State v. Hammonds

• Decision Date: 09 November 1970
• Docket Number: No. 55243,No. 2,55243,2
• Citation: 459 S.W.2d 365
• Parties: STATE of Missouri, Respondent, v. Albert Lowe HAMMONDS, Appellant
• Court: Missouri Supreme Court

Page 365

459 S.W.2d 365

STATE of Missouri, Respondent, v. Albert Lowe HAMMONDS, Appellant.

No. 55243.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1970.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Alfred I. Harris, St. Louis, for appellant.

PRITCHARD, Commissioner.

Upon its finding of appellant's guilt of second degree murder, the jury was unable to assess the punishment. The court assessed the punishment at seventeen years confinement in the Department of Corrections. Appellant contends (by Point VI) that the state failed to make a submissible case against him.

There was a party at 4136 Clarence in the City of St. Louis on the evening of December 1, 1967, during which the shooting occurred for which appellant was charged. The version of the incident of Bobbie Jean Taylor was that Rose Wallace, sister of the deceased, and another girl came and picked her up for the party. They all sat around and talked until after one o'clock when Bobbie Jean went to the kitchen to get something to eat. She then heard shots and saw flashings down the hall. She went down the hall and saw Sonny (the deceased, James Wallace) lying on the floor, with Irene McConnell and a man called Yacko (appellant) standing over Sonny in the door of the bedroom. Bobbie Jean did not see a gun, and did not see appellant fire a gun.

Irene McConnell came to the party with Rose Wallace, arriving about nine or ten o'clock. Appellant, whom Irene had dated, was there. Irene had also gone out with or had been a friend of James Wallace. While Irene was in the kitchen, appellant came in and asked her to go up front where they had been dancing earlier. She first declined, but then agreed to go into another room down the hallway into which he pushed her. She grabbed him by the collar and pushed him up against the wall after which she made her way to the hallway. Appellant was then in the doorway area and Irene heard shots and saw at least two sparks coming from appellant's hand, the sparks being 'Something like when you pop a firecracker at night and it sparks.' Prior to the altercation and while dancing with appellant Irene felt a gun as she had her arm around his waist. She asked him what he was doing with it but he did not answer. After the shots were fired Irene left with appellant and went to his sister's apartment where appellant took the gun, removed some bullets from it and laid it on the table. The gun appellant had resembled State's Exhibit 1, but Irene was not able to say whether any of the bullets had been expended.

Abe Wallace, the deceased's brother, was at the Clarence Avenue party, but had gone to the street when he heard shots. He started to return to the home and met Irene and appellant coming out. Appellant was behind Irene and was shoving her. Appellant was wearing a trench coat and his one hand was in it making the pocket bulge. Abe then went upstairs and saw his brother lying on the floor bleeding from the neck. He was carried to a bed where Abe saw that he had also been shot in the leg.

After investigating the shooting, Detective Carl Hunt put out a teletype message requesting appellant's arrest, under the name of 'Yacko.' Thereafter Detective Ray Lauer was on duty December 2, 1967 at 8:55 p.m., when appellant came to the police station and stated he had been involved earlier in the day in a disturbance with a man. Appellant acknowledged that he was known by the name of Yacko. Appellant was informed of his constitutional rights and was then taken to City Hospital No. 2 where the victim, James Wallace, was confined. Wallace was asked, "Can you recognize this man? ' And he says, 'Yes, that is Yacko.' And we asked the victim, 'Do you know this man?' And he said, 'Yes, sir. That is the man that shot me.'' Appellant declined to make a statement in the presence of the victim, and upon being later booked on a charge of assault with intent to kill declined to assist in locating the weapon.

On March 6, 1968, Patrolman Paul Rea was on duty in a squad car with Patrolman Michael Driscoll. About six o'clock, while driving up Cass Avenue near the Pruitt Igoe parking lot, Driscoll pointed out a red and white 1966 Chevrolet Caprice automobile and said that the man by the name of Yacko who had been driving it was wanted by the police department. At the time the automobile was unoccupied, but the two officers saw it parked later at Shorty's Dugout. They took up surveillance and about 11:05 saw a Negro male enter the automobile and drive north on 25th Street. The officers stopped the car on Madison and found appellant alone therein, and Driscoll retrieved the gun. Outside the hearing of the jury, the court took up appellant's oral motion to suppress the evidence of the gun, the timeliness of the motion being waived by the state. These facts were then developed: 'Rea, with Patrolman Driscoll, without a warrant, arrested appellant on March 6, 1968, 'For flourishing a dangerous and deadly weapon and discharging firearms in the City Limits.' They stopped appellant because they understood he was wanted for discharging firearms. Rea did not know appellant had been arrested previously on December 2, 1967 for an assault. The incident for which appellant was arrested occurred February 20, 1968, and the officers knew he was wanted for that offense.

Rea's testimony resumed in the presence of the jury. At the time they drove to the rear of appellant's automobile, he saw appellant lean forward as if placing something under the front seat. Driscoll stepped out of the police car and appellant was already walking back toward it. They took appellant's driver's license and he identified himself as Albert Hammonds. Appellant was then informed that he was under arrest and Driscoll went to the automobile and retrieved a two-inch sunb-nosed loaded revolver, State's Exhibit 1, in a brown holster. Six other rounds of ammunition were found in appellant's watch pocket. Driscoll's version of the arrest was similar to Rea's, and he saw appellant lean forward, 'dipping his right shoulder as if to place something under the seat of the automobile.' Driscoll advised appellant of his rights when he arrested him, then searched him and his automobile and recovered the revolver and holster from under the left front seat of his automobile. He took the revolver, and the holster and marked them with his initials, along with twelve bullets in an evidence bag.

Firearms Examiner Joseph Brasser took a bullet he had received from Dr. Criscione and compared it with a test shot from the gun (State's Exhibit 1), and found that 'this bullet was definitely fired from this gun.'

Deceased's sister, Rose Wallace Rach, for whom appellant was giving the party on December 1st and 2nd, was present thereat and was greeting guests. She had worked for appellant in his confectionery since November, 1967, and saw him with a gun similar to State's Exhibit 1 three days after she started working. She saw appellant dancing with Irene who was engaged to deceased. Later, as Rose was dancing, she heard shots and saw flashes, went to her brother and found he had been shot.

Dr. James Criscione did an autopsy on deceased, and removed a pellet from the left side of the neck. Another pellet was found in the left leg but was not removed. The pellet was placed in a box by him and was given to an officer at the morgue. It was his opinion that deceased died of pneumonia caused by the gunshot in the neck. According to a statement by counsel for the state deceased died eleven days after the shooting.

Appellant's version of the shooting was that after he and Irene were dancing they went to tell Rose they were going together, and as he was hugging Irene deceased came out of the front room, 'him and a bunch of guys with him.' Deceased...