State v. Jackson

• Citation: 477 S.W.2d 47
• Decision Date: 22 February 1972
• Docket Number: No. 2,No. 55996,55996,2
• Parties: STATE of Missouri, Respondent, v. Harold JACKSON, Appellant
• Court: United States State Supreme Court of Missouri

Page 47

477 S.W.2d 47

STATE of Missouri, Respondent, v. Harold JACKSON, Appellant.

No. 55996.

Supreme Court of Missouri, Division No. 2.

Feb. 22, 1972.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

William J. Eichenser, St. Louis, for appellant.

HENRY I. EAGER, Special Commissioner.

Defendant was convicted by a jury of assault with intent to kill with malice and, upon stipulation of and a finding of a prior felony conviction, imprisonment and discharge, he was sentenced to a term of twenty years. He was ably represented at the trial by two appointed counsel. Before the jury was sworn the Court heard extensive evidence on defendant's motion to suppress his identification; this motion was denied, which action is one of the points now raised. Motion for new trial was duly filed and overruled and this appeal followed.

Chester Perkins and his wife Thelma lived in quarters at the back of his plumbing shop at 2908 Gamble in the City of St. Louis. There was a small hallway between the shop and the living quarters. At about 5:00 p.m. on January 5, 1970, Mr. Perkins closed his shop, locking the front door with a regular bolt lock and also a chain. A few minutes before 9:00 p.m. Perkins was resting on his bed in his shorts, when both he and his wife heard a noise in the shop; Mrs. Perkins went to the back door of the shop, partially opened it and looked in. She saw a man standing near the opened front door with their TV sitting in front of him; the set had obviously been moved. The man had a rifle in his hand, which she first described as a 'shotgun.' She later described the man as colored, brown skin, wearing a brown topcoat and dark trousers, and with no hat. The shop was well lighted with three different lights, one of which was a fluorescent light. Mrs. Perkins looked at the man for several seconds. As she looked the man said to her,--'Come here or I'll shoot.' She promptly left the door and told her husband of the occurrence. He got into his slippers, picked up his revolver, went to the shop door and stuck his head in; almost immediately, there was a shot from the man whom he saw at the front of the shop; Perkins saw the 'rifle' which the man had in his hands; the TV was at his feet. The man fired 'somewhere around three' shots, one of which hit the top of the door where Perkins was standing (as demonstrated in a photograph and by his testimony), causing splinters to hit him on the neck; another struck the top of a dryer. Perkins promptly shot at the man 'a couple of times,' obviously without hitting him. He then drew back and told his wife to call the police; however, he again stuck his head around the door and the man shot at him one more time, while still standing in the doorway; the next time he looked in the man was gone. Both Mr. and Mrs. Perkins positively identified defendant as that man at the trial. Several photographs of the scene were taken by the police and identified and received in evidence. These showed the shop, the position of the TV moved to the front door, and at least two bullet marks or holes. The chain had been broken from the front door. The police recovered two bullets or parts of bullets, and three empty shell cases.

When the police call was received, Officer Stephen Landa was assigned to the investigation and Officer William Stone was assigned to 'assist' on the call. Each was in uniform and was driving alone in a regular patrol car. Officer Landa arrived in about three minutes and proceeded to interview Mr. and Mrs. Perkins, get a description of the man, and statements of the occurrence. Officer Stone had started toward 2908 Gamble from four or five blocks away when he saw a man running in a direction away from that location; the man had what 'appeared to be a rifle or a shotgun butt sticking out from his coat, from below his coat.' The man had on a brown coat, 'dark pants,' and no hat. There was ice on the streets. Stone stopped his car in the street alongside the man, got out, and told the man to stop; the man kept on running, stopped momentarily, fell, dropped a .22 caliber rifle, got up and left it on the ground, and continued running until Officer Stone caught up with him when he fell again. In the meantime the officer had picked up the rifle. Officer Stone took the man into custody, put handcuffs on him, and put him in the enclosed and locked back of his patrol car; he then proceeded to the Perkins address. He positively identified defendant at the trial as the man he thus took into custody and identified the rifle as the one he recovered from defendant; and also defendant's coat.

Officer Stone, as stated, proceeded to 2908 Gamble to complete his 'assist' assignment and did assist in the continuing investigation there. While at the scene, Officer Stone asked Mr. Perkins if he could identify the man in his custody and a little later asked Mrs. Perkins also. This will be developed more fully.

The following evidence was produced on defendant's motion to quash the identification: that a police officer (Stone) brought a man to the front door of the Perkins' shop in handcuffs, and asked Mr. Perkins, and later Mrs. Perkins separately, to look at him. The two officers stood nearby. Both Mr. and Mrs. Perkins, separately and without discussion between them, identified the man definitely as the one who had been in the shop; he had on the same clothing. It is indicated that the officer asked these people if they could identify the man and that at such slightly different times, each said that he or she could. Mr. Perkins told the officer that he 'could positively identify him.' All this happened within a few minutes after the first officer arrived. Defendant was then placed under arrest for the present offense and was taken away and booked. Stone did not take defendant to the Perkins place for identification and that developed when Officer Landa saw the rifle and asked about it, knowing that it was not a part of the police equipment.

At the trial the rifle was identified by three different witnesses. Mrs. Perkins remembered the 'funny looking wood on it'; Officer Stone identified it. Mr. Perkins was definite that it was the one defendant was holding and shooting at him with. Three shell casings were picked up at the scene, and it was shown by expert testimony that they were fired in that rifle. It was a .22 caliber pump rifle. There was also evidence in the trial before the jury of the foregoing identification of defendant in front of the shop by Mr. and Mrs. Perkins, and that during this confrontation defendant cursed Mr. Perkins, abused him generally and finally lunged at him, whereupon Mr. Perkins hit him in the mouth with his fist.

The only evidence offered by defendant was that of a barber, Jacob Stalworth, who testified that defendant had worked for him for three months prior to his arrest and that he left the shop at about 8:00 p.m. on the day of his arrest and had no rifle.

Defendant's first point is that of supposed error in overruling 'Defendant's Motion to Suppress Evidence Because of the Unlawful and Illegal Arrest of the Defendant,' without probable cause. The only reference in the transcript to any such motion is as follows: 'Oral Motion to Suppress Evidence. Thereafter, and on April 10, 1970, defendant's oral motion to suppress evidence was argued and submitted and denied.' A motion to suppress evidence must be made and the evidence thereon presented before the commencement of trial, with one exception not applicable here. Rule 33.03(a)5, V.A.M.R. And the burden is, of course, on the appellant to bring up a transcript of the proceedings including the evidence to show error; otherwise we presume that the action of the trial court was correct. State v. Smith, Mo., 298 S.W.2d 354. Counsel is apparently arguing here that the admission of the rifle in evidence was improper because there was no probable cause for the arrest, and has cited cases to the effect that an arrest may not be made on suspicion. No objection was made to the offer of the exhibit at the trial and defendant asks that we consider the point as plain error. We hold that there is not a sufficient record for its consideration, but we certainly do not mean to imply that, under these circumstances, there was no probable cause for the initial arrest. See: State v. Jefferson, Mo., 391 S.W.2d 885; State v. Smith, Mo., 298 S.W.2d 354; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Kennedy v. United States, 122 U.S. App.D.C. 291, 353 F.2d 462.

The next point involves the denial of defendant's motion to suppress the identification of defendant, at trial and otherwise, because of the supposed 'taint' of the showing of defendant to Mr. and Mrs. Perkins, handcuffed and in the presence of the officers, within a very short time after the offense. Counsel say that this showing was so suggestive as to offend against due process, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed 1247, and State v. Parker, Mo., 458 S.W.2d 241. We note that defendant was shown to the victims only after the rifle was seen by the first officer, and thus a connection was created between defendant and the crime. In Wade, defendant was shown in a lineup without notice to counsel already appointed; the judgment was reversed and the case sent back for the trial court to determine whether the in-court identification had a sufficient independent source. In Stovall, the showing of the suspect to the wife of a murder victim in a hospital, she having been seriously wounded, was held to be justified under the 'totality of the circumstances,' although the defendant was in handcuffs and accompanied by several police officers. The Court commented that the showing of suspects singly had been condemned, but that here there...