Maxey v. State
| Decision Date | 30 June 1986 |
| Docket Number | No. 50838,50838 |
| Citation | 713 S.W.2d 567 |
| Parties | Robert D. MAXEY, Movant-Respondent, v. STATE of Missouri, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for respondent-appellant.
David A. Warfield, St. Louis, for movant-respondent.
Appellant, the State of Missouri, appeals from the judgment of the Circuit Court of Washington County sustaining Movant-Respondent's motion for post-conviction relief under Rule 27.26. The motion court ordered movant's 1982 conviction for first degree assault, in violation of § 565.050 RSMo (1978), for which he is currently serving a fifteen (15) year sentence in the custody of the Missouri Department of Corrections, to be set aside. The court further ordered that a new trial on the charge be had.
For purposes of this appeal we take judicial notice of the record in State v. Maxey, 661 S.W.2d 641 (Mo.App.1983), which was movant's case on direct appeal.
Movant was found guilty of first degree assault on May 17, 1982 following a one day jury trial. The only witness for the state at that trial was the alleged assault victim, Randall T. Miller, who was at that time a Bonne Terre police officer. Since Miller was the state's only witness, the state in effect rested its case on Miller's testimony and on the credibility of that testimony.
Miller stated that while on patrol in Bonne Terre on the evening of February 27, 1981, he observed movant operating a motorcycle in an imprudent manner. According to his testimony, he attempted to pull movant over, but movant failed to stop and a chase ensued. The chase ended outside the city limits of Bonne Terre where movant wrecked his motorcycle. State v. Maxey, 661 S.W.2d 641, 642 (Mo.App.1983). Miller then stated that he placed movant under arrest, and was attempting to handcuff him, when movant kicked him in the groin. At that point a struggle began. During the struggle, according to Miller, movant grabbed his service revolver and pointed it at his (Miller's) stomach. Miller stated that he then knocked movant's hand in the air and bit him. Miller indicated that at that time the gun discharged and a moment later, after pushing him down, movant fled. No one was injured. A few moments later, Miller stated over his police radio that movant had taken his gun. However, when other officers arrived at the scene, Miller had the gun. State v. Maxey, id.
Movant testified that after he wrecked his motorcycle, he was approached by Miller, who became violent and sprayed him with mace. He admitted that he had resisted, but he denied ever touching Miller's gun. State v. Maxey, id.
Movant was arrested at a residence near Bonne Terre a short time after he fled.
At the evidentiary hearing on movant's 27.26 motion, Gary Yates, who was also a Bonne Terre police officer at the time of the event involved herein, testified for movant.
Yates testified that he was the first officer on the scene following Officer Miller's radio call. He stated that when he arrived, Miller not only had his gun, but he also claimed that he had fired three shots at movant as movant fled.
A few weeks after movant's arrest, Officer Yates read the official police report of the incident and noticed that the report indicated that Miller had fired only two shots at movant. The report also described the events surrounding movant's arrest differently than the way Yates remembered them. The report was signed by Miller. According to Yates, he then confronted Miller about the discrepancies between what he remembered and what the report said. Yates testified that at that time Miller told him that movant had never touched his gun and that he had been ordered to falsify the report. Later Miller allegedly told Yates that the order had come from a Bonne Terre police sergeant. Yates then testified that prior to movant's trial on the assault charge, he, Yates, had spoken with an assistant prosecuting attorney at the St. Francois County prosecutor's office, which was handling the state's case. Yates stated that he had told the assistant prosecuting attorney about the discrepancies between what was in the police report and what he remembered and also about his conversation with Miller concerning the report. Yates did not speak with the St. Francois County Prosecutor, Gary Stevenson. However, he stated that the assistant prosecutor that he did speak with later told him that Stevenson had been informed.
Officer Miller also testified at the evidentiary hearing. His...
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Rowling v. State
...to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Maxey v. State, 713 S.W.2d 567, 568 (Mo.App.1986). "A motion court's findings are only clearly erroneous if after reviewing the complete record, this court is left with the defin......