State v. Bonuchi

• Decision Date: 02 August 1982
• Docket Number: No. 62683,62683
• Citation: 636 S.W.2d 338
• Parties: STATE of Missouri, Respondent, v. Shawn R. BONUCHI, Appellant.
• Court: Missouri Supreme Court

Page 338

636 S.W.2d 338

STATE of Missouri, Respondent, v. Shawn R. BONUCHI, Appellant.

No. 62683.

Supreme Court of Missouri, En Banc.

Aug. 2, 1982.

As Modified on Denial of Rehearing Aug. 23, 1982.

David M. Strauss, Public Defender, Columbia, for appellant.

John Ashcroft, Atty. Gen., Steven H. Akre, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM:

Appellant, Shawn R. Bonuchi, was convicted of first-degree murder by a jury in the Circuit Court of Johnson County, Missouri, and his punishment was assessed at imprisonment for life. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court. Mo.Const.Art. V, § 3.

Stephen Walker testified that at 2:00 a. m. on November 29, 1978, he gave a ride to appellant, who was hitchhiking at the time in Columbia, Missouri. He testified that they drove around awhile, smoked some marijuana, and got into a lengthy discussion about restrictions at the Mexican border. He testified that appellant asked him if a young man driving a new Trans Am or a new Pontiac Firebird Formula would be checked strictly at the border. Appellant then asked Walker to drive to Kelley Pontiac to look at cars. On the way, appellant told Walker that he was planning to steal a car. He asked Walker if he would go with him to test drive a car since he was not old enough to test drive the car himself and did not want a dealer along with him. Appellant told Walker that he already had license plates to put on the car after it was stolen. When they arrived at Kelley Pontiac, they looked at a Firebird Formula and a Trans Am Firebird. Appellant indicated to Walker that he was going to steal a car the following day. After leaving Kelley Pontiac, Walker dropped appellant off in the area where he had picked him up earlier that morning.

Two Kelley Pontiac employees, John Ireland and Kenneth Hendren, testified that at 11:00 a. m. on November 29, 1978, they observed Gregory W. Bond, a salesman, drive from the Kelley car dealership with two white male youths in a new 1979 blue Pontiac Firebird Formula. Ireland testified that he saw Bond take his dealer license plate with him when he and the two youths walked to the automobile in the lot.

Officer Michael Selfridge of the El Reno, Oklahoma, Police Department testified that on November 30, 1978, he saw a blue 1979 Pontiac Firebird in the El Reno cemetery. As the officer drove toward the Pontiac in his police car, appellant and Mitchell Dean Osburn exited the car and began to walk away. Selfridge ordered them to stop and return to the car. Selfridge had noticed that the Pontiac had no Missouri license plate on the front of the car and that the Missouri license plate on the rear of the car had been attached with a piece of wire. Officer Dennis Samples, another El Reno, Oklahoma, policeman, arrived at the cemetery to assist Officer Selfridge. The two officers inventoried the Firebird and found in the trunk a 20-gauge double barrel shotgun. A vehicle identification number check revealed that the Firebird had been stolen the previous day from Kelley Pontiac in Columbia, Missouri. The officers placed appellant and Osburn under arrest and took them to the El Reno City Jail.

Boone County Sheriff Charley Foster found Bond's body some twenty feet from a road in the northern part of Boone County, Missouri, at about 7:00 p. m. on November 30, 1978. Dr. Lowry Kirk Arnold, a pathologist and Boone County Deputy Medical Examiner, performed an autopsy on the victim's body on December 1, 1978. Dr. Arnold testified that Bond died from two shotgun wounds, one of which lacerated the right lung and the liver and the other of which shattered the breast bone and three ribs and separated the aorta and pulmonary arteries from the heart. Fragments of plastic shotgun shells, wadding, and shotgun pellets were found in the wounds.

Type "A" human blood was found on the spoiler on the back of the Pontiac and on the dealer's license plate, which the El Reno police had discovered under the driver's seat in a second inventory of the car.

Appellant first asserts that there was insufficient evidence presented to sustain the conviction. The assertion is without merit. "A review of the record in the light most favorable to the prosecution convinces us that a rational fact finder could readily have found (appellant) guilty beyond a reasonable doubt of first-degree murder under (Missouri) law." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979).

Appellant next asserts the trial court erred in admitting into evidence the shotgun found in the trunk of the stolen car. The assertion is without merit. Demonstrative evidence is admissible "if it throws any relevant light upon a material matter at issue," State v. Murphy, 592 S.W.2d 727, 730 (Mo. banc 1979), or if it "tends to establish any fact in issue or * * * aid the jury in any way in arriving at a correct verdict," State v. Holmes, 609 S.W.2d 132, 136 (Mo. banc 1980). "Articles, instruments and weapons that have a tendency to explain the manner in which a crime was committed that are found at or near the scene of the crime subsequent to the commission of a crime are generally admissible." State v. Neal, 591 S.W.2d 178, 180 (Mo.App.1979). The trial court has discretion whether to admit or exclude demonstrative evidence. State v. Murphy, 592 S.W.2d at 730.

Appellant finally asserts that the trial court committed error in failing to suppress certain credit cards, a driver's license, and testimony regarding the victim's body, because all were found as a direct result of illicit interrogations of appellant and, therefore, were "fruits of the poisonous tree." Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

At a pretrial hearing on motions to suppress evidence, Officer Dennis Samples, one of the arresting officers, testified that when he and his colleague arrested appellant and Osburn, they searched the Pontiac Firebird and the grounds immediately around it. They found a shotgun in the trunk of the car, but found no evidence on the grounds near the car.

Before noon on November 30, 1978, the day appellant was arrested, a licensed attorney practicing in El Reno, Oklahoma, was appointed by the court to represent appellant and Osburn. He talked to appellant and Osburn that day and advised Captain Ray Watson of the El Reno Police Department and Stan Chatman of the District Attorney's office that no statements were to be taken from either of his clients. Despite this explicit directive, the El Reno police interrogated appellant on several occasions that afternoon without reading him his rights as required by Miranda, supra. Among other things, the police asked him if any evidence remained at the location of his arrest. He told them that some shotgun shells were there and that Bond's credit cards and driver's license were hidden near where he had been arrested.

Acting on this information, the El Reno police searched the area that afternoon, looking for these items. They found nothing. Early the following morning, on December 1, Captain Watson and two other officers asked appellant if he would go with them to the cemetery and show them where the evidence was hidden. This request was made of appellant several times before he replied that he would go out there and show them where the things were if it was okay with his attorney. Captain Watson told him he would contact his lawyer for him. Watson left appellant's presence, returned about five minutes later, and stated that appellant's attorney said that it was all right for him to accompany them. Watson had not contacted appellant's lawyer and had not received the lawyer's permission for appellant to accompany him to the arrest site. Appellant accompanied Watson to the arrest scene and pointed out exactly where Osburn had buried Bond's driver's license and credit cards and where some shotgun shells lay. None of the officers seized the evidence at that time. They took appellant back to jail. During a police search of the arrest site that afternoon, some shotgun shells were found, but Bond's credit cards and driver's license were not found.

The following day, December 2, 1979, a group of civil defense volunteers was organized to search the arrest site. They were told to search for any documents or papers relating to Columbia, Missouri. David Hill, one of the civil defense volunteers, testified that he kicked a small mound of dirt accidentally and discovered Bond's driver's license and three credit cards.

Information obtained in violation of the attorney-client relationship may have led to discovery of Bond's body. However, on the basis of the record in this case we cannot hold the trial court abused its discretion in ruling the evidence relating to Bond's body admissible. State v. Neal, 416 S.W.2d 120, 124 (Mo.1967); see also, State v. Flowers, 592 S.W.2d 167, 170 (Mo. banc 1979). Cf. Killough v. United States, 336 F.2d 929, 933-4 (D.C.Cir.1964); see also, Brewer v. Williams, 430 U.S. 387, 406, n. 12, 97 S.Ct. 1232, 1243, n. 12, 51 L.Ed.2d 424 (1977).

The effect of the admission of the credit cards and driver's license was, at worst, minimal. Evidence unrelated to police misconduct supports the following conclusions: That appellant intended to steal a car from Kelly Pontiac; that appellant had in his possession the stolen Firebird in which Bond, with two youths, left the dealership; that a shotgun was found in the Firebird; that the dealer's license plate, with blood on it, was found in the Firebird; that blood was on the spoiler of the Firebird; and that Bond was killed with a shotgun.

In view of these facts and circumstances in this particular case, we declare the failures on the part of the trial court to abide "the requirements of federal organic law," articulated in Miranda and Wong Sun, harmless. Cf. Harrington v....