State v. Alderman, s. 9380
| Decision Date | 24 July 1973 |
| Docket Number | 9381,Nos. 9380,s. 9380 |
| Citation | 498 S.W.2d 69 |
| Parties | STATE of Missouri, Respondent, v. William W. ALDERMAN, Jr., Appellant. STATE of Missouri, Respondent, v. Clifford HOWARD, Appellant. |
| Court | Missouri Court of Appeals |
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Lowell V. Palmer, Kimberling City, for appellants.
William Alderman, Jr. (Alderman), Clifford Howard (Howard), and Billy Ray Howard (Billy) were charged and jointly tried for second degree burglary and stealing. The jury acquitted Billy and found Alderman and Howard guilty but was unable to agree upon punishment. Following denial of the convicted defendants' motions for new trial, each was sentenced to concurrent terms of five years for stealing and eight years for burglary. Defendants filed separate appeals which have been consolidated here.
Gene Garner on March 9, 1972, operated a Conoco service station 'a couple of miles' north of Crane on Highway 13. 'A large pole light that burns all night' illuminated the area permitting Garner to see the station during darkness from his home located 200 yards away. Around 1:30 a.m. 'some unusual noise' awakened Garner. Looking towards his place of business he saw 'a Ford automobile with only one taillight . . . sitting between the pumps and the station (and) two men, one on one side of the car and one on the other, and . . . another one crawl out of the station.' He telephoned Deputy Sheriff Cousins. Upon completing his summons, Garner witnessed the Ford's departure and gave chase in his own automobile. A half mile south of his residence Garner met the deputy and got into his car. They drove south beyond Crane until encountering Sheriff Barnes. Garner again switched transportation and the two vehicles proceeded northward until 'the same automobile that had been at my station that night' was sighted traveling south. The red lights on the two official vehicles were turned on and both were 'pulled into the middle of the highway' in an effort to halt the Ford, but it 'just went on around.' Pursuit ensued and the Ford was halted; it contained the three defendants in the front seat and, in the back seat, one Coleman lantern and three Conoco batteries.
The Ford was 'towed into storage and locked up at Jenkins Ford Sales.' The batteries and lantern 'were locked up inside the car' until removed by Deputy Cousins after he had obtained a search warrant later that day. After removal from the Ford, the lantern and batteries were put in 'the storage room in the sheriff's office' where they remained until produced at trial. No one marked, labeled or tagged the lantern or the batteries. The owner of the storage garage had keys to that establishment, while the sheriff and three deputies had keys to the evidence room. From the time the lantern and batteries were removed from the Ford and the date of trial, no other 'Conoco batteries (or) any other lanterns like' the ones produced as evidence had been kept in the sheriff's storage room.
On March 9, 1972, Garner had only three batteries (all Conoco brand) in stock at the service station. When defendants had been ensconced in custodia legis, the sheriff returned Garner to the station. There they discovered 'the pane of the front door had been broken out' and the lantern and three batteries missing. The sheriff noticed When asked regarding the three Conoco battery exhibits at trial, Garner's three unobjected-to answers were: When asked to identify the Coleman lantern exhibit, the unobjected-to answer of Garner was simply, 'It's mine.'
Defendants' defense was alibi. They testified Howard was driving the Ford when they were arrested, but before then, Billy had been let off at his uncle's house about 1 or 1:15 a.m. when Howard and Alderman started for Aurora in search of beer. Before traveling very far, Howard and Alderman recounted, they came upon a man (they did not know and could not describe) in a car (they could not identify) 'parked down there' by the side of the road. The man had three Conoco batteries and a Coleman lantern for sale which Howard and Alderman purchased for $11. After the purchase and upon discovering they did not have enough gasoline to drive to Aurora, Howard and Alderman returned to the uncle's house some twenty minutes later, picked up Billy and proceeded to the place of their apprehension on Highway 13. Referring to the battery exhibits at trial, Howard was questioned on cross-examination as follows: '
In their brief upon appeal, defendants have penned two points. The second (which may, in part, be incorporated in the first point) will not be considered because it was not assigned as an error in the motion for new trial. Rule 27.20(a), V.A.M.R.; State v. Bowens, 476 S.W.2d 495, 499(5) (Mo.1972). Moreover, the second...
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State v. Johnson
... ... The requirement that the proponent of evidence must establish the chain of custody is well established. State v. Alderman, 498 S.W.2d 69, 72(3--6) (Mo.App.1973); State v. Heather, 498 S.W.2d 300, 306(10, 11) (Mo.App.1973). But chain of custody evidence need not negative ... ...
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