State v. Murphy

• Decision Date: 16 December 1980
• Docket Number: No. 41873,41873
• Citation: 610 S.W.2d 382
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lorenzo MURPHY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 382

610 S.W.2d 382

STATE of Missouri, Plaintiff-Respondent, v. Lorenzo MURPHY, Defendant-Appellant.

No. 41873.

Missouri Court of Appeals, Eastern District, Division Three.

Dec. 16, 1980.

Karl F. Lang, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., S. Francis Baldwin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Judge.

Appellant was found guilty by a jury of the offense of carrying a concealed weapon, § 564.610, RSMo 1969, and sentenced to three years' imprisonment. He appeals from his conviction, arguing: (1) the evidence does not sustain his conviction; (2) irrelevant and prejudicial evidence was admitted at trial; and (3) one of the jurors should have been stricken for cause due to the juror's bias and prejudice. There was no error. The judgment is affirmed.

Appellant was arrested by an off-duty policeman performing security duties in the Cochran Garden Apartments, a St. Louis Housing Authority building project. While the policeman was checking a building sometime after 2:40 a. m., he entered a stairwell to check the upper floors. As he went up the stairs, the police officer saw appellant and his brother standing on the third floor landing watching him. The policeman noticed both appellant and his brother were wearing jackets and had their right hands in or near their right front jacket pockets. The officer testified he saw no weapons but was wary because of the hour and the circumstances.

The officer passed the appellant and his brother, careful to watch their right arms, and proceeded to the fourth floor. After he assured himself the men on the third floor landing had not followed, the policeman moved his service revolver, badge, and identification to a more readily accessible position and went down the stairs to approach and question appellant and his brother. Appellant and his brother had proceeded down the stairs, and the officer followed them down to the lobby level.

As appellant and his brother reached the lobby level, the policeman called to them to stop, and identified himself as a police officer. Appellant was closer to the officer than appellant's brother. When the officer called, appellant made a quarter turn and looked back toward the officer. The officer, who was watching appellant's right hand which was still in his pocket, saw the brown handle of an as yet unidentified firearm. He testified that this was the first time he had seen the weapon.

The policeman immediately exhibited his revolver and police identification and ordered appellant to raise his arms. The officer removed a .357-magnum pistol from appellant's right jacket pocket. The police officer then approached appellant's brother. The officer removed a .38-caliber revolver from the right jacket pocket of appellant's brother. Further search of appellant and his brother produced ammunition and a flak jacket worn by appellant's brother under his jacket.

Appellant's first point relied on is that the trial court erred in denying appellant's motion for judgment of acquittal because insufficient evidence was adduced at trial to prove the gun carried by appellant was concealed. Although appellant's point relied on does not so specify, appellant's brief notes the evidence disproved that the .357-magnum pistol seized from appellant was concealed upon his person because the pistol was too large to be concealed inside appellant's jacket pocket and because the police officer who arrested appellant saw and immediately recognized the pistol protruding from appellant's pocket and did not have to search appellant to discover the pistol. Appellant's contention is not meritorious.

Whether a weapon is concealed within the prohibition of § 564.610, RSMo 1969, is determined by whether the weapon is discernible by ordinary observation. A weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions. The weapon may be concealed, however, if it is discernible only from one particular vantage point. State v. Wood, 562 S.W.2d 699, 701(1-3) (Mo.App.1978); State v. Cavin, 555 S.W.2d 653, 654(1, 2) (Mo.App.1977). Appellant's motion for acquittal was grounded upon the allegation that the state failed to prove the essential element of concealment. The scope of appellate review of the trial court's denial of that motion extends only to a determination of whether there is sufficient substantial evidence to support the verdict. In testing the sufficiency of the evidence, the evidence and reasonable inferences therefrom must be considered in the light most favorable to the state, and all contrary evidence and inferences must be disregarded. State v. Achter, 514 S.W.2d 825, 826(1, 2) (Mo.App.1974).

Sufficient substantial evidence does support the verdict against appellant. The off-duty police officer who arrested appellant testified he did not see appellant's weapon except for a brief moment as appellant turned back toward him, although the officer had the opportunity to see the appellant from several other angles and had been particularly observant of appellant's right arm and hand. A police officer's testimony that he did not see a pistol despite the opportunity to view the accused under conditions likely to cause a police officer to be particularly observant for weapons is entitled to some consideration both at the trial and appellate levels. State v. Cavin, supra, 654(3); State v. Odzark, 532 S.W.2d 45, 49(4-7) (Mo.App.1976); State v. Jones, 523 S.W.2d 152, 154(3) (Mo.App.1975). Appellant has urged that the .357-magnum revolver which he carried was too large to be concealed in his jacket pocket. However, if the revolver were partially concealed by the jacket pocket and partially concealed by appellant's arm and hand, that would be sufficient. State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907) cited with approval in State v. Gibbs, 600 S.W.2d 594, 597 (Mo.App.1980). See State v. Achter, supra, 828. At trial, appellant put on his jacket and demonstrated how the .357-magnum revolver would appear when in his jacket pocket and how his arms would be held. The jury evidently believed it was possible for the appellant's revolver to be concealed.

Appellant's second point relied on is that the trial court erred in admitting evidence of a bullet-proof, or flak, jacket worn by appellant's brother at the time of the arrest. Appellant argues the jacket was irrelevant, immaterial, prejudicial, inflammatory, and its admission deprived him of a fair trial. Appellant's contention is ruled against him.

Demonstrative evidence which tends to establish any fact in issue or throw light on the controversy and aid the jury in any way in arriving at a correct verdict is admissible although the evidence tends to arouse the prejudice of the jury. State v. Murphy, 592 S.W.2d, 727, 730(1, 2) (Mo.banc 1979); State v. Swenson, 551 S.W.2d 917, 921(14, 15) (Mo.App.1977). The only discretion a trial court has to deny admission of demonstrative evidence is if the evidence is both irrelevant to a material issue and also inflammatory or prejudicial. State v. Swenson, supra. Appellant argues the flak jacket was irrelevant because the jacket was neither worn by appellant nor pertinent to the question whether appellant carried a concealed weapon and argues the admission of the jacket was prejudicial because it "could raise all sorts of speculation and questions in the mind of the jury."

Weapons and objects not connected with the defendant or the crime are not admissible unless they possess some probative value. State v. Hughes, 596 S.W.2d 723, 727-728(7-9) (Mo.banc 1980); State v. Duncan, 540 S.W.2d 130, 136(12-16) (Mo.App.1976); State v. Johnson, 539 S.W.2d 493, 515(45, 46) (Mo.App.1976), cert. denied 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). The connection of demonstrative evidence to the accused or the crime charged may be so remote as to make the evidence inadmissible. State v. Richards, 334 Mo. 485, 67 S.W.2d 58, 60(1) (1933). Analysis of the case law suggests evidentiary remoteness consists of seizure of evidence not connected with the defendant or the crime at a time remote from the date of the crime and the defendant's non-presence at the time of seizure. State v. Richards, supra; State v. Davis, 530 S.W.2d 709 (Mo.App.1975).

Nevertheless, demonstrative evidence may be relevant and admissible although the evidence was neither possessed by the accused nor strictly pertinent to the crime charged if the evidence is part of a continuous occurrence intimately connected with the crime. State v. Swenson, supra, 921(16).

Factors such as proximity of the time of seizure of the challenged evidence to the time the crime is committed, proximity of the challenged evidence to other admissible evidence seized with the evidence challenged, and proximity of the accused to the evidence at the time of seizure are pertinent to the decision whether evidence not seized from the accused, nor utilized in the crime charged, has sufficient connection with the crime to permit admission. See State v. Johnson, supra, 515-516(47-49).

The evidence challenged by appellant is not so remote as to prohibit admission of the evidence. The evidence was seized in appellant's presence and at the time of the commission of the crime and appellant's arrest.

The flak jacket also has probative value. Articles tending to show the accused's motive, malice, intent, knowledge, or preparation may be received in evidence if shown to be sufficiently connected with the crime or the accused. State v. Johnson, supra, 516(50). The state has argued before both the trial and appellate courts that the flak jacket tends to show appellant's intent to conceal, an issue energetically contested by appellant. The state reasons that the fact appellant's brother was wearing a flak jacket is part of a scenario not indicative of appellant's innocent intent.

Even if the probative value of demonstrative...