State v. Jordan

• Decision Date: 26 April 1988
• Docket Number: No. 52447,52447
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ronald Kim JORDAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 68

751 S.W.2d 68

STATE of Missouri, Plaintiff-Respondent, v. Ronald Kim JORDAN, Defendant-Appellant.

No. 52447.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 26, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 25, 1988.

Doris Gregory Black, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., L. Timothy Wilson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Presiding Judge.

Appellant, Ronald Jordan, appeals conviction by jury of murder in the first degree, Section 565.020 RSMo 1986, assault in the first degree, Section 565.050 RSMo 1986, and armed criminal action, Section 571.015 RSMo 1986. Appellant was sentenced to life without probation or parole for murder in the first degree, to life for armed criminal action, said sentences to run consecutively ¹ and to ten (10) years imprisonment for assault in the first degree, said sentence to run concurrently with the life sentences imposed. Jurisdiction is vested in this court pursuant to Missouri Constitution Article V, Section 3.

The evidence, when viewed in the light most favorable to the verdict ², is as follows. On January 28, 1986, appellant phoned Mark Esters stating that he had an apartment available to rent in a four-plex owned by his family and located in the 5700 block of St. Louis Avenue in the City of St. Louis. Esters, who previously had expressed an interest in renting the apartment, told appellant that he wished to see the unit before he made a decision. Thereafter, Mark Esters and his brother, Harry McCarter, went to see the apartment. After viewing the unit, Esters told appellant he wanted to rent the apartment and agreed to pay $200 per month rent, in addition to a $200 security deposit.

On January 29, 1986, Mark Esters returned to appellant's home, intending to clean the apartment prior to moving in. He had forgotten any cleaning supplies and, instead, took appellant with him to change the oil in Esters' girlfriend's car. The two then went to the home of Mark Esters' mother where they met with Harry McCarter, Cheryl Noack, and two other friends. The six returned to appellant's home, stayed for a short time and then all departed except for appellant. Esters and Noack intended to return later that evening and clean the apartment.

Esters returned to appellant's apartment about 11:00 p.m., intending to clean the apartment unit. Cheryl Noack was already at appellant's apartment. Appellant could not find the key to the unit, and apparently in light of the late hour, suggested that Esters spend the night at his apartment and begin cleaning in the morning. Cheryl Noack left for the evening. Appellant's girlfriend, Pam Farmer, was also in the apartment and spent the night.

The following morning, January 30, 1986, at approximately 6:30 a.m., Mark Esters was awakened by the sound of appellant answering the door bell and inviting Cheryl Noack inside. Appellant returned to his bedroom to go back to sleep. Esters and Noack remained in the living room on the couch where they both fell asleep. After awaking for the second time about 8:00-8:30 a.m., appellant, Noack and Esters went in the kitchen for coffee. Noack then went into the bathroom to comb and curl her hair. Pam Farmer was in appellant's bedroom.

At approximately the same time, Harry McCarter came to appellant's apartment. Appellant answered the door and invited McCarter into the kitchen for coffee. Shortly thereafter, appellant went outside for about ten minutes, returned, received a phone call and then went into his bedroom. Esters and McCarter remained in the kitchen drinking coffee. Noack was still in the bathroom and Farmer remained in appellant's bedroom. Within a few minutes, at approximately 9:00 a.m., appellant returned to the kitchen with a gun in each hand and without any explanation began screaming vulgarities and ordered everyone out of his house.

McCarter and Esters headed towards the front door of the apartment but could not open the door without a key. Appellant threw the keys to McCarter who opened the door and threw the keys back to appellant. At that point appellant began firing at both men. Neither Esters nor McCarter were armed.

McCarter was hit by several of the bullets. The impact thrust McCarter halfway out the front door. As appellant began shooting Esters found cover behind a stereo system located next to the door. Appellant repeatedly fired in the direction of Esters and McCarter until both guns were empty. At one point, appellant stood directly over Esters and, pointing a gun at him, began clicking one of the guns, but it was empty. Cheryl Noack was still in the bathroom.

Appellant then went into his bedroom and began loading a rifle. As Esters attempted to move McCarter out of the house, appellant returned to the living room with a rifle. Esters fled. Appellant attempted to follow Esters outside and through an alley but was unsuccessful.

While appellant was outside, Pam Farmer and Cheryl Noack entered the living room where the shooting had occurred. Gloria Jordan, appellant's mother who lived in the apartment directly above appellant's, also entered the living room. McCarter, who was half-inside and half-outside the apartment, was pulled inside. Noack attempted to resuscitate McCarter but when told by Pam Farmer that appellant was going to kill her too, Noack fled to the upstairs apartment occupied by appellant's mother. During this time Cheryl Noack observed appellant's mother and another man gathering the weapons and certain bottles, which were taken upstairs to Ms. Jordan's apartment. Once in Ms. Jordan's apartment, Cheryl Noack phoned the police and then hid in a closet where she remained until the police arrived.

Eventually, appellant was apprehended and a search of the entire premises was conducted. The physical evidence seized by the police and the testimony of state's witnesses at trial corroborated the testimony of Mark Esters and Cheryl Noack, and linked appellant to the shooting death of Harry McCarter.

Appellant testified in his own behalf. He admitted to killing Harry McCarter, but he denied the charges pending against him, claiming that he had shot at McCarter and Esters in self-defense. In support of his theory, appellant presented three additional witnesses. Ultimately, the jury found appellant guilty of murder in the first degree, assault in the first degree and armed criminal action. Appellant appeals the convictions and sentences. He presents twenty-one (21) points on appeal.

Appellant's first (I) and last (XXII) ³ claims of error relate to the trial court's denial of a Motion to Suppress and to the subsequent admission into evidence of photographs taken in appellant's apartment after the shooting had occurred. Specifically, appellant contends that the search of his home was without a warrant and the evidence resulting therefrom namely a photo of a bedroom showing boxes of .45 caliber, .38 caliber and .30 caliber bullets on top of a dresser, as well as admitting the actual boxes of bullets--were the fruit of an illegal search and seizure. In support of his claim, appellant alleges: (1) the offenses charged did not occur in the bedroom, (2) appellant had surrendered from another apartment so that no search was made for the benefit of self-protection of the officers, and, (3) the bullets actually were located inside appellant's closed drawer prior to his arrest and were not subject to seizure.

When a pretrial motion to suppress is filed and overruled, the defendant must, in order to preserve the issue, make specific objections to the items when they are offered into evidence at trial. State v. Matney, 721 S.W.2d 189, 191 (Mo.App.1986); State v. Summers, 660 S.W.2d 772, 773 (Mo.App.1983). Failure to keep the question alive by asserting timely and proper objections throughout the trial results in the failure of defendant to thereafter, on appeal, attack the validity of the search and the admissibility of the fruits of that search. State v. Anderson, 698 S.W.2d 849, 851[1-3] (Mo. banc 1985), see also Rule 34.01; Section 542.296 RSMo 1986.

In the present case, defendant's motion to suppress was overruled. Thereafter, police officer John Logan testified. He stated that he recognized the items shown in several State's Exhibits, photographs, and that the photos were close-up views of a chest of drawers with several boxes of cartridges on top of the dresser. He identified the boxes as a box of .38 caliber special ammunition, a box of .30 caliber carbine Harver bullets, a box of .44 Magnum bullets, and a box of .45 caliber automatic ammunition. He also stated that the photographs accurately reflected the way the items were positioned when he entered defendant's apartment on January 30, 1986. Defense counsel made an objection but it was on the basis that the chain of custody had not been met. This objection was overruled and has not been preserved for our consideration on appeal. No other objection based upon the grounds asserted in the motion to suppress was raised.

Thereafter, police officer Frank Stubits testified. He also identified the photographs and the live ammunition recovered from appellant's bedroom dresser. He testified on cross-examination in response to questions posed by defense counsel that the ammunition was found on top of the dresser located in the rear bedroom of appellant's apartment. He also described the specific ammunition found. It was not until all of the state's witnesses had testified and the state moved to admit the exhibits (namely the photos taken at the scene and the actual boxes found) that defense counsel objected to the close-up photographs showing the ammunition to be on the top of the dresser.

The admission of photographs which have previously been identified and described by testimony without objection was merely cumulative and not prejudicial. See e.g., State v. Moss, 700 S.W.2d 501, 503 (Mo.App.1985). Accordingly,...