State v. Summers

• Decision Date: 04 February 1974
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Carl Eugene SUMMERS, Appellant. 26445.
• Court: Missouri Court of Appeals

Page 67

506 S.W.2d 67

STATE of Missouri, Respondent, v. Carl Eugene SUMMERS, Appellant.

No. KCD 26445.

Missouri Court of Appeals, Kansas City District.

Feb. 4, 1974.

Robert G. Duncan, William E. Shull, Duncan & Russell, Gladstone, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant (appellant herein) was found guilty by a jury of his peers of burglary in the second degree and stealing in conjunction therewith. His punishment was fixed at ten years confinement in the Department of Corrections for burglary and five years confinement for stealing.

The dual charge against defendant arose out of the burglarizing of a certain commercial building in Clay County, Missouri, on November 22, 1970, which was occupied by Dunlop Tire and Rubber Corporation as a warehouse, and the conjunctive theft of certain tires therefrom. The thrust of the state's evidence was that the burglary and theft were perpetrated by six men, the defendant, Carl E. Koonce, Jr., Leo K. Rhoden and Dean Hartley, members of the North Kansas City, Missouri, Police Department at the time, Louis J. Verderber, a reserve officer of the North Kansas City Police Department at the time, and Albert Bossert, operator of a garage and body shop in North Kansas City, Missouri, at the time.

Certain facts in the case--the self-confessed active participation by Rhoden, a member of the North Kansas City, Missouri, Police Department at the time, and by Verderber, a reserve officer of the North Kansas City, Missouri, Police Department at the time--at first blush shake to the very roots the trust and confidence that even the most calloused member of the public places in law enforcement agencies. However, the conduct of the two police officers mentioned constitutes the rarely occurring exception, not the rule, and should in no way impugn the devoted loyalty and unimpeachable integrity of that numberless mass of policemen who constantly risk life and limb, far too frequently without plaudit or adequate compensation, to protect society from the ravages of crime.

Defendant positions his right to appellate relief on five grounds, only two of which must be addressed in order to fully dispose of the appeal, said two grounds being: First, that he is entitled to outright acquittal and discharge because the state's evidence was not legally sufficient to support his conviction of the crimes of burglary in the second degree and stealing, and, further, the state failed to prove the corpus delicti of the charged offenses; and, Second, that he is entitled to have the judgments of conviction and attendant assessments of punishment reversed and to be granted a new trial because the trial court unreasonably and unlawfully circumscribed his cross-examination of state's witnesses Bossert, Verderber and Rhoden, respecting their credibility, bias and interest, and with respect to the laying of a foundation for their further impeachment, all in violation of defendant's right to a fair trial, and in violation of defendant's rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 18(a), of the Constitution of Missouri, V.A.M.S.

Disposition of the First ground asserted by defendant compels the delineation of certain evidence consonant with the following recognized principles of appellate review. The evidence is to be viewed in the light most favorable to the state; all evidence favorable to the state is considered true, and all reasonable inferences favorable to the state are indulged; all evidence unfavorable to the state is disregarded, and all inferences unfavorable to the state are rejected. State v. Strong, 339 S.W.2d 759 (Mo.1960); State v. Bruton, 383 S.W.2d 525 (Mo.1964); State v. Archer, 328 S.W.2d 661 (Mo.1959); State v. Colthorp, 437 S.W.2d 75 (Mo.1969); and State v. Watson, 350 S.W.2d 763 (Mo.1961). Additionally, the jury, and it alone, possessed the power to weigh and evaluate the evidence and to make the crucial determination of whether the evidence proved defendant guilty beyond a reasonable doubt; appellate review in this respect is relegated to the narrow consideration of whether sufficient substantial evidence exists to support the jury's finding. State v Strong, 484 S.W.2d 657 (Mo.1972); State v. Crawley, 478 S.W.2d 344 (Mo.1972); and State v. Odom, 353 S.W.2d 708 (Mo.1962).

Collectively, the testimony of state's witnesses Bossert, Verderber and Rhoden, self-confessed accomplices, disclosed the following: Sometime during the early morning hours of November 22, 1970, defendant, Bossert, Verderber, Rhoden, Koonce and Hartley assembled in the vicinity of the Dunlop Tire and Rubber Corporation warehouse located in North Kansas City, Missouri. At that time defendant was operating a 1963 Ford station wagon. The sextet proceeded to the Dunlop warehouse in police cars. Entrance to the warehouse was made through a window located on the south side of the warehouse. Part of the sextet remained outside the warehouse and part went inside the warehouse. Tires were removed by those inside the warehouse by means of passing them to Koonce who was on a ladder inside the warehouse, who, in turn, threw them to the ground outside the warehouse. All three of the co-felons testifying for the state, without objection, testified that defendant participated in the crimes of burglary and stealing that occurred at the Dunlop warehouse on November 22, 1970, and one placed defendant inside the warehouse. After some sixty to one hundred tires were extricated from the Dunlop warehouse and thrown on the ground outside, defendant drove one of three station wagons that were then brought to the warehouse and loaded with tires. The three station wagons then transported the tires to Louis J. Verderber's boat shop in North Kansas City, Missouri, where the tires were parceled out to the participants of the crime. Defendant was present when the 'parceling out' occurred and when he left the boat shop some of the tires removed from the Dunlop warehouse were in the station wagon which he had been operating and in which he drove away from the boat shop.

The operations manager of Dunlop Tire and Rubber Corporation testified that on the first Monday following November 22, 1970, he discovered that a window had been opened on the south side of the Dunlop warehouse, and, further, that a ladder was present at the opened window on the inside of the warehouse.

Defendant argues that there was, (1) an 'insufficiency of the evidence of the defendant's participation in the crime itself', and (2) a 'complete lack of evidence of the corpus delicti of the offenses of burglary in the second degree and stealing.'

As to (1), an 'insufficiency of the evidence of the defendant's participation in the crime itself', defendant argues, citing State v. Castaldi, 386 S.W.2d 392 (Mo.1965), that mere presence at the scene of the crime is not sufficient to support a conviction. No quarrel can be leveled at this abstract statement. However, as demonstrated by the above delineated evidence, defendant actively and affirmatively participated in the crimes for which he stood charged. It is a well fixed principle in this state that 'evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction.' State v. Schlagel, 490 S.W.2d 81, 84 (Mo.1973). See also: State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969); State v. Butler, 310 S.W.2d 952 (Mo.1958); State v. Ramsey, 368 S.W.2d 413 (Mo.1963); and State v. Reed, 453 S.W.2d 946 (Mo.1970).

Defendant further attacks the sufficiency of the evidence to support proof of defendant's participation in the charged offense in that it 'was based solely on the testimony of three alleged accomplices'. He then bifurcates this attack by arguing, (1) that the testimony of the three alleged accomplices did not rise, legally, to the threshold of substantial evidence, and (2) their self-confessed participation and acknowledged bad character made them totally unworthy of belief. In State v. Harris, 295 S.W.2d 94, 95 (Mo.1956), the court, citing State v. Bockman, 251 S.W.2d 607 (Mo.1952) and State v. Emrich, 250 S.W.2d 718 (Mo.1952), held that the testimony of accomplices, even though uncorroborated was legally sufficient to support a fellow accomplice's conviction, unless it was 'so lacking in probative force' as to preclude it from constituting substantial evidence. See also State v. Penn, 413 S.W.2d 281 (Mo.1967). This court's review of the testimony of the accomplices compels the conclusion that their testimony did not lack probative force and, therefore, did constitute substantial evidence of defendant's guilt of the charged offenses--their testimony did not intrinsically lack credibility, it was not patently self-destructive or contradictory, nor was it conclusively impeached by defendant's testimony categorically denying any participation in the charged offenses, or by any other contradictory evidence.

As to (2), 'complete lack of evidence of the corpus delicti of the offenses of burglary in the second degree and stealing', the answer is found in State v. Hawkins, 165 S.W.2d 644, 646 (Mo.1942) (citing cases):

'In this state the corpus delicti has never been construed to require or consist of more than these two elements: (1) Proof, direct or circumstantial, that the specific loss or injury charged occurred; (2) someone's criminality as the cause of the loss or injury.'

Again, as demonstrated by the above delineated evidence, and as measured by the clearly enunciated standard above, there was substantial evidence on behalf of the state of the corpus delicti of the crimes of burglary in the second degree and stealing for which the defendant stood charged.

Focusing now on defendant's second postulate for relief--that his cross-examination of the...