State v. Lane

• Decision Date: 27 January 1981
• Docket Number: No. 40511,40511
• Citation: 613 S.W.2d 669
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael LANE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 669

613 S.W.2d 669

STATE of Missouri, Plaintiff-Respondent, v. Michael LANE, Defendant-Appellant.

No. 40511.

Missouri Court of Appeals, Eastern District, Division One.

Jan. 27, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 13, 1981.

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

John Ashcroft, Atty. Gen., Paul Robert Otto, James R. Cumbee, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Chief Judge.

Michael Lane (hereinafter the appellant) was convicted of Manslaughter, § 559.070 RSMo. 1969, ¹ and sentenced in the Circuit Court of the City of St. Louis to a term of ten (10) years in custody of the Missouri Department of Corrections. He appeals. We affirm.

While appellant presents five Points Relied On as grounds for reversal of his conviction and remand to the Circuit Court for a new trial, he does not contest the sufficiency of the evidence to support the conviction. For these reasons a detailed statement of the evidence is unnecessary at this stage of the opinion; however, where necessary to a decision on the issues presented in those Points he has raised, the relevant facts will be set out.

There was evidence supportive of the jury verdict that on Saturday evening, July 31, 1976, appellant met the victim, Karen Terry, at approximately 8:30 p. m. at the Town Hall Lounge, 4509 Laclede Avenue in the City of St. Louis. He did not know her prior to this time, but nevertheless, agreed that she could use his apartment for purposes of obtaining earnings by prostitution. He gave her an extra key for the apartment which she was to return to him later that morning.

Ms. Terry's body was found in a garage located at 4562 Laclede Avenue on Sunday morning, August 1, 1976, sometime around noon. The body had a wound under the left breast and another on the left arm at the elbow. A red towel, tied as a tourniquet, was situated above the wound on her left arm. Cause of death was traumatic external hemorrhage due to the perforation of the ulnar artery of the left forearm due to a shotgun wound; the wound under the breast was superficial and non-contributory to Ms. Terry's demise. Exact time of death could not be determined.

When searching the premises where the victim's body was found, on August 2, 1976, a spent 20 gauge shotgun shell was found in the rear yard at 4546 Laclede Avenue and retrieved by Officer Pierce Conley of the Evidence Technician's Unit of the St. Louis Metropolitan Police Department. On the same day, a roofer repairing the roof at 4545 Forest Park Boulevard, reported to the police that he found a shotgun shell and a pair of purple and white panties on the roof at that address and that neither of these had been on the roof on the previous Friday when he had last worked there. In response to this telephone call, at about 11:00 or 11:30 a. m. Detective McCoy went to the roof of the apartment building at 4545 Forest Park Boulevard and found the ladies panties and the spent shotgun shell on the roof of the building directly over Apartment 416.

Later that evening the police officers came to appellant's apartment and conducted a search of same in his presence. They found what appeared to be bloodstains and bone fragments along the baseboard of one of the rooms and an iron with what appeared to be bloodstains on it in the kitchen of the apartment. An apparent gunshot blast was observed on the interior side of the door to the apartment and they observed that a large hole in the wall in the living room-bedroom area had been patched. A 20 gauge shotgun was removed by the appellant from a box of clothing in front of the couch in this area and handed over to the police officers. Ballistics tests revealed that the two spent shotgun shells found by the police in the adjacent yard and on the roof directly above appellant's apartment were fired by the shotgun recovered in his apartment. Blood scrapings removed from appellant's apartment were of the same blood type as that of the victim.

After he was arrested, appellant denied killing Ms. Terry. He admitted finding her in his apartment when he returned there the morning of August 1, 1976, and told the officers that he assumed she was dead. He looked around the apartment and noticed that his shotgun was broken in half and was lying on the living room floor. He removed the body from the apartment to the garage where it was found, and then returned to the apartment and proceeded to clean the blood off the floor and walls. He also observed the shotgun blast in the door. He taped together his broken shotgun. Later the same day, after learning the police were investigating the homicide, he went to the 9th District Police Station and turned himself in.

Appellant's initial Point is that the trial court erred in overruling his motion to suppress and in allowing into evidence the items seized in his apartment as well as photographs of these items and of his apartment because they were the product of a warrantless and illegal search in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Art. I, § 15, Constitution of Missouri.

Defendant's Motion to Suppress was directed against "three drinking glasses, one iron, apparent blood samples, apparent bone fragments, pieces of rug, pieces of wood, an earring, shotgun pellet, 20 gauge Westerfield shotgun, 20 shotgun shells, man's T-shirt, wash cloth, broken chair, mop, statement of defendant, ..." Separate evidentiary hearings were conducted by different judges of the same Circuit Court on the question whether the physical evidence should be suppressed and whether his statement should be suppressed. A third judge of the same circuit ruled on the admissibility of these evidentiary items during the course of trial.

At the hearing on the suppression of the physical evidence, conducted about five months prior to trial, only one witness, Detective Colin McCoy, testified. According to his testimony he became involved in the case on August 1, 1976, when he responded to the report of a homicide and went to the scene of the crime where he interviewed some people in the neighborhood. On August 2, 1976, after receiving a call that there were some items on the roof of a building at 4545 Forest Park Boulevard which might possibly be linked to the victim of the murder, he and his partners, Sgt. Rowan and Det. Divier, went to 4545 Forest Park Boulevard at about 11:30 a. m. and recovered a pair of women's panties and a spent shotgun shell from the roof of the apartment building. From the location of these items on the roof of the apartment he concluded that they were thrown from the apartment directly below, apartment number 416.

The manager of the apartment building was contacted and she informed him whose apartment it was and furnished him with a key to the apartment. He and his partner went to the apartment, knocked on the door a couple of times and then went back downstairs to the lobby and waited around. In all they returned to the apartment three or four times during the day and knocked on the door and returned to the lobby when no one answered.

The defendant, accompanied by two detectives from the Ninth District Police station arrived at the apartment building lobby at about 7:00 or 7:30 p. m. He did not recall whether appellant was in handcuffs at that time.

Up to this time no search warrant had been applied for because he didn't feel that they had enough evidence to get one "We didn't know, ..., exactly what we were looking for." However, in the eyes of Detective McCoy appellant was a possible suspect in this homicide case.

After the appellant arrived in the lobby of the apartment building he was informed of the fact that a pair of ladies' panties and a spent shotgun shell had been found on the roof and that people there in the apartment complex had informed the police officers that appellant had been under an eviction notice to move because of the fact he'd been flourishing a shotgun around his apartment, that they were investigating the murder which had occurred across the alley from the apartment complex, and were waiting to find out if they could search his apartment. Appellant replied they could. He was advised that if they did find anything that would be of value to the case he would then be placed under arrest. Detective McCoy then wrote out a consent to search form which he gave to the appellant and had him sign just prior to entering the apartment. Appellant opened the door to the apartment with his key and he and the police officers entered. No police officer had his gun drawn prior to their entering the apartment.

The apartment was described as an "efficiency apartment" and consisted of a small kitchen off to the left of the entrance hallway as one entered; off to the right of this hallway was a bathroom; and from the hallway one goes into a living room-bedroom combination. There is one entrance to the apartment and it is from a walkway on the outside of the building facing the alley.

The police officers found a rug with apparent blood stains on it, some broken furniture, and the back of the door leading to the walkway outside of the apartment had what appeared to be a shotgun blast in it. They also found a 20 gauge shotgun, some shotgun shells, and three drinking glasses. The shotgun and shells were located in a large cardboard box which was apparently being packed and which gave the appearance of someone getting ready to move. A man's T-shirt, a washcloth, some broken china and a mop were also observed in the apartment. The Evidence Technician Unit was called; Officer Conley of that Unit came to the scene and took custody of the items of evidence heretofore described. He also took blood scrapings and the bone fragments found in the apartment. Detective McCoy testified that one could not observe the shotgun blast holes in the door to the apartment from the outside; they could only be seen from inside the apartment....