State v. Holman

• Citation: 556 S.W.2d 499
• Decision Date: 22 September 1977
• Docket Number: No. 10458,10458
• Parties: STATE of Missouri, Respondent, v. John David HOLMAN, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 499

556 S.W.2d 499

STATE of Missouri, Respondent, v. John David HOLMAN, Appellant.

No. 10458.

Missouri Court of Appeals, Springfield District.

Sept. 22, 1977.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, for respondent.

Robert W. Freeman, Greene, Cassity, Ferguson, Carnahan & Freeman, Springfield, for appellant.

Before BILLINGS, C. J., and STONE and TITUS, JJ.

TITUS, Judge.

Defendant was jury-convicted of first degree robbery and assault with intent to do great bodily harm without malice aforethought and sentenced to consecutive prison terms of five and two years. In our appellate review of this cause, we are committed to a consideration of the facts in evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the state. Evidence and inferences in conflict therewith will be disregarded. State v. Zimpher, 552 S.W.2d 345, 346(1) (Mo.App.1977). When so viewed, the record discloses the following.

The crimes occurred near 7 p.m. January 1, 1975, in a Springfield liquor store. Carl Johnson, the sole clerk on duty, was robbed by a male Negro at gunpoint. The Negro was wearing a gray knitted cap with only eye-slit openings which was pulled down "well over his chin, down around his shoulders." Johnson described the robber as five feet 10 or 11 inches tall, 160 to 170 pounds and 19 to 21 years old. ¹ Admitting to being "no gun expert", Johnson said the revolver used by the robber was "short-barreled, blue . . . a .38 (caliber), possibly." After robbing Johnson, the robber directed Johnson to walk up a ramp leading to the rear of the store; but before he could comply, the robber fired a bullet into the door of a walk-in cooler. Thereafter, as Johnson was ascending the ramp, another shot was fired and the bullet grazed Johnson's head. Fragments of the two fired bullets were recovered by the police.

On February 6, 1975, two Springfield reserve police officers investigated a report that a male Negro wearing green trousers and driving a white Cadillac with a certain license number had attempted to pass a stolen check. Also, via police radio, the two officers were advised of a recent armed robbery committed by a male Negro wearing a gray stocking cap mask. About 10:30 p.m. or one hour after receiving the radio report on the robbery, the officers saw a white Cadillac bearing the reported license number and occupied by two male Negroes. The officers followed the Cadillac and radioed for backup assistance. Just as the red lights on the police car were turned on, the Cadillac was stopped at a liquor store. The two occupants alighted and started to enter the store when they were halted by the officers. Defendant, who had been driving the Cadillac, was wearing green trousers and fit the physical description of the man who attempted to pass the check and the man who committed the armed robbery. Defendant and his passenger, Willie Skelton, were placed under arrest, handcuffed and "read their rights." Defendant told the officers that the Cadillac was not his property but had been borrowed. By looking through a window of the Cadillac, one of the officers saw a gray stocking cap of the type reportedly used in the recent armed robbery. After obtaining the stocking cap "with eyeholes cut in it", the officer found a .357 magnum revolver under the front seat on the passenger's side of the Cadillac.

At trial Johnson, the liquor store clerk, said the gray stocking cap was "similar to the mask" worn by the man who robbed him and that the revolver was "similar looks like the gun that was used to (on?) me." A ballistic expert testified for the state that he had tested the revolver found in the Cadillac driven by defendant and the bullet fragments recovered at the liquor store. This witness was of the opinion that the bullet fragments had been fired from the revolver.

On February 10, 1975, two Springfield detectives were talking to defendant after he had been "advised of his constitutional rights pursuant to the Miranda Warning" when the subject of the liquor store robbery came up "in sort of a roundabout way." In substance, defendant told the detectives that he had been at the liquor store in a vehicle outside the store when the robbery occurred, that he did not participate in the robbery and that he would not tell the detectives the identity of the robber. Johnson, the robbed clerk, when confronted at trial with Willie Skelton, defendant's passenger in the white Cadillac on February 6, stated there was no way that Skelton could be the man that robbed him.

Over defendant's objections, the state introduced two letters into evidence. The first was written by an inmate of the Missouri State Penitentiary, William Kilgor, to defendant. The other was defendant's reply.

The inmate wrote:

"I saw James Bryan (sic) in H-Hall this morning and he said that you said i was going to testify against you and that i signed a statement against you. I don't know who's told you these things but whoever it is is a liar. I never signed nothing against you . . .. I don't know anything about the charge or charges they have on you . . .. You never told me anything about your charge or charges. And if i am called back to court this is exactly what i will tell them."

Defendant's reply reads:

"I got your scribes in the mail today. And was glad to hear that this statement down here that the D.A. is got is a false one. . . . I never thought that you were gonna come back to testify against me anyway. You see, when I went to try to get this dam gun and mask that they've got suppress, (the prosecutor) told the judge that you were coming back to testify to the fact that you over heard me braging about how I had shot the old man and how I was gonna get away with it, and then I said to myself, 'I know that that's a dam lie!' because I knew right then that you had told me once before that you wasn't a 'snitch' but (the prosecutor) went ahead and endorsed you as a state's witness anyway, so that's when I skin it to James Bryant and he didn't believe it either . . . we both had you figured as a confidential little guy . . .. So once again . . ., I was glad to hear from ya, and as far as I am concern everything is still mellow between me and you, understand? So stay solid!"

Defendant raises four points on appeal. Generally his point regarding the sufficiency of the evidence to sustain the conviction would be considered initially. However, that point cannot be ascertained until a determination of the other points. If defendant's motion to suppress and objections to the opinion-testimony of the state's ballistic expert and the above letters should prove correct, we would doubt that the state adduced evidence sufficient to warrant a conviction.

One of defendant's points is that the trial court erred in permitting the opinion-testimony of the state's ballistic expert that the bullet fragments recovered at the liquor store had been fired from the revolver found in the white Cadillac driven by defendant because the chain of custody of the revolver, between its removal from the vehicle and its testing by the expert, had not been proved by the state.

The purpose and application of the chain of custody or possession rule is amply stated in State v. Lemon, 504 S.W.2d 676, 684(15, 16) (Mo.App.1973) and need not be repeated here. Trial testimony of the liquor store clerk that the revolver tested by the state's ballistic expert was "similar looks like" the gun employed by the robber was sufficient to warrant its admission into evidence. State v. Kern, 447 S.W.2d 571, 574-575(3, 4) (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791(3, 4) (Mo.1956). Identification of an exhibit need not be entirely unqualified the weight to be given to the identification is for the jury. State v. Stancliff, 467 S.W.2d 26, 30(2) (Mo.1971). Moreover, when an exhibit itself is susceptible to positive identification in the singular sense, chain of custody becomes an irrelevant issue. State v. Granberry, 484 S.W.2d 295, 300-301(13-14) (Mo.banc 1972). The unobjected-to trial identification of the revolver-exhibit by the reserve officer as being the one he found in the Cadillac was sufficient (State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1973); State v. Orr, 493 S.W.2d 374, 377(11-12) (Mo.App.1973)), and when the state's ballistic expert, without objection, stated that he had used the revolver-exhibit in conducting his tests, the court did not err in admitting his opinion-testimony for the reason now advanced by defendant.

Another of defendant's points relates to the overruling of his motion to suppress as evidence the stocking cap and revolver found by the officers in the white Cadillac. The point states: "Said search and seizure was unlawful in that it was made without a warrant; without consent; not incidental to a valid arrest. The items taken were not in plain view and the arresting and searching officer had no probable cause to believe the occupants were involved in any criminal activity."

The Fourth Amendment's absolute admonition against unreasonable searches is not violated (a) by a search incident to a lawful arrest, (b) by seizure of items falling within the plain view doctrine, (c) by the search of an automobile where probable cause exists to believe that it contains a substance which offends against the law, or (d) by protective searches by officers for weapons upon less than probable cause to arrest. State v. Hall, 508 S.W.2d 200, 202-203(1) (Mo.App.1974).

At the time of the arrest on February 6, the officers were aware that recent felonies had been committed by a male Negro having a certain physical description. In the attempted passing of a stolen check, the man was reported to have been wearing green pants and driving a white Cadillac bearing a certain license number. In the armed robbery, the male Negro had been wearing a gray stocking cap as a mask. Therefore, when the officers...