State v. Johnson

• Decision Date: 14 July 1975
• Docket Number: No. 58221,58221
• Citation: State v. Johnson, 524 S.W.2d 97 (Mo. 1975)
• Parties: STATE of Missouri, Respondent, v. James Ben JOHNSON, Appellant.
• Court: Missouri Supreme Court

Page 97

524 S.W.2d 97

STATE of Missouri, Respondent, v. James Ben JOHNSON, Appellant.

No. 58221.

Supreme Court of Missouri, En Banc.

July 14, 1975.

John C. Danforth, Atty. Gen., David Robards, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for respondent.

William M. Kunstler, New York City, Louis Gilden, St. Louis, Paul R. Hales, Clayton, for appellant.

WELBORN, Commissioner.

Appeal from judgment and sentence of life imprisonment, entered on jury verdict finding James Ben Johnson guilty of murder in the first degree.

At around 2:30 P.M., January 23, 1970, Robert Lee Walker entered the University Jewelers Store, 6360 Delmar Boulevard, University City, Missouri, and spoke to the proprietor, Adam Bakos, about buying a wedding ring. A second man entered and conversed with Walker. The two left together.

A short time later the two men returned to the store. Walker told Bakos he wanted to buy one of the rings he had seen. When Bakos handed him the ring, Walker pulled a gun and told Bakos to go to the back room. Before doing so Bakos stepped on a silent holdup alarm.

Bakos went to the back room where Walker ordered him to lie down and tied his hands and feet. Bakos heard the cash register in the front of the store open and heard the second man say, 'Come on, let's go, I have got the stuff.' Walker said, 'Wait a minute. I want to get some stuff too.' Bakos heard the front door close. As Walker was taking money from a safe in the rear, two University City detectives, responding to the alarm, entered the store. Gunfire was exchanged between them and Walker. One of the detectives, James Boevingloh, received fatal injuries. Walker was wounded and arrested at the scene. Walker received a life sentence on the charge of Boevingloh's murder.

Officer Kannenberg of the University City Police Department arrived at the scene of the robbery as Walker came out of the store. Kannenberg went to the rear of the store. There in the alley he saw footprints in the recent snow and paper money and currency near the footprints, which led across the yard of a residence fronting on Washington Boulevard. He saw a Negro male, wearing a yellow sweater and dark pants, going east on Washington.

Officer Bernard had driven into the alley. Kannenberg told him of the man he had seen on Washington and asked Bernard to put out a radio call describing the man and his movements. Bernard said that he and Kannenberg saw the man simultaneously. Bernard radioed the dispatcher that he thought he 'possibly had one suspect' and drove east through the alley, parallel with Washington. He got glimpses of the man between buildings, sometimes running, sometimes walking fast. Bernard kept in radio touch with the dispatcher. When the man got to Washington and Skinker, Bernard pulled out of the alley onto Skinker. The man turned south and walked along Skinker to Kingsbury, where he crossed Skinker and entered a cab in a service station.

Bernard had followed the man along Skinker. Officer Dowling was in the vicinity to assist. When Bernard radioed that the man had gone to the service station and gotten into a cab, Dowling drove into the service station and placed the man under arrest. The man arrested was the appellant, James Ben Johnson. When the officer searched Johnson, he found no weapon. Johnson was carrying eight one-dollar and two five-dollar bills 'in a wad' in his hand.

Dowling and another officer took Johnson to the police station. Officer Kannenberg was at the station and observed that the pointed toed shoes Johnson was wearing 'appeared to be the same as the footprints in the snow' that he had seen in the rear yard of the Washington Boulevard residence. Officer Dowling removed Johnson's shoes. The officer testified that when he removed the right shoe, two rings fell out. Bakos identified them as rings taken from his store.

When Walker was arrested, officers found a registration certificate for a 1968 Pontiac coupe in his billfold. A police dispatch advised officers to be on the lookout for the vehicle. Some 30 to 35 minutes after he had received the first call about the holdup, Officer Didden found the Pontiac on a municipal parking lot a few doors to the east of the University Jewelers Store. The car was eventually towed to the police garage. There officers examined the interior and found in the rear seat numerous items of jewelry which had been taken from Bakos' store. A partial fingerprint on a ring tray found in the car was identified as Johnson's.

Later that afternoon or in the early evening, Bakos viewed a lineup in which Johnson and four other men appeared. Bakos did not identify Johnson and picked out another person as 'resembling' the man with Walker.

Johnson testified at his trial that he had been shooting dice at Delmar and Clara in St. Louis. The game broke up when the police came by at around 3:00 P.M. An acquaintance of Johnson, Steve Horne, who had been in the game gave Johnson a ride out Delmar to Skinker. Horne and other companions in the car were on their way to Washington University. After the car turned left on Skinker, Johnson said he did not want to go to Washington University and Horne let him out of the car in the vicinity of Skinker and Washington. Johnson said he crossed Skinker, got into the cab and told the driver to take him to Delmar and Clara. Just then the police arrived and placed him under arrest. Johnson denied that he had the rings in his shoes. Horne testified in corroboration of Johnson's testimony. The cab driver testified that he saw Johnson cross Skinker and that he got in his cab. The driver noticed that Johnson had 'crap money' in his hand and Johnson remarked, 'Hustling was hard to-day.' Johnson said he had been gambling. Just then the police arrived.

On this appeal, the first contention of appellant is that the state's evidence was insufficient as a matter of law to sustain the judgment of conviction.

Giving the state the benefit of the most favorable view of the evidence as this court must do on this appeal, the evidence made a submissible circumstantial case of appellant's guilt. Two men participated in the holdup. After stating 'I have got the stuff' one leaves before the police arrive. Loot is found in the automobile of the participant captured at the scene. The auto is near an alley in which footprints and a trail of money are found, leading to Washington Boulevard. A man in a yellow sweater and dark trousers is observed on Washington. A police officer drives through the alley parallel to Washington and sees the suspect from time to time, between the houses and outbuildings. He sees the suspect emerge on Skinker and watches him cross the street and enter the cab where he is arrested. At the police station, rings taken in the robbery are found in appellant's shoes. His shoes are found to match the footprints in the snow, leading to the point where the officers first noticed him on Washington. Appellant's fingerprint is found on one of the ring trays taken in the robbery.

This evidence, if believed by the jury, forged an adequate chain of circumstances to tie appellant with the robbery.

Appellant strenuously attacks the credibility of major items of evidence offered by the state, but credibility is for the jury, not the reviewing court. Inconsistencies in the testimony of the police officers are pointed out, but they do not rise to the level of destroying the state's case.

If the evidence did make a submissible case that appellant was the second man in the robbery, it was adequate to support his conviction under the felony murder doctrine. The evidence would support the finding that he conspired with the actual killer to commit a robbery and that the killing occurred 'in flight from the scene of the crime to prevent detection, or promote escape.' State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637(5) (1936); State v. Paxton, 453 S.W.2d 923 (Mo.1970).

On February 27, 1971, the trial court entered an order sustaining defendant's motion to require the state to furnish the defendant with copies of any and all 'extrajudicial statements' made by defendant. The state produced nothing in response to the order.

The trial began on September 11, 1972, with the selection of a jury. The state's opening statement was made the next day. In the course of the statement, the assistant prosecuting attorney said:

'Now, (Officer) Dowling, in questioning James Ben Johnson after he finds the rings in his shoes, asked him, 'Where did you get them?' And at this time, of course, he thought he was talking to Hall, and James Ben Johnson also known as Hall said, 'I bought them downtown.' Well, when (Captain) Reich asked him, 'Where did you get the rings,' he said, 'I was shooting dice.' He told Reich also, 'I was never west of Skinker,' he said, 'I was out there shooting dice with some other boys and one of them, or one or two of them left the game for a while and they came back and one of them dropped the rings on the ground and I picked them up and put them in my shoe.''

This statement elicited no response from defense counsel.

In the course of the state's case in chief, when direct examination of the state's witnesses led up to the statements, defense counsel raised the objection that no such statement had been furnished him. Voir dire examination of Officer Dowling and Captain Reich disclosed that statements along the line of those referred to in the opening statement had been embodied in a police report and furnished to the prosecutor. Defense counsel moved to exclude the statements. The trial court eventually sustained the motion, based on the state's failure to comply with the order to produce.

Defense counsel then moved for a mistrial, stating:

'Judge, at this time I am going to orally move that mistrial be granted and that the Jury be discharged on the grounds that the Defense and the Defendant has been irreparably prejudiced by that failure to comply with the order. Had I been furnished those...