State v. Boothe

• Decision Date: 11 September 1972
• Docket Number: 56876,Nos. 56875,s. 56875
• Citation: 485 S.W.2d 11
• Parties: STATE of Missouri, Respondent, v. Raymond BOOTHE, Appellant.
• Court: Missouri Supreme Court

Page 11

485 S.W.2d 11

STATE of Missouri, Respondent, v. Raymond BOOTHE, Appellant.

Nos. 56875, 56876.

Supreme Court of Missouri, En Banc.

Sept. 11, 1972.

Rehearing Denied Oct. 9, 1972.

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty Gen., Jefferson City, for respondent.

Willard B. Bunch and Philip H. Schwarz, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; and Paul T. Miller, Executive Director, Kansas City, of counsel.

MORGAN, Judge.

Defendant, Raymond Boothe, was charged in separate indictments with having participated in the killing of James William Lindsay and James Richard Lindsay. On motion of the defendant, the two cases were consolidated for trial; and, the jury returned a verdict of guilty and assessed the death penalty on each charge. Defendant has appealed.

Based on the state's evidence, a jury reasonably could have found: that during the evening of January 8, 1970, James Richard Lindsay and his wife, Jackie, were in the bedroom of their mobile home watching television; that a man entered a door of their trailer which was not commonly used, and that Richard proceeded down the hallway toward the intruder; that a struggle ensued; that two other men entered through the front door and assisted the first intruder in the attack on Richard; that Jackie saw one of the men standing over Richard with a hand gun pointed downward at him; that she ran to the home of Richard's father which was located on the same property and advised him of the trouble; that the father, William, told his younger son to get the shotgun and then proceeded toward the trailer; that the younger son arrived later and saw three men leaving, and he shot three times in their direction; that the son, Richard, and the father, William, were found at the scene mortally wounded by gunshot wounds; that Reuben Parker, a neighbor had heard the shots and observed three men leaving by way of his driveway; that Andrew Hansen, his wife and son lived across the street from the Lindsay's residence; that soon after the shooting, Mrs. Hansen heard a 'banging' on her back door and heard voices saying 'Let us in, let us in'; that two strangers came in when she opened the door; that one of the men, later identified as the defendant, said, 'We have been in a bad accident. My friend's hurt. We have to get him to a hospital.'; that she awakened her husband and he dressed in order to take the men in his car; that defendant said, 'Hurry, please hurry; hurry, please hurry.'; that his mouth was bleeding as though his teeth had been 'bashed in'; that the hands of the other man were bleeding badly; that Mr. Hansen left with the men toward his garage at which time he saw two police cars across the street at Lindsays; that he suggested to the two men that, 'They can get you there quicker than I can.'; that defendant stuck a gun into his ribs and said, 'You get us out of here or I'll kill you.'; that Mr. Hansen drove several blocks before he was told to stop; and, that after being told to get out the two drove off with his car.

One of defendant's accomplices was identified as one Charles Stoyan Cuckovich, whose convictions and sentences for the same murders were considered in State v. Cuckovich, Mo., 485 S.W.2d 16, handed down this date.

First, it is contended that the trial court erred by overruling defendant's motion to suppress his identification by the three Hansens, because the identification procedure followed was 'unnecessarily suggestive and conducive to irreparable mistaken identification . . ..' The record reflects that on several occasions the police showed the Hansens different groups of photographs. Prior to making a positive identification of both defendant and Cuckovich, they had picked out different photos of other persons who appeared somewhat similar. At a later date, the Hansens observed defendant and Cuckovich in a lineup with four other men. They were seated in different areas without contact between them and each made a positive identification of defendant and Cuckovich. There is nothing in the record to indicate any police action whatever which could have been suggestive in any degree. The police report of the lineup gives a detailed description of each of the six men presented and they had many common characteristics and similarities. Gaitan v. State, Mo., 464 S.W.2d 33, 35. It must be conceded that the Hansens had an opportunity to observe the individuals concerned in their own home for several minutes. Necessarily, each case must be considered on its own facts and evaluated in light of the totality of the surrounding circumstances. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. 'The rationale of such an approach necessarily demands consideration be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification.' State v. Parker, Mo., 458 S.W.2d 241, 244. The facts of this case show such criteria were met and satisfied, and that the dictates of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, were not violated.

Second, objection is made to the sustaining of the state's challenges for cause of two veniremen. Each said that they had attended school with defendant. When asked if they would be embarrassed to find the defendant guilty, one replied 'possibly' and the other replied 'I would.' Further interrogation made it quite evident that neither could approach his duties as a juror with a free and open mind, and we believe the trial judge ruled properly. Even absent such a conclusion, it is well established that the trial court has a wide discretion in determining the qualifications of jurors and that its decisions thereon will not be disturbed unless such discretion was clearly abused. State v. Hart, Mo., 411 S.W.2d 143; State v. Harris, Mo., 425 S.W.2d 148. There is no merit in this contention.

Third, it is contended that state's exhibits No. 15 through No. 17 should not have been admitted in evidence. Such items were found by one of the investigating officers at the scene. He testified that he found a man's felt hat caught under the trailer door; that just east of the trailer steps he found a pair of men's glasses; that on the fence (toward the Parker residence) he found a piece of black cloth material which appeared to have come from a topcoat and a material that looked like the lining of a pants' pocket; that he found certain coins and new automobile ignition points in the same area. Defendant contends that none of the listed items were relevant and that he was prejudiced by their admission. The record shows that Jackie testified that the first man entering the trailer was wearing a dark hat, but that he had no hat and only a woman's silk stocking over his head when at Hansens. As to the glasses, the same is true. The man later identified as defendant had on glasses at Lindsays but not at Hansens. Mrs. Hansen testified that the...