State v. Jackson

• Decision Date: 11 February 1975
• Docket Number: No. 35622,35622
• Citation: 519 S.W.2d 551
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Denford JACKSON, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 551

519 S.W.2d 551

STATE of Missouri, Plaintiff-Respondent, v. Denford JACKSON, Defendant-Appellant.

No. 35622.

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

Feb. 11, 1975.

Arthur Kreisman, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard A. Heidenry, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

Defendant-appellant, Denford Jackson, was found guilty by a jury and sentenced by the court on June 29, 1973, to two years in the department of corrections for the offense of burglary in the second degree. Section 560.070, RSMo.1969, V.A.M.S. He appeals. For reasons hereinafter stated we affirm.

Since defendant questions the sufficiency of the evidence, we will review the evidence in the light most favorable to the State together with all reasonable inferences deducible therefrom and will disregard defendant's evidence except as it aids the cause for the State.

A jury could reasonably find the following facts. The Firestone Tire and Rubber Company located at 5901 Delmar Blvd. in the City of St. Louis was burglarized on the evening of July 12, 1972. At about 6:00 p.m. the operating manager of the Firestone Store, Mr. George Bughman, closed the store for the day, secured the premises by checking the building, observed no broken windows on the west and rear of the building, and observed that the doors were locked and the windows secure.

At approximately 9:00 (9:01) p.m. Officer George Jackovich of the City of St. Louis received a radio assignment that the alarm was sounding at the Firestone Store. At the time he was about a block away. He proceeded toward the address, pulled into the driveway in front of the store and observed two males 'run from around the building and they ran east across the lot in front of my car.' His lights were on; the two men ran 'past my car, the front of my car.' They ran from around the side of the building and ran east on Delmar north on Hamilton. He alighted from the car, shouted at the two, and was 'going to attempt to chase them, but I observed another subject walking around the side of the building.' The officer described the two men who ran in front of the car--'one of them was a Negro male about 35, five foot ten, he had a blue jacket on and a mustache and beard.' He had a 'mustache and a goatee, bushy.' The other man was about five foot seven or eight, about seventeen years of age, with no facial hair. The two men were about ten feet away from the front of the car, the taller man being closest to the car. Officer Jackovich identified the defendant in the court room as the taller man who ran in front of his vehicle. At trial when asked if he was positive that Jackson was the subject he saw run in front of the police vehicle, he replied, 'Yes.'

When the officer alighted from his vehicle and shouted to the two to stop, he observed another (a third) man walking around the west side of the Firestone building. The officer walked toward this third man. He was carrying a box in his arms and walking toward an automobile (1966 four-door, dark or black Chrysler) parked nearby. The man placed the box which he was carrying on 'a door ledge of the right passenger door.' The window of the automobile was rolled down, and he 'placed the box on the ledge.' The man looked in the direction of the officer and 'ducked' behind the car. The officer walked around the auto and placed this third man under arrest. After the officer took the third man into custody, he looked to the west wall of the Firestone building and saw a fourth man 'pushing another box out of a small window' of the west wall of the building. He then went to his radio and called for another police car.

At about the time Officer Jackovich called for assistance, he also called the station which made a call to the Firestone people. Within an hour Mr. George Bughman, operating manager of the Firestone Store who was employed there on July 12, 1972, arrived at the scene. He testified that he arrived sometime after 9:00 p.m. together with the assistant manager. When he reached the scene, the police had one person in custody, and he found two Firestone batteries (5 6--7 ) in cartons, one in the window ledge of the building and one resting on the passenger side window area of the car.

On cross-examination, Mr. Bughman was asked whether or not on a previous trial he had testified that he received a call and returned to the store at 7:00 p.m., rather than 9:00 p.m. His reply was that he did not believe he had said 7:00 p.m., but 'All I know, that I came back in the evening after the police called me. That was clear back last July. I can't remember that far back.'

On redirect examination, Mr. Bughman was asked whether a 'juvenile' was found in the building. He replied, 'Yes.' After an objection, Mr. Bughman described this person as '13 years old, small boned, Negro, that's about all, very small,' whom he discovered subsequent to his arrival.

At the scene when Officer Jackovich radioed for assistance and within a few minutes Detectives Joseph Hoyer and Richard Kukuljan came. These two officers who were nearby were driving west on Delmar when Officer Hoyer noticed Officer Jackovich in 'pursuit of a subject.' They went to his aid. They also proceeded to make an investigation of the immediate area, and observed a 'dark or black' painted Chrysler automobile sitting in the parking lot and found 'on the right front window of the automobile ledge of the window' a battery. In the back seat they found a set of license plates, and through the computer determined that the automobile was registered in the name of the defendant Denford Jackson of 6217 (5217?) Cabanne. Jackson was not seen on the premises of Firestone, but the officers proceeded to Jackson's home. As they arrived, they met a University City police officer, who was there because Mr. Jackson had reported his Chrysler stolen. Officer Hoyer advised Jackson, when he opened the door, that he was under arrest for burglary. According to Officer Kukuljan, Jackson was 'sweating very heavily and breathing hard.' Jackson was in a sleeveless Zebra striped undershirt and wearing dark trousers. As they left the premises, according to the officers, Jackson 'picked up' a blue windbreaker type jacket off the couch and put it on to go to the station. The officer conveyed Jackson to the station and he was booked for the burglary charge.

Officer Kukuljan had made an investigation of the car that was on the lot and found that the 'keys were in the ignition and it wasn't wired. The ignition wasn't punched out in any way. The keys were in the ignition.' The Chrysler was subsequently towed from the scene to the police garage, and eventually after about six weeks Officer Kukuljan, after checking with the circuit attorney's office, turned the automobile and keys over to Mr. Jackson after he presented evidence of title.

The defendant's defense consisted of his own testimony and that of one Charlesetta Pernell. Mr. Jackson testified that he was a barber and had worked in his father's barber shop since 1958. On July 12, 1972, he took a bus, went to work about 6:20 a.m., worked all day and left work about 6:40--6:45 p.m. He took a cab and went to some friends by the name of Pernell on Maple Avenue for the evening. He stated that he 'received a call' to have dinner 'and a few drinks and play a few cards.' He arrived at the Pernells' about 7:00 p.m. and left 'about a fraction after nine.' He walked home and arrived about 9:30 p.m. When he arrived home, he went into the back yard and noticed his car, a dark green '66 Chrysler which had been parked there about a month, was gone. The license plates had expired the previous June. He had taken the plates off and placed them in the 'back seat on the floor.' He called the University City Police to report 'that my car was missing.' The police came, advised him of his rights and stated he was under arrest for burglary. He testified that he was handcuffed and the officers 'reached and grabbed the coat off the rack' and threw it around his shoulders--a blue jacket, which he had never worn before, and which he wore to the station. Jackson indicated he had an account at the Firestone Store and was there earlier in the day to pay a bill, but denied any participation in the burglary.

He testified also that he was six feet and one-quarter, and at the time of the alleged burglary weighed 210 pounds, and had his hair 'braided' not bushy. He did admit he had a beard and a mustache. He also testified that when he obtained the automobile from the police garage, the ignition had been tampered with and he was not able to start his car with his keys, but had to have it towed home by a friend. He denied that the police gave him the keys when they returned the car to him.

He admitted that he was convicted some nineteen years previously for assault, burglary and larceny, but had not been in any 'trouble' since then.

Mrs. Pernell corroborated his testimony as to being at her home that evening at her invitation and so to the times of arrival and departure.

The defense also called the court reporter in the previous trial. She testified that Mr. Bughman had stated that the police called him about 7:00--7:30 p.m., but he could not remember exactly and could not remember if it was after 8:00 p.m.

After the defendant moved for a judgment for acquittal and the court denied the motion, the court instructed the jury that all persons are equally guilty who act knowingly together with a common intent in the commission of an offense, and an offense committed jointly by two or more persons is the act of each and all. The court also gave Instruction No. 4, an alibi instruction. ¹

During the prosecutor's closing argument, reference was made to the following: 'There was a juvenile inside who was handing a box out the window and...