State v. Toney

• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Citation: 537 S.W.2d 586
• Parties: STATE of Missouri, Respondent, v. Robert Lucious TONEY, Appellant. 26815.
• Court: Missouri Court of Appeals

Page 586

537 S.W.2d 586

STATE of Missouri, Respondent, v. Robert Lucious TONEY, Appellant.

No. KCD 26815.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

Motion for Rehearing and/or Transfer Denied June 1, 1976.

Frank A. Anzalone, Asst. Public Defender, 21st Judicial Circuit, Clayton, for appellant.

John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

By a six-count indictment in the St. Louis County Circuit Court, Robert Lucious Toney was charged as follows:

Counts I and II--Murder in the first degree.

Counts III and IV--Assault with intent to kill with malice.

Counts V and VI--Robbery in the first degree with a deadly weapon.

On a jury trial in the Boone County Circuit Court on change of venue from St. Louis County, the jury found defendant guilty on all six counts and fixed his punishment as follows:

Counts I and II--Life imprisonment.

Count III--Two years' imprisonment.

Count IV--Jury unable to agree on punishment.

Counts V and VI--Five years' imprisonment.

In sentencing the defendant, the trial court ordered the sentences on Counts I and II to run consecutively. He fixed the punishment on Count IV at twenty years' imprisonment. The sentences on Counts III, IV, V and VI were made concurrent with each other and consecutive to the sentences imposed on Counts I and II. The defendant appeals from the judgment and sentence on Counts I, II and IV.

At around 1:20 A.M., March 18, 1972, St. Patrick's Day festivities at Cousin Hugo's Tavern, a neighborhood tavern located in Maplewood on Laclede Station Road at Edgebrook, were interrupted when five young black men, armed with pistols, sawed-off shotguns and a knife entered and announced a holdup. The one armed with a knife jumped on the bar, then behind it where he demanded the money in the cash register from the barmaid, Sandra Clemens. She took the money from the cash register, put it in a bag and gave it to the intruder who then stabbed her in the abdomen.

Two of the intruders went to the back room of the tavern where 25 to 40 customers were dancing. The customers were ordered to lie on the floor and throw their wallets and purses on the floor. Similar orders were given customers in the front part of the tavern. The customers complied with the orders.

While the robbers were gathering up the customers' belongings, a whistle blew and one of them shouted: 'Police.' The robbers started to leave by the front door of the tavern. As one was leaving, he turned and fired a sawed-off shotgun toward the customers lying on the floor in the front of the tavern. The shot from the blast struck Owen Kelly in the thigh. He was also shot in the knee with a .38 caliber revolver. The robber with the shotgun then turned toward John Gallino, an off-duty Crestwood police officer, and shot him in the head from 1 1/2 feet.

After the robbers had left, police were called and an officer arrived at the scene within a few minutes. Mrs. Clemens and Kelly were taken to the hospital. They recovered from their wounds. Officer Gallino was pronounced dead on arrival at a hospital from a gunshot wound to the head. Another customer, John Hagerty, had been found on the floor, bleeding profusely from the abdomen. He too was dead on arrival at the hospital from a stab wound.

On March 18, a resident of Edgebrook, the street which ran alongside the tavern, told investigating officers that he had seen Robert Lucious Toney, whom he had known as a fellow student in high school, driving an automobile with three or four other black passengers, turn off Laclede Station Road onto Edgebrook between 5:00 and 5:30 P.M. the previous day. The witness also recognized one of the passengers, Louis Jones, whom he had also known in school. The witness's attention was drawn to the auto and its passengers because Edgebrook is a dead-end street with three houses on it in a white neighborhood.

On the basis of this information, police sought out Toney and located him at a residence on Banneker, rented by Toney and his sister. Toney came to the door when an officer knocked, identified himself and acceded to the officer's request to take a look in the house. Upon entering the house, the officer discovered three other black males, two of them in a room in which he saw what appeared to be a shotgun lying on the floor. Upon this discovery the officer placed Toney and the three other persons in the house, Louis Jones, Christopher Davis and Theodore Johnson, under arrest for murder and robbery. Search of the premises after the arrest produced a bag containing billfolds and purses taken from customers at Cousin Hugo's. Numerous weapons were also found on the premises. The four men and a fifth, James Hill, arrested subsequently in the City of St. Louis, were charged in the Cousin Hugo's case.

On this appeal, there is no challenge to the sufficiency of the evidence to support the verdicts against appellant. At his trial, several customers identified appellant as one of the robbers who was in the back room of the tavern, carrying a sawed-off shotgun. One customer identified Toney as the man who fired twice with a shotgun as the robbers were leaving the tavern. A barmaid identified Hill as the person who fired the shotgun at that time. Kelly, the customer whose shooting was the basis of the charge of assault under Count IV, identified Toney as one of the robbers but could not identify the person who shot him. Ballistics evidence connected weapons found at the Banneker house with spent shell casings found at the tavern. Officer Gallino's pistol was also found at the Banneker house.

Ruling on Motion to Suppress

The defendant moved to suppress as evidence 'wallets, credit cards, firearms and pieces thereof, knives, and other items seized from the premises known as 1338 Banneker * * *.' The motion alleged that the search of the premises and seizure of the items were made without a warrant, that his arrest was without probable cause, that the search and seizure were not incident to a lawful arrest and that defendant did not consent to the search and seizure.

A hearing on the motion produced the following evidence. Appellant and his sister, Beverly Telfair, were co-renters of the house at 1338 Banneker. Sergeant Boulch of the St. Louis Police Department was a member of the Major Case Squad which was called in to investigate the Cousin Hugo's case. He, along with two other officers, Sergeant Bradley and Patrolman Sanders of the Maplewood Police Department, was assigned the duty of checking out the information furnished by appellant's former classmate that he had seen appellant and several other young black males in the vicinity of Cousin Hugo's at around 5:00 P.M., March 17. The officers went to 8301 Dumas, the address of appellant obtained from a school yearbook in the possession of the informant. They arrived there around 8:30 A.M., March 18. Sergeant Boulch approached the front door of the house where an elderly black woman was talking with a man. Boulch identified himself as a police officer and asked: 'Is Lucious here?' The woman completed her dealings with the man who left. She became highly upset and started hollering 'Lucious, Lucious.' She backed into the house and Boulch followed her into the house, where he looked around and saw only some small children. He turned back toward the woman who 'began immediately to scream and throw her arms around, and with that she ran from the house.' She ran into the street, continuing to shout 'Lucious, Lucious, the police.' She ran around the corner on Banneker, continuing to shout, until she stopped in front of 1338 Banneker. The defendant appeared on the front porch and Sergeant Boulch approached him, showing his badge and identification.

'* * * I said, 'I am Sgt. Boulch. What is your name?' He said, 'Lucious Toney,' and I said, 'Do you live here?' And he says, 'Yes, I do.' And I said, 'Who do you live here with?' He said, 'My sister.' I said, 'Who is here now?' He said, 'Some gal.' I said, 'Would you mind if I take a look?' And he said, 'No.' And with this I proceeded into the house, and I was on my guard the entire time, watching as I was walking into the house. I walked into the living room and he was proceeding towards the doorway, directly in front of me. As I got to this doorway, I heard footsteps coming behind me in sort of a run, and (Toney) stated, 'No, some guys.' And with this he run past me, and I immediately went after him. And he ran through, well, what was a bedroom off of the living room, and then into the kitchen, and then into--the left, towards another room. As I was proceeding into the kitchen after him, I observed somebody run into the bathroom, at which time I ran up behind (Toney), and he was standing there looking into this other room. He had the door partially open.

'* * * leaning into the room, and with this I pulled the door open, and I looked into the room, and I saw two other Negro male subjects, and something caught my attention, and I looked towards the floor, and alongside of the bed at what appeared to be a shotgun, and I immediately drew my revolver and hollered to Sgt. Bradley, and I said, 'Watch it, Bill, these are the guys.'

'* * * I said, 'Watch the bathroom. There is someone in there.' I don't know where Sgt. Bradley was, but I hollered loud enough that he could have heard me, and with this I pushed Toney into the room, and put my revolver on him, and told all of the others, 'You are under arrest for robbery and murder. Put your hands up.' And with this I walked into the room toward the subjects, * * *.'

Not knowing whether the fourth person who had gone into the bathroom had been apprehended, Sergeant Boulch moved around the wall of the bedroom in order to get out of the doorway. As he moved toward a dresser he was on the lookout for weapons. The top dresser drawer was open...