State v. Ziegler

719 S.W.2d 951, 1986 Mo. App. LEXIS 4994
CourtMissouri Court of Appeals
DecidedNovember 20, 1986
DocketNos. 14536, 14646
StatusPublished
Cited by9 cases

This text of 719 S.W.2d 951 (State v. Ziegler) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ziegler, 719 S.W.2d 951, 1986 Mo. App. LEXIS 4994 (Mo. Ct. App. 1986).

Opinion

FLANIGAN, Judge.

A jury found defendants Richard Ziegler and Joseph Ziegler guilty of burglary in the second degree, stealing, and arson. Richard Ziegler was sentenced, as a prior offender, (§ 558.016.2),1 to consecutive terms of imprisonment totaling 15 years. Joseph Ziegler was sentenced, as a persistent offender, (§ 558.016.3), to consecutive terms of imprisonment totaling 25 years. Defendants appeal.

Defendants do not challenge the sufficiency of the evidence to support their conviction. On this appeal they claim that the trial court erred in the following respects: (1) receiving into evidence, over defendants’ objection, incriminating statements attributed to defendants; (2) permitting the state to introduce the “perjured testimony” of Morgan Tucker; (3) treating Richard Ziegler as a prior offender and Josep'h Ziegler as a persistent offender because their respective prior convictions did not support that treatment.

Viewed favorably to the verdict, the state’s evidence showed that at approximately 3 a.m. August 10, 1984, defendants and their nephew Morgan Tucker went to the home of Louis Falloon which was located on Highway FF six miles south of Sullivan in Crawford County. The Falloon family was away on a short vacation. Richard Ziegler cut the telephone wires to the Fal-loon house. Joseph Ziegler then kicked open the locked back door and the three men entered the house. They then went outside and picked some watermelons. The two defendants decided to reenter the house but Morgan Tucker refused to do so and left. The two defendants reentered the house and stole various items, including an electric alarm clock, a ring of school keys, and packages of meat and frozen pies which were in a deep freeze. They also stole a 12-volt battery from Falloon’s pickup truck, together with two truck tires and several watermelons. The stolen items had a combined value exceeding $180.

Defendants placed a candle in a slit mattress on a bed in the front bedroom and lit the candle. They also placed a candle in a bed in the back bedroom. The candle in the front bedroom caused a fire resulting in considerable damage to the house, but the candle in the back bedroom went out.

Approximately 45 minutes after defendants had made the second entry into the house, Morgan returned and picked them up. Defendants had with them the clock, the keys, and the meat, and, inferentially, the other stolen items. At approximately 1 p.m. that afternoon the defendants attended a family barbecue where they cooked some of the stolen meat.

State’s witness Louis Falloon described the damage to the house, enumerated the stolen articles, and testified with respect to their value. William Frawley, a fire marshal, testified that the fire in the house was “incendiary in origin — a set fire.”

[953]*953Law officer Ray Vance, a state’s witness, testified that he investigated the crimes at the Falloon home on August 11, and on that date obtained a search v arrant to search the Ziegler residence wh’.ch was located near the city limits of Sullivan, approximately 3.3 miles from the Falloon home. Search of the deep freeze in the Ziegler home resulted in finding packages of frozen meat and pies which bore the name “Falloon.” While officer Vance and other officers were conducting the search, Vance saw a vehicle, driven by defendant Richard Ziegler and occupied by Ziegler’s wife Patricia and Ziegler’s nephew George Tucker, drive by the Ziegler home and then continue north on the highway. Vance and another officer got in a patrol car and pursued the Ziegler vehicle. Ziegler drove his vehicle about .2 of a mile north on the highway, then drove to the left side of the road, stopped, got out, “came around behind the vehicle and ran across a field to the east.” Patricia Ziegler and George Tucker remained in the car.

George Tucker, a state’s witness, testified that he attended the afternoon barbecue, that defendants brought the meat to the barbecue, and that defendant Richard Ziegler told the witness that “he and Joe had broken into a house and that they took the meat and some watermelons and a digital alarm clock and a little bit of money.” Richard Ziegler also told the witness that they had “set the house on fire.” The witness also described the conduct of Richard Ziegler, on the afternoon of August 11, of jumping out of the car while pursued by officer Vance, and stated that Richard “took off running across the field and into the woods.”

Morgan Tucker, a state’s witness, testified that he accompanied the two defendants to the Falloon house on the night of the offenses. He said that Richard Ziegler cut the telephone wires, Joseph Ziegler kicked the back door open, and the three men entered the Falloon house. He also said that the defendants reentered the house but he would not do so. The witness said: “I went up the road and parked and came back and picked them up in about 45 minutes. It was pretty close to 3 a.m. They were in the road ditch on the opposite side from the house. Richard and Joseph had a green trash can and had a few of the items stuck down in it. One was a key ring, and what appeared to be packages of meat. Joseph got in on the passenger’s side and Richard got in and drove back to my grandmother’s. Joseph threw the ring of keys out the window on the way to Grandmother’s.”

On cross-examination by defense counsel the witness admitted that he had lied at the preliminary hearing. The lie consisted of falsifying the degree to which the witness himself had participated in the offenses. “At the preliminary hearing,” said the witness, “I told the court that I had not been at that home and broken into it. That was a lie under oath.... My present statement differs from my former statement in that I am now admitting that I was involved. All along I said that Joseph and Richard were involved.... The only thing that changed now is that I am willing to admit I was there. Before I stated that I stayed across the road at the rock quarry. I did not actually stay over there. I went over to the house. Then I went back to the rock quarry and [defendants] went to the house and I went up the road and parked and waited.... As far as what Joseph and Richard did, my story has not changed a bit.”

Defendants’ first point is that the trial court erred in receiving into evidence, over defendants’ objection, the testimony of George Tucker concerning the statements made to him by Richard Ziegler to the effect that the defendants had broken into the Falloon house, stolen the various articles, and set the house on fire. Defendants also claim that the court erred in receiving into evidence the testimony of Morgan Tucker that “Richard and Joe told me they set the house on fire by putting a candle under the bed or in a mattress or something like that.”

Citing Kansas City v. Verstraete, 481 S.W.2d 615 (Mo.App.1972), defendants ar[954]*954gue that when corpus delicti has not been sufficiently proven, an uncorroborated extrajudicial confession of guilt cannot be received as evidence tending to show guilt. This court agrees with the foregoing principle enunciated in that case but finds it inapplicable to the case at bar.

Resort to the argument portion of defendants’ brief indicates that what defendants are arguing is that Morgan Tucker’s testimony that defendants told him they had set the fire should not have been received because Morgan did not see them set the fire.

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798 S.W.2d 185 (Missouri Court of Appeals, 1990)
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797 S.W.2d 560 (Missouri Court of Appeals, 1990)

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Bluebook (online)
719 S.W.2d 951, 1986 Mo. App. LEXIS 4994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ziegler-moctapp-1986.