State v. Starr, 57343

• Decision Date: 09 April 1973
• Docket Number: No. 57343,57343
• Parties: STATE of Missouri, Respondent, v. Clarence STARR, Appellant.
• Court: Missouri Supreme Court

Page 795

492 S.W.2d 795

STATE of Missouri, Respondent, v. Clarence STARR, Appellant.

No. 57343.

Supreme Court of Missouri, En Banc.

April 9, 1973.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Charles P. Todt, Clayton, Bernard A. Ruthmeyer, Jr., St. Louis, Martin E. Juncker, Clayton, for appellant.

BARDGETT, Judge.

Defendant-appellant Clarence Starr was convicted of murder in the first degree and the death sentence was imposed by a jury. The motion for new trial was overruled and this appeal followed. Notice of appeal was filed October 5, 1971. This court has jurisdiction. Art. V, § 31(4), Mo.Const. 1945, as amended.

On Wednesday, October 29, 1969, at about 11:30 p.m., the Belt Loop Liquor Store at 5501 St. Louis Avenue, St. Louis, Missouri, was robbed and Mr. Preston Rankin, the owner, was shot and killed. One customer testified that he was in the store at the time but could not identify the robbers because his coat was thrown over his head by one of them. One of the robbers put a pistol to the customer's head and said it was a stick up. The customer heard some mumbling, scuffling and two or three shots fired. Another witness testified he went into the store shortly after 11:30 p.m., saw the customer on the floor with a coat over his head, saw that Mr. Rankin had been shot and was slumped against the cash register and called the police. The cash register drawer was open; Rankin was unconscious and never made any statements.

Officers Bohlan, Keplinger and Thomas went to the scene. The body of Mr. Rankin was removed to Homer G. Phillips Hospital where he was pronounced dead and taken to the city morgue.

Detectives Anton, Mueller and Mancuso arrived at the scene about 12:10 a.m., October 30, 1969. The body had been removed from the scene. Detective Mueller testified he found some quarters strewn about the floor and two ten-dollar bills on a desk, but no other money. He saw money orders sticking out of a desk drawer and in checking further ascertained that about 140 money orders were missing. Mueller viewed the corpse in the morgue and observed three puncture wounds, apparently gunshot wounds, in the neck and back.

Mrs. Rankin testified she turned money order receipts and the cash register tape for October 29, 1969, over to Detective James Dowd. The cash register tape had 'October 29, 1969, A.M., Wednesday morning' written on it in the handwriting of the deceased. The money order receipts were for money orders sold on October 29, 1969.

Det. Dowd testified that the cash register tape for October 29, 1969, totaled $353.55. The total amount of money orders sold on October 29, 1969, at the store was $273.28. The total amount of cash on hand in the store was $626.83.

The next day, October 30, 1969, Barbara Lakes tried to cash one of the money orders at a drugstore and she was subsequently arrested and the money order seized. When the police went to the Lakes apartment they saw burned ashes on the gas stove. The ashes were identified by an expert as being the remains of other money orders that came from Belt Loop Liquor Store.

Barbara Lakes lived with James Goodlow at 4257 Enright. About 8:00 a.m. on Thursday, October 30, 1969, Goodlow gave Lakes two money orders and told her to cash them. After unsuccessfully attempting to cash them, Lakes was stopped by the police and gave the two money orders to them. Goodlow was in the apartment when Lakes left with the money orders.

Goodlow testified that he had a conversation with defendant and one Acy Haynes about 10:30 p.m. on October 29, 1969, at the Moonlight Lounge. The defendant asked Goodlow for the use of Goodlow's car and told him they wanted to use it to stick up Mr. Rankin's liquor store. Goodlow told the defendant he had sold his car and then defendant said they would take a cab. The three, defendant, Haynes, and Goodlow, took a cab to 4257 Enright where Goodlow lived and he changed clothes and got back in the cab. Haynes also went into the apartment building, but not to Goodlow's apartment, and returned to the cab with a shotgun and a revolver. Haynes handed the revolver to Starr. Goodlow got out of the cab at St. Louis and Arlington, and Starr told Goodlow that if he (Starr) was not back at the Moonlight Lounge in twenty minutes Goodlow should tell a Mrs. Harris, the mother of Starr's girl friend, to go out to Rankin's liquor store. Goodlow returned to the Moonlight Lounge and told Mrs. Harris what Starr said. Goodlow, Mrs. Harris, and others then drove to the Belt Loop Liquor Store. Mrs. Harris went into the store, then returned to the car and told them Mr. Rankin had been shot. They returned to the Moonlight Lounge. Starr and Haynes were already there. Starr told Goodlow he had some money orders and asked Goodlow if he wanted some of them, and Goodlow said yes. Starr also told Goodlow, 'he had to shoot the dude'. Starr told Goodlow that he would bring the money orders to Goodlow because Starr's mother didn't want people coming into their house. Goodlow walked home and waited. Starr and Haynes came there shortly and Starr gave Goodlow eight money orders and left. Goodlow went into his apartment, filled out two of the money orders making them payable to Barbara Lakes, and went to bed. Goodlow identified the two money orders subsequently taken from Lakes by the police as being the two he filled out and gave to Lakes. Sometime after Barbara Lakes left to cash the money orders, Starr came to Goodlow's apartment and told Goodlow not to cash the money orders because 'the fellow had died and they was hot.' Goodlow and Starr went into Goodlow's apartment and burned the remaining money orders on the gas stove. Later Goodlow and Starr went to Acy Haynes' house where Starr told Haynes to burn all of the other money orders.

Later that day Goodlow was arrested and in October 1969 was charged with murder, robbery with a dangerous and deadly weapon, and attempted robbery, as a result of the robbery and death of Preston Rankin. The jury was told that the charges against Goodlow were dismissed by the state on the morning Goodlow testified in this case. Goodlow remained in jail from October 30, 1969, to the date he testified, March 18, 1971. Defendant's attorney asked Goodlow on cross-examination where he had been since October 1969. The state objected to the question as being irrelevant and immaterial to the issues in the case and the court sustained the objection. Defendant's attorney stated to the court that if the witness were permitted to answer he would testify that he had been in jail during that time, that the dismissal of charges was a grant of leniency, and the jury should know that. The offer of proof was overruled. Goodlow was fully cross-examined on the question of whether he agreed to testify if the charges against him were dismissed.

During the cross-examination, Goodlow testified that he knew one Johnny Leach, denied seeing him during the previous two weeks, denied Leach was his cellmate for the last two weeks, and then the following occurred:

'Q. Did you tell Johnny Leach that you put the .38 caliber revolver in Clarence Starr's basement? A. No. MR. FRIEDMAN: Your Honor, I'll ask that that question be stricken and the jury be instructed to disregard it, unless he connects it up. THE COURT: Sustained. MR. FRIEDMAN: Unless there's some foundation laid for that. THE COURT: Lay the foundation. MR. TODT: Well, we would be able to connect it up later, Judge.'

Det. Leroy Adkins arrested Starr and Goodlow together. Goodlow gave a statement. Adkins also talked with Starr's stepfather, Quintie Allen, at the police station. Adkins, another officer and Allen then went to Allen's house, which was where Starr lived. Adkins testified that Allen took the officers into the basement. Allen denied this but testified that he accompanied the officers to his house; showed the officers where the basement was, and gave his permission to the officers to search his basement. Thereafter, Adkins found a .38 caliber revolver with two live shells in it in the basement rafters. Adkins identified a gun in court as being the one he found and had turned over to the police laboratory. Adkins testified Goodlow told him the revolver would probably be in Allen's basement. Over objection, Adkins testified that Goodlow told him that Starr said the revolver was at Starr's house. Goodlow denied making that statement.

Quintie Allen was called as a witness for the state. He stated that he took two police officers to his home on the afternoon of October 30, 1969. Apparently the next few answers given by Allen were not to the liking of the prosecutor. The prosecutor then asked the witness whether he had ever been convicted of a felony which was objected to on the grounds that the state could not impeach its own witness. The objection was overruled and the witness admitted to convictions for burglary and larceny, check forgery, and one misdemeanor conviction for non-support. Defendant's motion for mistrial was overruled.

The medical testimony was that the deceased suffered three gunshot wounds. Two bullets were removed from the body. The third bullet passed through the body. The cause of death was multiple gunshot wounds of the chest with a bilateral hemothorax due to multiple lacerations of the lungs. The bullets that were found in the body were turned over to the police. A ballistics expert testified that the bullets found in Mr. Rankin's body had been fired from the .38 caliber revolver found in the basement of Allen's house. The bullets were not offered in evidence.

The defense offered no evidence.

Defendant contends there was no evidence that a robbery occurred; it was error, therefore, to give instruction No. 4--the felony-murder instruction. This contention is premised on the assertion that there was no evidence that money was taken by the culprits. Additionally defendant contends the court erred in giving instructions 3...