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August 8, 1983


From the Circuit Court of Wright County; Criminal Appeal; Judge James Clifford Crouch.

Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.

The opinion of the court was delivered by: Crow

A jury found appellant ("Sanner") guilty of murder in the second degree, *fn1 § 565.004, RSMo 1978, and assessed punishment at 10 years' imprisonment, § 565.008.2, RSMo 1978. The trial court imposed that sentence.

Sanner complains about the admission of certain physical evidence and self-incriminating statements at his trial, about the trial court's rulings on sundry other issues, and about the verdict directing instruction.

The evidence, viewed most favorably to the verdict, with all contrary evidence and inferences disregarded, State v. Jackson, 643 S.W.2d 74, 78[10] (Mo. App. 1982), shows that about 11:27 p.m. March 3, 1981, the dispatcher at the Christian County sheriff's office received a telephone call from a person who identified himself as Tom Kimmons. The caller said he had been shot in the neck and needed help, and that the person who shot him was in a "gold-colored vehicle." The caller said he was at the farm of his father, George Kimmons.

The Kimmons farm is southwest of Ozark in Christian County, *fn2 between three and four miles west of highway 65, just off highway F.

The dispatcher "set the pagers off" for an ambulance, telephoned Sheriff L. E. "Buff" Lamb, and telephoned Deputy Sheriff Orvil Danderson. Lamb and Danderson started to the farm in separate vehicles.

Deputy Sheriff Al Lynn heard the ambulance call on the "scanner" at his home. Lynn and his wife, an ambulance attendant, also started to the farm, using Lynn's pickup.

Lamb reached the farm first, and found Tom Kimmons dead in the kitchen. Lamb radioed Lynn, still en route, and directed Lynn to "set up a road block" and "stop any gold-colored car that come through."

Lynn positioned his pickup west of highway 65, facing south on highway F, 3.4 miles from the farm. About four minutes later, Lynn saw a gold 1971 Chevelle coming from the direction of the farm. The Chevelle went past Lynn and headed east on highway F toward 65. Lynn "pulled in behind it," turning on a "red light" in the windshield of his pickup.

At highway 65, the Chevelle turned north toward Ozark. Lynn followed, at speeds between 60 and 65 miles per hour. He saw three "subjects" in the Chevelle, and radioed this information to the dispatcher. Reaching Ozark, the Chevelle turned east on highway 14 and stopped in front of the Fasco factory, ending a chase of some 1.6 miles.

Meanwhile, Danderson had reached the farm and learned from Lamb that Tom Kimmons was dead, having apparently been shot by a shotgun. Overhearing the radio dispatch about Lynn's pursuit of the Chevelle, Danderson headed for Ozark.

When the Chevelle stopped, Sanner, the driver, exited, and started toward Lynn's pickup. Lynn got out and searched Sanner, finding no weapon. Lynn instructed his wife to guard Sanner, then went to the Chevelle. It was occupied by Ronald Edward Crank and Douglas Ray Coder.

The driver's door was open and the dome light was on. Using his flashlight, Lynn looked inside the Chevelle and saw an empty brown holster "for a fairly short-barrelled gun" between the seat and the console. Lynn ordered Crank and Coder out, and gave them a "pat-down search."

At this point, an officer of the Ozark Police Department arrived. The officer had learned from radio messages that a shooting had occurred at the Kimmons farm, that a gold-colored vehicle was "supposedly involved," that Lynn had been following the vehicle north on highway 65, and that the vehicle had turned onto highway 14 at Ozark. The officer asked Lynn if the trio had been arrested. Lynn answered, "o," then added "et's research (sic) them and then you arrest them."

Sanner, Crank and Coder were searched more thoroughly, then the Ozark officer arrested them for "felonious assault," and read them the "Miranda Warning." *fn3

Other officers soon arrived, including Danderson. He looked in the Chevelle, saw the holster, and also saw some shotgun shells in the console. Danderson read Sanner the Miranda warning, and asked if Sanner understood it, receiving an "affirmative response." Danderson told Sanner he was being held for investigation of homicide.

Sanner, Crank and Coder were jailed. The Chevelle, which belonged to Coder, was impounded.

About 12:30 a.m. March 4, the supervisor of criminal investigations for the Missouri State Highway Patrol in southwest Missouri arrived at the Kimmons farm, at Lamb's request. He saw a pool of blood inside the front door and "pellet marks" on the ceiling and "back wall." Drops of blood led to the kitchen, where the body lay near a telephone. The supervisor saw blood on the phone and found a "copper jacket" from a lead slug from a large caliber revolver "sticking" in the shirt on the body. He found another copper jacket on the kitchen floor.

A kitchen window, and the outside screen over it, had two holes caused by gunshots "from the outside in." Another window, near the phone, had a bullet hole "from the inside out." The supervisor concluded this latter hole was caused by one of the two bullets that entered through the other window.

The supervisor removed some shotgun pellets from the front room ceiling, wall and floor, and picked up a piece of "wadding" from a .410 gauge shotgun off the floor.

At 7:50 a.m. March 4, Danderson obtained a search warrant for the Chevelle from a Judge of the Circuit Court of Christian County. Danderson explained he did so as a "backup procedure," believing the Chevelle subject to search without warrant. He searched the Chevelle, labeling his action an "inventory search." *fn4 He found a .38 caliber revolver under the right passenger seat, a .410 gauge shotgun under the right side of the back seat, and a wallet on the passenger side of the "floorboard," partially covered by a floor mat. He removed all these items, along with the holster he had seen when the trio was arrested. The revolver contained five "spent" cartridges.

An autopsy on the body of Tom Kimmons the morning of March 4 revealed a shotgun wound on the "left side of the neck, posterior lateral," beginning at approximately "the muscle that allows you to turn your head." There was "stippling, or powder burn, tattooing," on the left side of the face and neck, indicating that a "multi-pellet weapon" had been fired at a range of less than 10 feet. A bullet wound was found on the left side of the back, at the approximate level of the seventh rib. That bullet passed through the superficial portion of the pulmonary vein and "nicked" the aorta. Approximately two quarts of blood were found in the chest, a "massive hemorrhage." There were three bullet wounds in the head. The pathologist removed three lead fragments and three copper jackets from the head, and a lead fragment from the upper part of the body, "closer to the back." According to the pathologist, death resulted from the hemorrhage in the chest. Had that not caused death, the "massive destruction of the brain, caused by the three gunshot wounds, would have completed it." In the pathologist's opinion, the head wounds were the last inflicted. He fixed the time of death between 10:00 p.m. and midnight, March 3.

The director of the regional crime laboratory in Springfield microscopically compared the three copper jackets removed from Tom Kimmons' body by the pathologist with the jackets of three bullets "test-fired" by the director from the .38 caliber revolver Danderson found in the Chevelle. Markings on two of the jackets from the body and markings on the jackets of the bullets fired by the director were "consistent with common origin." The director did not examine the lead fragments the pathologist removed from the body because they had been "protected" by the jackets, and had no "transfer" marks.

Around "11 o'clock or so" on the morning of either March 4 or 5, Lamb talked with Sanner in Lamb's office. *fn5 Before trial, Sanner moved to suppress what he said to Lamb on the grounds that his arrest was without probable cause and therefore improper, that he was not advised of his Miranda rights *fn6 and that his statements were made "without assistance of counsel." The trial court held an evidentiary hearing, State v. Gantt, 644 S.W.2d 656, 660[8] (Mo. App. 1982), at which Lamb and Sanner presented conflicting testimony. After hearing that testimony, and other witnesses, the trial court denied the motion, making no formal findings of fact or Conclusions of law, none being required. State v. Brydon, 626 S.W.2d 443, 448[1] (Mo. App. 1981). Denial of the motion is one of Sanner's assignments of error.

Where the evidence conflicts as to the voluntary nature of a confession, the trial court has the responsibility to weigh the evidence and judge the credibility of witnesses. The burden is on the State to prove by a preponderance of the evidence that the confession is voluntary. If the evidence is sufficient to sustain the trial court's ruling, according deference to the judgment of the trial court on the credibility of witnesses, the result must be upheld on appeal unless manifest error has been committed. State v. Helm, 624 S.W.2d 513, 515[1-3] (Mo. App. 1981).

From the evidence he heard, the trial court could have reasonably found that on the morning the conversation occurred, Sanner, Crank and Coder sent Lamb word by a jail trusty that they wanted to talk to him. Lamb went to their cells and told all three he could not talk to them. Later, "somewheres close to noon," a deputy sheriff brought Sanner from his cell to Lamb's office for a phone call. Lamb was holding $80 which someone had "dropped"; Lamb was trying to find out who. According to Lamb, Sanner said, "I need to talk to you."

Lamb asked Sanner if his rights had been read to him, and Sanner replied, "es."

Lamb told Sanner that he (Lamb) had been advised not to talk to Sanner, and that Sanner "needed permission from his ...

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