State v. Gamache, 35441

• Decision Date: 07 January 1975
• Docket Number: No. 35441,35441
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph B. GAMACHE, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 34

519 S.W.2d 34

STATE of Missouri, Plaintiff-Respondent, v. Joseph B. GAMACHE, Defendant-Appellant.

No. 35441.

Missouri Court of Appeals, St. Louis District, Division Three.

Jan. 7, 1975.

Motion for Rehearing or Transfer to Supreme Court Denied Feb. 7, 1975.

John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

Charles W. Bobinette, Legal Aid Society of St. Louis, St. Louis, for defendant-appellant.

SIMEONE, Presiding Judge.

Defendant-appellant, Joseph Byron Gamache, was charged, tried and found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon, ¹ and sentenced by the court to fifteen years in the department of corrections. After an unavailing motion for new trial, he appeals. We affirm.

Since one of the critical issues raised relates to the sufficiency of the evidence, we shall review the evidence in the light most favorable to the State.

On the evening of October 6, 1972, a dark and rainy night, the Kohne's Tom-Boy Market owned by Mr. Albert Kohne and located at 4507 Morganford Avenue in the City of St. Louis, was robbed of some $260.00. Several of Mr. Kohne's young-adult children were working in the store that evening for their father. Jean Kohne, age twenty, was working at the cash register with her sister Diane, and nearby were their young brother Steve and a customer. At about 7:40 p.m. a man entered wearing a stocking mask, a light trench coat draped over his shoulders and carrying a sawed-off shot gun.

At the time Mr. Albert Kohne and his son Larry were working at the meat counter. The man pointed the gun in the direction of Jean and Diane and asked Jean to 'give him all the money,' and 'put it in a bag for him.' She opened the register and proceeded to get the money, put it in a paper bag and handed it to him. The money consisted of bills, coins and a number of rolls of coins. One of the rolls of coins (pennies) had the name of a customer 'Sandra Corn' written on it. Sandra Corn had cashed in the pennies sometime prior to this incident. During the incident, the man, later identified by numerous witnesses as Arthur Meinelt, told Mr. Kohne and Larry to 'stand still' because, "I have a gun on these girls' or something like that.' After handing him the money, the girls were told to turn around and face the other way. Meinelt then left the store. He was in the store about three to five minutes. Mr. Kohne looked out of the store and saw the man cross Morganford and walk north to Taft Avenue. Mr. Kohne followed the man; the man turned right on Taft Avenue, went down about three car lengths, got into a parked car on the passenger's side, and 'as soon as he got in the car and took off it let out a big cloud of smoke.' The getaway car was a 'low-slung two-toned car, white top and red body' with bucket seats and a console between them.

Larry Kohne called the police and within five minutes or so the police came to the market. Patrolman Louis Blerle came to the store at about 7:45 p.m., spoke to the witnesses and made a report on the robbery. He put out a description of the person wanted for the offense and spoke to at least one customer. On cross-examination by defense counsel, the officer was asked, 'Did you talk to Orlanda Duitz?' He replied he could have.

Meanwhile Officer Robert Meyers, alone in a patrol car, had received a description of the automobile involved and stationed himself at the corner of Grand and Delor Avenues. He received the description about 7:45 p.m. on the night of the robbery. He first saw the automobile two toned, red and white 1963 Thunderbird at about 7:48 p.m., driving east on Delor just a short distance west of Grand. The car turned right to go south on Grand Avenue, went to Holly Hills and turned left. The officer turned on his 'red-light'; the driver and occupant looked back, continued on at a moderate speed for several blocks and increased its speed. According to Officer Meyers' testimony, 'I turned on my siren' and stopped the car at Virginia Avenue and Holly Hills. Inside the car were Arthur Meinelt and defendant, Joseph Gamache. Gamache was in the driver's seat and Meinelt was in the right front (passenger's seat). Meyers placed the two under arrest. Inside the car he found a tan all-weather coat, several rolls of coins on the rear floor, a stocking mask in the coat pocket, rolls of coins and .410 gauge shotgun shells. In Meinelt's pocket there was an address book containing the address '4507 Morganford' and currency in his wallet.

On cross-examination, Officer Meyers was asked whether a police report was made to which he gave an affirmative answer. Officer Blerle prepared the report and Officer Meyers read it. Officer Meyers, on cross-examination, indicated that 'when the siren was put on the car pulled over.' Counsel for defendant inquired whether or not the use of a siren was included in the police report. After an objection, the court provided defense counsel with a copy of the report and told counsel that 'if you are going to use this report, we are going to use it in its entirety.' 'You can use the whole police report for any purpose you want. You can read it from the front to back . . . But I am not going to let you pick out one unfavorable portion of it and highlight it. . . .' Counsel replied he wanted to show 'one inconsistent statement. It is my understanding that the siren was not used. . . .' The court then indicated, '(Y)ou're talking about negative evidence . . . You can use this whole report for any purpose that you want but when you put this report in evidence the State can put it in evidence. Now do you want it?' Defense counsel then stated, 'I certainly do not care to use the entire report.'

The two-tone 'white top and red body' Thunderbird was owned by Arthur Meinelt's cousin, Robert Downard, sometimes referred to as Thad. Mr. Downard had known Joseph Gamache for some time and had loaned the car to Meinelt and Gamache numerous times. At about noon on October 6, 1972, Downard gave the keys to the Thunderbird to Gamache, and Gamache and Meinelt drove it away. He last saw them on October 6, 'around noon.'

Downard testified that the car would burn oil 'when you take off fast.'

After the arrest the automobile was taken to a lot where two days later Downard recovered his automobile. When he did so, he noticed that there was a shotgun in it, inside the dash where the radio should be. He informed the police. It was the shotgun identified by witnesses as the one used in the robbery.

In due time and on October 26, 1972, the defendant-Gamache was charged with robbery. Several witnesses were endorsed on the information; several pre-trial motions were filed. One of the pre-trial motions--a motion for bill of particulars--requested the 'name and present address of each and every person who was present at the scene of the alleged crime.' This part of the motion was sustained. Then on January 15, 1973, defendant filed a 'Motion to Inspect.' Paragraph d of this motion requested the 'names, addresses and pseudonyms of all persons interrogated by the aforesaid law enforcement agencies in connection with the criminal investigation of the aforementioned criminal charges whether or not the State considers them as witnesses on behalf of the State so that said persons may be interviewed by the defense.' This part of the motion to inspect was overruled prior to trial.

Trial began on May 2, 1973. During the voir dire examination defense counsel asked the panel, 'Is there anyone who would feel that if the State were to bring forward nine witnesses as they indicate they will and the defendant, Mr. Gamache . . . decides not to take the stand . . . (would you feel he) would be hiding something from you?' Three jurors indicated they would. No motion to strike for cause was made (counsel said, 'I held my tongue'), and no motion for mistrial was made at this time, although five other persons were stricken for cause for other reasons. Defense counsel used his peremptory challenges to strike these three names. After the peremptory challenges were made, and the strikes were made taking these three persons off the panel, counsel for defendant stated, 'I am simply making a record' and, 'I ask for a mistrial.' ²

At the conclusion of the State's case defendant moved for a judgment of acquittal. Rule 26.10, V.A.M.R.

During the defendant's case, several witnesses including Gamache testified. Gamache's sister, Constance Hunt, testified that Gamache and Meinelt were with her from 5:00 p.m. until 7:30 p.m. on October 6. She worked at a drug store with Helen 'Boyd' (Boyer?). Constance testified that Gamache and Meinelt picked up Helen Boyd (?) and her at their place of employment at 5:00 p.m. in her Buick automobile. In the car were two other girls. About 6:30 p.m. they picked up Denise Courtway when she finished work and they took the two girls home and went to 'Thad's' house. Thad is Robert Downard who lives in Affton. Denise Courtway testified that she was picked up by Gamache and Meinelt with her aunt, Helen Boyer (Boyd?). Helen Boyer testified that Meinelt and Gamache were dropped off at a house about 7:30 p.m.

Gamache took the stand in his own defense. He denied participating in the robbery and stated that he picked up his sister Constance at about 5:00 p.m. and eventually he and Meinelt went to Thad Downard's house to borrow his car. This was about 7:30 p.m. He did not recall seeing Downard, but obtained the keys from his wife. Gamache was at Thad's house maybe 'ten or fifteen minutes' and then left. He took Thad's Thunderbird (red bottom with a white vinyl top) and drove to the Granada Pharmacy on Gravois Avenue to get some film. He double parked in front of the pharmacy, left the keys in the car with the motor running, and went in to buy some Polaroid film. He did not buy the film...