State v. Sanders, 49447

• Decision Date: 13 May 1986
• Docket Number: No. 49447,49447
• Citation: 714 S.W.2d 578
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David A. SANDERS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 578

714 S.W.2d 578

STATE of Missouri, Plaintiff-Respondent, v. David A. SANDERS, Defendant-Appellant.

No. 49447.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 13, 1986.

Motion for Rehearing Denied and/or Transfer to Supreme Court

Denied June 19, 1986.

Application to Transfer Denied Sept. 16, 1986.

Robert A. Hampe, St. Louis, for defendant-appellant.

Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

David Sanders, appellant, was convicted of robbery first degree, Section 569.020 RSMo.1978, armed criminal action, Section 571.015.1 RSMo 1978, possession of cocaine, Section 195.020 RSMo.1978, and resisting arrest, Section 575.150 RSMo.1978, in the Circuit Court of the City of St. Louis. He was also charged with being a prior offender, Section 558.016 RSMo. Cum.Supp.1984 and at the hearing on this issue it was stipulated that on December 6, 1976, appellant pled guilty to the charge of operating a motor vehicle without the permission of the owner and was sentenced to a term of one year imprisonment. Appellant was sentenced to a term of twenty-five years for the robbery, five years for the possession of cocaine, five years for resisting arrest to run concurrently, and five years for armed criminal action, to run consecutively to the other three sentences.

On appeal appellant contends that his conviction must be overturned and he be granted a new trial because the trial court erred:

1. in overruling his motion for severance and separate trial of Counts II and III in that the evidence on said Counts is unrelated to Counts I and IV;

2. in overruling his objections during the state's rebuttal to the showing of a videotape in its entirety, in that the tape had been played to the jury in its entirety at a prior time and constitutes improper rebuttal;

3. in denying his motion to dismiss the substitute information in lieu of indictment containing his one prior conviction in that (a) it is an attempt to amend an indictment, (b) it fails to adequately inform him of the charges against him, (c) it charges him with nothing but a prior conviction, and (d) the indictment is void and abandoned by the filing of the substitute information in lieu of indictment and its purported relation back to the indictment is of no legal force whatsoever;

4. in not permitting defendant on surrebuttal to testify as to the source of information stated on tape 2 was personal or hearsay;

5. in denying his motion to produce the informant;

6. in denying his objection to state's exhibits 32B and 32C--composite drawings--in that said exhibits were the work of the police department's artist and not the product of any work or identification by any witness but were the artist's rendition of how the perpetrator of the crime would appear without a beard;

7. in denying his motion to suppress statements in that the statement was made as part of a bargain with the state which the state violated by changing the "deal" following the giving of the statement;

8. in overruling his objections to the testimony of witness Preston concerning an initial "J" on one $20.00 bill introduced into evidence wherein she identified the initial as the handwriting of another employee in that such evidence was an opinion without a proper foundation having been laid for said testimony, where the witness was not a qualified handwriting examiner, and unqualified to render such an opinion;

9. in denying his motion to compel the assistant circuit attorney to recuse and disqualify himself as trial attorney, and to disqualify the office of the circuit attorney;

10. in denying his request for a mistrial during the state's argument where reference was made to the "deal" which caused his oral and videotaped statements to be made, in that said comments were in direct violation of the trial court's position that no evidence could or should be admitted as to what happened following the making of the second videotape and the trial court would not allow the appellant to place in evidence the facts and circumstances surrounding the breakdown of the agreement between the state and the appellant which caused him to make the oral and videotaped statements; and

11. in instructing the jury in Instruction No. 9 MAI-CR 25.02 as modified by MAI-CR 2.12--(Armed Criminal Action as Modified by Parties: Defendant Responsible for Conduct of Another Person--State's Verdict Directing Instruction) in that it placed an impermissible burden on the appellant, required no action by him, and required no intent or acting together by him and the "actor" who commits a crime with a firearm.

Appellant does not challenge the sufficiency of the evidence.

The evidence showed that on the morning of May 16, 1983, James William Davis, an employee of Security Armored Car Company made a routine pickup of money at the National Food Store, 950 Loughborough, in the City of St. Louis. Upon exiting from the store with the money he was stopped by a man with an automatic revolver who told him to stop, that this was a holdup. The robber then demanded that Mr. Davis give him the gun Mr. Davis had and the money. Mr. Davis complied with the demand. As he did so, Mr. Davis got a good look at the robber's face. As the robber backed out of the store with the money Mr. Davis again got a good look at the robber's face. The robber dropped Mr. Davis' gun momentarily and as he leaned down to pick it up Mr. Davis again looked at the robber's face. The robber then exited the store and Mr. Davis observed him depart in a Hoover appliance van parked in front of the store.

The police and the evidence technician unit arrived at the store and photographed the crime scene. Mr. Davis described the robber to the police as a white male, in his thirties, with a dark beard and mustache, about 5'10"'" tall and wearing a blue windbreaker jacket. Later in the day Mr. Davis assisted a police artist in making a drawing of the robber.

Mr. Davis' receipt books showed that the appellant had taken $49,375.25 in cash, and approximately $60,000 total including checks and food stamps. The cash was marked with an employee's initial on each bundle, a common practice used by National employees.

The police also talked with a customer, Herbert Jones, who was in the National store prior to the holdup. He testified that a white bearded man wearing a blue coat was in the store looking nervously around while pretending to read a bulletin board the morning of the robbery. Mr. Jones had a good look at the man because he was standing right next to him. Mr. Jones also assisted the same police artist in drawing a picture of the man he saw in the store that day. The police artist also made modifications of three drawings to show the robber without facial hair in various stages.

On May 28, 1983, Detective McEntee of the St. Louis Police Department executed a search warrant at 6418 Wade Avenue, the residence of Dennis Thurmond, a suspect in the robbery. A Visa charge slip from a car rental agency in Los Angeles with the name of David Sanders was found.

On the same day, May 28, 1983, Officer Joseph Kriska and some other police officers executed a search warrant at 3665 Wyoming Avenue, appellant's residence. As the police car pulled up, appellant was ascending the steps. Officer Kriska ordered him to stop, and told him he was under arrest and that the police had a warrant. Appellant ran up the steps into the residence and closed the door. Officer Kriska pursued the appellant, knocked on the door and announced that he had a warrant. When no one let him in, Officer Kriska kicked the front door open, entered the residence and observed the appellant exiting the back door. Officer Kriska again ordered appellant to halt, told him he was under arrest, but appellant continued fleeing out the back door. Officer Kriska chased appellant onto the back porch after kicking open the jammed back door. Appellant was climbing up a fence. Officer Kriska again ordered him to halt and told him he was under arrest, but the appellant continued climbing the fence. Officer Kriska then fired a shot into the air but appellant continued fleeing. While doing so he dropped a small bottle out of his right hand and the bottle fell onto the patio, and Officer Kriska picked up the bottle which was filled with a white powder. Officer Kriska lost sight of the appellant after he jumped the fence.

Another police officer, Officer Beffa, who was maintaining surveillance in the rear saw appellant climb over the fence. He and another officer, Officer Hensley, who had a dog from the canine unit with him, searched the yards. Officer Hensley and the dog found the appellant hiding behind a screen door in a basement stairwell in the yard at 3635 Wyoming. Officer Hensley shined his flashlight on appellant, told him to come out and called for Officer Beffa. The officers attempted to handcuff appellant, but he resisted by pushing away and the police officers had to wrestle him to the ground. During the tussle appellant was bitten by the dog. After appellant was subdued he was taken around to the front of 3665 Wyoming where the search warrant was being executed. An ambulance was called and appellant was removed to the hospital in the custody of the police.

Officers Kriska, Scheetz, Thomas and others conducted a search of appellant's home. Officer Thomas found two walkie-talkies, twenty-six thousand dollar bill money wrappers, a Radio-Shack cash receipt for $250.00, a National Food Store Coupon, and bookstore cash receipts from Los Angeles for $138.50 and $255.60. Officer Scheetz found a clear bag of a white powder substance and various drug paraphernalia related items including a black glass with a white powder residue, a gram scale, a funnel and other fixtures in or near a desk in a first floor office.

The bag of white powder and the small bottle of powder which appellant had dropped while climbing the fence in the backyard of 3665 Wyoming was delivered to...