State v. Henderson
| Decision Date | 23 April 1974 |
| Docket Number | No. 35381,35381 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Henry Earl HENDERSON, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Donald L. Schmidt, Christopher T. Hexter, Legal Aid Society, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Ellen S. Roper, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant Henry Earl Henderson appeals from convictions for second degree murder and assault with intent to kill without malice. In accordance with the jury assessment, defendant was sentenced to twenty and five year terms of imprisonment, respectively, for the murder and assault convictions; said terms to run concurrently.
Defendant raises five points on appeal, but does not question the sufficiency of the evidence which was entirely circumstantial. His first three points question the admissibility of certain evidence. The fourth point questions one of the court's instructions to the jury, and the fifth point questions certain portions of the circuit attorney's closing argument to the jury. We affirm.
While making insurance collections on June 24, 1972 from the residents of an apartment building located at 2431 Dickson in the City of St. Louis, Early Lashley and his private security guard, Jolly Doyle, were confronted by two armed men. One of the men was armed with a shotgun, the other with a pistol. Both men had their faces covered with what Doyle later described as light blue scarves which appeared to be made of a thin silky material. Once confronted, one of the men told Doyle and Lashley not to move. About the time a pistol was fired, Doyle rushed the man with the shotgun. While Doyle rushed the man with the shotgun, he reached for his own gun but was interrupted when pellets fired from the shotgun struck him in the face. Immediately after Doyle was struck, the two men disappeared. Doyle then turned to assist Lashley who was lying on the floor and groaning. Doyle then knocked on the door of one of the apartments and asked an occupant to call the police.
Within about five minutes, St. Louis Metropolitan Police Officers arrived at the apartment building. Doyle and Lashley were escorted to City Hospital No. 1, where Lashley was pronounced dead on arrival. The physician who performed the autopsy determined the cause of Lashley's death to be a gunshot wound of the brain. The physician removed the bullet from Lashley's brain tissue and gave it to an officer from the police laboratory.
Around 10:30 a.m. additional police officers arrived at the scene and began questioning residents of the apartment building. While engaged in this questioning, the officers saw a man walking down the stairs of the apartment building. The man identified himself as Henry Henderson. In response to a question, Henderson told the officers that he had been in his apartment with his mother all morning. Three officers accompanied Henderson back to his apartment to check his alibi. His mother was not in the apartment when the officers arrived. Henderson then consented to a search of his room which revealed nothing of value to the officers. The officers, after arresting Henderson, discovered a .38 caliber revolver under a mattress in another room and took possession of the gun. It was later determined that the revolver found under the mattress fired the bullet that killed Early Lashley. Noticing that the bedroom window was open, two of the officers looked out the window and saw a blue scarf on the ground. After photographing the scarf, the officers took possession of it. This scarf was later shown to Doyle. Although he could not identify it as one of the scarves worn by his assailants, he did identify it as being similar in color and texture to the scarves worn by the assailants.
Prior to the trial, defendant filed a motion to suppress evidence. After a hearing on this motion was held, the trial court overruled the motion.
At the trial, the only surviving witness who testified, Jolly Doyle, was unable to identify Henderson as one of the assailants. The .38 caliber revolver and photographs of the location where it was found were admitted into evidence. Testimony concerning photographs of and an evidence receipt for the blue scarf found outside defendant's apartment were also admitted into evidence. Defendant Henderson testified in his own behalf.
Defendant first contends that the trial court erred in denying his oral motion to suppress certain evidence, namely the .38 caliber revolver, obtained by police officers as a result of an allegedly unlawful search and seizure. He claims that the warrantless search was unlawful because it was not incident to a lawful arrest based upon probable cause. Irrespective of the legality of the arrest, he also claims that the warrantless search was unlawful because the revolver was not seized from an area within his immediate control and was not seized pursuant to any other circumstance indicating the necessity of an immediate, warrantless search.
At the hearing on the motion to suppress, Officer Josephus Reynolds, a member of the St. Louis Metropolitan Police Department, testified that on June 24, 1972, around 10:00 a.m., he received a telephone call from some person who informed him that Henry Henderson and Lou Charles Hopson were responsible for the robbery and shooting at 2431 Dickson. Officer Reynolds knew the caller and had received previous information from the caller that had subsequently led to arrests and convictions. Approximately ten minutes after receiving this call, Officer Reynolds arrived at 2431 Dickson and relayed the information concerning Henderson and Hopson to Sergeant Philip Antoon. Among those policemen present at the scene of the crime with Sgt. Antoon were Detectives James McCarty and James Dowd and Officer Joseph Burgoon. Officer Burgoon testified that he was informed by Sgt. Antoon that Henry Henderson of 2431 Dickson, Apt. 613, and Charles Hopson of 2431 Dickson, Apt. 303, were the persons responsible for the shooting. When Officer Burgoon received this information, he was standing in the areaway outside Apt. 303 with Detective Dowd. Immediately thereafter, a man who identified himself as Henry Henderson walked down the stairs from the fifth to the fourth floor. In response to a question asked by Sgt. Antoon, Henderson stated that he was coming from his mother's apartment and that he had been there all morning. In order to verify Henderson's statement, the officers accompanied him to the apartment, but found that his mother was not home. The officers then searched Henderson's room with his permission and with him present but found nothing. The officers then walked into a hallway whereupon Henderson ran to the door of another bedroom, blocked the door and told the officers they could not enter. Officer Burgoon then informed Henderson he was under arrest and advised him of his constitutional rights. Henderson then backed into the bedroom to a position about two to three feet from a bed. Officer Burgoon followed Henderson into the bedroom, raised the mattress of the bed and found a .38 caliber revolver. Although he did not feel threatened by Henderson, Officer Burgoon said Henderson could have reached the bed with a fast movement. Prior to the discovery of the pistol, Officer Burgoon said that he did not see any officer search Henderson's person.
Defendant Henderson testified in his own behalf at the hearing. He testified that his sister was present at the apartment at the time the officers arrived. He said the officers entered the apartment with neither his nor his sister's permission, and that the officers conducted a search of the apartment without his consent. At the conclusion of the evidence, the court overruled the motion to suppress.
Generally, a warrantless search is an unreasonable one under the fourth amendment unless it is conducted within well-noted exceptions to the warrant requirement. The exceptions are based upon the principle that searches of limited scope may be conducted if they are incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973). We, therefore, must first determine the legality of the defendant's arrest.
The test for determining the legality of an arrest without a warrant for a felony is whether the arresting officer had reasonable grounds or probable cause to suspect that the person arrested has committed a felony. State v. Gant, 490 S.W.2d 46, 47(4) (Mo.1973). 1 While this test demands that the knowledge possessed by the arresting officer be more than mere suspicion, it does not require that it be based upon evidence sufficient to support a conviction. State v. Gant, supra, 490 S.W.2d at 48(3). Given these general guidelines, the outcome in each case depends upon the factual information possessed by the arresting officer at the time of arrest.
Part of the information possessed by the officers at thetime of defendant's arrest was that provided by an informant: the names of the two individuals allegedly responsible for the shooting. One of those named was Henry Henderson. This informant had on previous occasions provided the police with information which had led to arrests and convictions. Although information given by an informer who is reasonably considered reliable may in itself justify an arrest (State v. Gant, supra, at 48(5)), the officers possessed additional information at the time of arrest which, when combined with that given by the informant, certainly provided them with reasonable grounds to suspect that defendant had committed a felony. The officers knew that a shooting which resulted in one person's death had occurred in defendant's...
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