State v. Thompson, 14118

• Decision Date: 05 January 1987
• Docket Number: No. 14118,14118
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Douglas Wayne THOMPSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 76

723 S.W.2d 76

STATE of Missouri, Plaintiff-Respondent, v. Douglas Wayne THOMPSON, Defendant-Appellant.

No. 14118.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 5, 1987.

Motion for Rehearing and to Transfer

Overruled and Denied

Jan. 27, 1987.

David Robards, Joplin, for defendant-appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

At the outset it must be observed that it is within the province of this court to take notice of matters not before the trial court that cause the disposition of this appeal to be moot. State v. Brookshire, 377 S.W.2d 291 (Mo.1964). This court has received a copy of an opinion of the United States Court of Appeals for the Eighth Circuit in Thompson v. Armontrout, 808 F.2d 28 (8th Cir.1986). That opinion affirms a decision of the United States District Court for the Western District of Missouri directing the Warden of the Missouri State Penitentiary to release the defendant in this case from imprisonment under the sentence from which he appeals. However, that decision was based upon a finding the denial of the defendant's release by the Missouri Board of Probation and Parole was vindictive, contrary to the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). That decision directed the defendant's release on parole from the conviction and sentence from which he appeals in this case. It in no way obviates the duty of this court to determine the merits of that appeal. State v. Gray, 406 S.W.2d 580 (Mo.1966).

The defendant has been tried three times for the first degree murder of police officer Herbert L. Goss on March 10, 1961. § 559.010, RSMo 1959 (now repealed). Each time a jury found him guilty. As a result of the first trial in December, 1961, he was sentenced to death. The opinion affirming that sentence is found in State v. Thompson, 363 S.W.2d 711 (Mo. banc 1963). That sentence was set aside upon a Motion under Rule 27.26. State v. Thompson, 396 S.W.2d 697 (Mo. banc 1965).

As a result of his second trial in 1966, the defendant was sentenced to imprisonment for life. No appeal was taken from that conviction. In 1980, the defendant was placed on parole by the Board of Probation and Parole. At that time his Petition in Habeas Corpus to vacate the second sentence was pending in the United States District Court for the Eastern District of Missouri. That court denied the relief sought. However, in an opinion filed October 14, 1981, the United States Court of Appeals, Eighth Circuit, because of improper impaneling of the jury, ordered the second sentence vacated. Thompson v. White, 661 F.2d 103 (8th Cir.1981); vacated and remanded for reconsideration in 456 U.S. 941, 102 S.Ct. 2003, 72 L.Ed.2d 463 (1982); sentence vacated on remand, 680 F.2d 1173 (8th Cir.1982); cert. denied, 459 U.S. 1177, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983).

The third trial was held in December, 1984. The jury returned a verdict of guilty of first degree murder. As a persistent offender, the defendant was sentenced to imprisonment for life. By counsel he presents five points on appeal.

A statement of the general facts concerning the homicide may be found in the published opinions cited above. However, for consideration of the defendant's points on appeal a resume of the evidence presented to the jury at the third trial is necessary. This court must "consider the evidence in the light most favorable to the verdict, giving the state the benefit of all favorable inferences that can be drawn from the evidence." State v. Noerper, 674 S.W.2d 100, 104 (Mo.App.1984).

As so considered, the following is such a resume. The defendant was serving a sentence of five years to life for armed robbery in San Quentin Prison, California. He was transferred to the San Luis Obispo County Jail with Sammie Tucker and Calvin Johnson. The three escaped on February 26, 1961. They then broke into a house, found a gun, waited until the owner came home, tied him up and stole his truck. They traveled to Bakersfield, where they robbed a liquor store of $70. They stole a 1961 Pontiac in Bakersfield and went to Albuquerque, New Mexico. There they robbed a liquor store of $500.

From Albuquerque, the trio traveled to Hutchinson, Kansas, where they robbed a Saveway Store of $5,200. The 1961 Pontiac was abandoned near Noel, Missouri, after the three bought an Oldsmobile in Joplin.

On March 8, in the afternoon, they arrived in Cape Girardeau. On March 8, appellant, Tucker and Johnson entered the Summers Sporting Goods store in Cape Girardeau. The owner sold Tucker a 9 mm. Luger handgun, a .22 pistol and ammunition for both. Summers sold Tucker the handguns because he had an I.D. for a John Matthews in Wichita, Kansas. Summers said since Kansas did not have a firearms permit law, such a purchase by Tucker was lawful. Summers did not sell any weapons to Johnson because he did not have identification. Defendant bought a 30/30 Winchester rifle and some ammunition. He wanted to buy a handgun, but he had a Missouri I.D. for a James Bartlett in Joplin. Summers told him he would have to get a permit for a handgun.

After leaving Summers' store, the three checked into the Townhouse Motel in Cape Girardeau. Geraldine Hartle, the housekeeper, saw the three check out of the motel on March 10, 1961; they departed in a two-tone, white and pink Oldsmobile.

At approximately 4:40 p.m. on March 10, 1961, Artie Mae Greable was working as officer manager of the Kroger Store at Town Plaza in Cape Girardeau. A man she subsequently identified as Calvin Johnson came to the check cashing window and asked her to cash a $100 bill for him. He said he wanted to make a purchase at the Rexall Drugstore next door and they could not change it for him. She gave him five $10's and ten $5's. He asked for larger bills. She said she did not have larger bills and he got angry. He then wanted to know when the Rexall closed. Ms. Greable told him 9:00, and he asked about Kroger. She said 9:00 p.m. He asked her when the Town Plaza shopping center closed. She told him everything closed at 9:00.

In a statement read to the jury, defendant said the three planned to rob the Kroger store on March 10. They intended to catch the employees as they came out at 9:00 and make them open the safe.

As Don Riehn, the manager of the Kroger store, was closing the store at 9:00 p.m. on that day, he saw someone standing just outside the door. Riehn opened the door slightly and said, "The shopping center is closed and we do not like people lingering after closing." The man quickly departed. About this time, Riehn saw the manager of another store, Ivan Irvin, leaving the parking lot and he motioned to him. Riehn went outside and told Irvin he thought "that man was up to no good and he was going to try to rob me." He pointed to the man. The man was looking at Riehn and Irvin and walking backwards. Irvin told Riehn there was another man right behind him and Riehn said in a loud voice, "I'm going to call the police." Riehn then went back into the store and called the police.

Irvin said the first man, who was walking backwards, was heading toward a two-tone, white and persimmon color Oldsmobile. He identified the second man, the one he warned Riehn was behind him, as Calvin Johnson. When Riehn went into the store, Johnson walked past the stores and headed for a bridge. Irvin put his lights on high beam and Johnson turned and reached for something in his trench coat. Johnson then turned, crossed the bridge, crossed Highway 61 and entered a vacant field.

Tucker was in the car at the Kroger lot. Tucker picked the defendant up as police arrived. They could not find Johnson and they left. Johnson's involvement ended here.

Officer Shannon Kelley was driving a patrol car and was accompanied by reserve officer Robert Ross. Officer Donald Crittendon was driving a second patrol car and was accompanied by reserve officers Herbert L. Goss and Hugo Lang. They were at Houck Stadium when they received a call to go to the Kroger store. When the two cars got to the parking lot, Kelley saw a two-tone white and persimmon Oldsmobile go west on William Street. The Crittendon patrol car followed the Oldsmobile north on Highway 61. The Kelley patrol car followed. Officer Crittendon radioed that he intended to stop the car just north of Wimpy's Drive-In on Highway 61. As Officer Kelley approached Wimpy's, he saw that the Oldsmobile had stopped and Crittendon's car was stopped behind it. He drove past the Oldsmobile, turned around, came back and parked across from the other two cars, headed south.

Kelley observed that Crittendon had approached the driver's side of the Oldsmobile and was talking to the driver. Lang was behind the car, on the driver's side, and he had a flashlight which he was shining through the back glass of the Oldsmobile. Goss was on the passenger's side of the car, facing west. Crittendon asked the driver for identification. After that, Crittendon asked for the driver to step out of the car. Crittendon backed up, the door opened, the driver got out and shot Crittendon point blank in the stomach. The defendant had been slumped down in the passenger's seat and more or less slid out of the car. Almost simultaneously with the first shot, two shots rang out from the passenger's side of the the vehicle and Officer Goss called out, "I am hit. I'm hit." Two flashes were seen on the passenger's side of the Oldsmobile. The driver, who was identified as Tucker, started shooting at Kelley across the road. Kelley shot six times and hit Tucker. Tucker then put the car in gear and began to take off as the passenger, defendant, ran to get back in the car.

Goss had been hit by a shot that penetrated both legs in the knee area. The shot severed the arteries in both legs. Goss died from loss of blood from those wounds. Crittendon died from his wound. A statement of the...