State v. Cuckovich

• Decision Date: 11 September 1972
• Docket Number: Nos. 56770,56771,s. 56770
• Citation: 485 S.W.2d 16
• Parties: STATE of Missouri, Respondent, v. Charles Stoyan CUCKOVICH, Appellant.
• Court: Missouri Supreme Court

Page 16

485 S.W.2d 16

STATE of Missouri, Respondent, v. Charles Stoyan CUCKOVICH, Appellant.

Nos. 56770, 56771.

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.

Larry O. Denny, Kansas City, for appellant; Darragh Kasakoff, Kansas City, of counsel.

HOLMAN, Judge.

Defendant, Charles Stoyan Cuckovich, was indicted on two charges of first degree murder. He was alleged to have shot and killed James William Lindsay and James Richard Lindsay. Upon motion of defendant the two cases were consolidated. A jury trial resulted in a verdict of guilty on each charge and the death penalty was assessed. See §§ 559.010 and 559.030. ¹ Defendant has appealed.

The evidence adduced supports a finding of the following facts: James Richard Lindsay and his wife Jackie lived in a mobile home located on property adjacent to the home of his father, James William Lindsay. We will hereinafter refer to the son as Richard, and the father as William.

At about 8 p.m. on January 8, 1970, Richard and Jackie were in the bedroom of their mobile home watching television. According to the testimony of Jackie, she heard a noise like metal against metal and some clicking and saw a man (later identified as defendant) enter a normally unused door of their trailer, which was always kept locked. He looked into a dark bathroom and then turned and walked toward the bedroom. She stated that there were lights on in the kitchen and a light in the living room; that her husband then went toward the intruder and said, 'What are you doing here, what do you want', and then Richard 'jumped him'; that she then yelled, 'Get the gun, get the gun,' and at that time two more men ran in the door; that they were down on the floor and one man was standing there with a gun pointed to the floor; that about that time she jumped out the door and ran to her father-in-law's house; that as she was running to the house she heard a shot; that she pushed in the door of her father-in-law's house and told what was occurring and her father-in-law and Gerald, another son, ran out towards the trailer. She stated that defendant was a white man 50 to 55 years old, and gray hair, and wore dark glasses; that she was shown various photographs by the police but did not identify anyone from them; that after defendant was arrested and in custody she saw his picture on television and identified him as the man who first entered the trailer. She also identified him in the courtroom.

Gerald Lindsay testified that after Jackie came to their home screaming as to what was occurring in the trailer he followed his dad out the door, at which time they heard a shot; that his dad told him to get a gun and on the way back to the house to get the gun he heard another shot; that he obtained a 20-gauge shotgun and as he came back he heard someone crossing the fence behind Mr. Parker's house; that he saw two people going up Parker's drive and fired three shots at them; that he then went back and found that his father and brother were dead. Reuben Parker, a next-door neighbor, testified that he heard the shots and then saw three men walking past in his driveway; that he asked them what had happened and they said 'Nothing'; that about that time Gerald fired three shots and shortly thereafter he heard a car door shut and a motor speed up as if it were sitting there idling but he didn't see the car; that he didn't see the faces of any of the men well enough to recognize them.

It appears from the testimony of Andrew Hansen, his wife Marjorie, and his son Paul that they lived 'catercornered' across the street from the Lindsays; that on the night of the killings, at a time estimated at around eight o'clock, two men banged on their back door and one of them said, 'We have been in a bad accident. My friend's hurt bad, we have got to get him to a hospital'; that Mrs. Hansen then aroused her husband who was asleep and he got dressed; that the Hansens later identified the two men as defendant and Mr. Booth, who was also arrested and tried for these murders. There was testimony that defendant, while at the Hansen home, was dripping blood from his hands and was given paper toweling to wipe off the blood; that Andrew Hansen agreed to transport the two men in the Hansen car. Andrew testified that when they got to his garage he noticed two police cars down the street and suggested that the men get the police to take them to the hospital; that Booth then pulled him behind a tree and exhibited a gun and said, 'Get us out of here or I'll kill you'; that he drove the men to Holmes Street where he was ordered to stop; that when he got out of the car one of the men took the keys and the two men then drove off in his car. The abandoned car was thereafter recovered. As will hereinafter more fully appear, all of the Hansens, prior to defendant's arrest, tentatively identified defendant as being one of the men who came to their home on the occasion in question. Later they positively identified him in a lineup and also at the trial.

Defendant was arrested on April 5, 1970. The police had learned that defendant was staying at the apartment of his wife who was also known as Virginia Cook. They went to the door of the apartment and identified themselves and were admitted by Virginia. They found defendant in the bedroom and arrested him; they then noticed a .38 caliber pistol on a dresser three to five feet away from defendant. They seized the gun and also a pair of glasses. As indicated, defendant was placed in a lineup the next day and was identified by a number of witnesses. There was also testimony that defendant had type A blood, and that blood on the paper toweling used in the Hansen home, and on a tissue found where defendant was sitting in the Hansen automobile, were found to be type A blood. Fingerprint technicians were unable to find any fingerprints that matched those of either defendant or Booth.

Defendant offered no evidence.

The first point briefed is that 'the court erred in admitting evidence obtained by the warrantless arrest, search, seizure and exhibition of appellant in a lineup in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States.' Both sides agree that defendant cannot prevail on this contention if the arrest of defendant was valid. Since there was no warrant the validity of the arrest depends upon the existence of probable cause. Defendant has briefed this point upon the theory that the evidence adduced on the hearing of the motion to suppress did not disclose any basis for the officers to have had probable cause for the arrest. As will hereinafter appear, we do not agree.

"The existence of probable cause for an arrest must necessarily depend upon the facts of each particular case. 'The existence of 'probable cause', justify an arrest without a warrant, is determined by factual and practical consideration of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.' 5 Am.Jur.2d, Arrest, § 48, p. 740.' State v. Seymour, Mo.Sup., 438 S.W.2d 161, 163. Although the evidence need not be as substantial as that required to support a conviction, probable cause does require a reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.' State v. Pruitt, Mo.Sup., 479 S.W.2d 785, 788.

We have concluded that tht police had probable cause for arresting defendant. Four witnesses who had seen the men who committed the murders at about the time of the occurrence had given the police descriptions which, at least in a general way, matched defendant's actual appearance. Moreover, members of the Hansen family had made a tentative identification of defendant from a photograph shown them by the police. After having viewed many photographs over a period of three months they had picked out defendant's photograph as one which 'looked like' one of the men who had come to their home on the night in question. As stated, we think the evidence was sufficient to constitute probable cause and hence the trial court did not err in overruling the motion to suppress or in subsequently admitting the evidence at the trial.

Defendant's next contention is that the court erred in overruling his motion to suppress his identification by the Hansens because he was exhibited to them under suggestive circumstances in violation of the Fourteenth Amendment to the U.S. Constitution. The question thus presented is whether 'the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he (defendant) was denied due process of law.' Stovall v. Dennon, 388 U.S. 293, 301, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199. Defendant complains of the fact that Andrew Hansen was shown a group of photographs on January 10, 1970, which included one of defendant and defendant was not identified, while four months later he was shown another group with a different photograph of defendant which Hansen did tentatively identify; also, that the lineup did not contain other persons whose appearances were similar to defendant.

We have concluded that this point is without merit. We see nothing improper in the action of the police in exhibiting to a witness two different photographs of defendant, particularly since four months intervened between the exhibitions. As to the lineup it should be noted that No. 4 in the lineup was Booth, another suspect, and it was proper that some of the men should resemble him. Defendant was No. 2. The ages of the men in the lineup (in order) were 55 years, 57 years, 52 years, 40 years, 58 years, and 38 years. Their heights were 5 9 , 5 8 , 5 11 , 5 11 , 5 9 1/2 , and 6 3 . All the men were white...