State v. Chambers

• Decision Date: 15 July 1986
• Docket Number: No. 67191,67191
• Citation: 714 S.W.2d 527
• Parties: STATE of Missouri, Respondent, v. James Wilson CHAMBERS, Appellant.
• Court: Missouri Supreme Court

Page 527

714 S.W.2d 527

STATE of Missouri, Respondent, v. James Wilson CHAMBERS, Appellant.

No. 67191.

Supreme Court of Missouri En Banc.

July 15, 1986.

Rehearing Denied Sept. 16, 1986.

Thomas R. Schlesinger, St. Louis, for appellant.

William L. Webster, Atty. Gen., Victorine P. Mahon, Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Judge.

Defendant James Chambers was jury tried and sentenced to death for the capital murder of Jerry Lee Oestricker. We have exclusive appellate jurisdiction. Mo. Const. art. V, § 3. In this appeal, defendant assigns as error: (1) failure to instruct on self-defense; (2) denial of his motion for change of venue; (3) improper death qualification of the jury, and; (4) refusal to allow defendant to argue an adverse inference from the State's decision not to call a certain witness. We affirm.

The first point of error posited in this appeal--that the trial court erred in refusing to instruct on self-defense--was the very ground upon which this Court reversed defendant's first conviction and death sentence for the capital murder of Jerry Lee Oestricker. See State v. Chambers, 671 S.W.2d 781 (Mo. banc 1984). In Chambers I, we held that the evidence presented at defendant's trial in December of 1982 warranted a self-defense instruction.

Because defendant's tendered self-defense instruction in the present case--defendant's second trial--was refused and because the quantum and quality of evidence in this case differs from the evidence adduced at defendant's first trial for the capital murder of Jerry Lee Oestricker, we again must examine the sufficiency of the evidence in connection with the issue of self-defense--to determine whether the trial court in the present case committed reversible error in refusing to accept defendant's tendered instruction on self-defense. In conducting our review, we must consider the evidence in a light most favorable to defendant's construction of the facts. State v. Fincher, 655 S.W.2d 54 (Mo.App.1983).

The chain of events which ultimately led to the slaying of Jerry Lee Oestricker began and ended at the Country Club Lounge in Arnold, Missouri. At approximately 7:00 p.m. on May 29, 1982, Oestricker, who was playing pool and drinking, bumped into the chair of another patron of the bar, Jackie Turner. Turner was seated at a table with members of his family. Immediately after Oestricker bumped into Turner's chair, the two men began to argue. Before this verbal confrontation progressed any further, Kenneth Vaughn, the owner of the bar asked the parties involved in the argument to leave the bar. The Turner family departed, but Oestricker remained at the bar and continued to play pool.

Defendant made his first appearance that evening at the Country Club Lounge at approximately 10:00 p.m. Upon entering the bar, he asked an employee, Norma Jean Ieppert, where he could find the Turners. When Mrs. Ieppert informed defendant that the Turners had left the bar earlier in the evening, defendant immediately departed. Defendant, however, returned approximately 30 minutes later in the company of Jackie Turner.

Once inside the bar, defendant immediately approached Oestricker and asked the victim to buy him a drink. Oestricker, referring to defendant by his nickname, "Bimbo", indicated in strong language that he had no desire to buy defendant a drink. During this initial confrontation between defendant and Oestricker, no blows were exchanged and one witness who was present at the time, Fred Ieppert, testified that this initial exchange of words was loud. And he testified further that defendant told the victim, "I thought you were a friend of mine." To this statement, Oestricker replied, "No, you are no friend of mine." This exchange of words was corroborated by the testimony of a number of other witnesses who were present that evening. After a few minutes had passed, the owner of the bar, Kenneth Vaughn, told the two men to leave the bar.

The evidence presented at trial leaves no room for doubt that defendant exited the bar before the victim. Defendant contends that Oestricker, whose blood alcohol level was determined to be .14 was "crazy drunk" and "trying to get a fight going with anybody he could." And there was evidence that before leaving the bar, Oestricker told defendant that "[defendant] didn't scare him" and "if you want a piece of my ass just come on."

A total of five witnesses, all of whom were present immediately before and after Oestricker was shot, testified that defendant, as he was leaving the bar, turned to Oestricker and yelled, "come on motherfucker we'll settle this outside." Each of these witnesses testified that defendant began the entire confrontation when he approached Oestricker and asked the victim to buy him a drink.

The State presented testimony from a number of witnesses that as defendant walked out of the bar, he reached under his shirt and removed an object. One patron, thinking defendant had pulled a hidden knife yelled to Oestricker, "... he's got a knife." There was no testimony that the victim was armed with a weapon of any kind. Defendant, however, contends that there was evidence to suggest Oestricker was in possession of a pair of needlenose pliers which were found near the victim's body. However, the owner of the bar testified that the pliers belonged to him and fell out of his pocket when he removed a handkerchief to wipe his nose while standing over the victim.

Within seconds after Oestricker stepped outside the front door, a single shot was heard. Fred Ieppert, who testified that he witnessed the shooting, stated that as Oestricker walked through the door, he saw defendant hit Oestricker with a pistol, knocking him to the ground. As Oestricker got up with his hands raised in the air, defendant pointed the pistol at the victim and fired a single shot into the victim's chest. Not a single witness testified that Oestricker was the first to strike a blow, or even had the opportunity to do so.

Further, testimony was presented that after shooting Oestricker, who by that time was lying prostrate on the ground, defendant proceeded to pistol whip the victim about the face, drag him across the parking lot, and taunt him with the following statements: "take that you motherfucking tough guy" and "get up motherfucker and fight like a man". And defendant also told the mortally wounded victim, "You better get up and call the hospital because you are going to die." Seconds later defendant yelled to the patrons inside the bar, "if any of the rest of you motherfuckers want some of this, come on out." Thereafter, defendant ran from the scene and fled in a waiting automobile. He was apprehended later that evening by Arnold police at a liquor store in St. Louis County.

Under Missouri law, a person is entitled to use deadly force in defense of his person only when there is an absence of aggression or provocation on the part of the defender and only when there exists a real or apparently real necessity for the person defending himself to kill in order to avoid immediate danger of serious bodily injury or death. State v. Chambers, 671 S.W.2d 781. See also State v. Wilson, 645 S.W.2d 372 (Mo.1983); State v. Ivicsics, 604 S.W.2d 773 (Mo.App.1980). Furthermore, deadly force is justified only when there is a reasonable cause for the defender's belief in the need to use it and the defender has done all in his power consistent with his personal safety to avoid the danger and the need to take a life. State v. Chambers, 671 S.W.2d at 783.

In Chambers I there was evidence that the victim, Oestricker, perpetrated the initial act of physical aggression by striking defendant in the face. And in Chambers I, we pointed out that there was evidence that the victim was 6' 4"' and 250 pounds while defendant was only 5'6"' and 150 pounds. In that case we held that because of the disparity in physical size and because the evidence showed the victim was the initial aggressor, there was sufficient evidence to support an instruction on self-defense and the reasonableness of defendant's course of conduct was a question that fell within the sound discretion of the jury. State v. Chambers, 671 S.W.2d at 783-84.

In the present case, however, there is absolutely no evidence in the record that the victim committed the initial act of physical aggression. There was simply no testimony that Oestricker, either inside or outside of the bar, committed the initial act of physical aggression. Furthermore, Dr. Leland Thomas, the certified pathologist who conducted the autopsy on the body of the victim testified that Oestricker was only 6'0"' tall and weighed approximately 200 pounds. And there was additional evidence that defendant was somewhere between 5'6"' and 5'8"' tall and weighed as much as 160 pounds.

The evidence presented at trial was undisputed that the initial provocation occurred when defendant, upon entering the bar with Jackie Turner, who earlier in the evening had an argument with the victim approached the victim and requested that Oestricker buy him a drink. This request by defendant, who was already armed with a concealed pistol, elicited a profane refusal from the victim. After provoking the victim in this manner, defendant then challenged the victim to settle the matter outside. Defendant, however, was prepared to settle it with the use of a deadly weapon, which he readied for use before leaving the inside of the bar. The victim, who was unarmed, was first physically assaulted and then shot in the chest only seconds after he exited the bar.

There is simply no evidence in the record to support the conclusion that defendant was not the initial aggressor or that he did not provoke the entire series of deadly events from the time he entered the bar in the company of Jackie Turner. Furthermore, the evidence which defendant relies upon to support his theory of self-defense is woefully unconvincing that there existed either an apparent or real...