State v. Damico, 58153

• Decision Date: 22 July 1974
• Docket Number: No. 2,No. 58153,58153,2
• Citation: 513 S.W.2d 351
• Parties: STATE of Missouri, Respondent, v. Anthony Paul DAMICO, Appellant
• Court: Missouri Supreme Court

Page 351

513 S.W.2d 351

STATE of Missouri, Respondent, v. Anthony Paul DAMICO, Appellant.

No. 58153.

Supreme Court of Missouri, Division No. 2.

July 22, 1974.

Motion for Rehearing by Supreme Court En Banc Denied Sept. 9, 1974.

John C. Danforth, Atty. Gen., Karen Iverson, Asst. Atty. Gen., Jefferson City, for respondent.

Daniel V. O'Brien, St. Louis, for appellant.

HOUSER, Commissioner.

Anthony Paul Damico was charged in Count I with murder in the first degree and in Count II with robbery. At the close of the evidence the court directed a judgment of acquittal as to Count II. Count I was submitted to the jury, which found Damico guilty of murder in the first degree. Sentenced to life imprisonment, he appealed. This Court has jurisdiction under its order of April 9, 1973.

The corpus delicti, i.e., the death of a human being by the criminal agency of someone and not by suicide, is not contested and is conclusively established.

Facts from which the jury could find beyond a reasonable doubt that the deceased Sally Lucas died by the criminal agency of appellant are established by the following circumstantial evidence: At approximately 7:30 p.m. on August 16, 1971 Lawrence Lucas, a resident of Town and Country, a municipality in St. Louis County, reported to Missouri State Highway Patrol that his wife Sally was missing. That morning Sally Lucas, accompanied by her 13-year-old daughter Susan and Susan's friend Barbara Willbrand, drove her light green 1969 Pontiac Bonneville convertible to Medsker's Stables off Wild Horse Creek Road in west St. Louis County, where Susan's horse was stabled. The girls were delivered to the stables at approximately 11 a.m. The understanding was that Sally Lucas would return for the girls at 3 or 3:30 p.m. From the stables Sally Lucas drove to the home of her friend Sharon Harding, arriving there at 11:45 a.m. Sally Lucas' hair was 'frosted' and she was wearing a white culotte skirt and a light beige or light-colored print shirt or blouse and brown strap sandals. She was also wearing a diamond pendant necklace, a Christmas gift from her husband, her wedding ring and an antique ring. She departed from Mrs. Harding's home a few minutes before 1 p.m. Barbara's brother Larry was working at a filling station at Ballas and Clayton Roads that day. He knew Mrs. Lucas and was acquainted with her Pontiac automobile. Between 12:30 and 1:30 p.m. Larry saw Mrs. Lucas driving the Pontiac on Clayton Road toward the West County Shopping Center. At approximately 2:30 p.m., using a credit card, Mrs. Lucas purchased a tennis dress from saleslady Nora Slinkard at Famous-Barr store in that shopping center. The saleslady noticed that Mrs. Lucas' hair was 'frosted' and she was wearing a light-colored outfit, sportswear type, with a 'scooter' skirt, sandals, carrying a straw type bag. Mrs. Lucas seemed like she was in a hurry but did not act ill at ease; she was 'very nice.' Mrs. Annette Portnoy, called as a witness for appellant, testified that she did some shopping at the shopping center at 2:40 or 2:45 p.m.; that as she entered the parking lot, and as she left it, she saw a man, fitting the description of appellant, in front of the shopping center; that her automobile was parked two spaces away from a light green Bonneville model Pontiac; that as she started to leave and as she walked toward her car the man seemed to be following her, but after she entered her car and looked around he was nowhere in sight; that as she was backing her car out she saw a woman fitting the description of Sally Lucas coming up the same aisle beside her; that as Mrs. Portnoy was leaving the parking lot she followed the light green Pontiac, driven by the woman described. The top was down on the Pontiac. Although she saw no other person in the Pontiac she thought the man who had been following her was in the Pontiac. She saw a pair of eyes constantly watching her through the rear-vision mirror as if to say, 'I'm in trouble; help me.' The woman appeared to be in need of help; seemed to be asking for assistance. The Pontiac was traveling slowly, almost at a snail's pace. Finally Mrs. Portnoy passed the Pontiac, just west of the intersection of Highway 244 and Manchester Road.

Lawrence H. Lucas, husband of the victim, arrived at home at approximately 3 p.m. He did not expect to find anyone home at that time, thinking that his wife was scheduled to pick up their daughter Susan and friend Barbara at the stables on Wild Horse Creek Road at 4:30 p.m. At 5 p.m. Mr. Lucas, concerned, called the stables, and learned that his wife had not yet appeared there. He then called several of Susan's girl friends, following which he drove out to the stables and picked up Susan and Barbara. At about 7:30 p.m. he filed Sally Lucas as a missing person with the authorities.

At 3:50 p.m. Vernon Storie, driving home from work, traveling on Wild Horse Creek Road at a point 400 feet past Long Road, came up behind a light green Pontiac, traveling slowly, about 35 or 40 m.p.h. The top was up. He followed the Pontiac for a mile and a half. As he passed it he observed that it was being driven by a woman in her late twenties or early thirties. She had frosted hair and there was a man in the car with her. All he could see of the man was his arm and from his neck down. Storie did not get a look at the man's face but he was 'fairly good sized.' After the highway patrol recovered the Lucas automobile Storie identified it at patrol headquarters as the same automobile he saw being driven by the woman on Wild Horse Creek Road.

Around 4:30 p.m. two sisters, Dorothy Baumgras and Dora Adams, driving on Wild Horse Creek Road in the vicinity of the Poehlman Road intersection, observed a 1969 or 1970 green Pontiac Bonneville convertible parked about 2 feet off the road. Mrs. Baumgras observed a heavy set white male standing near the partly open door of the car, with one hand on the door and the other 'hooked down to the side,' apparently urinating. Driving at 5 m.p.h. they passed within 2 feet of the man. He was dark-haried, stout, fat, had a dirty face and wore a dirty white T-shirt. At the trial neither of the sisters could positively identify appellant as the man they saw on the road. One of them said appellant 'looks like him' but she was not sure.

Shortly after 5 p.m. a Sony portable radio wad purchased at Central Hardware Store, St. Charles, Missouri, with a credit card issued to Lucas Sheet Metal Company, a concern owned by Lawrence Lucas. The signature on the charge slip was 'Lawrence Lucas.' Mr. Lucas testified that he did not sign the slip. A handwriting expert testified that it was not the signature of Lawrence Lucas or Sally Lucas; that it was 'inconclusive' whether it was executed by appellant. Appellant, however, made a statement in which he admitted making the purchase of the radio. The address given the salesman was 10306 Lackland, which was the address of the house in which appellant was born.

At approximately 9 p.m. on August 16 appellant appeared at the Mini-Steak House on Highway 50 in California, Missouri. There he had a talk with the owner of the establishment, Art Buschmann, an old friend, and was introduced to one C. D. Pipes. At that time appellant was driving a 1969 green Pontiac Bonneville convertible. He was wearing a dark T-shirt with a slit in the sleeve; light blue trousers and a polka-dot Campbell Soup hat. He was unshaven and soiled. Pipes asked appellant if he had been in a street fight, to which he responded, 'Worse than that.' Appellant told Buschmann that he needed 'some road money.' Buschmann told appellant that he did not have much money and could not help him. Appellant took three pieces of jewelry (identified as the two rings and diamond pendant of Sally Lucas) out of a brown paper, and offered them to Buschmann, who expressed no interest in ladies' jewelry. Appellant repeated that he needed road money and said, 'We done something in St. Louis this afternoon that we might have got seen at.' After further conversation Buschmann said he would rake up $50 if that would help. Appellant countered with an offer of $60 for the jewelry. Buschmann took $60 out of the cash register and handed it to appellant, who took a book of matches on which the name and telephone number of the restaurant were printed, saying, 'Art, I'll probably be gone for about six months. When I cool off I'll give you a ring.' Buschmann placed the jewelry in the cash register. The next day he showed it to Pipes. Buschmann later sold the jewelry to a man in Eldon, who in turn resold it. Upon payment of $2,250 the jewelry was recovered and it was identified and introduced in evidence.

On August 17, 1971 appellant checked in the Belmar Motel at Biloxi, Mississippi, where he stayed for two days, departing without paying the bill.

During the trial the following evidence was introduced on appellant's motion to suppress evidence, out of the hearing of the jury: On August 27, 1971, at approximately 4 a.m., Charles Buckley, an officer of the Panama City Beach, Florida, Police Department, on routine patrol around Wayside Park in that city, observed a 1969 green Pontiac convertible lawfully parked with several other vehicles. Buckley took down license plate numbers and dispatched them to the National Crime Information Computer. In a few minutes there was a return on the license plates belonging to the Pontiac convertible. Buckley returned to the station to decipher the N.C.I.C. message, leaving another officer to continue surveillance of the Pontiac. At the station Buckley ascertained that there was a Missing Person alert, 'foul play feared,' on Sally Lucas, white female, born 11--1--1934, height 5 5 , weight 105, hair brown, giving her driver's license number. The report also gave the license tag number and vehicle identification number of '69 PONT BON CV GRN.' Buckley returned to the park, investigated the Pontiac, found appellant asleep on the front seat,...