State v. Burks, 36122
| Decision Date | 11 March 1975 |
| Docket Number | No. 36122,36122 |
| Citation | 521 S.W.2d 11 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Vernell S. BURKS, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, Richard A. Knutson, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant-appellant, Vernell Stanley Burks was charged, tried, found guilty by a jury and sentenced by the court under the habitual criminal act to four years in the department of corrections for the offense of attempted burglary. §§ 556.150, 560.070, 560.095. He appeals. For reasons hereinafter stated, we affirm.
Since appellant-Burks questions the sufficiency of the evidence, we will state the facts in the light most favorable to the state.
A jury could reasonably find the following facts. At about 2:00 a.m. on Sunday morning, July 15, 1973, Mr. Robert Riggins, owner of the M and L Package Liquor Store located at 2520 North Grand Avenue in the City of St. Louis, closed the store for a week's vacation. Before leaving the store, he The liquor store contained liquor, groceries, drugs, novelties and 'different things.' At that time, the exterior of the building did not contain any break or 'hole' in the outside north wall. Elizabeth Harris was employed at the store. She left the store the evening earlier at about 5:30 p.m., and there was no 'hole' or break in the wall. The liquor store, located on the corner of Grand and Montgomery, faces east on Grand Avenue, which runs north and south, and is located next to a vacant house. The vacant house is north of the liquor store. There is a 'gangway' between the two buildings, an alley to the rear of the buildings and a 'chain fence' enclosing the rear of the property.
At about 1:15 a.m. early the following Tuesday, July 17, 1973, Officers John Podolak and his partner, William Priest, cruising in their patrol car some two blocks away from the liquor store, received a 'radio assignment to the northeast corner of Grand and Montgomery for a burglar attempting to enter the building through a hole in the wall.' The officers drove toward the store and went to the alley located east and to the rear of the liquor store and the vacant building. Officer Podolak got out of the vehicle and walked along the side of the liquor store about fifty to seventy-five feet from the east wall. When he reached the north wall of the liquor store, he saw three males run 'from between the gangway of the north wall of that (liquor) building' and the building next to it. They started to run toward the alley, but 'made a U turn, (and) went into the vacant house.' Mercury vapor lights were in the rear of the store. At about the same time, the officer saw a 'hole' in the north wall and saw a light 'coming out of the hole in the wall.' The officer described the three individuals he saw. One person was about 'five seven, very heavy-set,' wearing an 'olive green pull over shirt and a medium blue pants.' The second person was about 'five foot eight, midium build, had sort of long afro, wearing blue jean bib overalls.' And the third, later identified as the defendant Burks, was about 'five eight' '155 pounds' 'wearing a white shirt and like tan or kahki trousers.' He was carrying a 'long, narrow object.' The three persons were 'holding some sort of tools.' Officer Podolak then went through the vacant building's fence, through the back door and entered the vacant building. He searched the building for about five minutes and thereafter went out the front door of the vacant building. When he exited, he noticed several tools lying inside the front door and on the porch. 'Some were like in the porth (sic) and some were just inside the door.' The objects found and held as evidence consisted of a lug wrench, a screwdriver, a claw hammer and an axe. When Officer Podolak came out of the vacant building, his partner, Officer Priest, was standing outside the front door with the defendant, Burks.
After Officer Podolak got out of the police vehicle at the alley, Officer Priest went around to the front of the liquor store, parked his vehicle and shortly thereafter--'a few seconds'--heard what sounded like someone running through a vacant building next door. 'At this time I seen (sic) 3 figures in the shadows from the light . . . three subjects ran out of the vacant building.' Just as the third person came out the front door and 'hit the sidewalk,' he apprehended this third person. It was the defendant, Burks. Burks was described by Officer Priest as 'about five, eight, a hundred and sixty pounds' and wearing 'khaki pants and a white shirt.' Just about the time the persons were 'about to exit the front door,' 'I heard (what) sounded like metal objects dropping to the floor or porch.' The tools were not, so far as the record shows, checked for fingerprints or 'dusted.'
Officer Podolak then made an inspection of the liquor store building and found a 'hole' in the brick wall, and the light from inside the building was shining through. 1
Sometime later, after the officers found the 'hole' and between 1:00 and 2:00 a.m the employee, Elizabeth Harris, received a telephone call that the store had been broken into and to 'come down' to the store. When she arrived, she met the officer and she opened the store to see if anything had been taken. She saw the hole in the north wall 'about this big.' As far as she knew, nothing from the store was taken.
Mr. Riggins, the owner of the liquor store, testified that when he returned from his vacation, the hole that had been 'knocked through' the wall on the north side had been repaired. He never gave permission to the defendant to enter the store.
The defendant, Burks, explained his presence in the vacant building. The defendant had been 'staying around in different vacant buildings because I didn't have any place to stay at that time,' although he was working two days out of the week. After he left a tavern and at about 1:30 p.m., he entered the vacant house, went up to the second floor to lie down and Mr. Burks had been in the vacant building ten or fifteen minutes when he heard the noise. He had never slept in the vacant building before. He denied being in the 'gangway' between the liquor store and the vacant house. He also denied seeing any tools.
At the close of the evidence, the defendant moved for a judgment of acquittal, and counsel for the state requested a 'protective order' to restrain defense counsel from arguing the issue of lack of finger-prints on or an analysis of the tools, relying on 'State versus Holmes.' The court granted the order and instructed defense counsel 'not to say anthing about finger prints or any analysis,' stating
The motion for judgment was denied and the jury was instructed. The jury found the defendant guilty and the defendant was, under the habitual criminal act, sentenced by the court.
On appeal, the defendant contends (1) that the trial court erred in overruling the motion for judgment of acquittal at the close of all the evidence for the reason that the 'circumstantial evidence of defendant's guilt was insufficient to prove that defendant attempted to burglarize the M and L Package Liquor (Store)' and (2) the court committed 'plain error' in granting the 'protective order prohibiting defense counsel from commenting in argument upon the lack of fingerprints and dust analysis . . ..'
Defendant's principal point is that no submissible case was made. Defendant concedes that a submissible case was made that an attempted burglary took place, but the 'remaining issue is whether the evidence was sufficient to make a submissible case that the defendant was one of the guilty persons.' The defendant contends that...
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