State v. Love
| Citation | 546 S.W.2d 441 |
| Decision Date | 27 December 1976 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. James A. LOVE, Appellant. 28331. |
| Court | Court of Appeal of Missouri (US) |
Robert N. Adams, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.
Defendant James A. Love was charged by two separate informations with second degree murder. The victims, respectively, were Jeffery Berger, a male child, and Sheilia L. Curtright, the child's babysitter. Both charges, by stipulation of the parties, were consolidated for trial. A Jackson County jury found defendant guilty as charged in both informations and fixed his punishment at one hundred and fifty years imprisonment for each conviction. Judgments were entered and sentences were pronounced accordingly, said sentences to run consecutively.
On appeal, defendant exhorts this court to grant him a new trial because of the following incidents of alleged error (substantially condensed) committed by the trial court: (1) denial of defendant's motion to suppress certain evidence, namely, photographs taken of him following his arrest and seizure of the boots he was wearing at the time of his arrest; 1 (2) admitting into evidence and permitting the state to project before the jury a series of colored slides of the victims over defendant's objection that they were inflammatory and prejudicial; (3) sustaining the state's objection to evidence sought to be introduced by defendant that his stepsister, who was originally scheduled to babysit with the male child on the fatal night in question, was thereafter assaulted by an individual resembling defendant and received threatening notes signed the 'Butcher'; and (4) permitting one of the state's witnesses, over defendant's objection, to give an opinion as to how a cut on one of defendant's fingers occurred. Defendant also challenges the sufficiency of the evidence to support the guilty verdicts returned by the jury.
The trial court's denial of defendant's motion to suppress will be addressed first as several of the points relied upon by defendant on appeal directly or indirectly involve the items of demonstrative evidence which were sought to be suppressed. At the outset, a general resume of the facts, as gleaned from a voluminous transcript, will be set forth for the purpose of giving a broad overview of the homicides for which defendant stood trial. Later on, interspersed throughout treatment of the various points raised by defendant, additional facts deemed germane to their resolution will be set forth.
On the evening of December 31, 1974, Mr. and Mrs. Richard Berger, parents of Jeffery Berger, a male child two and one-half years old, engaged Sheilia Curtright, the fourteen year old daughter of Mr. and Mrs. Roy Curtright, as a babysitter. The Berger residence was the west unit of a duplex in Lee's Summit, Jackson County, Missouri, and bore the address of 610A Columbus Street. The east unit of the duplex, bearing the address of 610B Columbus Street, was occupied by the defendant and his parents. After Sheilia Curtright arrived at the Berger residence to babysit with Jeffery, Mr. and Mrs. Berger left for the evening. At approximately 11 P.M. on the evening of December 31, 1974, a friend of Sheilia Curtright's telephoned her at the Berger residence. Sheilia Curtright terminated the telephone conversation shortly after it started because someone was at the front door of the Berger residence. Sometime after 11 P.M. Sheilia's friend tried to call again but no one answered. The friend tried to call Sheilia a number of times during the course of the next thirty minutes but still got no answer. Shortly after 11 P.M. the telephone at the home of Mr. and Mrs. Roy Curtright, Sheilia's parents, rang several times and when Mrs. Curtright answered the phone there was no response at the other end. Mrs. Curtright then attempted to call Sheilia at the Berger residence, and, although the phone rang numerous times, there was no answer. The Curtrights became concerned and decided to drive over to the Berger residence. They arrived at the Berger residence at approximately 11:45 P.M. and upon their arrival observed smoke coming from the vents around the eaves of the duplex. All the doors and windows of the Berger residence were locked. Consequently, Mr. Curtright broke open the front door and made his way into the Berger residence. Finding no one in the living room, he went into the kitchen area. There he observed the body of Jeffery Berger lying in a pool of blood on the kitchen floor. Jeffery's throat was cut and there were multiple wounds about his head and face. He also observed his daughter lying in a pool of blood on the kitchen floor to the right of Jeffery Berger. Sheilia's throat was also cut and, in addition, she had multiple wounds about the head and face, multiple 'puncture' wounds in her right side, and bruises on her right thigh. There was no evidence that either victim had been sexually molested. Jeffery showed no signs of life. Sheilia still showed some faint signs of life. Shortly thereafter both victims were pronounced dead. The Lee's Summit police and fire departments were summoned to the scene. The Lee's Summit Police Department, in conjunction with several other area law enforcement agencies, conducted an extensive investigation of the homicides.
Attention is now directed to the first point raised by defendant. It is framed in the following language: 'The trial court erred in denying defendant's pretrial motion to suppress evidence in that defendant was illegally arrested without warrant and probable cause, was not given the constitutional warnings and was denied assistance of counsel, all in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States and Article I, Sections 15 and 19 of the Missouri Constitution and Missouri Supreme Court Rule 21.14 and that the burden of persuasion as to probable cause was improperly placed on defendant, all to his detriment and prejudice denying him a fair and impartial trial.' Frankly, it is cast in such abstruse terms as to literally defy comprehension; moreover, it fails to comply with Rule 84.04(d). However, in view of the gravity of the offenses of which defendant stands convicted, and the length of the sentences imposed, this court will undertake the exceedingly difficult and concededly questionable task of attempting to give some semblance of meaning to defendant's first point. To do so, recourse must be made to his motion to suppress, his point on appeal and the argument tendered in its support. Even this approach is fraught with almost insurmountable difficulty. For example, defendant appears to assert in his first point that photographing him and taking his boots violated Criminal Rule 21.14. This court is quick to admit that it is virtually at a total loss to garner any relevancy or meaning whatsoever from this particular facet of defendant's first point. In any event, defendant's argument with respect thereto is non sequitur. One other facet of defendant's first point may be expeditiously disposed of at this juncture--defendant's contention that 'the burden of persuasion as to probable cause was improperly placed on defendant'. The argument portion of defendant's brief discloses that 'probable cause', in the context in which it is used, refers to 'probable cause' for defendant's arrest without a warrant. A review of the record fails to support defendant's claim that the trial court placed upon him the 'burden of persuasion' as to 'probable cause' for his warrantless arrest.
Although disclaiming clairvoyant power, this court will now endeavor to set forth what it believes to be the grounds of defendant's claim that the trial court erred in overruling his motion to suppress. As construed by this court, defendant appears to contend that the trial court erred in overruling his motion to suppress certain items of demonstrative evidence in question because: (1) all information obtained from defendant by the arresting officer prior to defendant's arrest must be excluded from consideration as probable cause to support the ensuing warrantless arrest of defendant because the arresting officer failed to give defendant a 'Miranda' warning before obtaining such information, thereby violating defendant's constitutional privilege against self incrimination as guaranteed by the Fifth Amendment to the Constitution of the United States and Art. I, § 19, of the Constitution of Missouri and defendant's right to the assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States; (2) with or without the information referred to in (1), supra, the arresting officer lacked probable cause to arrest defendant, therefore seizure of the boots defendant was wearing at the time he arrived at police headquarters was not incident to a lawful arrest and constituted an illegal search and seizure proscribed by the Fourth Amendment to the Constitution of the United States and Art. I, § 15 of the Constitution of Missouri; and (3) photographs taken of defendant at police headquarters without the presence of counsel violated defendant's right to the assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States.
Resolution of defendant's first point (as construed by this court) necessarily requires a detailed analysis of the evidence presented at the hearing on defendant's motion to suppress.
The record discloses that William R. Parsons, a member of the Lee's Summit Police Department, arrived at the scene of the homicides at approximately 12:26 A.M. on January 1, 1975. He participated in the investigation being conducted at the scene for approximately one hour and fifteen minutes. At approximately 1:45 A.M. Sgt. Lapour of the ...
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