State v. Hatten, KCD

• Decision Date: 30 January 1978
• Docket Number: No. KCD,KCD
• Citation: 561 S.W.2d 706
• Parties: STATE of Missouri, Respondent, v. Basil X. HATTEN, Appellant. 28124.
• Court: Missouri Court of Appeals

Page 706

561 S.W.2d 706

STATE of Missouri, Respondent, v. Basil X. HATTEN, Appellant.

No. KCD 28124.

Missouri Court of Appeals, Kansas City District.

Jan. 30, 1978.

Gary R. Bradley, Lexington, for appellant.

John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.

SWOFFORD, Chief Judge.

The appellant (defendant), after a jury trial, was found guilty under a three count information of Robbery in the First Degree (Count I) and Assault with Intent to Kill with Malice Aforethought (Counts II and III). He was sentenced to twenty (20) years on Count I, and eighteen (18) years each on Counts II and III. The sentences on Counts II and III were to run concurrently but consecutively with the sentence on Count I.

The original information charged the defendant of these crimes jointly with Adrian Gibson and Robert K. Bryant, but upon defendant's motions he was granted a severance and a change of venue to Lafayette County. Also, before trial an evidentiary hearing was held upon defendant's motion to suppress certain evidence and that motion was overruled.

The defendant raises four points or assignments of error on this appeal which may be thus summarized: (1) failure to sustain his motion to suppress evidence obtained by the police in an illegal search and seizure of a Cadillac automobile, such evidence particularly described as a black hat, and erroneously permitting it to be introduced as an exhibit; (2) failure to discharge and quash the panel of jurors (venire) or, in the alternative, failing to grant a new trial because there were only three blacks on the entire panel, of which one worked in a bank, and there were no blacks on the final panel, thus defendant was deprived of a fair and impartial jury; and, that this was a deprivation of his constitutional rights and was plain error; (3) failure to sustain defendant's motions for acquittal because the verdict was supported by incompetent and circumstantial evidence and the state failed to sustain its "burden of law" to show malice aforethought and deliberation with an intent to kill on the assault charge, as required by the statute; and (4) failure to sustain the defendant's objections to improper and prejudicial closing arguments of the prosecutor.

The sufficiency of the evidence to support the verdict is challenged by Point III and thus the evidence must be here reviewed in its light most favorable to support the verdict. State v. Franco, 544 S.W.2d 533, 534(1) (Mo. banc 1976), U. S. cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977); State v. Gideon, 453 S.W.2d 938, 940(1) (Mo.1970), and cases cited in each. When so viewed, the evidence adduced and the reasonable inferences to be drawn therefrom warranted the jury in finding the following facts.

On Thursday, April 25, 1974, Mary Lou Ballenger, Assistant Manager of the Bank of Commerce West, at Columbia, Missouri (Bank) observed an unknown black man in the Bank lobby whose actions and close observation of the interior of the Bank aroused her suspicions. She left the Bank to make a business call in the neighborhood and observed this man get into a late model white Cadillac automobile with a black vinyl top in the shopping center parking lot. She observed this car stop at another point in the parking area and pick up another black man.

When Ms. Ballenger returned to the Bank parking lot, she again observed the same Cadillac "cruising" the area and the occupants thereof closely scrutinizing the Bank's exterior and the surroundings. She obtained the license number and made a note of it in her pocket notebook. The number was CP 2587, and later developments disclosed that the car was registered in the name of Adrian Gibson.

During the noon hour on Monday, April 29, 1974, three black men entered the Bank and robbed it of about $22,000.00. Two of these men were armed with handguns and the third carried a sawed-off shotgun. According to the Bank employees, one of them wore what was described as a "red dress" and a "floppy" hat; another wore boxer shorts and a floral design shirt; and the third was dressed in a dark suit or jacket and trousers and wore a small black hat. None were masked. There were no Bank customers present.

These men threatened to shoot the four employees in the Bank and vaulted the tellers' cages. The employees were forced at gunpoint to lie face down on the floor and their hands were bound behind them. Some of the money which the men removed from the tellers' cash drawers was "bait money" which is marked and when removed from the drawers activates a silent alarm at the police headquarters in Columbia.

While the three armed robbers were in the Bank, someone shouted from the lobby entrance area "Let's get out of here" and the three robbers (and presumably the fourth man at the entrance, whose presence was established by automatic photos) fled the Bank, accompanied by the sound of gunfire from the outside. None of the four Bank employees could identify the defendant as one of the men.

Officer Hanks, a motor car patrolman with the Columbia Police Department, received a radio message that the alarm at the Bank had been activated. He immediately proceeded to the Bank and, upon arrival, observed a blue and white Plymouth automobile, containing one black male, parked on the north side of the building. As Officer Hanks drove up he saw two black men run from the Bank and the officer then fired five shots in an unsuccessful attempt to stop them. These men jumped into the Plymouth which then left the parking area with Hanks in pursuit, at speeds which reached 60-70 mph. Hanks testified that during this pursuit he observed five men in the Plymouth and that one of these jumped out during this time. At one time, one of them leaned out of a window of the Plymouth and fired a pistol at Hanks at a distance of two or three car lengths. The Plymouth turned into a Howard Johnson parking lot in the vicinity of Sexton Road and Hanks lost sight of it, but he observed that another police car had turned into the opposite side of the lot.

Officer Harold Calvin of the Columbia Police Department was on patrol southbound on Clinkscales Avenue when he received the radio alert with reference to the Bank. As he was driving toward the Bank he observed a blue and white Plymouth northbound and he attempted to stop it, without success. As the Plymouth passed him a shotgun was fired at him from one of the windows. A pedestrian, William Johns, a high school student, observed this occurrence on Clinkscales and was struck by some of the shotgun pellets but not seriously wounded.

William Treaster of the Columbia Police Department observed the high speed chase and pulled into a parking lot next-door to Howard Johnson's. He observed the Plymouth stop and men jumping out of the car. Shots were fired at him, one of which struck his pistol as he was returning the fire. The men from the Plymouth "took off" in different directions.

Mr. Roberts, who resided on the street in back of Howard Johnson's, while on his front porch at this time, heard gunshots and then observed three men run out of the door of Howard Johnson's and run towards the business establishment of Hulett's Heating and Ventilation Company. One of these men, Roberts observed, carried a white sack in one hand and a gun in the other.

Mr. Wilson, who worked with a company sharing the same building with Hulett's, heard "bangs and booms going off" and went to the front of the shop. Through the window he saw two black men run past the window and he saw a third man with a .38 caliber handgun. He identified this man as the defendant. Wilson then walked out in front of the shop and saw a police car go by and the defendant lying on the ground underneath a motor vehicle. Shortly thereafter Wilson saw the defendant handcuffed and in police custody. Later, Wilson found a handgun hidden in the grill of his Chevrolet pickup truck and a pair of brown gloves beside it.

Earl Chick, who owns the business next-door to Wilson's place of employment, saw the defendant in the parking lot in front of his place lying on the ground underneath a truck. The defendant was wearing a pair of brown cotton gloves. Chick observed the defendant place a gun inside the grill of the truck, take off his gloves, drop them, and walk off. Chick also saw a man in that area wearing a bright red upper garment and carrying a sawed-off shotgun. He also found a pair of coveralls and a maroon cap lying on the ground near Hulett's shop.

The gun found in the grill of Wilson's truck, which Chick saw the defendant place there, was later found to contain five live and one spent cartridges.

Two other witnesses for the state, William Gibson and Steve Osborne, employed in the area, testified they had observed a man in a red dress, housecoat or shirt running past their locations. Osborne saw the man remove the garment and observed that he had a sawed-off shotgun. The man "ducked behind" a car when a police vehicle passed. Both Gibson and Osborne were then approached by the defendant, who was muddy and who made inquiry of them as to the man they had seen. The defendant told Gibson that the man had "pushed him down" and "I have got mud all over me". The defendant then went off in the direction indicated by Gibson and Osborne.

The defendant was arrested by Officer Vemer walking on Sexton Road about thirty yards from the parking area. He denied that he was the man seen hiding under the truck and accounted for his muddy condition by telling the officer he had been robbed and knocked down by two men. Only a matter of a few minutes elapsed from the time of the Bank robbery until defendant's arrest.

The police had been given a description of the white Cadillac automobile observed by Ms. Ballenger, as above related. This car was located the day of the robbery locked and parked in a lot two blocks from the Bank. It...