State v. Heitman, 55595

• Citation: 473 S.W.2d 722
• Decision Date: 13 December 1971
• Docket Number: No. 55595,No. 1,55595,1
• Parties: STATE of Missouri, Respondent, v. Michael HEITMAN, Appellant
• Court: United States State Supreme Court of Missouri

Page 722

473 S.W.2d 722

STATE of Missouri, Respondent, v. Michael HEITMAN, Appellant.

No. 55595.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1971.

John C. Danforth, Atty. Gen., Glen A. Glass, Asst. Atty. Gen., Jefferson City, for respondent.

John B. Mitchell, St. Joseph, for appellant.

HOUSER, Commissioner.

Michael Heitman, convicted by a jury of burglary second degree and sentenced to 3 years' imprisonment, has appealed.

Appellant's first point: the court should have directed an acquittal for insufficiency of evidence. The jury could have found these facts: The building superintendent of the Masonic Temple at St. Joseph, George Jackson, left the building at 11 p.m. after locking his desk, shutting, locking and securing two safes, and securing four entrances to the temple. At 3:15 the next morning Alvin Balchen, who lived in an apartment across the street from and overlooking the temple, was awakened by a noise. He looked out his window, 'saw a great deal of commotion' and observed four males. Two lights on the temple and a street light in the alley revealed two men in front of the building and two in the alley. He could not see their faces; he did not recognize any of them. The men were of average height. One was rather heavy and somewhat shorter than the others. One of the men was kicking at the front door. Jackson saw no one enter or leave the temple but he saw the four men leave the vicinity, running away from the building toward the east and out of his vision. Shortly afterwards ('a few minutes' later) he heard an automobile start; the 'putt-putt' sound was 'sick.' A sporty car drove westward on Robidoux, the street which ran between Balchen's apartment and the temple, making the same 'putt-putt' sound. The car had a dark-colored bottom and a light-colored canvas-type top. It turned north off Robidoux. Balchen called the police about 3:20 a.m. Police officers were dispatched to the temple, where they found the tell-tale marks of burglarious entry, breaking open of safes, rooms, lockers and desks.

At 3:37 a.m. Detective Brown, working in a squad car with Detective Wise, received a radio communication, proceeded to the temple, found that the south door had been pried open, found the lock on the floor inside the building, saw the open vault door of the walk-in safe, the combination knocked off and on the floor, and observed a hole through the safe wall. Brick, cement, mortar and debris were scattered in front of the door, around the safe 'and all around the outside' of the vault.

Officer Linder, in the vicinity of 8th and Olive Streets, received a radio communication concerning the temple incident at 3:37 a.m. and was given a description of the automobile as a Ford convertible with a white top and a dark bottom. At 3:39 a.m., on his way to the temple, he saw a 1960 Ford convertible, white top and dark bottom, proceeding east on Charles Street. Linder recognized the car and knew that the owner of the car was Roger Miller. The police car and Ford met and passed at 7th and Charles. Officer Linder turned around, headed back east, pursued the Ford, and turned on red lights. His primary purpose was to check to make sure that Roger Miller (whose driver's license had been suspended, to the knowledge of the officer) was not driving. Another reason for following the car was the fact that the description of the car had been broadcast in connection with the incident at the temple 'and the car matched that description.' The Ford stopped. Defendant Heitman was behind the wheel. He had been driving. There were four males in the Ford. Officer Boyd pulled up behind Linder's car. As Linder waked up along the right-hand side of the Ford one of the occupants in the back seat tried to hide some objects on the floor between the front and back seats--tried to push them up underneath the front seat. The officer shined his light in the Ford and saw an assortment of screwdrivers, chisels, punches, crowbars and a sledge hammer on the floor. Linder recognized all four of the men. Roger Miller, owner of the Ford, was in the right front seat. Dykes and Clark were in the rear seat. The men alighted from the Ford when asked by Linder to get out. The clothing of all four men was dirty and had 'something of a white nature on them'--something which looked a little unusual. It was white in color and had the appearance of concrete or cement substance. Defendant Heitman's clothing was of the same general appearance as that of the other individuals, 'slightly messed' and 'having a small amount of this substance on his clothing and on his shoes.' The four individuals were placed under arrest after the officer looked into the car and before they were asked to get out. After the arrest the vehicle was searched, revealing two chisels, two punches, a tire tool and a large crowbar with a red handle, a small crowbar, four screwdrivers and the sledge hammer, all lying in plain view on the floor between the front and back seats. A flashlight was in the glove compartment and three sets of gloves were lying on the front seat, in the middle of the seat to the right of the driver Heitman. An opened package of Kool cigarettes was in the glove compartment. A magnetic flashlight was up over the sun visor on the driver's side.

At 4 a.m. the police called Superintendent Jackson at his home. Jackson went to the temple and there examined his desk in which he had left an opened package of Kool cigarettes and a flashlight. The desk had been pried open. The cigarettes and flashlight were missing. The lock on the south exit door of the building was broken and torn out of the door. There were pry marks on it. A wood panel in the rear exit door was broken open but an iron bar across the inside prevented opening the door. One of the north doors bore pry marks. Another north door at the top of a fire escape was 'splintered somewhat from being pried on.' Jackson saw that the door on the first floor vault was open. The safe combination had been knocked off onto the floor. Six inches to the left of the walk-in vault a hole 15 by 24 inches had been cut through the brick wall into the vault. There was dust on the safe door and 'a lot of dust' inside the vault on the floor and wall. There was dust on the floor outside the vault. The combination on the safe on the second floor had been knocked off and lay on the floor, and the locks on several doors to locker rooms on the second floor had been pried open or pried off.

Police officers took a number of interior photographs, looked for fingerprints, packaged the combination knobs and a piece of timber bearing pry marks, and took samples of brick particles, cement dust and mortar. They found fingerprint smudges or smears and what appeared to be glove prints on the safes and along the first floor windows. No clear fingerprints were found.

Sometime between 8 and 8:30 a.m. appellant was interviewed by Chief of Detectives Johnson. At that time appellant had some dust on his clothing and on his shoes. It was gray-white in color and resembled cement dust. The other three men had cement dust on their clothing. A sweater worn by Dykes was taken from him. On the front of Dykes' sweater very small chips of brick or mortar, similar to particles of brick and mortar taken from the vault, were found. All of the articles found in the search were tagged, kept, and introduced in evidence over objection. In addition, samples of cement and brick chips from floor inside and outside the downstairs vault, were taken, kept, analyzed at the highway patrol laboratory and introduced in evidence. The laboratory technician testified that a comparison of the paint on the larger crowbar and the paint on the safe dial revealed a red layer painted over a layer of paint on both of the same type of paint. The smaller crowbar revealed two colors of gray paint which definitely could have come from a piece of wood with pry marks on it taken from a door casing at the temple.

The building superintendent customarily opened cigarette packages in a particular manner, with a pen knife, being careful not to cut the tab loose, not removing any of the cellophane or tinfoil. He had smoked two or three cigarettes from the package which was missing from his desk. The package of Kools found in the glove compartment had been opened in this manner, and two or three cigarettes were missing. The building superintendent identified that package and the flashlight found on the car seat as his property.

None of the four men testified at the trial and there was no evidence of any statements having been made to the police by them.

In this circumstantial evidence case the evidence, in order to be sufficient to support a conviction of second degree burglary, must demonstrate facts and circumstances consistent with each other, consistent with the guilt of appellant, and inconsistent with any reasonable theory of his innocence. State v. Craig, Mo.Sup., 406 S.W.2d 618, 621.

We find the evidence sufficient to meet these...