State v. Lamb

• Decision Date: 28 June 1971
• Docket Number: No. 2,No. 56017,56017,2
• Citation: State v. Lamb, 468 S.W.2d 209 (Mo. 1971)
• Parties: STATE of Missouri, Respondent, v. Milton LAMB, Appellant
• Court: Missouri Supreme Court

Page 209

468 S.W.2d 209

STATE of Missouri, Respondent, v.Milton LAMB, Appellant.

No. 56017.

Supreme Court of Missouri, Division No. 2.

June 28, 1971.

John C. Danforth, Atty. Gen., Kermit W. Almstedt, Asst. Atty. Gen., Jefferson City, for respondent.

Lucas & Murphy, Joseph A. Murphy, St. Louis, for appellant.

BARRETT, Commissioner.

Milton Ray Lamb, age 48, in throwing a 'bomb' or 'Molotov cocktail' into an apartment occupied by Robert Rogers, at 2802 Stoddard Street, has been found guilty of attempted arson and his punishment fixed at three years' imprisonment.RSMo 1969, §§ 560.010, 560.015 and 560.035, V.A.M.S.

On February 18, 1970, about 10:30 Rogers came in from work and as he talked to his sister and walked about the apartment a lighted bomb, a bottle with a wick in its neck, came through a window, through a Venetian blind, and fell behind the bed filling the rooms with smoke and the odor of 'tar and gas.'Almost immediately a second bomb hit the same window and Rogers looked out in time to see the appellant Lamb throw the second bomb and, he said, 'I seen Geno (Thomas) dart back, and I seen Milton throw his bottle.'Geno was married to the daughter of Rogers' sister, Anna E. Smith, and both Geno and Lamb were well known to Rogers and his sister.The only questions briefed and argued relate to the examination of certain witnesses and the admission of certain evidence and the noted circumstances, needless to say, support the charge and conviction.

One of the police officers, John Roussin, examined the apartment at 2802 Stoddard, saw and picked up the broken bottles and the following morning, about 10:30 arrested Lambat 2736 Delmar in an apartment occupied by Lamb and the woman, Sadie Dunne, with whom he had lived 'off and on' for 28 years.In the course of his direct examination the state's attorney inquired of Officer Roussin whether when he entered the apartment and arrested Lamb he'advised him of any constitutional rights that he might have.'The officer said that he'advised him verbally of his rights,' that he had the right to remain silent, that anything he said could be used against him and that he had a right to 'have counsel present during any question.'In this background defendant's counsel, relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694andFowle v. United States, 9 Cir., 410 F.2d 48, contend that the questions and answers relative to Officer Roussin's advising Lamb of his 'rights' infringed the appellant's constitutional right to remain silent.

Needless to say, long before Miranda, it has not been proper in this jurisdiction to show a defendant's silence after arrest and custody even though in certain circumstances when not under arrest silence may be shown.SeeState v. Dowling, 348 Mo. 589, 154 S.W.2d 749;State v. Starks, Mo., 459 S.W.2d 249;State v. Stuart, Mo., 456 S.W.2d 19;State v. Lovelace, Mo., 461 S.W.2d 733.The difficulty with the appellant's contention and the applicability of the noted rules is that this record does not fall within their condemnation.After testifying that Lamb understood his rights Officer Roussin was asked whether Lamb desired a lawyer.At this juncture the court intervened and, 'outside of the hearing of the jury,' inquired whether Lamb had made a statement.Upon being informed that he had not, the court inquired 'Why do you go into this?'The prosecutor responded that the purpose was to show that 'he was advised of his rights' and that 'he had a right to make a statement.'The court advised state's counsel that he could not show 'that he refused to make a statement' and the court said, 'So proceed.Lay off it.'The prosecuting attorney responded, 'All right.No further questions.'There was no other reference to the subject matter of the colloquy between court and counsel and thus plainly there is no foundation in fact for the asserted invasion of the appellant's right to silence.

In the examination of Anna E. Smith it was established that some two months prior to the incident involved here Geno Thomas had thrown a bomb into her apartment.It is urged that proof of this collateral matter was prejudicial and entitles the appellant to a new trial.Needless to say, Geno's throwing a bomb into his mother-in-law's apartment two months previously, Lamb not present, was indeed a collateral matter and should have been excluded.State v. Cox, Mo., 360 S.W.2d 668;State v. Hagerman, Mo., 244 S.W.2d 49, the collateral matter being excluded in both cases.The difficulty with the...