State v. Cobb

• Decision Date: 11 September 1972
• Docket Number: No. 55101,55101
• Citation: 484 S.W.2d 196
• Parties: STATE of Missouri, Respondent, v. Terry COBB, Appellant.
• Court: Missouri Supreme Court

Page 196

484 S.W.2d 196

STATE of Missouri, Respondent, v. Terry COBB, Appellant.

No. 55101.

Supreme Court of Missouri, En Banc.

Sept. 11, 1972.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Stemmons & Hager, Robert Stemmons, Mt. Vernon, for appellant.

BARDGETT, Judge.

Terry Cobb was convicted by a jury of murder in the first degree. The jury did not agree on punishment and the Court sentenced Cobb to death. Judgment was rendered accordingly and Cobb appeals.

Appellant was charged by information with murder in the first degree in common form of Richard Ferguson. The deceased, age 18, was a service station attendant at a Texaco station located a short distance southwest of the intersection of I--44 and Route O, a north-south road, in Lawrence County, Missouri. He was found dead at about 1:30 AM on the morning of Saturday, March 15, 1969, on the service station property.

This is a companion case to State v. Stancliff, Mo., 467 S.W.2d 26, in which the conviction of Lucky Vance Stancliff of murder in the first degree and the sentence of life imprisonment were affirmed. The evidentiary details of the robbery of the service station and the homicide are set forth in the Stancliff opinion and need not be repeated here except to the extent necessary to a resolution of the points raised in this appeal.

Suffice it to say that deceased met his death as a result of being shot with .22 and .25 caliber bullets; the .22 and .25 caliber automatic handguns that fired the bullets were recovered along Route O about 1 1/2 to 2 miles south of the Texaco station during the daylight hours of Sunday, March 16, 1969; that empty .22 and .25 shell casings were found in appellant's back yard at about 1:30 AM on Sunday, March 16, 1969, during the time that appellant was being arrested for the said robbery and homicide; that it was established by evidence that the guns found along Route O fired the shells found in appellant's back yard and the bullets removed from the body of the deceased and the .22 and .25 caliber shells which were found on the ground around the deceased.

As stated, supra, appellant was arrested in his home at about 1:30 AM on Sunday morning, March 16, 1969. The arrest was made on the order of Sheriff Quade of Lawrence County, Missouri, and carried out by several of his deputies and other law enforcement officers. Deputy Sheriff Dunton was one of these officers. When Dunton arrived at appellant's home, he and two other officers were directed to cover the back door of the Cobb house in order to prevent possible escape out that door, while Deputy Stockton and others went to the front door. Stockton knocked on the front door and it was answered by Mrs. Cobb. Appellant appeared shortly thereafter and was arrested by Stockton. Dunton observed Cobb by looking through the window in the back door and, when Dunton saw Cobb, Dunton then went around to the front door and into the house. Before leaving the back door and going to the front door, Dunton observed shell casings on the ground around the back porch. After Dunton went into the house he was told by Deputy Stockton to search the premises outside the house. Dunton went back toward the rear porch and picked up .22 and .25 caliber shell casings, some of which he had previously seen. He saw some shell casings by the lights which had been turned on in the house and others by using his flashlight. The .22 and .25 caliber shell casings found by Dunton, which were within about 30 feet or so of the back porch, were introduced into evidence and formed the basis for the ballistics expert's testimony that the same guns used to kill the deceased also fired the shells found in Cobb's back yard. The shells found by Dunton were lying upon virtually bare ground and open to the view of anyone on the premises.

There had been no arrest or search warrant issued prior to the time of this arrest. Appellant filed a motion to suppress these .22 and .25 caliber shell casings on the grounds that they were obtained by an unlawful search and seizure in violation of appellant's rights under the U.S. Constitution, Amendments 4, 5 and 14, and Mo. Constitution of 1945, Art. I, Sections 10, 15 and 19, V.A.M.S. The Motion also sought the suppression of other items searched for and seized at the time of or immediately following the arrest of Cobb. The Motion was sustained as to most of the items and overruled as to the shell casings found by Dunton in Cobb's back yard; as indicated, these shells were admitted into evidence on the trial of the case.

It is Cobb's contention that the arrest was made without probable cause; that the shells found by Dunton were the result of a search and that the search was unlawful because not incident to a legal arrest. Respondent contends that there was probable cause to arrest Cobb, and also that the actions of Dunton did not constitute a 'search' in the Constitutional sense because the shells were in plain view and Officer Dunton had a right to be where he was and to pick up what was seen by him to be lying on the open ground.

Prior to the arrest of appellant Sheriff Quade and other officers conducted an investigation of the homicide. An autopsy on the body of the deceased was performed and on Saturday morning, March 15, 1969, the pathologist informed the sheriff that the deceased died from .22 and .25 caliber bullet wounds. The sheriff knew that there had been .22 and .25 caliber shell casings found near the body of the deceased. He had been told that Cobb and Stancliff were seen very near the scene of the crime in Cobb's car during the time within which the robbery and homicide occurred, and had been told that Cobb had been in recent possession of the same type of weapons that had been used to kill the deceased. Additionally, Shirley Stancliff, the former wife of Lucky Vance Stancliff, was interviewed by officers about noon on Saturday, March 15, 1969. The details of what she told the officers at that time do not appear in the transcript of the hearing on the motion to suppress. However, appellant filed in this Court and in this cause a portion of the transcript of the Stancliff trial in connection with another point Cobb makes on this appeal. That transcript makes it clear that Shirley was questioned on Saturday, March 15, 1969, with reference to her seeing and being with Stancliff and Cobb around midnight on March 14, 1969, and shortly after midnight into the morning of March 15, 1969, and that she told the officers that Cobb and Stancliff were at the intersection of I--44 and Route O around 12:45 AM on March 15, 1969.

The foregoing information was in possession of Sheriff Quade when, at about 7:30 PM on Saturday, March 15, 1969, he decided to arrest Cobb and Stancliff. He directed other officers to arrest Cobb while he and other officers arrested Stancliff. This information constituted a sufficient probable cause basis to arrest Cobb. That is not, however, the only basis for holding that the shells found by Dunton were properly admitted into evidence.

As stated, supra, the evidence shows that the shells found by Dunton were lying on the open ground and some of them were seen by him before he ever went into the house. Had it not been at nighttime, the shells would have been clearly visible to anyone on the premises. The use of a flashlight to see that which would be in plain view in the daytime does not convert that which would not be a search in daylight into a search in the Constitutional sense, at nighttime. United States v. Callahan, D.Minn., 256 F.Supp. 739, 745; United States v. Wright, 146 U.S.App.D.C. 126, 449 F.2d 1355.

The shells found by Dunton were not the basis for the arrest. The officers knew a homicide had been committed and Cobb's name appeared prominently as a likely suspect. The officers had a duty to continue with their investigation of the homicide and at least had a right to seek an interview with Cobb, and to go upon his premises to do so. State v. Gott, Mo., 456 S.W.2d 38. Cobb had a right to speak or not speak as he chose. The officers had a right to take reasonable precautions while on Cobb's premises to prevent Cobb's possible escape as well as for their own protection. To this end Dunton and others were stationed outside the house near Cobb's rear door. "a police officer entering upon land in performance of his lawful duty is a licensee * * * the license being conferred by law." State v. Gott, supra; State v. Tarantola, Mo., 461 S.W.2d 848, 851.

In State v. Tarantola, supra, officers, lawfully on defendant's premises and in defendant's back yard, observed certain items in plain view in defendant's back yard and took possession of them. This Court held that such did not constitute a 'search' in a constitutional sense, citing Davis v. United States, 9 Cir., 327 F.2d 301; United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; and State v. Hawkins, Mo., 240 S.W.2d 688.

The Court is entirely cognizant of the fact that the officers in the instant case went to Cobb's house to arrest him rather than to interview him, and further that the officers described their conduct in looking for and finding the shells as a 'search'. Nevertheless, whether or not the conduct of Dunton was or was not a 'search,' as that term is used in the applicable portions of the United States and Missouri Constitutions, must be viewed objectively and not exclusively on what the officers characterized their actions to be.

The Court holds that Officer Dunton was lawfully on the appellant's premises and his actions in finding and taking possession of the spent shells, which were in plain view, did not constitute a 'search' in the Constitutional sense. State v. Tarantola, supra. The trial court did not err in overruling appellant's motion to suppress this evidence nor in admitting the same into evidence in the trial of this cause.

Appellant's next point is that the Court erred in...