State v. Fields

• Decision Date: 12 November 1968
• Docket Number: No. 53771,No. 2,53771,2
• Citation: 434 S.W.2d 507
• Parties: STATE of Missouri, Respondent, v. James Marvin FIELDS, Appellant
• Court: Missouri Supreme Court

Page 507

434 S.W.2d 507

STATE of Missouri, Respondent, v. James Marvin FIELDS, Appellant.

No. 53771.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1968.

Rehearing Denied Dec. 9, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Anthony J. Sestric, Special Asst. Atty. Gen., St. Louis, for respondent.

Meredith B. Turner, Donald R. Duncan, Springfield, for appellant.

EAGER, Judge.

Defendant was charged by information and convicted by a jury of the armed robbery of a service station located on the north edge of Springfield. Since defendant was charged also with a conviction and sentence for a prior felony and imprisonment therefor and stipulated to the truth of that charge, the Court fixed the penalty and sentenced defendant to a term of ten years. This appeal followed in due course. Defendant was exceedingly well represented at the trial and here by appointed counsel, one at trial and two others here. The sufficiency of the evidence is not challenged, but the points made concerning the admission of evidence necessitate a detailed review of the evidence.

The following facts could reasonably have been found by the jury. Robert Utt and Clyde McBee were the attendants in charge of a Hudson Oil Company filling station on the evening of July 4, 1967; it was located on the east side of Highway 13, just inside the north city limits of Springfield. Utt looked out the rather large south window and saw a man, 5 or 6 feet away, holding a large caliber automatic pistol, pointed at him; the man's face was partly concealed by a black hat and a black veil; the man said 'This is a holdup,' and told them to bring him the money and 'come around' outside; the employees did go out, taking about $80 or $81 with them, and the man instructed them to lay it on the walk, which they did; the robber then said 'that's far enough' and he picked up the money; he instructed them to travel in a certain direction across a fence and to keep going; after they crossed the fence McBee looked back, and they immediately heard what sounded like a shot; McBee dropped to the ground, but they then proceeded on, circled back and called 'the law.' When the officers arrived, they found a woman's black hat with a veil lying on the gross outside the station. At the trial Utt identified an exhibit as that hat; he described in part defendant's attire as a jacket which looked somewhat 'purplish' uder the fluorescent lights, and dark 'loafers' with a white substance on them. This witness also testified that when defendant was brought to the station a little later his height and build compared favorably with those of the robber, that he had on the same type of shoes with white paint on them, and that the coat which the officers brought in separately was similar to the one which the man wore. He testified that the station's money was short between $81 and $82 after the robbery. Utt did not positively identify defendant as the robber.

Sheriff's deputies and city policemen answered the call. The time was about 11:00 p.m. One deputy sheriff decided to travel north and another south from the station to investigate; while Officer Wester was stopped about 200 yards north of the station (to investigate a car parked in a driveway on the west) he saw a man coming up out of a rather deep ditch on the east side of the road; in answer to an inquiry as to where he had been (the officer knew him) the man said that he had been 'watching the fireworks.' This man was the defendant. He was taken back to the station, after the officer read to him the 'Miranda' warnings. A man's blue coat was found by the officers along the shoulder of the road about a quarter of a mile north of the station; this coat had $81 in a pocket. Defendant's shoes were given to Deputy Hughes who came with the bloodhound 'Sue.' The shoes had white paint on them. The officers showed Hughes where the cost had been found.

Deputy Sheriff Hughes testified: that he was in charge of the 'canine patrol' which consisted of four bloodhounds, six German Shepherds and one Doberman Pinscher; that he had been in that work for two and one-half years; that the blood-hounds are worked 'on trail' about once a week, and that he generally worked with 'Sue,' a female 'registered' bloodhound; that she had been used 'for tracking purposes' previously, probably 30 or 35 times, and that he, personally, had worked with her for two years and a half on approximately eight or ten actual trackings or 'regular catches,' and on perhaps five where Sue was used alone. He related specifically two trackings where Sue had located the 'subjects' after tracking for two and one-half and eighteen miles, respectively. He further testified: that on many (30--35) other occasions Sue had been rotated in a team of two dogs; that their total successes had been 41 out of 44 trackings, in that the person or persons whose scent was being followed had been found. Many of these were escapees, where clothing of the 'subject' was presented to the dog. When the dog finds the person sought, it walks 'right directly up to him' and then quits tracking.

On this occasion Hughes took Sue out of his car 300 or 400 yards north of the station; he gave her the scent from defendant's shoes, perhaps a little nearer the station; she proceeded along the east shoulder of the highway, but did not 'take track' until she reached a point perhaps 150 feet north of the station; thence she trailed up the ditch to the station, 'messed around' there for a while, came back along the ditch a little farther east, went over in the brush and came back out to the highway at a point where there were three mailboxes, then back up the ditch and across the highway to where a wrecker and a car were standing. Hughes could not get her to trail farther. The jury could well have found that this was the point where defendant had been put in the police car. The dog did not confront the defendant, for he had already been taken away. The other officers had advised Hughes that the spot where the mailboxes were was the place where the coat was found; the dog trailed to that point.

Defendant was given a nitrate test, often described as a paraffin test, by Detective Dan McGuire of the Springfield police. When McGuire suggested this to defendant, the latter said that his lawyer had advised him not to 'make any tests,' but said almost immediately in answer to a question: 'I don't care if you do six.' The tests and the results were described in detail. Melted wax, when sufficiently cooled, was applied to both hands, like casts, and this was then removed; a 'nitrate reagent,' dipenylbencidine and sulphuric acid, was then applied to the wax; there was no reaction from the left hand, but from the right 'a moderately heavy concentration of nitrate' was disclosed, 'mostly on the back of the index finger and thumb and the web back to about the wrist here.' The presence of nitrate causes a blue color when the reagent is applied. McGuire then washed the cast where the reaction had been shown and examined it under a microscope; he observed unburned particles of smokeless powder such as is now universally used in ammunition for firearms. In describing the test the witness further testified: that the test was made about 2:45 a.m. on July 5, 1967; that the presence of nitrate may usually be noted for about three days; that when a gun is fired unburned powder and air rush back to fill a vacuum, and the powder becomes embedded in the pores of the skin; the warm wax opens the pores and releases the powder. This witness had made the test at least 200 times; he testified that while the presence of two or three other nitrates (specifically, fertilizer and old-style kitchen matches) might show a nitrate reaction from the reagent, nothing else would have the appearance of smokeless powder under the miscroscope; that black powder is used in fireworks but not in modern firearms; he stated that there was 'quite a bit' of nitrate concentration in this case; he had preserved the casts and the powder residue.

Upon arraignment, with counsel, defendant plead not guilty and his constitutional rights were explained; he had previously requested in writing of the prosecutor that he be given a 'lie detector' test, and conferences had been held on that subject. On the day of the arraignment, in open court, defendant, his counsel, and the Assistant Prosecutor executed a stipulation which was filed and approved by the Court. After reciting defendant's request (which asked also that he be released if thus found 'not guilty') and the discussions between counsel, the stipulation provided in substance: that a polygraph should be given to defendant by Sgt. Joe Duncan of the Missouri, Highway Patrol; that defendant waived 'absolutely and irrevocably each and every objection to the use in evidence by the prosecution of the results of said test,' and he specifically agreed that Sgt. Duncan should be permitted to testify without objection 'about the test and its results,' including a description of the test, the questions and answers asked and given, defendant's responses as recorded, and Sgt. Duncan's conclusions drawn from the test,' including the issue of 'whether defendant's answers were truthful or not'; in the stipulation defendant expressly waived all objections to the 'relevancy, materiality, competency, accuracy, constitutionality, reliability' and all other objections that could be made to such evidence. (Italics ours.) The stipulation then contained another and specific waiver of sundry listed constitutional rights and protections for the purposes set out in the stipulation. The stipulation also listed certain questions which defendant agreed to answer, among others; the listed questions specifically concerned the robbery of the service station; it was finally stipulated that if Sgt. Duncan concluded that defendant's answers were truthful and that he was not guilty, the Assistant Prosecutor would ask leave to nolle...