State v. Hill

• Decision Date: 04 May 1976
• Docket Number: No. 35789,35789
• Citation: 539 S.W.2d 521
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James Roy HILL, III, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 521

539 S.W.2d 521

STATE of Missouri, Plaintiff-Respondent, v. James Roy HILL, III, Defendant-Appellant.

No. 35789.

Missouri Court of Appeals, St. Louis District, Division One.

May 4, 1976.

Motion for Rehearing or Transfer Denied June 15, 1976.

Application to Transfer Denied July 12, 1976.

Hayes & Heisler, Kenneth E. Reiter, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Thomas E. Dittmeier, Asst. Pros. Atty., Charles L. Merz, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

WEIER, Presiding Judge.

James Roy Hill, III was found guilty by a jury of two counts of murder in the first degree, two counts of robbery in the first degree by means of a dangerous and deadly weapon, and two counts of assault with intent to kill. As to the first two charges, he was sentenced to two life terms; as to the next three, to three terms of one-hundred years each, all five to run consecutively; and as to the sixth charge, to one term of one-hundred years to run concurrently with the term for Count V.

Defendant does not challenge the sufficiency of the evidence. The facts are briefly as follows. Defendant participated in the robbery of a tavern in Maplewood known as Cousin Hugo's with four other young males during which a barmaid and one patron were wounded and two patrons were killed, one by a stab wound and the other, an off-duty police officer, by a shotgun blast to the head. The robbery and killings occurred at approximately 1:15 a.m., March 18, 1972. By 9:30 a.m. four suspects had been arrested at 1338 Banneker, Maplewood, Missouri, the home of one of the suspects, and taken into custody. Defendant was arrested on March 20, 1972 at an apartment on Natural Bridge Road. Three eyewitnesses testified that defendant was one of the five who robbed the tavern. Two of the witnesses observed defendant fire the shot that killed John Gallino, the police officer. The same two witnesses also identified defendant at a lineup. Nathaniel Heard testified that on March 18, 1972 defendant told him that he 'blew a pig's head off' and that the victim was on the floor when he shot him.

The police searched the Banneker Street house on two occasions. They discovered numerous items that were linked to the robbery. Among them were items taken during the robbery--shotguns, shotgun shells, other weapons and parts of weapons, and items of clothing. Six identifiable prints were obtained from the items taken during the robbery. Two of them were identified as defendant's.

I.

For his first point on appeal defendant alleges simply that it was error to overrule his motion to suppress physical evidence but does not include a statement of wherein and why the ruling is claimed to be erroneous. He therefore fails to comply with Rule 84.04(d) which is applicable to criminal as well as civil cases. Rule 28.18; Boyer v. State, 527 S.W.2d 432, 437(6) (Mo.App.1975). This court is, as a result, under no duty to consider this contention. However, gratuitously we conclude that defendant does not, in any event, have standing to challenge the search and seizure under the facts of this case.

A defendant cannot challenge the admission of evidence on the ground that it was seized in an allegedly illegal search unless he has standing to raise the issue. One's personal right to privacy guaranteed by the Fourth Amendment must be violated before he can object to the introduction of the fruits of a search. State v. Hornbeck, 492 S.W.2d 802, 808(10) (Mo.1973); In re J.R.M., 487 S.W.2d 502, 508(2) (Mo. banc 1972); State v. Achter,512 S.W.2d 894, 899(3, 4) (Mo.App.1974). Only when he establishes that he himself was a victim of the improper activity which forms the basis of his challenge to the evidence may he obtain its suppression. He must therefore present evidence of some circumstance or set of circumstances demonstrating that the area searched was one in which he had a reasonable expectation of freedom from governmental intrusion before he can be said to have standing. State v. Hornbeck, supra; see In re J. R. M., supra, pp. 504--509. The issue of standing must be determined on a case by case basis. In re J.R.M.,supra at 508(2). The question of whether movant has a sufficient interest in the property searched to object can be answered only after an examination of the facts. State v. Pruett, 425 S.W.2d 116, 120(5, 6) (Mo.1968).

The facts adduced at the hearing on the motion to suppress and at trial have been examined to determine whether defendant had an interest in the premises sufficient to have given rise to a reasonable expectation of privacy. Subsequent to the arrest of four of the subjects, not including defendant, at 1338 Banneker, police officers seized, among other items, somewhere between one and three hundred pieces of paper, most of them handbills for an organization known as the Black Patriot Party. Defendant's name or initials appeared on three to five of these pieces of paper. Only one item, a City of St. Louis Workhouse release paper, actually belonged to defendant. Defendant, when testifying at trial, also stated that he had an item of clothing with the initials JR on it at the Banneker house. There was, however, no testimony that such an item was found. Defendant's claim to standing must rest solely on the fact that he left behind at the Banneker house a workhouse release paper with his name on it. Defendant cites, and we can find, no case that compels us to accord him standing on so slim a connection with the premises searched. There is no evidence that defendant had permission to use or had used the premises for his own purposes. He had no key. He did not use it or any part of it as an office or for conducting business of any kind. He was neither owner nor tenant. The evidence is inadequate to demonstrate an interest on the part of defendant in the premises searched such as would afford him standing to challenge the search. The facts of this case do not, as he suggests, bring him squarely within the holding of In re J.R.M., supra, in which the item searched was the family car which defendant, the owner's son, used exactly as he would have had title been in him. Defendant's lack of standing renders a review of the additional issues regarding the law of search and seizure raised in his brief on appeal unnecessary.

II.

Defendant next contends that the trial court erred in admitting into evidence five photographic exhibits. These black and white photographs were taken by police officers at the scene of the crime after the bodies of the two victims had been removed. Paper silhouettes illustrate the positions of their bodies in two photographs. One shows the spot where Owen Kelly, a patron, was wounded, and another shows the position of tables relative to the front door of the tavern. The last shows a live shotgun shell lying on the floor near the front door.

Defense counsel objected to their admission on grounds that they were gruesome, obscene, and highly inflammatory and prejudicial, and offered to stipulate to anything the prosecutor hoped to prove by their use. All of the photographs were illustrative of testimony clearly relevant to the case, describing the approximate positions of the bodies of the dead and wounded and the place where the live shotgun shell was found.

The admission of photographs such as these rests within the sound discretion of the trial court. State v. Strong, 484 S.W.2d 657, 661(13--14) (Mo.1972); State v. Hendrix, 454 S.W.2d 40, 43(8) (Mo.1970). Their admission is proper if they tend to 'throw any relevant light upon a material matter at issue.' State v. Moore, 303 S.W.2d 60, 65(1) (Mo. banc 1957). 'It is not a valid objection that witnesses have testified to matters shown by photographs because pictures give a much clearer impression of many things than any oral description and that is the reason for using them.' State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 654(3, 4) (1953); accord, State v. Moore, supra at 65(2).

In the Moore case several photographs of the deceased showing a wound that tore away the right side of the heart and part of her forearm and collapsed a lung were admitted into evidence. The Supreme Court held that their admission was not error since, among other reasons, they 'tended to corroborate the testimony of state's witnesses, and the state, having the burden of proving defendant's guilt beyond a reasonable doubt, should not be unduly limited as to the quantum of its proof.' State v. Moore, supra at 65(2). Further comments by the Moore court are appropriate to the case at bar. 'If the exhibits satisfy the rule as to the admission of demonstrative evidence, it is not a sufficient cause for their rejection that the sight of them would tend to agitate the feelings of the jurors.' Moore at 66(3). 'If the photographic views are shocking and horrible it is because the crime is one of that sort, whether described in words or pictures. Some phases of the oral testimony are as likely to cause agitation as the pictures.' Moore at 66(5). No photograph could have been more gruesome than the testimony of Officer Deckelman, one of the first police officers to arrive on the scene.

The trial court did not err in admitting the challenged photographs. They illustrated and corroborated the witnesses' testimony and helped establish facts such as the probable position of the person who fired the shots. The bodies and wounds of the victims were not shown. The point is ruled against defendant.

III.

Also complained of on appeal is the admission into evidence of certain items of tangible and photographic evidence taken from the Banneker house on the morning of the arrest of the four other persons charged with this crime.

Defendant bottoms his objection upon the assertion that the items were irrelevant because they were not connected to the commission of the crime or to him...