State v. Olinghouse

• Decision Date: 10 June 1980
• Docket Number: No. 61216.,61216.
• Citation: 605 S.W.2d 58
• Parties: STATE of Missouri, Respondent, v. Walter Richard OLINGHOUSE, Appellant.
• Court: Missouri Supreme Court

605 S.W.2d 58

STATE of Missouri, Respondent, v. Walter Richard OLINGHOUSE, Appellant.

No. 61216.

Supreme Court of Missouri, En Banc.

May 13, 1980.

Rehearing Denied June 10, 1980.

COPYRIGHT MATERIAL OMITTED

David E. Wilhite, Lebanon, for appellant.

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

ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction of capital murder, with a sentence of life imprisonment without possibility of parole for 50 years, entered upon jury verdict.

On Sunday evening, May 15, 1977, four men, appellant Walter Richard Olinghouse, David Dewaine Thomas, Danny Thomas and Richard Johnson were driving around in Hickory County. All four were armed. A robbery of the Fraziers was discussed. For several years, Olinghouse and his parents had lived on a farm adjoining the Frazier farm, between Stockton and Humansville. The Olinghouses had moved from their farm several years previously, but appellant had been at the Frazier house on numerous occasions before they moved. He told his companions that the Fraziers kept lots of money at their house.

The men drove to the vicinity of the Frazier farm. Johnson and Dewaine Thomas walked to the house, carrying a plastic milk jug. When Mr. Frazier answered their pounding at the door, they said they were out of gasoline and asked whether he could supply them with some. Frazier went outside and filled the plastic container with gasoline from a tank. As the three returned toward the house, Thomas and Johnson pulled their guns and announced a holdup. Frazier asked his wife to let them back in the house, saying that the men had guns. She opened the door and the men came in and threw Mr. Frazier to the kitchen floor. Mrs. Frazier had a .22 pistol in her hands but she did not know how to use it and it was taken from her.

Mrs. Frazier was bound, gagged and blindfolded. The men demanded to know where the money was and were told of small caches in various places, amounting to a few hundred dollars. Mr. Frazier gave them his billfold. He too was bound and blindfolded.

After Mr. Frazier had been blindfolded, the back porch light was flashed as a signal and the other two men drove up to the house and entered. Demands of Frazier were accented by a blow to the head with the butt of a M-16 rifle and kicks to the body by all four men.

The house was thoroughly ransacked during the two hours or so that the intruders were there. They took the money they found, jewelry, silverware, a gun collection and other items.

Near the end of the foray one of the four called: "Hey, Wickie, come and look at this." Olinghouse was known by the nickname "Wickie" and the remark was made near where Mr. Frazier was lying on the floor.

Appellant feared that Frazier would recognize him from the use of his nickname. Frazier said that he hadn't heard anything but the men were not convinced and concluded that Frazier would be killed.

The loot was removed and Frazier, bound and blindfolded, was shoved into the rear of his automobile, parked near the house.

Dewaine and appellant got in the Frazier auto and Danny and Johnson got into the Johnson Chevrolet in which they had driven to the farm.

The two automobiles were driven to the Caplinger Bottoms of the Sac River, in the vicinity of Caplinger Mills. Frazier was carried from the car and placed in an area of an old camp fire. The gasoline he had given the men was poured on him. Dewaine shot Frazier in the back twice with a sawed off 20-gauge shotgun. Johnson shot Frazier with a .32 caliber pistol and Olinghouse shot him with a .38. Danny Thomas fired three to five shots at Frazier. Danny then threw a match toward Frazier and the gasoline ignited.

Johnson and Dewaine drove to Dewaine's house in Gerster. Danny and Olinghouse joined them there shortly and the loot from the robbery was removed from the automobiles.

Sometime after the robbers left, Mrs. Frazier freed herself and went to a neighbor's and the sheriff was called. He reached the Frazier house at around 4:00 A.M. A search for Mr. Frazier and the Frazier auto was begun. At around 4:00 P.M., May 16, the Frazier automobile was discovered in the vicinity of Gerster.

Johnson, appellant and Danny had entered Floyd Weaver's house in Gerster early on the morning of May 16. Weaver, Johnson's cousin, was not at home. Entry was gained through a window.

Johnson left the area at around 11:00 A.M., May 17, to accompany his mother on a trip to Kentucky. Shortly thereafter, a relative of Johnson's told officers that some of the persons involved in the Frazier robbery were at the Weaver house. At around 2:00 P.M., a number of officers surrounded the house and called for the occupants to come out. When they failed to do so, tear gas was used and appellant and Danny emerged and were placed under arrest.

The FBI had been called into the case. Appellant was taken to Springfield and interrogated by FBI agents and state troopers. He eventually made a statement, admitting his participation in the crime and leading officers to the discovery of Frazier's body.

An information charging Olinghouse with capital murder was filed in the Cedar County Circuit Court. The case was taken on change of venue to Laclede County. A jury trial there resulted in a verdict of guilty of capital murder.

I Motions to Dismiss Information

Appellant assigns as error the trial court's overruling of several motions seeking dismissal of the information upon which he was tried. He moved to dismiss the information on the grounds that he was denied the right to a fair preliminary hearing because the magistrate who conducted the hearing refused to require state's witnesses to divulge the identity of the person who provided the information which led to the location and arrest of appellant. Appellant also complains that he was not permitted to cross-examine witnesses regarding the "confidential informant." He complains that the failure to disclose the identity of the confidential informant deprived him of a fair preliminary hearing, in violation of due process requirements of the federal and state constitutions, and that the restriction of his cross-examination of the witness on this matter denied him the right to confront witnesses against him as guaranteed by state and federal constitutions.

At the preliminary hearing, Sergeant Selvey of the Missouri State Highway Patrol testified that, on May 18, he was working on the Frazier case and that a "confidential informant" told him that Johnson, Thomas and appellant were involved in the Frazier case, that Frazier had been shot and that the three men could be found in the Weaver house in Gerster. Defense counsel objected to testimony about what the "confidential informant" had told the witness and objected further when he was prevented from cross-examining the witness regarding the identity of the "confidential informant."

Assuming, without deciding, that this is such a matter as would invalidate a preliminary hearing, appellant was entitled to no relief on this ground. Under the rule laid down in State v. Wandix, 590 S.W.2d 82, 853 (Mo. banc 1979), the informant in this case was not in a position to offer testimony relevant and crucial to the defense and therefore the state could withhold her identity.

It may be noted that the informer was identified well before the trial of the case and no question of protecting her identity arose then.

Appellant's motion to dismiss the information on the grounds that he was arrested without a warrant was overruled by the trial court. That ruling is assigned as error. Appellant argues that there was ample time to have obtained a warrant for his arrest after the officers were informed of his whereabouts and that his warrantless arrest in such circumstances violated his rights under the Fourth Amendment to the Constitution of the United States. He also contends that his arrest was without probable cause in that it was based upon information supplied by a confidential informant whose reliability was unknown to the arresting officers.

The argument on these points overlooks the rule that "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)." State v. Moore, 580 S.W.2d 747, 7491, 2 (Mo. banc 1979). In any event, as noted below, the trial court found appellant's arrest valid.

Appellant's motion to dismiss the information because of matters going to the validity of Section 559.011, RSMo 1975 Supp., fixing the punishment for the crime of capital murder, was overruled by the trial court. He renews those complaints here, first contending that S.C.S.H.C.S.H.B. 150 of the First Regular Session of the 78th General Assembly (Laws of Mo., 1975-1976, p. 408) which included Section 559.011 was enacted in violation of Section 23 of Article III, Constitution of Missouri, in that the bill related to more than one subject. The subject of the bill, as disclosed by the title, was "* * * certain crimes and the punishment therefor * * *." The bill contained thirteen sections and appellant's complaint is directed at the inclusion in the bill of an amendment to Section 549.060, RSMo 1969, relating to judicial parole and probation. The effect of the amendment of that section was to exclude from judicial parole persons sentenced under the capital murder provisions of the bill to life imprisonment, without eligibility for parole for 50 years. If there were merit to the appellant's complaint, its acceptance would merely nullify the purported amendment of Section 549.061 for failure of the subject thereof to be disclosed by the title. State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179, 18413-15 (banc 1950); State ex rel. Normandy School Dist. v. Small, 356 S.W.2d 864, 867-8711 (Mo. banc 1962). Such result would not affect the validity of the information.

Appellant also contends that the above enactment was violative of Section 28...