State v. Poor

• Decision Date: 03 February 1976
• Docket Number: No. 36261,36261
• Citation: 533 S.W.2d 245
• Parties: STATE of Missouri, Respondent, v. John Everett POOR, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 245

533 S.W.2d 245

STATE of Missouri, Respondent, v. John Everett POOR, Appellant.

No. 36261.

Missouri Court of Appeals, St. Louis District, Division Four.

Feb. 3, 1976.

Theodore S. Schechter, Clayton, for appellant.

John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

John Everett Poor, charged under the Second Offender Act, § 556.280 RSMo 1969, was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon and was sentenced by the Court to the custody of the Department of Corrections for a term of fifteen years. He has appealed from the ensuing judgment. Although we find it necessary to reverse the judgment, we shall rule certain issues which likely will recur in the event of a new trial.

Appellant first contends that the evidence was insufficient to submit the case to the jury.

About 8:30 o'clock of the evening of October 25, 1972, a person identified as Douglas Smith held up the National Food Supermarket at 7800 Morganford in the City of St. Louis, and by the use of a revolver took $650.00 from Michael O'Brien, the assistant manager. Mr. O'Brien described the robber as being in his 'early twenties,' wearing an army type fatigue jacket, and having dark brown hair and a moustache. Smith told Mr. O'Brien to remain in the store, and he then left the building and went toward the parking lot. Mr. O'Brien saw no other person acting with or aiding him.

About the same time Gerald Spitznagel, a former policeman but who then was security manager for the United Parcel Service, drove into the parking lot of the supermarket. He observed a person come out of the store and walk toward the parking lot. He was in his 'middle twenties,' of medium build, wearing an army fatigue jacket, had 'sort of long hair,' and he had 'something like a moustache.' Because of the way he held his hand, Mr. Spitznagel continued to observe him as he walked to and entered the passenger side of a brown Cadillac. He spoke 'momentarily' or for 'a second' to the driver, and the Cadillac was then driven from the lot. The driver was wearing a dark coat or jacket, had dark hair, and had 'some kind of discrepancies on his face.' Mr. Spitznagel wrote down the license number of the Cadillac and gave it to the police.

Mr. Spitznagel was not able to make a positive identification of Smith at a lineup as the person he saw leave the store and enter the Cadillac because, as he said, at the lineup he no longer had the moustache and the long hair, but he stated that one of the persons in the lineup, who was in fact Smith, looked similar to the person he saw leave the store and enter the Cadillac. At the trial he identified a photograph of Smith as being the person he saw enter the Cadillac, and Mr. O'Brien identified the same photograph as being the person who was the robber. At a separate lineup Mr. Spitznagel immediately recognized and identified appellant as the person who was waiting in the Cadillac and who drove it away after Smith got into it.

The morning following the robbery, Sergeant Menniges of the St. Louis Police Department determined that the license number written down by Mr. Spitznagel had been issued to Douglas Smith, Mehlville, St. Louis County, Missouri. He and several other officers went to that address but the Cadillac was not there. It was seen shortly thereafter being driven into the apartment complex by appellant with another person in the passenger side.

When the police questioned appellant he admitted that he had a 'half interest' in the Cadillac automobile, and he also admitted that he had driven the Cadillac the previous night. He stated, however, that he had been at his wife's home from 6:00 to 10:30 o'clock in the evening. Officer Baldwin called appellant's wife at work, and she stated that she had worked the previous evening until 11:15 o'clock and did not see appellant until after that time. After appellant was identified in the lineup by Mr. Spitznagel, he changed his story and told the police that he actually had been at his mother's house until 10:30 o'clock, and it was thereafter that he had gone to his wife's home.

Appellant did not testify, but his wife testified that on the evening of October 25, 1972, appellant called her and suggested that they attempt to resolve their marital differences, and that she met him at her home at 6:40 o'clock. She saw appellant arrive at her apartment in a brown Cadillac. They stayed together until 10:30 o'clock, and when they left the Cadillac had been moved and was parked in a different place.

In determining the issue of whether a submissible case was made, we view the evidence most favorable to the State, State v. Wilson, 436 S.W.2d 633 (Mo.1969), and take into consideration the favorable inferences reasonably to be drawn therefrom. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). Evidence to the contrary is not considered. State v. Morris, 518 S.W.2d 79 (Mo.App.1974). We are not to weigh the evidence, State v. Bizzle, 500 S.W.2d 259 (Mo.App.1973), or substitute our judgment for that of the jury. State v. Gamache, 519 S.W.2d 34 (Mo.App.1975). Instead, we are to determine only whether as a matter of law a jury could reach a verdict of guilty if the members believed the evidence and inferences favorable to the State. State v. Lee, 404 S.W.2d 740 (Mo.1966).

Under the facts of this case we necessarily are to be governed by certain other basic general principles. All persons who aid or encourage the commission of a criminal offense may be found guilty as a principal. State v. Gamache, supra at p. 39. While evidence only to the effect that an accused had an opportunity to aid and encourage another in the commission of an offense, which merely raises a suspicion that he did so, is insufficient to sustain a conviction, any evidence showing that he knowingly and intentionally aided or encouraged another is sufficient to sustain a conviction, and such proof may be by circumstantial evidence. State v. Rossini, 418 S.W.2d 1 (Mo.1967).

Tested by these legal principles, we are convinced that a submissible case was made and that the trial court did not err in overruling appellant's motion for judgment of acquittal. The Cadillac was registered in the name of Douglas Smith but appellant admitted that he had an interest in it, and by his admission and other evidence it was shown that on occasions he operated the automobile. Smith was identified by Mr. O'Brien as the robber. Mr. Spitznagel identified a photograph of Smith as being a photograph of the person he saw leave the store and enter the Cadillac. These facts and the time sequence of Smith leaving the store and Mr. Spitznagel observing a person closely fitting his description, without evidence of anyone else leaving the store at the time, clearly justified a finding by the jury that Smith was the person who robbed the store and went to the Cadillac automobile in which appellant was waiting. The act of appellant waiting for Smith and driving him away from the store area constituted an affirmative participation on his part. The only question is whether that participation was with knowledge of unlawful conduct on the part of Smith. The issue of intent or knowledge, in the absence of direct testimony of the person involved, is usually not subject to direct proof but must be inferred from the facts and circumstances. State v. Chevlin, 284 S.W.2d 563 (Mo.1955); State v. Holmes, 364 S.W.2d 537 (Mo.1963). Here, after committing the robbery Smith went to the waiting Cadillac automobile, but apparently with nothing he had purchased in the store. Appellant told conflicting stories as to where he had been at the time of the robbery; changing to the second story only after his first was disproved. All of the circumstances could be considered by the jury in determining the purpose of appellant's presence in the Cadillac automobile. The circumstances need not of themselves be conclusive, and they need not demonstrate an absolute impossibility of innocence. State v. Maxie, 513 S.W.2d 338, 343 (Mo.1974). But when they point so clearly and satisfactorily to defendant's guilt so as to exclude every reasonable hypothesis of innocence, as they do in this case, they are sufficient to authorize a finding of guilt by a jury. State v. Aguilar, 429 S.W.2d 754 (Mo.1968). This result also disposes of Point IX wherein appellant contends there was insufficient evidence to support the submission of Instruction No. 5 in the form of MAI-CR 2.10.

Appellant's second point is that the trial court erred in admitting into evidence certain items taken by the police from the Cadillac automobile.

Officers Ackins and Menniges had a description and the license number of the automobile reported to have been used in the robbery, and they knew that the license had been issued to Smith whose address was listed as Mehlville, Missouri. They also knew that two persons had driven away from the scene of the robbery, and the next morning when they went to the address of Smith they saw the Cadillac, and again there were two persons in the automobile. In the investigation of the automobile reported to have been used in the robbery, it was important to determine, if possible, the identity of the person who was not Douglas Smith, the registered owner. Some of the officers went to Smith's apartment, and Officer Ackins went to the automobile. While outside the automobile he observed in the automobile, but in plain sight to him, several envelopes and a magazine. He opened the unlocked door and saw that each had the name of 'Poor' as the addressee. This may have constituted a technical trespass, but if so it would not affect the legality of the subsequent conduct of the officer. United States v. Young, 322 F.2d 443, 445 (4th Cir. 1963). Either at the time or a short time later the police took possession of these envelopes and the magazine, and at the trial they were...