State v. Johnson, 54016

• Decision Date: 10 November 1969
• Docket Number: No. 54016,No. 2,54016,2
• Citation: 447 S.W.2d 285
• Parties: STATE of Missouri, Respondent, v. Raymond Richard JOHNSON, Appellant
• Court: Missouri Supreme Court

Page 285

447 S.W.2d 285

STATE of Missouri, Respondent, v. Raymond Richard JOHNSON, Appellant.

No. 54016.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 8, 1969.

John C. Danforth, Atty. Gen., Jefferson City, John P. Emde, Special Asst. Atty. Gen., St. Louis, for respondent.

Lawrence D. Willbrand, St. Louis, for appellant.

FINCH, Justice.

Defendant was convicted by a jury of burglary of a dwelling and of stealing therefrom and his punishment was fixed at three years for burglary and two years for stealing, the sentences to run consecutively. Defendant appeals. We affirm.

This case, written on recent reassignment, involves primarily the issue of whether the evidence is sufficient to support the verdict and whether the court erred in failing to sustain a motion to suppress evidence seized from the automobile in which defendant was a passenger following the arrest of defendant and his companions on suspicion of burglary and stealing.

Defendant filed a motion for a directed verdict at the close of the State's case and again at the close of all the evidence. We consider only the latter motion because by introducing evidence in his own behalf defendant waived any error in the action of the court in overruling his motion at the close of the State's case. State v. Davis, Mo., 367 S.W.2d 517; State v. Truster, Mo., 334 S.W.2d 104.

In determining whether a submissible case was made, we accept as true all evidence in the record, including inferences reasonably drawn therefrom, which is favorable to the verdict of guilty, and we disregard the evidence and inferences to the contrary. State v. Webb, Mo., 423 S.W.2d 795; State v. Sykes, Mo., 436 S.W.2d 32. In this connection, we consider any portions of defendant's evidence which support a finding of guilty because defendant, by putting on evidence, takes the chance of aiding the State's case. State v. Truster, supra.

On August 3, 1967, at about 9:30 a.m., Mrs. Katherine Sandoz locked their home at 850 Deaver, Lane in Creve Coeur, St. Louis County, and went to the place of business which she and her husband operated. She left their dog tied in the basement where he could get in and out of the building. When Mrs. Sandoz arrived home at approximately 9:45 to 9:50 p.m., the dog was barking (something he never did, normally) and wanted to go up the driveway, as though he knew something was up there. Mrs. Sandoz put the car in the garage and went upstairs, where she discovered that the house had been entered. Dresser drawers were open and clothes were strewn over the floor. The covers on the bed were ruffled and one orchid pillowcase with a white floral design was missing.

Mrs. Sandoz called the Creve Coeur Police and her husband. The police came shortly and they then reported the burglary to the St. Louis County Police. Missing were a considerable number of one-dollar silver certificates and other bills of one, two, five and ten-dollar denominations, various coins consisting of silver dollars, Kennedy half dollars, and other currency and old coins (aggregating a little more than five hundred dollars), two ladies' watches, a shoe box containing Eagle Stamp books and Eagle Stamps, two coin purses, a medal, some birthday cards, and three rings belonging to Mrs. Sandoz.

At about 10 p.m. that evening, Officer Farmer of the St. Louis County Police Department was on normal patrol and he stopped his car on Spoede Road at its intersection with Olive Street Road, preparatory to making a right turn to go east on Olive. While he was stopped there, a white Pontiac convertible, going east on Olive, passed at what appeared to be an excessive speed. This intersection of Spoede and Olive Street Roads was a short distance (perhaps two or three blocks) from the Sandoz home.

Officer Farmer followed the Pontiac to the intersection of Olive with Lindbergh (about one mile) and then followed the Pontiac north on Lindberg to check its speed. He found that it was going 50 to 52 miles an hour on Lindbergh, where the speed limit was 40 miles per hour. Farmer could observe three occupants in the Pontiac, two in the front seat and one in the rear. After traveling about two miles on Lindbergh, the officer turned on his red flasher lights and his spotlight and stopped the Pontiac for the purpose of giving a ticket for speeding. He fixed the time when he stopped the other car at 10 to 10:05 p.m.

Officer Farmer went to the drivers' side of the Pontiac where he began to talk to the driver, who proved to be Joe Skaggs. Defendant Johnson was seated in the right front seat, and a third man was in the rear seat. Farmer did not know either Skaggs or Johnson, but he recognized the man in the rear seat as Gerald Raymer, a known police character, whose picture Farmer carried with him. Farmer asked Skaggs to see his operator's license, but Skaggs could not produce one. The interior of the car was well lighted by an aircraft landing light mounted on his patrol car which he left shining into the interior of the Pontiac, and while talking to Skaggs, Farmer observed an orchid colored pillowcase with a white floral pattern between the two front bucket seats. He could not see the contents of the pillowcase but stated it was bulging and was perhaps one-third full. Skaggs was extremely nervous and was stuttering, stammering and shaking. He told Farmer that the automobile belonged to the occupant of the rear seat, Gerald Raymer.

Officer Farmer testified that he did not place anybody under arrest while he was standing by the side of the Pontiac. He took Skaggs back to the police car where he wrote out a ticket for Skaggs for not having an operator's license. Raymer and defendant remained in the Pontiac while he did this. Farmer had reported earlier by radio that he was stopping a car with three occupants and he knew that other officers would arrive shortly because under such circumstances additional officers are routinely dispatched to the scene to assist the officer unless he reports back that additional help is not necessary. He testified that he stalled while waiting for help to arrive.

While Farmer was talking to Skaggs, he asked where they had been and Skaggs mentioned a tavern on Olive Street Road. Farmer patroled that area regularly and the description given did not fit any tavern with which the officer was familiar. He also asked Skaggs where he was going when stopped. Skaggs said that he was going home to Overland, but the officer knew that they already had passed up the most direct route to Overland.

When two detectives drove up in another police car, Officer Farmer informed Skaggs, Raymer and the defendant that they were under arrest on suspicion of burglary and stealing. Defendant and Raymer then were told to alight from the Pontiac, which they did, both leaving the car on the right-hand side. They were frisked and then taken back to the car of Detective Moakley. Officer Farmer and Detective Messina then proceeded to search the Pontiac. Farmer first took out the orchid pillowcase which he had observed when he first stood outside the Pontiac talking to Skaggs. He handed the pillowcase to Messina and they then searched the rest of the automobile but found nothing further.

Inside the pillowcase they found a steel pry bar (approximately two feet long), a flashlight, two pairs of work gloves, and all the items (except the rings) which had been stolen from the Sandoz residence. The officers then took the three men to the St. Louis County Police Station. Shortly thereafter, Mr. and Mrs. Sandoz arrived and identified the contents of the pillowcase, other than the pry bar, flashlight and gloves, as their property. Mrs. Sandoz also identified the pillowcase as the one which had been taken from their home.

Lt. Thomas Gooch, of the Creve Coeur Police Department, went the next morning to the scene where the Pontiac had been stopped the night before. He had been by there the preceding evening and knew where the car had been stopped. He searched in the trampled grass and weeds looking for the rings which had been taken from the Sandoz home and he found them on the ground 'pretty well immediately at the edge of the car door' on the passenger side.

At the trial a chemist testified that he had examined the aluminum door which had been pried open at the Sandoz residence and also had examined the pry bar found in the orchid pillowcase. The pry bar matched the marks on the door and some scrapings found on the pay bar were analyzed and found to match material on the aluminum door at the point where the pry marks were made.

Defendant took the witness stand in his own defense. He testified that he had grown up with Raymer and had gone to high school with him. He said, however, that he had lost contact with Raymer except that he had seen him on a few occasions at the Normandy Bowling Alley. On one of those occasions he had met Joe Skaggs. On cross-examination, the defendant admitted that what he had testified about seeing Raymer only at the bowling alley was untrue and that he had been with him on January 3, 1967, in Bellefontaine Neighbors, and was with him in St. Louis County on February 19, 1967. Nothing further was developed as to those two occasions or why the men happened to be together at those times.

Defendant further testified that Raymer called him about 5:30 p.m. on August 3, and asked that he meet Raymer and Skaggs for some drinks to celebrate Skaggs' birthday. The defendant agreed to do so and met them at Beil's Tavern on Carson Road at 8 p.m. He was with them until they were stopped by the police on Lindbergh approximately two hours later.

Defendant stated that they left Beil's Tavern at about 8:45 p.m., in Raymer's Pontiac, and went to another tavern on Olive Street Road just east of 244. They were enroute from that place to Normandy Bowling Lanes when they were stopped by the police. Defendant testified that at no time while ...