State v. Howell, s. 58283

• Decision Date: 09 June 1975
• Docket Number: Nos. 58283,58768,s. 58283
• Citation: 524 S.W.2d 11
• Parties: STATE of Missouri, Respondent, v. Robert C. HOWELL, Appellant (two cases).
• Court: Missouri Supreme Court

Page 11

524 S.W.2d 11

STATE of Missouri, Respondent, v. Robert C. HOWELL, Appellant (two cases).

Nos. 58283, 58768.

Supreme Court of Missouri, En Banc.

June 9, 1975.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Harry H. Bock, New Madrid, for appellant; Robert C. Howell, in pro. per.

BARDGETT, Judge.

These are appeals by Robert C. Howell from a judgment in No. 58283 convicting him of murder in the first degree of David Blankenship and sentencing him to life imprisonment, and from a judgment in No. 58768 convicting him of assault with intent to kill with malice aforethought of Randy Krebs and sentencing him to ten years. The offenses arose out of the same event, but the two cases were tried separately. The verdict in the murder case was returned on January 30, 1973, and in the assault case on March 19, 1973.

The notice of appeal in the murder case was filed March 16, 1973, with the appeal being taken directly to this court. This court has jurisdiction. Art. V, § 3, Mo.Const., V.A.M.S., as amended 1970, and order of this court of April 9, 1973, retaining jurisdiction of appeals filed prior to April 9, 1973, involving convictions for offenses punishable by life imprisonment or death.

The appeal in the assault case was properly taken to the Missouri Court of Appeals, Springfield District. Art. V, § 3, Mo.Const., as amended 1970. The court of appeals recommended transfer of the cause to this court prior to opinion pursuant to Art. V, § 10, Mo.Const., as amended 1970, and order of this court of December 18, 1973. The court, pursuant to said recommendation, ordered the appeal transferred.

The defendant does not contend that the state failed to make a submissible case against him in either case. The court has reviewed the record in both cases and finds that the state made submissible cases even when that portion of the evidence which defendant contends was obtained in an unconstitutional manner is not considered.

The evidence in both cases was essentially the same. At about 1:00 a.m. on Sunday, November 19, 1972, David Blankenship's car was found parked on the levee just east of New Madrid with David Blankenship and Randy Krebs inside. Blankenship had been shot in the head behind the right ear and was dead. Krebs had been shot in the left ear but was alive and survived after an extended stay in a hospital. Defendant was charged with the murder of Blankenship and the assault on Krebs.

In both appeals defendant contends that there was no warrant or probable cause for his arrest and therefore certain items seized from him at the time of arrest, clothing items obtained from his home, and results of tests done on both groups of clothing were not admissible in evidence against him as having been obtained in violation of the search and seizure provisions of the U.S.Const., Amends. 4 and 14, and Art. I, § 15, Mo.Const. Defendant also contends in the assault case that a gun residue test and its results are inadmissible for the same reason.

About 10:00 a.m., Sunday, November 19, 1972, Deputy Sheriff Ivy arrested defendant on a street in New Madrid, Missouri, and took him to a nearby building where Mr. Ivy took a black coat and a package of cigarettes from him. These items were turned over to the Missouri Highway Patrol and certain tests were made.

About thirty minutes after defendant's arrest, Mr. Ivy went to defendant's place of residence in New Madrid which is the home of Mary Howard. Mary Howard is defendant's stepmother. Mr. Ivy asked her for defendant's clothing. Mrs. Howard went to a room or rooms in her house and brought defendant's clothing, including a pair of green pants, a green shirt, and a pair of shoes, to the door and gave them to Mr. Ivy. There was no search of Mrs. Howard's home.

The officers found vomit in the automobile in which Blankenship and Krebs were found. Analysis of the vomit revealed the presence of pear and marijuana particles. Three swatches taken from the black coat seized upon defendant's arrest revealed the presence of human blood of an inconclusive type. A fourth swatch taken from the black coat revealed a vomit stain with pear and marijuana particles contained therein. The cigarette package, which was introduced only in the murder trial, had upon it a stain of human blood of an inconclusive type.

As noted, the green shirt and green pants were obtained from Mary Howard. A sample taken from the seat of the green pants revealed a vomit stain with pear and marijuana particles contained therein.

In the assault trial, Blankenship's jacket, the one he was wearing on the night he was murdered, was introduced into evidence. The jacket contained human blood stains of an inconclusive type, particles of marijuana, and vomit residue with pear particles contained therein.

In both trials, the substance of an expert witness's testimony was that, in his opinion, the vomit specimens found on the black coat, on the green pants, and in the car, were the same due to the similarity in the pear particles and the similarity in the particular characteristics of the marijuana particles found in each of the specimens. Additionally, in the assault trial, the expert witness testified, in substance, that the marijuana particles found on Blankenship's jacket were the same as the marijuana particles found in the vomit stains on the black coat, on the green pants, and in the car; and that the vomit containing pear particles found on Blankenship's jacket was the same as the vomit stains on the black coat, on the green pants, and in the car.

About an hour or so after defendant was arrested by Deputy Ivy, there was a gun residue test done on defendant's hands at the New Madrid County jail. This involves swabbing the palms and back of the hands with a solution. Thereafter, the swabs are tested for the presence of barium and antimony materials that are present in the primer of ammunition in order to form an opinion as to whether the subject has recently fired a gun. The testimony in both cases was that the gun residue test revealed that defendant had recently fired a gun.

Prior to the first trial, the defendant filed a motion, applicable to both cases, to suppress the items of clothing seized from him at the time of his arrest, the items of clothing obtained from Mrs. Howard at defendant's residence, and any test results made on the clothing.

The basis for the motion was that the seizure of the clothing from defendant and that obtained from Mrs. Howard constituted an unconstitutional search and seizure under Art. I, § 15, Mo.Const., and Amends. 4 and 14 of the U.S.Const., and this contention is based upon the assertion that the arrest of defendant was invalid as being without warrant and without probable cause.

The motion to suppress did not attack the gun residue test. Whether or not defendant or his attorney knew that the swabbing of defendant's hands was such a test is not known. The evidence as to the gun residue test results was admitted in the murder trial without objection. In the subsequent assault trial, defendant did object and preserved the alleged error for review.

The trial court held a hearing on the motion to suppress. The defendant did not testify. Witnesses called by defendant established that no warrant for the arrest of defendant was applied for or issued prior to the arrest and that no search warrant was issued at any time. Mr. Ivy testified, but his testimony begins with the arrest of the defendant, and he gave no testimony at all as to any information he (Deputy Ivy) had which caused him to arrest the defendant. The court has reviewed the evidence given at the preliminary hearing and at the trials. Nowhere is there any evidence that Deputy Ivy had any information, prior to the arrest of defendant, with respect to defendant's involvement in the shooting of Blankenship or Krebs. It was simply not the subject of any questions asked of or of any answers given by Deputy Ivy.

The state conceded in its briefs and in oral argument that, 'There is no showing in the record that there was any probable cause of the officers to make the arrest.' The court has, nevertheless, examined the record and finds the concession to be accurate.

The state's position is that the burden of showing that the arrest was illegal is upon defendant and that because there was no showing that the arrest was without probable cause and therefore illegal the court did not err in overruling the motion to suppress nor in admitting the evidence over defendant's in-trial objection which continued to be premised on constitutional grounds. However, the state candidly states in its brief:

'The respondent recognizes that the legality of the method of obtaining some, if not all, of the evidence sought to be suppressed depends on the legality of appellant's arrest. Given the facts which have been state above, it would seem that some courts in this situation would reason as follows: The presumption of regularity which attends official acts made by public officers extends to arrests made pursuant to warrants but not warrantless ones. When the legality of an arrest is contested and the arrest is shown to be warrantless, it is incumbent upon the party asserting the validity of the arrest to show that the arrest met constitutional standards of probable cause. In this case, since the appellant demonstrated that his arrest was warrantless and it was not shown that there was probable cause to make the arrest, the motion to suppress should have been sustained and the evidence suppressed. See Sexton v. Gibbs, 327 F.Supp. 134 (N.D.Tex.1970), aff'd mem., 446 F.2d 904 (5th Cir. 1971), cert. denied 404 U.S. 1062, 92 S.Ct. 733, 30 L.Ed.2d 751 (1972); Manuel v. United States, 355 F.2d 344 (5th Cir. 1966); Rogers v. United States, 330 F.2d 535 (5th Cir. 1964). Basically, this authority reasons that once an arrest is shown to be warrantless, the burden of persuasion shifts to the party...