State v. Grissom, 44278
| Decision Date | 09 November 1982 |
| Docket Number | No. 44278,44278 |
| Citation | 642 S.W.2d 941 |
| Parties | STATE of Missouri, Respondent, v. Kenneth Orin GRISSOM, Appellant. |
| Court | Missouri Court of Appeals |
James J. Knappenberger, Shaw, Howlett & Schwartz, Clayton, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George Westfall, Prosecuting Atty., Clayton, for respondent.
The jury found the defendant guilty of robbery in the second degree in violation of § 569.030, RSMo 1978, and assessed punishment of five years in prison. Judgment and sentence were entered in accordance with the verdict and defendant appealed. We affirm.
Mr. and Mrs. Homer Guffey owned and operated a grocery store in Pacific, Missouri. They returned to their home on Highway N at approximately 10:30 p.m. on Friday, June 13, 1980. They had with them several thousand dollars in cash and checks--the grocery store receipts--in a produce box. Mr. Guffey remained at their van while Mrs. Guffey turned on the patio lights. She returned to pick up a box of gooseberries and had just unloaded them from the van when she saw two young men grab her husband. One man held her husband from behind and brought him to his knees. The other man approached Mrs. Guffey and she screamed. The man holding Mr. Guffey had bushy hair, a beard and mustache, and was wearing a t-shirt with a reflective emblem. She identified him at trial as defendant. The other man was wearing a mask and had no shirt. The man with the mask grabbed the box of money from the van after Mrs. Guffey screamed, and the pair fled.
Marie Dunham, a neighbor in a house to the west of the Guffeys', heard the scream, turned on her outdoor floodlights and looked out the window in time to see two men run across her yard from the direction of the Guffey home. She watched as the two men entered a red car and drove south on Highway N.
Another neighbor, to the east of the Guffeys', Kenneth Williams, also heard Mrs. Guffey scream and ran from his house to his automobile. He drove toward the Guffey home and saw an automobile headed toward him from the direction of the Guffeys' home. The oncoming vehicle made a "U" turn on the road that fronted both of their houses, and Williams gave chase. He lost sight of the car he was chasing for a moment, but not before he had a chance to note that it was a small red car and get the license number. When the small red car was again in view he saw it pass still another car, slide off the road and stop. Mr. Williams positioned his vehicle across the road with his headlights on the red car. A man with no shirt exited the car, hopped a fence and ran away. Mr. Williams watched as a young man, whom he identified at trial as defendant, walked around the small red car, inspecting it.
The young man returned to his car, backed onto the road and drove away at a high rate of speed. Mr. Williams followed until the red car turned left on Highway O. Then Williams returned to the Guffeys' home. From there he called the Pacific Police Department and give them the description and license number of the car and a description of the driver. He telephoned the county sheriff's office and gave them the same information.
Deputy Sheriff Warner of the County Sheriff's Office reported for work at approximately 11 p.m. on June 13, 1980. He was informed of a recent robbery at the Guffey residence and that one suspect, a white male with long hair and a beard, was last seen driving a red car. He proceeded to search Highway O in the vicinity where the red car was last seen. En route he learned from the radio dispatcher that the registered owner of the car was Kenneth Grissom, Sr. He also received a report from a Pacific, Missouri police officer that one Kenneth Grissom was running along Highway O.
The deputy saw a man running along Highway O. Sheriff Warner realized that the man fit the description he had, stopped him and asked for identification. When he learned the man was Kenneth Grissom, the deputy arrested him.
The deputy read the Miranda rights from a printed card and asked defendant if he understood. The defendant said he did and indicated he was willing to answer questions. The deputy asked him to explain where he had been that evening. The defendant answered that he had been in the neighborhood of his home all night until a few minutes earlier when he had left for his girlfriend's home in Pacific.
Sheriff Warner took defendant home, where he lived with his parents. There he met defendant's father, Kenneth Grissom, Sr., who was the registered owner of a small red car. The senior Mr. Grissom told the deputy that defendant had come home at approximately 11:30 p.m., dropped the car keys on the kitchen table, and left. The father gave the deputy permission to view the car and took him to the garage where it was parked. The deputy noted that the license number matched the license number broadcast by the dispatcher and that there was fresh damage to the right front fender.
Defendant attacks the propriety of his arrest, contending there was no probable cause. From this, defendant argues that his statement to the deputy and testimony concerning the deputy's observation of the automobile should have been suppressed.
The facts of this case present more than adequate justification for defendant's arrest. The deputy knew a robbery at the Guffey residence had been reported. Robbery is a felony. Section 569.030.2, RSMo 1978. He also knew one of the suspects was a man with long, bushy hair, mustache and beard, who was last seen in a small red car traveling on Highway O. Finally, he had information that car belonged to a person named Kenneth Grissom. That this information came to him indirectly from police sources is of no moment. State v. Morgan, 593 S.W.2d 256, 259 (Mo.App.1980).
Finding a young man whose distinctive appearance closely matched the description of one of the robbers, running along Highway O late at night, approximately one hour after the robbery, justified the deputy's actions. The defendant's resemblance to the robber and his identification of himself as Kenneth Grissom amply supported the reasonable belief that defendant committed the felony. There was probable cause for the arrest. See State v. Carter, 572 S.W.2d 430, 435 (Mo. banc 1978); State v. Purnell, 621 S.W.2d 277, 284 (Mo.1981). The defendant's remarks to the deputy and the examination of the red car are not fruit of an unlawful arrest.
As stated, defendant acknowledged that he understood his Miranda rights and answered the deputy's questions about his activities earlier that evening. According to the deputy, "He [defendant] stated that he had been at the Noonan residence which was just behind his house and that he had just brought his dad's car home and was going to Pacific to see his girl," when he was picked up. There was no indication in either the deputy's testimony or in that of defendant at trial of any prodding, coaching or threats by the deputy during the interrogation. 1
The record supports the court's ruling that defendant's statements were admissible. See State v. Ross, 606 S.W.2d 416, 425 (Mo.App.1980). As to the examination of the car, it is sufficient to note that it was done with the father's permission and assistance. State v. Worthon, 585 S.W.2d 143, 148 (Mo.App.1979).
After the jury was sworn, but before opening statements, the court read several instructions to the jury as required by Rule 28.02(a). Among them was MAI-CR 2d 1.06. The court's copy of this instruction, supplied by the prosecution, omitted a line in the opening portion. This mistake was discovered by the judge as he was reading to the jury, and he supplied the missing matter from his own recollection without interrupting the instruction:
THE COURT: The Court will now proceed to read you more instructions on the law.
'This case will proceed in the following order:
It is supposed to say: '... he may make a statement then or at the conclusion of the state's evidence.' 2
The opening portion of MAI-CR 2d 1.06 actually reads as follows, with the appropriate pronouns selected and the line missing from the court's copy underscored:
1.06 Instructions After Jury is Sworn
This case will proceed in the following order:
First, the Court will read to you two instructions concerning the law applicable to this case and its trial. Next, the attorney for the state must make an opening statement outlining what he expects the state's evidence will be. The defendant's attorney is not required to make an opening statement then or at any other time. However, if he chooses to do so, he may make an opening statement after that of the state, or he may reserve his opening statement until the conclusion of the state's evidence.
Evidence will then be introduced.
The defendant contends the court's reading of the instruction in this manner was prejudicial error. We disagree. Not every deviation from an approved instruction requires reversal, and when there is error the question of prejudice vel non is judicially decided. State v. Harris, 564 S.W.2d 561, 573 (Mo.App.1978). Of course, it would have been better to read the instruction exactly as it was adopted and printed. Yet the court's alert action and impressive memory avoided any prejudice. The mistake was immediately discovered and the omitted line was replaced with language virtually identical to that of the pattern instruction. It is inconceivable that the...
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