U.S. v. Stover

• Decision Date: 10 November 1977
• Docket Number: No. 77-1288,77-1288
• Citation: 565 F.2d 1010
• Parties: 2 Fed. R. Evid. Serv. 779 UNITED STATES of America, Appellee, v. Gordon John STOVER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1010

565 F.2d 1010

2 Fed. R. Evid. Serv. 779

UNITED STATES of America, Appellee, v. Gordon John STOVER, Appellant.

No. 77-1288.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 29, 1977.

Decided Nov. 10, 1977.

Philip M. Moomaw, Asst. Federal Public Defender, Springfield, Mo., (argued), for appellant; David R. Freeman, Federal Public Defender, Springfield, Mo., on brief.

David H. Jones, Asst. U. S. Atty., Springfield, Mo., (argued), for appellee; Bert C. Hurn (former U. S. Atty.), Springfield, Mo., on brief.

Before GIBSON, Chief Judge, LAY and HEANEY, Circuit Judges.

GIBSON, Chief Judge.

Defendant Gordon John Stover was convicted by a jury of one count of transporting a vehicle in interstate commerce, knowing the vehicle to have been stolen, in violation of 18 U.S.C. § 2312. On April 4, 1977, the District Court ¹ sentenced Stover to a four-year term of imprisonment. On April 7, 1977, the District Court entered a nunc pro tunc order modifying the order of commitment to show that this four-year sentence was to be served consecutively with another federal sentence defendant was then serving. Stover appeals.

Lamar, Missouri, is a small town with a population of approximately 3,600 located in southern Missouri. During the early morning hours of July 22, 1976, Officer Robert Wineinger of the Lamar Police Department discovered a 1970 Chevrolet with Minnesota license plates parked in a somewhat remote area of Lamar. A computer check revealed that the 1970 Chevrolet had been reported stolen from St. Croix, Minnesota, on July 16, 1976.

At approximately 7:30 on the morning of July 22, 1976, Kenneth Musgrove, who serves as pastor of the Full Gospel Tabernacle in Lamar, saw a person leaving his church. A called proffer of help from Musgrove was rejected by the person, who continued to walk away. Musgrove then checked inside the church and, while he found nothing missing, did discover that clothing in one of the missionary rooms had been arranged into a sort of pallet and apparently slept upon. Musgrove reported what he had seen to the Lamar police, describing the person he had encountered leaving the church as a "boy" of small stature, wearing a light jacket and a cap of some kind.

When Officer Richard Burch of the Lamar Police Department went on duty on the afternoon of July 22, he was given the above description and told where it originated. He was also instructed that if he found an individual matching this description, he was to make an arrest for investigation of automobile theft. At 2:00 p. m., Officer Burch found a person matching the description given by Musgrove walking down a highway at a point approximately one-half mile from the church. Burch immediately arrested this person, who was later identified as defendant Stover, for investigation of automobile theft.

Officer Burch took Stover, who carried no identification, to the Barton County Jail. Upon his arrival at the jail, Stover was questioned by FBI Agent Funderburke, who had come to Lamar to investigate the 1970 Minnesota Chevrolet discovered earlier. As part of this investigation, Agent Funderburke took fingerprint lifts from the Chevrolet. Stover gave a false name to Funderburke, who took his fingerprints. Stover was also fingerprinted by the Lamar Police Department.

The fingerprints taken at the Barton County Jail by Agent Funderburke on July 22 were sent to the Identification Division of the FBI in Washington, D.C., where they were identified as those of Gordon John Stover. The latent fingerprints lifted from the 1970 Chevrolet were also identified as those of Stover. Stover was subsequently surrendered to federal custody, indicted and convicted of interstate transportation of the 1970 Chevrolet.

Prior to trial, Stover's counsel filed a motion in limine to suppress testimony that Stover was a sentenced federal prisoner who had been incarcerated at the Sandstone Federal Correctional Institution at Sandstone, Minnesota, and had escaped from Sandstone on June 28, 1976. This motion was denied by the District Court, and the Government would not agree to a written stipulation offered by Stover that he had been at liberty in Sandstone, Minnesota, on June 28, 1976. At trial, evidence that Stover had escaped from Sandstone on June 28, 1976, was admitted over Stover's continuing objection. The Government also introduced into evidence the fingerprints taken by Agent Funderburke. The sole evidence introduced by defendant pertained to the fingerprints taken by the Lamar police.

After the initial instructions were given, the jury deliberated for approximately two hours and then submitted a series of written questions to the court, one of which asked, "Can you make have him testify?" The court recalled the jury, answered its questions and, over Stover's objection, reinstructed it on the issue of whether or not a criminal defendant must take the stand. This reinstruction took place late in the afternoon, and shortly thereafter the jury was excused for the day. When the jury returned on the following morning, the court, sua sponte, gave an Allen type instruction urging that it reach a verdict. The jury returned a verdict of guilty later the same day.

On April 4, 1977, Stover was sentenced to a four-year term of imprisonment. Three days later, the District Court entered a nunc pro tunc order modifying the April 4, 1977, order of commitment, and specifying that the four-year sentence was to run consecutively with the sentence Stover was already serving. On appeal, Stover challenges this "modification" in his sentence and also alleges that his conviction is invalid because of various errors attending his jury trial.

Stover contends that the only direct evidence connecting him with the offense charged consisted of fingerprints found on the rearview mirror inside the 1970 Chevrolet; that this evidence was the fruit of an unlawful arrest; and that the trial court, accordingly, erred in denying his motion to suppress.

We must reject this contention for the simple reason that, even if defendant's arrest be assumed to have been invalid, the latent fingerprints lifted from the 1970 Chevrolet were not a fruit of that arrest. FBI Agent Funderburke, who took the fingerprint lifts from the 1970 Chevrolet, was already in Lamar investigating this out-of-state vehicle, which had been reported stolen in Minnesota, when Stover was arrested by the Lamar police. Thus, the latent prints lifted from the Chevrolet, which ultimately connected Stover to the car, were obtained during a standard, independent federal investigation of an out-of-state car which had been reported stolen. Stover's arrest by Lamar police officers had virtually no causal relation to the FBI investigation of the 1970 Chevrolet. Accordingly, the trial court did not err in refusing to suppress the latent fingerprints lifted from the 1970 Chevrolet by the FBI.

Stover also contends that the District Court erred in allowing the introduction of...