State v. Worthon

• Decision Date: 28 June 1979
• Docket Number: No. 10983,10983
• Citation: 585 S.W.2d 143
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard Lee WORTHON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 143

585 S.W.2d 143

STATE of Missouri, Plaintiff-Respondent, v. Richard Lee WORTHON, Defendant-Appellant.

No. 10983.

Missouri Court of Appeals, Southern District, Division Three.

June 28, 1979.

Motion for Rehearing and/or Transfer Denied July 25, 1979.

Application to Transfer Denied Sept. 11, 1979.

John D. Ashcroft, Atty. Gen., Paul Robert Otto and Steven Scott Clark, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Blair Buckley, Jr., Caruthersville, for defendant-appellant.

MAUS, Judge.

A jury found the defendant guilty of Robbery in the First Degree. As recommended by the jury he was sentenced to life imprisonment. On appeal his sole allegation of error is the action of the trial court in overruling a motion to suppress evidence consisting of items of clothing. While the defendant made no objection when the evidence was offered, ¹ he immediately before trial did by way of an oral motion again seek to suppress this evidence. At this time the state and defendant agreed that upon a further hearing the evidence would be essentially the same as on the hearing of the original motion. Upon that basis the renewed motion was overruled. ² Since the defendant's resistance to this evidence was obvious and no one was misled, the admissibility of that evidence will be fully reviewed. ³

At approximately 8:00 p. m. on April 23, 1977, a black male entered Brown's Grocery and Package Store in Hayti Heights, Missouri. This man got a catsup bottle, broke it over the checkout counter, leaped the counter and as proprietor Brown said, he "went to cuttin' me with that bottle, stuck it in my throat there". The attacker announced, "This is a holdup" and Brown replied, "The heck it is". A struggle ensued and the parties fell to the floor.

Willie Moorehead, a customer in the back of the store heard the bottle break. He went to the front and tried to pull the assailant from Brown. Moorehead couldn't, but when the assailant got Brown's billfold he turned Brown loose. Moorehead knew the assailant. Before leaving the assailant shoved Moorehead backward and said to him: "You ain't got nothin' to do with this."

A short time later the defendant was arrested at the home of his parents, Elbert and Jessie Worthon. At the time of the arrest, under circumstances to be referred to, the officers seized a pair of socks, a pair of wet, muddy shoes, a jacket and overalls which were wet and stained.

At the trial, Brown and Moorehead recounted the events of the evening. Each unequivocally identified the defendant as the guilty party. Moorehead confirmed the fact he had known the defendant a long time, knew him by name and recognized him at the scene of the crime, even though he had not seen him for a long time. (Defendant testified he had been gone 131/2 years and returned to his mother's only the day before the incident). In addition, the shoes and socks, jacket and overalls were admitted. A qualified criminologist identified the staining material on the overalls as similar in nature to dried tomato catsup and the density of bits of glass taken from the overalls as the same as the catsup bottle. The defendant denied the crime and denied seeing the overalls before.

Both parties offered evidence at the hearing upon the motion to suppress. City Marshall Trawick, Deputy Sheriff Young and Highway Patrolman Davis (who coincidentally was the son-in-law of owner Brown) were offered by the state. A summary of that evidence, based primarily upon the testimony of Trawick, with allegedly conflicting testimony being noted, is as follows: Trawick was informed of the robbery by radio and immediately went to the store. He found Brown sitting on the counter bleeding and obtained a description of the assailant, which matched the description of someone Trawick knew. He suspected the defendant. He was told the assailant crossed the highway and went south on Rapoport Street. After Trawick crossed the highway he met several children and asked if they had seen anyone fitting the description. He was told "the fellow" had just met them running. After Trawick had gone to the first street he saw a man fitting the description running through the park or vacant lot. When the man crossed the road Trawick recognized him as the defendant. The suspect ran to the Elbert Worthon residence. Trawick radioed for assistance.

He was joined by various law enforcement officers. After they arrived Trawick and Davis went to the door and knocked. Melody Ann Worthon (sister of defendant) came to the door. Davis asked if the defendant was there and was told he was not. Upon a request for admission she was advised they had no search warrant but would wait until they got one. Trawick said Mr. Worthon came to the door and told them to come in, that a search warrant wasn't needed. Davis said Mrs. Worthon came into the living room, invited them in, and told him she didn't mind if they searched. When Trawick and Davis entered Deputy Sheriff Young came in.

The officers found the defendant coming from the bathroom, clad only in a towel. He was arrested for investigation of armed robbery. While in the bedroom dressing, he attempted to shove the shoes and socks in question under the bed. This was observed by Davis and he seized the shoes and socks.

The defendant was then taken outside the home and transported to jail by another officer. Davis, Trawick and Young returned to the house and requested (not demanded) to search the bedroom. Davis testified permission was granted by Mrs. Worthon. Trawick testified permission was granted by both Mr. and Mrs. Worthon. The jacket and overalls were found between the mattress and springs.

Mrs. Worthon testified that when the officers knocked she was in the bathtub. When she came into the living room the officers were there. She denied granting any permission, at first denied any conversation, but later stated she didn't remember what was said. She said the officers had their guns drawn and she was frightened.

Melody Ann Worthon said she too was in the bathroom when the officers knocked. In response to the officers' request for admission she asked her mother. Her mother said "yes, for them to come on in." Later she said she wasn't sure.

In his brief in asserting the invalidity of the search and seizure the defendant in part relies upon testimony at the trial. Whether or not this court in reviewing the validity of a search and seizure is, under all circumstances, required or even authorized to consider testimony on that issue at the trial as well as that offered upon the hearing on the motion has not been fully developed in this state. ⁴ However, it is obvious the trial court, even in the absence of objection or motion, considered the trial testimony as bearing upon admissibility. ⁵ That testimony, while necessarily not of the same scope, was, with minor variations, consistent with the pretrial testimony. The variances noted are minor and if they be inconsistencies, are not such as to diminish the probative value of the pretrial testimony. Additional facts bearing on admissibility were developed at the trial. These include: a description of the subject as a black male of medium build, wearing a dark jacket, and with plaited hair; that when he first sighted the suspect, Trawick could see the dark jacket but could not tell about the hair; the ground was wet and muddy; Trawick arrived at the store in approximately 3 minutes after notification, stayed 11/2 minutes, and pursued the suspect by automobile; the store was approximately one half mile from the Worthon home; and that the bedroom was shared with six brothers who came and went. For reasons hereafter stated, we hold the motion to suppress was properly overruled. Extending to the defendant the consideration of the trial testimony, without deciding we are required to do so, we find the trial testimony did not militate against the previous ruling, but supported it.

We first consider the seizure of the shoes and socks. Defendant asserts the arrest was unlawful, arguing lack of probable cause because the defendant could have walked from the store into the home before being observed and Trawick saw only a man running, wearing a dark jacket. It was sufficient that Trawick, obviously within a few minutes of the crime, after receiving the information from the children, observed a man fitting the general description of the suspect running away from the scene. State v. Dodson, 491 S.W.2d 334 (Mo.1973); State v. Pettis, 522 S.W.2d 12 (Mo.App.1975). These circumstances are buttressed by the fact the description given Trawick matched someone he knew and he recognized the defendant when he crossed the street. Based upon all of the facts "determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act", State v. Pruitt, 479 S.W.2d 785, 788 (Mo. banc 1972), the officers had reasonable grounds for a belief of guilt. That was all that was required. State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975); State v. Pruitt, supra, at 788; State v. Novak, 428 S.W.2d 585 (Mo.1968).

The arrest being valid, the officer properly allowed the defendant to dress and to maintain control while he did so. He had a right to search the defendant and the area in which he could reach a weapon or destroy evidence, in this instance under the bed. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Wiley, supra, at 290-292. Further, since the officer was rightfully in the bedroom, he properly seized the shoes and socks which were in "plain view". Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Williams, 554 S.W.2d 524 (Mo.App.1977); State v. Toney, 537 S.W.2d 586 (Mo.App.1976). The facts are remarkably similar to United States v. Di Stefano, 555 F.2d 1094 (2nd Cir. 1977) in which it was observed:

The officers had a duty to find clothing for Sally to wear or to permit her to do so. Having...