State v. Fox
| Decision Date | 04 June 1974 |
| Docket Number | No. 35365,35365 |
| Citation | 510 S.W.2d 832 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Willie FOX, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Howard Schainker, Asst. Public Defender, Clayton, for defendant-appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, William F. Arnet, Asst. Attys. Gen., Jefferson City, Gene McNary, Pros. Atty., Eugene H. Fahrenkrog, Jr., Asst. Pros. Atty., Clayton, for plaintiff-respondent.
Defendant-appellant, Willie Fox, was found guilty by a jury and sentenced by the court under the Habitual Criminal Act to five years in the Missouri Department of Corrections for the offense of operating a motor vehicle without the owner's consent. § 560.175, RSMo, V.A.M.S. He appeals.
Taking the evidence most favorably to the State, the jury could reasonably have found that the Tree of Lights Holy Missionary Baptist Church, located at 4060 Easton Avenue in St. Louis was the title holder of a white, four door, 1964 Plymouth automobile which was used exclusively by and in the custody of Reverend George H. Grey, the church's paster. Reverend Grey, who had been affiliated with the church for some three years, had used the automobile on November 3, 1972. On that date he and his invalid wife went fishing at Chain of Rocks Bridge and returned to his home at 4054 Kennerly Avenue in St. Louis at about 9:30 p.m. He parked 'his' car in front of his home, took the keys out of the ignition, unlocked his house door, went back to assist his wife, and went into his home. He either left his key ring containing the car and house keys in the door or he may have lost them at some point. In any event, shortly after entering his home, he was talking on the telephone to a friend about his fishing trip, heard his dog barking and 'got up to see what was wrong; when I went to the front window the car was gone.' This was about 9:30 or 10:00 p.m. on November 3, 1972. Reverend Grey testified he did not give anyone permission to drive his automobile, did not know the defendant, Willie Fox, and did not have his car returned until November 8, 1972. In his glove compartment he had a duplicate of his license and a receipt for some car repairs with his name on both, which were later found at the time the car was returned, on the front seat of the automobile.
The scene then shifts to the early morning hours of November 8, 1972. At about 1:30 a.m. Sergeant Ward Frederick Stoll of the Berkeley Police Department, while on duty and checking an abandoned automobile parked on the shoulder of Highway I--70, noticed a 1964 white, 4-door Plymouth going west, exceeding the speed limit. It was traveling seventy miles an hour in a fifty-five mile zone. Sergeant Stoll turned on his red lights and pulled the vehicle off at the exit near the airport. The vehicle contained one occupant--Willie Fox. The vehicle had license plates CE 7140. He approached the vehicle and checked the trunk locks, the number of persons in it, and checked to see if the ignition had been 'punched out.' He found nothing wrong as to any of these items. He requested a driver's license, and Mr. Fox handed him 'an application for a duplicate operator's license,' which was dated three years earlier, August, 1969. The Sergeant asked for his valid operator's license, and Fox replied he did not have one. Sergeant Stoll then radioed the dispatcher to check on an operator's license, but the result showed that a person by that name never had an operator's license in Missouri. He then advised Fox under standard procedure that he 'would have to place him under arrest for operating a motor vehicle with no operator's license.' He requested Fox to 'get out' of the vehicle, patted him down, and went with Fox back to the police car; before doing so, he took the key out of the ignition and requested a 'license check' on the license plate on the vehicle. The information 'came back as stolen, the vehicle bearing that license number; the license number was given, description of vehicle and location where it was stolen from (4000 block of Kennerly), and the date.' Then Sergeant Stoll 'charged Mr. Fox with auto theft, fugitive, St. Louis City, and operating a motor vehicle without owner's consent, St. Louis County.'
After giving the Miranda warnings, Sergeant Stoll questioned the defendant as to whether he would 'like to tell me where he got the car.' Fox replied that 'he had gotten the car from a fellow down in the City.' The Sergeant asked if he knew the man's name and, according to the Sergeant, he understood Fox to say the name 'Isaiah Johnson.' Fox stated he had known Johnson a couple of days, that he got the keys from Johnson, and that he had 'just gotten it that night' and that he was out 'just for a ride out by the airport.' On the front seat of the car at this time were a driver's license change of address stub and a receipt for repair work both in the name of Reverend George H. Grey. Fox was then conveyed to the Berkeley Police station and the vehicle was towed to an impound area. Later, Sergeant Stoll checked the St. Louis City and County arrest records and the phone book to locate one 'Isaiah' Johnson, and could not locate a person by that name. On cross-examination, defense counsel brought out that the defendant might have said that he received the vehicle from 'Ezell' Johnson, but the officer stated that he understood him to say 'Isaiah' Johnson, although he admitted he could have aid 'Ezell.' He did not look for the name 'Ezell' Johnson.
The defendant's defense consisted of the testimony of his twenty-one year old sister, Flossie Fox. She testified that a few days before November 7, probably November 4, 1972, 'Ezell' Johnson, a friend of her brother's, came to her home where she, her older sister, and Willie lived 'off and on' and asked her if she wanted to buy a "64 Plymouth and I (Flossie) asked him was it his car; he said yeah and that he would bring it by for me to see it.' At that time Willie was in the apartment. On November 7, 'Ezell' returned and 'That is when he brought the car . . . over to the house and he gave my brother the keys for him to try the car out, you know, and he said he would call the next day, you know, to see whether I wanted to buy the car or not.' The price of the car was $50.00. She admitted, however, that she did not have a driver's license and never owned a car before.
At the close of the State's case and again at the close of all the evidence, counsel for the defendant Fox moved for judgment of acquittal. The motions were overruled.
The trial court instructed the jury and gave certain instructions including Instructions No. 1 1, 2 2, and 3. 3
During his opening statement, the prosecuting attorney stated that Sergeant Stoll will 'tell you at that time that he placed the Defendant Willie Fox under arrest for suspect stealing a motor vehicle and various other charges, and, of course, let me tell you now that he is not on trial for these other charges.'
And during the prosecutor's final argument, he stated that 'there is no Ezell Johnson;' that between November (the day defendant was arrested) and 'today' (February, 1973), 'Do you think they (Willie and Flossie) have not talked the case over and sat down and got the stories straight?' He also argued that
The jury returned a verdict of guilty, motion for new trial was overruled, allocution granted and defendant sentenced to a period of five years in the Department of Corrections.
On this appeal defendant makes four points: the court erred (1) in failing to properly instruct on defendant's theory of the case and thereby improperly shifted the burden of proof (to defendant); (2) in allowing the prosecutor in his opening statement to comment on other crimes, which was 'compounded' by the testimony of Officer Stoll when he testified, over objection, to running a record check on defendant's driver's license, and that he arrested defendant on 'various other charges' 4 and that he testified to hearsay information relating to other charges pending against defendant; (3) in allowing hearsay testimony by 'a state's witness' 5 and 'Improper closing argument by the prosecutor concerning the nonexistence of a potential witness, over defendant's objections and motions for mistrial,' and (4) in overruling defendant's continuing objections and in refusing to declare a mistrial as to the prosecutor's series of statements in his argument concerning defendant's 'character and upbringing' which were outside the record, inflammatory, prejudicial and calculated to appeal to the passions and prejudices of the jury.
As to appellant's first point--that the court 'failed to properly instruct on defendant's theory of the case and thereby improperly shifted the burden of proof (to defendant),' he argues that the court attempted to instruct on defendant's theory of the case, but 'it did so erroneously.' 'The result was that the jury received an insufficient verdict-directing instruction (Instruction No. 1) and an improper and erroneous alternative verdict-directing instruction (Instruction No. 2).' He contends that by giving Instruction No. 2 the court 'in effect excluded the essential element of intent as a part of the state's required burden of proof, and forced it (intent?) upon the defendant as an affirmative defense to prove his lack of guilty...
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