State v. Moore

• Decision Date: 17 May 1979
• Docket Number: No. 60867,60867
• Citation: 580 S.W.2d 747
• Parties: STATE of Missouri, Respondent, v. Brian Keith MOORE, Appellant.
• Court: Missouri Supreme Court

Page 747

580 S.W.2d 747

STATE of Missouri, Respondent, v. Brian Keith MOORE, Appellant.

No. 60867.

Supreme Court of Missouri, En Banc.

May 17, 1979.

Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Brian Keith Moore, convicted of first degree murder and attempted robbery in the first degree by means of a dangerous and deadly weapon, has appealed contending the trial court erred (1) in failing to discharge him because his warrantless arrest was without probable cause, (2) in failing to suppress certain evidence and identification testimony allegedly procured by illegal means, (3) in failing to instruct the jury on second degree murder and manslaughter, and (4) in submitting the case under the felony-murder rule of § 559.010, RSMo 1969, ¹ because the bystander killed during the attempted robbery in which appellant participated was shot not by appellant but by another bystander. The Court of Appeals, affirming the robbery conviction, denied appellant's first three contentions but transferred the case, after opinion, under Rule 83.02 for our consideration of point four. Portions of the Court of Appeals' opinion are incorporated without quotation marks. Deciding the cause as though here on original appeal, Rule 83.09, art. V, § 10, Constitution of Missouri, we affirm.

During the late evening of July 28, 1975, appellant and two other men entered the "Emergency Room Lounge," a tavern located in the City of St. Louis, and after positioning themselves at various places in the room, appellant, carrying a shotgun, announced a "holdup." One accomplice, Ross Hogan, drew a pistol and fired at Albert "Rip" Williams, a customer sitting in a booth, as Williams was drawing a pistol from his waistband. Hogan's shot missed Williams but one of two return shots fired by Williams struck Ross Hogan. This was followed by a blast from appellant's shotgun which struck Williams on the head and shoulder knocking him to the floor. In that position Williams saw a man's foot, and believing it belonged to one of the robbers, he shot it.

As the robbers withdrew from the aborted robbery through the front door they fired several more shots into the barroom, one of which wounded Williams again. After they had fled, it was discovered that two other customers had been caught in the gunfire. One received a "shotgun burn" and the other, Lawrence Meadows, had been fatally wounded in the head by two bullets. At trial, a police ballistics expert identified the fatal bullet as coming from Williams' gun.

Two days after the incident, two detectives contacted an informant with whom they had never worked, but about whom they were familiar. The informant told the detectives that he had learned from a relative of appellant that the perpetrators of the attempted robbery were Ross Hogan, a man named Carl, and appellant. The police were aware of Hogan's involvement, as he had been arrested and was hospitalized for treatment of shotgun wounds. The informant advised the police that appellant had been shot in the right foot and was on crutches; that he could be found in either the 4100 block of Ashland Avenue or the 4300 block of Labadie. The same day they received the information, the two detectives saw appellant in the 4100 block of Ashland with a bandaged right foot and walking with the aid of crutches. When approached by the officers, appellant, who had no identification papers, seemed nervous and gave the alias of Joseph Madison, stating that he was 17 years old. He attributed his injury to having stepped on a rusty nail but when the police removed his shoe they noticed two wounds, one on each side of his ankle. Appellant was arrested and taken to a hospital for treatment. His shoe, held for evidence, was punctured in the places corresponding with his ankle wounds.

A physician at the hospital confirmed that appellant's ankle injury was a gunshot wound and appellant then gave his correct name and admitted his participation in the robbery but denied any shooting. When police learned from his mother that appellant was 16 years of age, he was immediately taken to the Juvenile Detention Center. Appellant was subsequently placed in a lineup and identified by two witnesses as one of the robbers.

Appellant initially argues that the trial court erred in failing to "discharge" him by reason of the State's failure to establish probable cause for his warrantless arrest. This point is without merit. An illegal arrest does not divest the trial court of jurisdiction to try the case. Watson v. State, 475 S.W.2d 8, 12 (Mo.1972). As a part of this argument, appellant also contends that a statement was illegally taken from him "prior to taking him to the juvenile detention center." This portion of the argument too must fail because it is conceded that the "statement" was not used in evidence.

Appellant's second contention is that certain physical evidence (his shoe with the bullet punctures) and identification testimony should have been suppressed as having been obtained in connection with the allegedly illegal arrest. This requires a determination of whether there was probable cause for appellant's arrest. "Probable cause" is said to exist where the facts and circumstances within the officers' knowledge and of which they have reliable and trustworthy information would warrant a man of reasonable caution to believe that the person being arrested had committed the offense for which he has been placed in custody. Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975).

Appellant argues that there was no reasonable ground for his warrantless arrest, particularly since the arresting officer had not personally known the informant nor had personal experience with him. We disagree. As stated in State v. Wiley, 522 S.W.2d at 288: "There is no absolute requirement that the informant be one of previous reliability. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

"The true inquiry therefore is whether the informant's present information is reliable. As long as the corroboration of the information through other sources, even though the matters are innocuous, reduces the chances of a 'reckless or prevaricating tale,' the information, even though hearsay, may form the basis of probable cause for an arrest."

Under the circumstances of this case, we have no doubt that probable cause existed for appellant's arrest. The arresting officers had been assigned the specific task of investigating the crime which had occurred two days earlier involving three youths, one of whom had been shot in the foot and had been observed limping from the scene of the crime. Another of the robbers was then in police custody. The informant had dealt with police previously, albeit not the particular arresting officers, but they were aware of his past contributions. The informant, attributing his information to a relative of appellant, advised the police that appellant had been shot in the right foot, was on crutches and could be found in the 4100 block of Ashland. And exactly as told, the police found appellant, complete with crutches and bandaged right foot, in the 4100 block of Ashland. He fit the general description of one of the robbers and gave an implausible explanation for his injury. The information accurately detailed by the informant was fully corroborated by the personal observation of the arresting officers. The accusation of appellant is thus readily distinguished from the rumor or vague circumstances decried in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), upon which appellant relies. The arrest was lawful. State v. Wiley; State v. Kent, 535 S.W.2d 545 (Mo.App.1976). Hence, the seizure of the evidence and its use at trial was lawful. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); Wilkinson v. State, 461 S.W.2d 283 (Mo.1970).

Appellant also asserts State v. Wade, 531 S.W.2d 726 (Mo. banc 1976), as a purported barrier to the use by the State of his shoe and identification testimony linking him to the crime. Wade holds that it is reversible error to admit testimony regarding a confession of a juvenile offender made prior to being taken to the juvenile authorities. That case has no application here because, as previously noted, the State refrained from introducing or using defendant's inculpatory statements.

Appellant cites State v. Ross, 516 S.W.2d 311 (Mo.App.1974), and argues that the shoe should have been excluded as having been obtained as a result of his inadmissible confession. Ross is readily distinguishable, because the taking of the shoe was not the result of and bore no relation to appellant's voluntarily suppressed confession. The shoe with the bullet holes was inherently suspicious, whereas in Ross, police were led to evidence only by reason of the juvenile's confession. The shoe, not obtained by reason of anything illegally said or gained, was seized pursuant to a lawful arrest and thus admissible.

Appellant next urges that the trial court erred in failing to instruct the jury on second degree murder and manslaughter. He asserts that felony-murder under the then applicable murder statute, § 559.010, RSMo 1969, necessarily embodied the lesser homicides.

The submission of lesser homicides under an information drawn as here under § 559.010 was at the time of appellant's trial governed by this Court's pattern instructions approved January 1, 1975, effective March 1, 1975. ² Though the charge was made under the general first degree murder section, 559.010, only felony-murder was submitted to the jury, not conventional first degree murder. Caveat "a" in the Notes on Use to the form of MAI-CR 6.02 then in effect stated,

Where Felony-murder . . . is the Only murder submitted . . ....