State v. Johnson

Decision Date04 May 1976
Docket NumberNo. 35416,35416
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Theodore Roosevelt JOHNSON, Jr., Defendant-Appellant. . Louis District, Division One
CourtMissouri Court of Appeals

William J. Shaw, Public Defender, Alan G. Kimbrell, Asst. Public Defender, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Wm. F. Arnet, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Charles Merz, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

WEIER, Presiding Judge.

On February 1, 1973 defendant was convicted by a jury of two counts of first degree murder, two counts of assault with intent to kill with malice, and two counts of robbery first degree by means of a dangerous and deadly weapon. He was sentenced to two concurrent life terms and to four concurrent terms of ninety-nine years, the latter to run consecutive to the life terms. The transcript is voluminous. The briefs are lengthy with numerous citations. Consideration will be given to such of his assignments of error as were properly preserved for review and may now or hereafter bear meritoriously upon this cause.

Defendant does not attack the sufficiency of the evidence. The jury could reasonably find the facts to be as follows. Shortly before 1:30 a.m. on March 18, 1972, several young black men armed with various weapons including sawed-off shotguns, entered and robbed a Maplewood tavern named Cousin Hugo's. The tavern has two rooms and is L-shaped. The room first entered contains the bar. The back room, containing tables and space for dancing, is reached through an open doorway at the far end of the first room. Because of the physical arrangement of the tavern, all of the patrons did not see all of the robbers. Most of the patrons in the back room saw only two robbers. Three patrons who were in the front room, however, testified that they saw a total of five robbers. A young man driving past the tavern with friends that evening also saw five blacks come out of the tavern door. He saw one of them fire a shot.

During the robbery a barmaid was stabbed and one patron was shot in the knee and hip. Two patrons were killed, one by a stab wound and another, an off-duty police officer, by a shotgun wound of the head. When the police officer went off duty at 12:15 a.m. on March 18, he was carrying his service revolver and his holster. Neither the revolver nor the holster were found on him when he was taken to the hospital following the incident.

A resident of the area said that he had seen several blacks, one of whom he recognized as Robert Lucius Toney, drive past the tavern at about 5:00 p.m. the previous afternoon. Based upon information given them by this witness, three officers went to Toney's address. Toney's mother was there. When asked the whereabouts of her son she became extremely agitated and finally hurried down the street to a house around the corner on Banneker Street shouting 'Lucius, Lucius, the police.' When Toney came out onto the porch of the Banneker house, the officers asked for and were granted permission by Toney to enter. After they entered, Toney ran past them to the bedroom door. At the same time, another person was observed running into the bathroom. Sergeant Boulch pursued Toney and observed two more black males in the bedroom. He also saw what appeared to be a shotgun butt on the floor. All four persons in the Banneker house, including defendant, were placed under arrest. A fifth person, Robert Alfred, was also taken into custody when he appeared on the porch of the house moments thereafter. Alfred was later released for lack of evidence, and James Roy Hill was arrested.

Numerous officers soon arrived at the Banneker house to assist in the arrest and to gather evidence. A large, unruly crowd gathered outside and began pounding on windows and walls. The officers were therefore ordered to leave before their investigation was completed. They took with them various items, among them a .38 caliber pistol later identified as that of the dead police officer, and a holster similar to his, a knife, and a bag full of wallets, purses, credit cards and the like, many of them later identified by victims of the robbery. Officers from the fingerprint unit obtained six identifiable prints from the items in the bag. Two of them were the fingerprints of the defendant. One print was found on a check-cashing card belonging to one of the robbery victims, and the other on an unidentified wallet also found in the bag of loot.

Two barmaids testified that defendant came into the bar late Friday afternoon, March 17, to purchase popcorn or potato chips. One testified that later she saw defendant during the robbery standing across the bar from her with a shotgun. Two patrons also identified defendant as one of the robbers. Additional facts are discussed when relevant to the various points of alleged error.


Defendant's first three points on appeal involve the use of expert testimony regarding gunshot residue test results obtained by neutron activation analysis. Because they are closely related, these three points will be considered together.

Defendant's hands were tested for gunshot residue by neutron activation analysis. This testing required several steps. In this case, Robert Roither, a criminalist with the St. Louis County Police Department, who had a B.S. degree in chemistry, took five gunshot residue kits with him to the Maplewood Police Department to test the five persons arrested at the Banneker address. Roither received personal instruction in the use of these kits from Dr. James Vogt, manager of the University of Missouri Nuclear Research Facility at Columbia, Missouri. The sealed kits contained plastic bags, small plastic vials and five dilute acid and cotton swabs--one each for the front and back of both hands and an extra swab which was used as a control to test for and insure against contamination. After the subject's hands were swabbed, each swab was placed in an individual plastic vial. Each vial was sealed in a plastic bag which was marked with the subject's name and location of the swabbing; i.e., which hand and whether it was the front or back of the hand. Roither swabbed defendant's hands on the morning of his arrest and delivered the kits to Donald Brocksmith, director of the St. Louis County Police Laboratory, who in turn delivered them to Dr. Matt Eichor at the Nuclear Research Facility. Dr. Eichor supervised the analysis of the swabs and recorded the presence of micrograms of two elements, barium and antimony, both being used in primer compositions for ammunitions. It is the degree to which these elements are present on a suspect's hands that indicates the likelihood of his having recently handled or discharged a firearm. Dr. Eichor then submitted date of the test results to Dr. Vogt, the director, who was responsible for ultimately reaching a conclusion. Obviously, no one individual could or did perform all the steps.

The general rule is that results of scientific tests and expert opinions based thereon are admissible only if the scientific principle involved is generally considered reliable and accurate by the concerned scientific community. Gunshot residue testing by neutron activation analysis meets this requirement. Neutron activation analysis has proven to be a highly reliable technique for detecting gunshot residue and for determining whether a person has recently handled or discharged a firearm. Reliability of evidence obtained by this means was settled in Missouri in State v. Ross, 523 S.W.2d 841, 845(5) (Mo.App.1975) which held that 'firearm residue testing by neutron activation analysis has crossed the line between the experimental and demonstrable stages and the evidential force of the principle must be recognized.' Defendant argues that even if this particular use of neutron activation analysis is generally accepted in the scientific community, there was no evidence that the technique used in this case has gained general acceptance. The technique employed is the same as that described in State v. Ross, supra at 844(3, 4). It is not true, as defendant asserts, that there was substantial evidence that the technique of taking samples by swabbing a suspect's hands as opposed to pouring on hot paraffin is not generally accepted. The evidence indicated only that it is not the sole method for obtaining samples. Objections to the manner in which the analysis was conducted go to the weight rather than to the admissibility of the evidence. United States v. Stifel, 433 F.2d 431, 435(2) (6th Cir. 1970), cert. denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971); Annot., 50 A.L.R.3d 117, 127 (1973). See generally, Watkins & Watkins, Identification of Substances by Neutron Activation Analysis, 15 Am.Jur. Proof of Facts, 115 (1964).

It would serve no useful purpose to recount in full defendant's arguments in support of his attack upon the qualifications of the state's expert witnesses. He contends in essence, that there was no evidence that Dr. Eichor was qualified to perform any but one portion of the analysis; that if he was, it was not he who ran the tests; that even if the results obtained were arrived at by qualified experts, those results are meaningless without background data to which they can be compared; and that Dr. Vogt compared the results to his own background data rather than of another expert, Dr. Guinn.

The determination of an expert's qualifications to draw an opinion is for the trial court's discretion and will not be overturned on appeal absent an abuse of that discretion. State v. Stevens, 467 S.W.2d 10, 23(12) (Mo.1971), cert. denied 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971). The record amply supports the conclusion that both Dr....

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