State v. Stancliff

• Decision Date: 12 April 1971
• Docket Number: No. 55349,No. 1,55349,1
• Citation: 467 S.W.2d 26
• Parties: STATE of Missouri, Respondent, v. Lucky Vance STANCLIFF, Appellant
• Court: Missouri Supreme Court

Page 26

467 S.W.2d 26

STATE of Missouri, Respondent, v. Lucky Vance STANCLIFF, Appellant.

No. 55349.

Supreme Court of Missouri, Division No. 1.

April 12, 1971 Motion for Rehearing or Transfer to Court En Banc Denied May 10, 1971.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Lewis E. Pierce, Robert G. Duncan, David W. Russell, Pierce, Duncan, Hill & Russell, Kansas City, for appellant.

BARDGETT, Judge.

Lucky Vance Stancliff was convicted by a jury of murder in the first degree; his punishment was assessed at life imprisonment, and sentence and judgment were rendered accordingly.

Defendant's first point is that 'the verdict was not supported by sufficient and substantial evidence, in that there was no evidence that the appellant participated in the homicide.' The evidence will be viewed in the light most favorable to the verdict.

The deceased, Richard Ferguson, aged 18, a service station attendant, was found dead at about 1:20 to 1:30 a.m. on the morning of March 15, 1969, on the service station property about 100 feet from the building. He had been shot at least ten times.

The scene of the crime was a Texaco Service Station in Lawrence County, Missouri, located about 1/4 mile southwest of the intersection of I 44 and Route O, a north-south road. This intersection is known as the 'Halltown exit' off I 44. Route PP is a north-south road intersecting I 44 about 3 to 3 1/2 miles east of Route O. Highway 66 goes under I 44 about 1/2 mile west of Route O and there is an exit ramp off I 44 at this point. Defendant and one Terry Cobb lived in separate residences in Mount Vernon. Mt. Vernon is about 10 to 12 miles southwest of Route O on I 44. I 44 is the shortest route from Route O to Mt. Vernon. One can reach Mt. Vernon in about 15 to 20 minutes via Route O by using Halltown exit. One can also reach Mt. Vernon, by exiting at Halltown exit, Route O, and going north to Route 266, west on Route 266 to Route 66, west on Route 66 to Route 39, and then south.

The deceased had relieved Ira Madsen as station attendant about 10:00 p.m., March 14, 1969, and at that time there was $75 to $100 in the cash register. Richard Ferguson was last seen alive while on duty at the Texaco station about 11:50 p.m., March 14, by witness Vickie Boatright and two other girls who knew Ferguson and had gone by to visit with him.

Witness Brazel, an off-duty employee of the same station, arrived on the scene at 1:20 to 1:30 a.m. The deceased, Richard Ferguson, was not in sight. The cash register was open and the money was gone. Brazeal looked for Ferguson but could not find him. He called the owner and told him Ferguson was not there. Brazeal then went outside the station and found Ferguson dead on the ground about 100 feet from the station. There was other evidence from which the jury could find that about $160 was missing from the station.

Deputy sheriff Flannigan arrived about 1:45 a.m. and found six .25 caliber spent shells and one .25 caliber slug in the back room of the station. Deputy sheriff McDaniel found six .22 caliber long rifle spent shells and one .32 caliber spent shell around Ferguson's body and two .22 long rifle spent shells beside the station. The .22 and .25 caliber shells and the .25 caliber slug were eventually turned over to witness Kenneth Miller, a ballistics expert with the Missouri Highway Patrol.

On Sunday, March 16, sheriff Quade searched for weapons south along Route O and found a .25 caliber Browning automatic pistol about 1 1/2 miles south of the Texaco station on the west side of Route O. Witness Ricky Richardson assisted in the search for weapons and found a clip from a .25 caliber along the west side of Route O about 100 feet from the .25 caliber gun. On the same day witness Bill Kuehl found a .22 caliber Sturm Ruger automatic pistol with one live long rifle shell in the chamber about 10 feet west of Route O between 1 1/2 and 2 miles south of the Texaco station. The guns, clip and live shell were also eventually turned over to Kenneth Miller.

On autopsy Dr. David Gorelich found ten entrance and five exit bullet wounds in the body of the deceased. He found four complete .25 caliber slugs in the deceased--one in the right side of the face, one in the left side of the face, one in the left chest and one in the left buttock. The one in the left chest had penetrated the heart. Four bullet fragments were found in the deceased's head which tore up his brain. Ferguson had been shot in the heart before being shot in the head and was still alive when he was shot in the head. These bullets and bullet fragments were also turned over to Kenneth Miller.

Deputy sheriffs Stockton and Dunton went to the home of one Terry Cobb in Mt. Vernon on Sunday, March 16, 1969. While there Dunton picked up a quantity of spent .22 and .25 caliber shells from Cobb's back yard and these were also turned over to Kenneth Miller.

Kenneth Miller testified that he is employed by the Missouri State Highway Patrol in Jefferson City and assigned to the technical laboratory to perform firearms examinations and other duties. He qualified as a ballistics and firearms expert. After describing the manner by which ballistics tests and examinations are done in order to determine whether a particular bullet or shell was fired with a particular gun, Miller testified that two of the .22 caliber bullet fragments found in deceased's head contained signatures--identifying data--which compared in likeness to the test bullets from the .22 caliber Sturm Ruger. The other two fragments were devoid of identifying marks. The witness stated that six of the eight .22 caliber spent shells found at the station were fired from this same .22 caliber handgun. These six shells also bore the same headstamp as the one live shell found in the chamber of the gun by witness Kuehl. Of the .22 caliber shells found in Cobb's backyard by officer Dunton, Mr. Miller testified that 58 of the 104 found were fired from this same .22 caliber Sturm Ruger. The remainder were fired from three other .22 caliber weapons.

The four .25 caliber bullets taken from the body of the deceased, the single expended .25 caliber slug found at the Texaco station, the six .25 caliber shell casings found in the back room of the Texaco station, and the five .25 caliber shell casings found in Cobb's backyard were, in the opinion of witness Miller, all fired from the same gun--the .25 caliber Browning automatic found by sheriff Quade along Route O on March 16, 1969.

Witness Rickey Ferguson, deceased's brother, was the attendant at the Deep Rock service station at I 44 and Route PP on the night of March 14. Defendant and Cobb came to this station about midnight and filled up the gas bank. Shirley Stancliff, the former wife of defendant, together with the defendant and Cobb got into Shirley's car and the three drove back and forth in front of the Deep Rock station. Shirley then drove onto the nextdoor restaurant lot and stopped. Defendant and Cobb got out of her car and into Cobb's car. Cobb drove west on I 44. This was between 12:30 and 12:45 a.m. on March 15, 1969. Shirley followed them going down the ramp 'real fast' westbound on I 44. She passed them before reaching Route O, Halltown exit, continued west and stopped on I 44 about one mile west of Route O, near where Highway 66 intersects I 44 waiting for them. Shirley remained stopped for two or three minutes. The defendant and Cobb did not pass her. Shirley then proceeded a bit further west to the Chesapeake exit and took Route 39 over to Highway 66 to a restaurant. She saw a black Ford there, looked into the restaurant, did not see defendant or Cobb, so she drove to defendant's house in Mt. Vernon. She waited there for 15 or 20 minutes. Defendant was not there so she drove to Cobb's house in Mt. Vernon arriving there about 1:30 or 2:00 a.m. Defendant and Cobb were there. She went home and defendant went home.

Prior to this night of March 14, Shirley had been to Cobb's house with defendant. Defendant gave her a .22 caliber pistol that she fired at trees, poles or anything for a target in Cobb's backyard. Shirley identified state's exhibit 1, the .22 caliber Sturm Ruger automatic pistol as being one that looked like the one defendant gave her to shoot; that it was the same type and it had the same type long barrel and long handle. It was a .22 automatic that she fired but she could not positively identify state's exhibit 1 as being the gun the defendant let her use at Cobb's house. On cross-examination by defendant's attorney, the following sequence occurred:

'Q. While you were married to Vance, he didn't even own a gun, did he?

A. No. A .22 rifle.

MR. FAULKNER: I object to whether he owned a gun while they were married.

MR. PIERCE: Well, Your Honor, the State put on testimony to the effect she shot a gun while she was married to him.

MR. FAULKNER: No, not--I didn't put on testimony they were married at the time she shot a gun.

THE COURT: The objection will be sustained.

Q. (By Mr. Pierce) During any time, either during the time when you were married to Vance or the time you are talking about shooting this gun, did he ever own a gun?

A. No.

Q. All right. Did he ever own a .22 pistol like this?

A. I don't know if he owned one or not but he had one that night.'

The state relies upon circumstantial evidence to implicate defendant in the robbery and homicide. The rule is that the circumstances to warrant a conviction must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of the defendant's guilt, but must be inconsistent with every other reasonable hypothesis, including the hypothesis of his innocence. State v. Paige, Mo., 446 S.W.2d 798. It is inherent in the nature of a circumstantial evidence case that there will almost always exist a possibility of innocence and the evidence need not be so strong as to...