Davis v. Moore, 41290

• Decision Date: 13 May 1980
• Docket Number: No. 41290,41290
• Citation: 601 S.W.2d 316
• Parties: Tommie Lee DAVIS and Minnie Lee Davis, Plaintiffs-Appellants, v. Leander C. MOORE, Jr., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 316

601 S.W.2d 316

Tommie Lee DAVIS and Minnie Lee Davis, Plaintiffs-Appellants, v. Leander C. MOORE, Jr., Defendant-Respondent.

No. 41290.

Missouri Court of Appeals, Eastern District, Division One.

May 13, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 20, 1980.

Tom Mendelson, University City, for plaintiffs-appellants.

Wayman F. Smith, III, Donald McCullin, St. Louis, for defendant-respondent.

WEIER, Judge.

This is an appeal from a retrial of a wrongful death action brought by the parents of the deceased against a police officer of the City of Kinloch, Missouri. The jury found for defendant and plaintiffs appeal alleging three trial court errors. We affirm the lower court judgment.

The points relied on to reverse the judgment all center around alleged error in instructions presented to the jury or comments made by the trial court during closing argument. Before we address the merits of appellants' points, however, a brief recitation of relevant facts follows. Decedent Lemandris Tyrone Davis was a twenty year old male who resided in Kinloch, Missouri, with his parents Tommie Lee and Minnie Lee Davis. Several officers testified to various encounters they had with the decedent over the course of the year prior to his death in which he had evaded arrest. Officer James Miller, Jr., related an incident occurring in August of 1972 in which Tyrone threw several bricks through the back window of a police car. Officer John Borders testified that in March of 1972 he asked Tyrone to get out of a car, whereupon Tyrone struck him in the chest with a soda bottle and ran away. Officer Borders also testified that in August of 1972 Tyrone was seen standing on a street corner. Numerous arrest orders and warrants were outstanding on Tyrone. Included in these were burglary and stealing, burglary, armed robbery, interference with a police officer and assaulting a police officer. Officer Borders and his fellow officer stopped their vehicle to arrest Tyrone. They placed Tyrone under arrest and called their supervisor Sergeant Leander Moore, the defendant in this civil case. Sergeant Moore arrived shortly thereafter; and when he attempted to put handcuffs on Tyrone, Tyrone broke away from the officers saying, "You all will have to take me. I'm not going to stop." Tyrone successfully escaped the pursuing officers.

On September 23, 1972, Officer Lloyd Simpson and Sergeant Moore were patrolling on duty when they spotted Tyrone again at or near an intersection. Sergeant Moore spotted Tyrone and told Officer Simpson to stop because there was an arrest warrant for him. Officer Simpson stopped the car and Sergeant Moore got out and after briefly talking to Tyrone, the decedent backed away, having his hand in his pocket. Sergeant Moore said, "don't do that," after which Tyrone wheeled around and began to run away. Sergeant Moore fired a warning shot into the air and commanded Tyrone to halt. Tyrone continued to flee. Sergeant Moore fired three times and Officer Simpson fired once. Several shots struck Tyrone and resulted in his death.

Tyrone's parents sued Officers Moore and Simpson for wrongful death of their son. After trial the judgment for the defendants was overturned on appeal when prejudicial error was found in permitting defendant's counsel to cross-examine plaintiff-father concerning arrests not in evidence before the jury. ¹ Upon remand by the appellate court, plaintiffs proceeded to try the wrongful death action solely against Sergeant Moore. The defendant pleaded and proved, in accordance with the jury verdict, the affirmative defense of necessary means in the shooting and killing of Tyrone Davis. Section 544.190, RSMo 1978.

Plaintiffs first contend that the trial court misled the jury on an issue of law when it sustained and commented on defendant's objection to a portion of the plaintiffs' closing argument. Plaintiffs attempted to define necessary means for the jury in the closing argument. Specifically, the following comment and exchange took place:

"MR. MENDELSON (plaintiffs' counsel): In any event, we must consider what necessary means are. We have to focus on what the definition of necessary is. The proper definition is 'indispensable', whether defendant Moore satisfied his burden of proof that his shooting, his use of deadly force, was an indispensable

MR. SMITH (defendant's counsel): I object to these statements of the law. If he wanted those statements of the law, he should have put them into the instructions."

The court did not sustain the objection at this time but told the jury they were to "take" the law from the instructions. Later attempts by plaintiffs' counsel to define necessary means for the jury met objections which were sustained.

Plaintiffs' attorney on appeal states that he felt it was crucial for him to present a definition of "necessary" to the jury in light of the varied interpretations of the term. To sustain his position counsel has proceeded to present a plethora of scholarly works amassed to support many definitions in both legal and nonlegal contexts. But, presentation of this myriad of definitions from counsel's lexicon does not persuade us that such an explanation should have been given to the jury. This court addressed the merits of appellants' contention once before when it reviewed an appeal from the original trial of this suit, Davis v. Moore, supra. We find our interpretation and application of legal principles and reasoning just as persuasive now as we did three years ago. Because there are an infinite number of factual settings which may give rise to a police officer having to use necessary means to effectuate an arrest, the definition of this statutory term is better left to the triers of fact. The jury, in applying common sense to adjudge the propriety of the methods employed by a police officer to make a lawful arrest, is fully capable of understanding the "everyday wording of the statute ('all necessary means') . . . (which is) without further definition, flexible and adaptable to the factual situation presented." Davis v. Moore, supra at 563. Furthermore, the evidence on this second appeal is substantially the same as on the first appeal. Under such circumstances, all of the matters, questions, points or issues adjudicated on the prior appeal are the law of the case and will not ordinarily be considered or readjudicated in the second appeal. Williams v. Ford Motor Company, 494 S.W.2d 678, 682 (9) (Mo.App.1973). We believe plaintiffs' contention was adequately discussed and decided on the first appeal.

Tangential to this first point, plaintiffs submit that in sustaining defendant's objections to the attempt to define "necessary" in closing argument the trial court misled the jury on the law to plaintiffs' detriment. There were, in fact, several trial court admonitions to the plaintiffs' counsel, restraining him from defining the phrase "necessary force." We do not reach the conclusion, however, that they were prejudicial or that they were even error. The trial court's comments were not gratuitous comments upon the general nature of counsel's argument but, rather, merely resulted from counsel's repeated attempts to argue the law of the case before the jury. The trial court responded to defendant counsel's initial objection to the nature of plaintiffs' argument that it was a statement of law not included in the instructions submitted to the jury by informing the jury they would be governed by the instructions. All other trial court comments were prompted by plaintiffs' counsel's insistence that he was merely arguing the law. In light of our prior finding, the trial court's refusal to let the plaintiffs interpret and define the term "necessary force"...