State v. Pettis

• Decision Date: 31 March 1975
• Docket Number: No. KCD,KCD
• Citation: 522 S.W.2d 12
• Parties: STATE of Missouri, Respondent, v. Leon PETTIS, Appellant. 27104.
• Court: Missouri Court of Appeals

Page 12

522 S.W.2d 12

STATE of Missouri, Respondent, v. Leon PETTIS, Appellant.

No. KCD 27104.

Missouri Court of Appeals, Kansas City District.

March 31, 1975.

Ronald M. Sokol, Public Defender, Fifth Judicial Circuit of Mo., St. Joseph, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

TURNAGE, Judge.

Defendant was convicted by a jury of the armed robbery of Herman's Drug Store in St. Joseph, Missouri, on September 28, 1972. The jury fixed his punishment at twelve years confinement and he appeals therefrom.

About 1:30 P.M. on the day of the robbery, four employees of Herman's Drug Store were seated at tables eating lunch when two men entered. One was tall and one was short. The tall man proceeded to the rear of the drug store while the short man stayed near the soda fountain. The druggist went to the rear with the taller man who pulled a gun and announced a holdup. Meanwhile the shorter man drew a gun and pointed it at one of the employees at the soda fountain and also announced a holdup. Shortly after these two entered the store, a third man entered and assisted the first two in the holdup. Thereafter, three customers entered the store and as each entered they were taken to the rear of the store and, together with the four employees, were forced to lie on the floor and had their arms and ankles tied together. In the course of the holdup, one of the robbers took $85.00 to $90.00 from one of the customers which was held in a money clip in the shape of a dollar sign. A quantity of drugs was also taken from the store.

Within a few minutes after the robbers had left, the druggist succeeded in untying himself and immediately called the police. An alarm was broadcast over the police radio system stating that three black subjects had held up Herman's Drug Store. Shortly thereafter the police dispatcher received a call from someone at Davis Home and Auto Supply who reported two subjects were running by that store in a direction away from Herman's Drug Store, and they seemed to fit the description of the robbers. A description of the clothing being worn by these two men was also given, and giving a physical description, including long hair, together with the fact they were black.

Two detectives of the St. Joseph Police Department had received the first radio broadcast concerning a robbery at Herman's and later received a second broadcast with the information given by the caller from the Davis Store. Shortly thereafter, these detectives saw two black men running in a direction away from Herman's, one tall and the other short, with clothing which matched the description received in the second radio dispatch. At the time the detectives saw these men no more than four or five minutes had elapsed since the first message was heard concerning the robbery.

The detectives testified the men ran for about a block from the time they first saw them until they reached the Sears parking lot at which time they slowed down. This would place them about ten blocks from Herman's. The detectives approached the two men and announced they were police officers, since they were wearing civilian clothing, and asked them for identification. The two men produced identification showing the short man to be the defendant. The detectives then told them they were under arrest for robbery. At about this time another police car with St. Joseph detectives arrived and a third black man was pointed out to one of these detectives as running in the same area and this detective gave chase. After a forty to fifty yard chase, the man stopped and was seen to throw something over a fence. This object was later found to be a firearm. The detectives patted the first two men down for weapons and finding none conducted no other search of them. All three men were thereupon taken to the St. Joseph Police Department where they were booked and at this time the contents of their pockets were removed and inventoried.

From the pocket of defendant was removed a money clip in the shape of a dollar sign containing approximately $85.00. Defendant was later identified, both before trial and in court, by those in the drug store at the time of the robbery as being the short man who stayed at the soda fountain holding a gun.

Defendant's first complaint of error concerns the claim that the arrest was made without a warrant and probable cause, therefore, the subsequent search of the defendant at the police station was unauthorized, and the money, together with the clip, should not have been received in evidence. Defendant's main contention concerns the lack of probable cause on the part of the detectives to place the defendant under arrest because of an insufficient basis to suspect the defendant as having been connected with the robbery. Defendant cites a number of cases holding items seized without a search warrant are inadmissible and that an illegal search or arrest cannot be justified by that which is discovered in the subsequent search.

Defendant's pre-trial motion to suppress this evidence was overruled by the trial court after a hearing.

The essential question to be answered is whether or not the police officers had probable cause to arrest the defendant.

In State v. Dodson, 491 S.W.2d 334 (Mo. banc 1973) the court stated '(t)he existence of 'probable cause', justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved'.

Here the detectives had a description of the men seen running past the Davis Home and Auto Supply which coincided with the first broadcast as to physical size. The subsequent broadcast expanded on this description by giving a clothing description together with some physical characteristics. Thus, at the time the officers arrested defendant, they had both a general physical description and knowledge of the clothing being worn by the men seen running by the Davis Store. Based on the criteria set forth in Dodson, there was ample basis to give the officers probable cause to believe the defendant was one of the robbers and to stop him, place him under arrest, and to take him to the police station.

Having placed the defendant under arrest upon probable cause, the removal of the money in the money clip from defendant at the police station was justified and, therefore, admissible. State v. Darabcsek, 412 S.W.2d 97 (Mo.1967).

Defendant next contends he was entitled to a 'capital panel' because the punishment for armed robbery in § 560.135 RSMo 1969, V.A.M.S., is death or imprisonment for not less than five years. The State did not ask the death penalty. Defendant concedes, and justly so, that the law is against him on this point. It has been consistently held in this State beginning with State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079 (Mo.1931) that a 'capital panel' is required only when the potential sentence is necessarily either death or life imprisonment. As held in State v. Morgan, 453 S.W.2d 932 (Mo.1970), when a 'capital panel' is not impaneled, then the death sentence cannot be imposed by either the jury or the court and, therefore, the offense charged is not punishable by death. There was no error in refusing to provide a 'capital panel'.

Defendant next complains of the selection of three additional talesmen after the original panel summoned was exhausted. Defendant complains these three were not summoned in the manner prescribed by statute. It is not necessary to decide whether or not the statutory method was strictly followed since it has been held that the sections detailing the method by which additional jurors are summoned is directory and unless the defendant shows that he has been prejudiced or his interests have been adversely affected by the failure to observe these statutory provisions, he is not entitled to any relief on this ground. State v. Thompson, 472 S.W.2d 351 (Mo.1971). Here defendant claims prejudice because the extra people summoned were retired people whose names were kept on a list to be summoned in the eventuality which occurred in this trial. He complains this deprived him of a reasonable cross section of the citizens of the county. Defendant does not demonstrate or state how this worked any prejudice to him and no prejudice is discernable. In State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642 (Mo.1937) a contention was made that the sheriff summoned two additional jurors who were former police officers. The court rejected the contention that they were 'convicter...