State v. Howell, 10185

• Decision Date: 17 November 1976
• Docket Number: No. 10185,10185
• Citation: 543 S.W.2d 836
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert C. HOWELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 836

543 S.W.2d 836

STATE of Missouri, Plaintiff-Respondent, v. Robert C. HOWELL, Defendant-Appellant.

No. 10185.

Missouri Court of Appeals, Springfield District.

Nov. 17, 1976.

John C. Danforth, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Harry H. Bock, New Madrid, for defendant-appellant.

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

TITUS, Judge.

In accordance with jury verdicts, the trial court sentenced defendant to consecutive terms of life imprisonment for (Count I) the first degree murder of David Blankenship and for (Count II) the assault on Randy Krebs with intent to kill with malice aforethought. The crimes were allegedly committed by defendant with the use of a .38 caliber pistol shortly before midnight on Saturday, November 18, 1972, while he, Krebs and Blankenship were sitting in the latter's automobile 'up on the levee' near New Madrid, Missouri.

Defendant had previously been separately charged, jury-tried and convicted of the two crimes. In the consolidated appeals from the prior convictions, the causes were reversed and remanded for new trials by the Supreme Court because the state had not sustained its burden of showing probable cause for defendant's warrantless arrest and because the trial court erred in overruling portions of defendant's motions to suppress. State v. Howell, 524 S.W.2d 11 (Mo. banc 1975). Following remand, an amended information was filed charging defendant with the crimes in two counts. Defendant renewed and augmented his motions to suppress evidence and the results of certain tests conducted by the state. At the conclusion of a hearing on the motions, they were overruled and the evidence and tests sought to be suppressed were admitted into evidence over defendant's repeated objections.

Preliminarily we consider the state's motion to dismiss the present appeal or to strike defendant's brief for failure to comply with Rules 84.04(d), (e) and (h), V.A.M.R. We agree the rules were violated. Nonetheless, we will consider the points relied on by defendant to see if plain error affecting substantial rights was committed (Rule 27.20(c), V.A.M.R.) because of the contention that defendant's federally guaranteed rights were violated (State v. Coyne, 452 S.W.2d 227, 228(1) (Mo.1970); State v. Fields, 538 S.W.2d 348, 350(2) (Mo.App.1976)), and the claim that the essential elements of first degree murder were not proved by the state. State v. White, 439 S.W.2d 752, 753(2) (Mo.1969); State v. Alderman, 500 S.W.2d 35, 36(1) (Mo.App.1973). Accordingly, the state's motion is denied.

At the time of his warrantless arrest on the public streets of New Madrid at 10 a.m. Sunday, November 19, defendant was bedizened, inter alia, in a long black velvet coat. This garment was seized by the officers and patches were taken therefrom for testing. The tests revealed the presence of human blood on the coat of an inconclusive type; they also revealed the coat was stained with vomit similar to vomit discovered in the automobile in which Blankenship and Krebs were found. Also after defendant's arrest, a gun residue test was done on his hands which indicated defendant had recently handled and discharged a firearm. It was held in State v. Howell, supra, 524 S.W.2d at 16 and 17(3), that the items seized from defendant's person and the gun residue test performed on defendant's hands after his arrest violated defendant's constitutional rights against unreasonable searches and seizures under art. I, § 15, Mo.Const., and Amends. 4 and 14, U.S. Const., unless the state could sustain its burden of showing that there was probable cause to arrest defendant before the searches and seizures took place. Defendant's first point is to the effect that the trial court erred in not suppressing the evidence relating to the coat and the gun residue test because the officers had no probable cause to arrest him.

The constitutional validity of the searches and seizures in this case depends upon the constitutional validity of defendant's arrest. As the officers had knowledge that felonies had been committed, whether the arrest was constitutionally valid depends in turn on whether the officials, at the moment of arrest, had knowledge of facts and circumstances based on reasonably trustworthy information which would justify a prudent person in believing that defendant had committed the offenses. State v. Perry, 499 S.W.2d 473, 475(2) (Mo.1973); State v. Novak, 428 S.W.2d 585, 591(7) (Mo.1968). Of course, an arrest may not be employed as a pretext to search for evidence (State v. Moody, 443 S.W.2d 802, 804(2) (Mo.1969)), and neither may the post-arrest discovery of incriminating evidence nor an ultimate conviction be relied upon to uphold the validity of an arrest. State v. Seymour, 438 S.W.2d 161, 162-163(2) (Mo.1969). The factual issue of probable cause must be resolved from facts and circumstances peculiar to each particular case, bearing ever in mind the caveat that probable cause can never be satisfied with a bare suspicion of guilt. State v. Goodman, 449 S.W.2d 656, 660(5) (Mo.1970). Therefore, it becomes essential to learn exactly what the officers knew and did not know prior to the arrest of defendant with respect to his involvement in the shooting of Blankenship and Krebs.

What the officers knew: ¹ Three people discovered Blankenship's car on the levee in the early morning hours of Sunday, November 19. Inside was a dead man and a wounded man who were taken via ambulance to a hospital in Sikeston. The car was removed from the levee and taken to the premises of a motor company in New Madrid. The New Madrid County sheriff arrived at the motor company about 3:30 a.m. and established his investigation headquarters at that location ostensibly because the courthouse was locked. Other officers and officials arrived thereafter. To ascertain the identity of the victims, the sheriff telephoned the hospital in Sikeston, spoke to the ambulance driver and learned their names. Krebs was later taken to a hospital in Memphis and none of the officers talked with him before defendant was arrested. Two days before discovery of the crimes, i.e., Friday night, November 17, Randy Krebs, Larry Speight and Jerry Brockman were sitting in Speight's car in front of Willy Gilmore's Brotherly Love Club in New Madrid listening to taped music. Sonny Buchanan and a person then known as 'Cricket' (later identified as being defendant) approached the car and inquired about the availability of marijuana. Cricket was described as 'colored' with a mustache, wearing a green pantsuit and a long black velvet coat. When advised that none of the car occupants had any marijuana, either Cricket or Buchanan or both inquired about the possibility of buying some. Krebs told Cricket 'he might find him tomorrow' about supplying marijuana. Cricket and Buchanan then rode in Speight's car to where they were let out near their respective residences. This was the last the officers knew of Cricket's activities. Presumably the next day, Saturday, November 18, Krebs, Blankenship (the two victims), Bill Recker and 'a Mann boy' ² went to an abandoned house 'ten miles up the levee from New Madrid' to get three pounds of marijuana 'that was alleged to be used to sell to' Cricket. From interviewing some of the people above mentioned, the officers also knew that none of them professed having any knowledge or information regarding the shootings, when the crimes had been committed, or the whereabouts of Cricket after Friday night.

What the officers did not know: What time the crimes had been committed; a description of the perpetrator or perpetrators of the crimes; information as to his or their identities, sex or activities at any time; the relationship of defendant with Blankenship, or whether defendant ever saw or was acquainted with him; defendant's relationship with Krebs, except on one occasion two days before; the activities of Cricket after he left Speight's automobile on Friday night; whether there had been any trouble or threats between Cricket and the victims; whether any physical evidence, including fingerprints, existed either within or without the car in which the victims were found that would indicate defendant or any particular person or persons had committed the crimes; whether Cricket (defendant) had on his person or at his place of residence any firearms, clothing or other objects which could connect him with the crimes; whether defendant had any residue upon his hands that would indicate he had recently handled or discharged a firearm; whether defendant was a police character or had a previous criminal record; ² whether defendant had ever been in Blankenship's automobile; whether defendant had ever been on the levee where the crimes were apparently committed; ad infinitum.

The foregoing of what the officers knew and did not know at the moment of arrest, indicates they knew of no facts or circumstances from which they could infer a nexus between defendant and the crimes. Cf. State v. Hicks, 515 S.W.2d 518, 521(1-5) (Mo.1974). The knowledge that defendant, two days before the time of his arrest, had talked with Krebs about the possibility of purchasing marijuana at some future unspecified time and place would only give rise to the barest suspicion of defendant's connection with the crimes. As previously observed, bare suspicion is not enough to permit officers to make a warrantless arrest. State v. Whorton, 487 S.W.2d 865 867(3) (Mo.1972). In fine, we say there was no probable cause for defendant's warrantless arrest and the trial court erred in not sustaining defendant's motions to suppress and in overruling defendant's trial objections to the evidence obtained by the state through its unlawful searches and seizures. The fact that the deputy sheriff who made the warrantless arrest of defendant said he arrested defendant for 'investigation,' did not justify his action. 'An arrest...