. Akers, who was then interned at the Sanitarium, failed, according to detective Fowler. The detectives Fowler and Cavanah then proceeded to the Akers home--about four or five houses down the street from the Sanitarium. It was by then eleven o'clock in the morning. The detectives rapped first on the front, and then on the rear door, but with no response. They peered through the windows and could see only a bottle of whiskey and partially consumed drink. They did not enter. They then proceeded to the home of the Akers son, directly behind the home of the father. There they observed parked on a grassy area behind the house the vehicle described as the one Akers drove in his employment. It appeared to detective Cavanah that the "truck just pulled in recently because there was fresh tire marks in the soft ground, the yard, and it kind of led up to the back where the truck was parked." They went to the front door, but there was no response to the knock. The door was open a fraction of an inch, so that detective Cavanah could see "a set of car keys laying on a counter inside." He called for Akers, announced themselves as police officers, but there was no response. Cavanah went around to the rear, knocked on the door, had no response; and then went to the apartment upstairs, knocked, and again had no response. As he returned to join the other detective he heard Fowler exclaim: "The gun's here." Fowler told him that "he had found a gun on the back seat of the truck, that he could see a gun sitting there." Fowler was then "looking in the back window of the truck." The doors of the vehicle were still closed. Cavanah looked for himself and "could see that there was a gun laying on the floorboard from the back window." He thereupon notified his superiors that "we had a gun located." Fowler explained that after the attempt to find Akers at the residences was without success, he went over to the vehicle "looking for a gun." Fowler was aware that Moore had been shot "probably by a .22 caliber gun." He looked first through the window "from the driver's side," saw nothing, and "next looked through the back window," and "could see a long-barreled revolver on the floor in the three- to four-inch space between the seat and the back of the cab." The weapon was not disturbed until after the completion of police photographs some minutes later.

A short time later, other officers entered the residence, found Akers unconscious, and removed him to a hospital. Akers was then placed in arrest.

The defendant Akers and subordinate employee Riley also gave testimony on the motion to suppress. Akers testified that he drove the pickup truck for Health Care Services, Inc., in the course of the employment duty, kept the only two sets of keys to the vehicle, and maintained exclusive control over it. Akers testified also that the mechanism to move the front seat of the truck was inoperative. He succeeded, after difficult manipulation, to move the seat back on the track so as to allow leg space and was never thereafter able to move forward again. That was the position of the front set up to September 12, 1984--the day before the Moore homicide. Richard Riley, an employee at Health Care Services, Inc., subordinate to Akers, testified that the company truck was regularly kept at the Akers residence since part of that dwelling was used as a company warehouse. He confirmed that Akers was the custodian of the keys and that for Riley to use the truck, it was necessary to obtain the keys from Akers. The seat of the truck was "in the full back position," and would not move forward.

The trial court determined that the plain view doctrine applied to validate the discovery of the weapon, and then the caption of the weapon and shells which the entry into the truck and the search of the interior also disclosed.

The defendant Akers argues that the order of the trial court to deny the motion to suppress the gun and shells errs, both as to fact and law. He argues that the discovery of the handgun could only have been the product of a search conducted without a warrant because the fact indispensible to the operation of the plain view doctrine--that the gun was visible to an observer through the back truck window--was an inference "against the greater weight of the evidence." Akers argues that certain internal inconsistency within the officer testimony as well as the contradiction between the officer evidence that the seat was in the forward position--so as to allow the discovery of the gun in the four-inch gap between the seat and the rear of the truck--and the Riley testimony [and of Akers himself] that the seat was in the back position, fixed and inoperable--so as to allow only a one and one-half to two inch gap--so undermines the probity of the evidentiary predicate for the inference of plain view as to compel the conclusion that the gun was discovered only after entry into the truck--and hence was unlawful evidence.

The argument simply discounts the officer testimony, affirmed and reaffirmed, that Fowler discovered the weapon through the back window of the truck after a glimpse through the driver's window disclosed neither occupant nor weapon. The argument, in effect, adopts the Riley and Akers testimony and denies to the factfinder the probative and favorable...