State v. Bradley, KCD
| Decision Date | 04 November 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 515 S.W.2d 826 |
| Parties | STATE of Missouri, Respondent, v. Larry BRADLEY, Appellant. 26661. |
| Court | Missouri Court of Appeals |
Dean H. Leopard, Gallatin, for Appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
Before DIXON, C.J., and SHANGLER, WASSERSTROM and TURNAGE, JJ.
Defendant, Larry Bradley, was charged by information with unlawfully and wilfully striking and beating a police officer while such officer was engaged in the performance of duties imposed on him by law in violation of Section 557.215 RSMo 1969, V.A.M.S. On April 7, 1972, defendant was tried without a jury in the Circuit Court of Daviess County, Missouri, found guilty, and, on May 15, 1972, sentenced to six months is the county jail. Defendant's motion for new trial was overruled on May 15, 1972. Notice of Appeal was filed on May 22, 1972, in the Missouri Supreme Court. On defendant's motion, the cause was ordered transferred to the Missouri Court of Appeals, Kansas City District, on March 21, 1973.
Defendant's point on this appeal may be subsumed under two heads. First, that there was no competent evidence of the issuance of a warrant, and that being so, the officer was not acting lawfully and defendant had the right to resist. The second point raised is that the evidence does not support the conviction.
In the posture of a guilty verdict, the evidence is considered in the light most favorable to the verdict, and the issues of credibility are taken as settled by the trier of fact. State v. Parker, 378 S.W.2d 274 (Mo.App.1974).
So considered, the evidence supports the following factual situation. At 9:00 p.m., On January 13, Kenneth Lukehart, a uniformed officer of the City of Gallatin, was on duty in the City of Gallatin. Lukehart had received a report from the Chief of Police earlier in the evening that a car belonging to one Zimmerman had been taken out of Zimmerman's driveway and that Zimmerman did not know who had the car. Lukehart recognized the 1965 Chevrolet while he was driving around the square. The Chevrolet was being driven by the defendant. The officer pulled up beside the 1965 Chevrolet and directed the defendant to put the car at the curb while the officer called the Sheriff's office. The defendant failed to heed the officer's instruction and drove off followed by the officer. The defendant drove into the driveway of the Zimmerman residence. Enroute and while pursuing the 1965 Chevrolet, the officer had contacted the Sheriff's office by radio. The Sheriff informed the officer that there was a warrant for the defendant and to pick up the defendant and bring him to the county jail. When the officer pulled up to the Zimmerman residence, the defendant approached the police car cursing. Zimmerman was present and before any physical altercation, Zimmerman informed the officer that the 1965 Chevrolet had not been stolen. While this conversation took place, the officer was still in the car with the door open and one foot on the ground. The officer informed the defendant that he was going to arrest the defendant because, as the officer announced, 'The sheriff has a warrant for this man's arrest and he does want him in the county jail.' The officer, still not fully out of the car, told the defendant four or five times he was under arrest and to get in the car. The defendant continued cursing and screaming and turned away from the car. The officer then got out of the car, disengaging his nightstick from the spotlight handle where it was hanging. The officer went to the defendant with his nightstick at his side and put his arm on the defendant's shoulder to lead him to the car. The defendant then grabbed at the nightstick, and an altercation commenced. The officer finally subdued the defendant with mace after losing his nightstick to the defendant. The officer radioed the sheriff for help, and he responded and took over.
Defendant argues that there was no competent evidence of the existence of a warrant. This ignores the testimony of the officer as to the radio message from the Sheriff concerning the warrant. The State admits the hearsay nature of this, but correctly points out that such evidence once admitted without objection is in the case for all purposes and constitutes evidence, the probative value of which is for the trier of fact. Kansas City v. Mathis, 409 S.W.2d 280 (Mo.App.1966); State v. Balle, 442 S.W.2d 35 (Mo.1969).
The real issue presented by the defendant's argument is whether the State has the burden in this case to establish the existence of the warrant to justify the action of the police officer in attempting to arrest the defendant. Put another way in the context of the charge against this defendant, the question is, did the officer have a right and, therefore, a correlative duty to arrest the defendant based upon the radio message that a warrant existed for the defendant's arrest?
That question is settled. State v. Burnett, 429 S.W.2d 239 (Mo.1968) reached and decided that issue.
There, the officers arrested and searched between...
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