State v. Dayton

• Decision Date: 01 March 1976
• Docket Number: No. KCD27759,KCD27759
• Citation: 535 S.W.2d 479
• Parties: STATE of Missouri, Respondent, v. Sam DAYTON, Appellant.
• Court: Missouri Court of Appeals

Page 479

535 S.W.2d 479

STATE of Missouri, Respondent, v. Sam DAYTON, Appellant.

No. KCD27759.

Missouri Court of Appeals, Kansas City District.

March 1, 1976.

Motion for Rehearing and/or to Transfer Denied March 29, 1976.

Application to Transfer Denied May 5, 1976.

Robert Beaird, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SHANGLER, Presiding Judge.

The defendant Sam Dayton was indicted on four separate counts of felony which charged that, in concert with others, he kidnapped two youths and practiced upon them the abominable and detestable crime against nature. The trial was had upon an information in lieu of indictment which was an accusation of the same offenses. The defendant was convicted on all four counts; the jury assessed punishment of ten years on each count of kidnapping and one hundred and fifty years on each count of the crime against nature. The court ordered that the sentences run concurrently.

The brother and accomplice of the defendant, Jimmy Dayton, was convicted as a principal for the same offenses. Those convictions have been reviewed in an opinion adopted concurrently (State of Missouri v. Dayton, Mo.App., 535 S.W.2d 469) where the evidence of the events is related in abundant detail. We will not duplicate that narrative but make interstitial reference when the discussion of the events and issues require.

The evidence of the State showed that Jerry Dayton and Jimmy Dayton, brothers of the defendant, and Millard Swenson, their uncle, were co-actors in the episodes of abduction and pederasty for which the defendant was convicted.

The defense was both alibi and innocence on the open-court testimony of Jerry Dayton that it was he and three others who had seized the youths and submitted them to torture and molestation.

The victims of these perversions were D.E., a boy of eleven years and his playmate, G.D., who was then seven years old. On the late afternoon of April 12, 1974, the boys had rummaged a trash bin on the parking lot of the Baltimore Bank at 31st and Main when they were accosted by two men in a blue-green automobile One of the men displayed a badge, and told the boys they were in arrest for the trespass of private property and ordered them into the rear of the car. (The older boy, D.E., identified the defendant as the front seat passenger.) Two other men were picked up and all proceeded to the Travelodge Motel (at 3240 Broadway) and entered room 210. Once there, the boys were directed to disrobe and then to shower, on the pretext that they would be required to do so anyway wwhen they were delivered to the jail. Two of the men also disrobed. D.E. was then taken from the bathroom into the bedroom, but the younger boy was made to remain in the bathroom. Once in the bedroom D.E. was made to lie on the bed, and thus prone, was gagged and blindfolded, and tethered by his wrists and ankles to the four corners of the bed. He testified that five separate acts of anal penetration followed, the first four by men of different weights who lay upon him in succession, and the fifth by a hard, irregular object which hurt him. (The latter reference was to the dildo, an artificial priapus of exaggerated size the boy had seen strapped on Jimmy Dayton after the event.) This last penetration caused the boy to scream and induced a defecation and bleeding which covered the bedpad. He was also shocked and hurt by means of an electric cattle prod. At the conclusion of these molestations, the blindfold, gag and ties were removed from the boy.

The boys were once again separated; D.E. was sent to the bathroom to wash, and his younger companion was taken into the bedroom out of his sight.

The younger boy testified that he was forced to take into his mouth the penis of each of two men; then was bound to the bed in the same manner as was D.E., and was subjected to rectal sodomy. He, too, was shocked with the prod.

The boys both testified that the defendant Sam Dayton was present while these assaults of sodomy were committed.

The boys were then taken by automobile to a nearby dairy, warned not to tell of these events, and released.

Once home, the younger boy related what had happened to his mother who called the police. The boys were taken by the authorities to the Childrens Mercy Hospital, where examination of D.E. revealed a rectal tear and sperm in the rectal area. The examination of G.D. by Dr. Gialde found no evidence of sodomy to the younge boy. The report also disclosed that on specific and direct questioning G.D. denied any fellatio or anal penetration.

Following medical examination, D.E. led Officer Meadows and Detective Gowin to Room 210 of the motel. One of the occupants opened the door clad in his undergarments; Gowin identified himself as a police officer and informed the man and other occupants that they were in arrest. The officers then entered the room and found all four, defendant Sam Dayton, his brothers Jimmy and Jerry, and their uncle Millard Swenson.

Once inside, the officers observed and seized some tape lying in a trash can in the bedroom. Officer Gowin entered the bathroom and under the lavatory found a white bedpad, which was also seized. As the four were conducted to the patrol wagon, one of the suspects requested his jacket in the automobile. The officer accompanied the suspect to the car, unlocked the door with the key from the suspect, and removed the jacket. Lying under the jacket was a black case similar to the kind police officers carry. He opened it and found a badge with the inscription: Special Policy, Maryland.

Sometime after midnight, a line-up was conducted in which the four suspects were displayed with two other men. A photograph of the lineup was taken. The photograph, police badge and bedpad were all received in evidence.

The bedpad, tape and other paraphernalia taken from the motel room were subjected to laboratory analysis, as well as certain hair samples found on the bedpad. These filaments were compared to cranial hair taken from the defendant Sam Dayton and one of them was found to fall within the range of variance of the sample taken from the defendant.

The defendant, by separate motions before trial, sought the suppression of the line-up identification, of certain evidence, and for a declaration that the boys were incompetent to give testimony. The motions were heard on evidence and were denied.

The defendant gave evidence of alibi by three witnesses (the substance of which is reported in the companion opinion) and from the brother of the defendant (also accused), Jerry Dayton. This brother testified that he and three other acquaintances had actually committed the offenses charged against the defendant. ¹ The witness admitted on cross-examination, to an affliction from cancer but denied that his testimony was prompted by a condition in extremis.

The defendant Sam Dayton also gave testimony which denied guilt. He testified that he spent all the time in question at the home of one Geraldine Tyler, a narrative which was supported in varying measure by the alibi witnesses Thomas Raye, Edna Sue Hogan and Geraldine Tyler, herself.

The first assertion on this appeal is that the bedpad (as well as the hair samples detected in that accoutrement) taken from the motel bathroom without authority of formal warrant or incident to a lawful arrest were the fruits of an unreasonable search and seizure in violation of constitutional provisions and should have been suppressed at the trial. The defendant does not contend want of probable cause for his custody or that the arrest itself was not validly executed, but only that the search of the bathroom exceeded the permissible scope of a search incident to arrest defined in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The State contends, rather, that a police officer may inspect areas close by the site of arrest from which a weapon may be obtained and that Officer Gowin was in the course of such a protective sweep when he inadvertently came upon the bedpad in plain view under the lavatory in the motel bathroom.

The Fourth Amendment requires that governmental searches be conducted under the authority of a valid search warrant or under circumstances which show the reasonableness of a warrantless search. Thus, warrantless searches are exceptions, not the rule. One such exception is a search incident to a lawful arrest. This exception rests on the reasonable expectation of a police officer that an arrestee will use any weapon he may have to make escape and that he will attempt to destroy any incriminating evidence in his possession. Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court narrowed the permissible scope of search incident to arrest to include the person of the arrestee and (l.c. 763, 89 S.Ct. l.c. 2040) 'the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence'. This essential holding of Chimel (where the search was of the home premises of the accused where he was arrested) has been understood by our Supreme Court to mean that 'the arrest of a person at home (does) not justify a routine search'. State v. Wiley, 522 S.W.2d 281, 291(18) (Mo. banc 1975). It is plain then, that in the absence of anything more, the incursion by Officer Gowin into the motel bathroom was not justified as a search incident to the arrest of the defendant.

It is clear, nonetheless, that Chimel concerns the safety of the police officer in the conduct of an arrest. Accordingly, a rule of law has evolved which allows a police officer who makes an arrest in a dwelling place--as a self-protection from immediate danger--to make a cursory...