State v. Davis

• Decision Date: 07 June 1994
• Docket Number: No. 18941,18941
• Citation: 877 S.W.2d 669
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael S. DAVIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 669

877 S.W.2d 669

STATE of Missouri, Plaintiff-Respondent, v. Michael S. DAVIS, Defendant-Appellant.

No. 18941.

Missouri Court of Appeals,

Southern District,

Division One.

June 7, 1994.

Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

PARRISH, Chief Judge.

Michael S. Davis (defendant) was found guilty, following a jury trial, of first degree murder. § 565.020.1. ¹ The jury was unable to agree upon punishment. The trial court sentenced defendant to imprisonment for life without eligibility for parole. § 565.020.2. This court affirms.

All evidence that tends to prove defendant's guilt and all inferences that support the verdict of the jury are accepted as true. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). Contrary evidence is disregarded. State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981).

On Friday evening, November 8, 1991, defendant and Billy Van Troba met in Cape Girardeau. They got into Van Troba's truck and drove around Cape Girardeau. They traveled to Jackson and Scott City and returned to Cape Girardeau about 9:00 or 10:00 p.m. where they switched vehicles. They rode for a while in defendant's automobile then went to B.G.'s, an area restaurant. Defendant and Van Troba consumed a 12-pack of beer prior to going to the restaurant. They arrived at B.G.'s about 11:00 p.m. While there, they drank a pitcher of beer and ate an order of potato skins.

Defendant and Van Troba left B.G.'s between 11:45 p.m. and midnight. They rode around some more in defendant's automobile. During the course of their travels, defendant drove to his parents' home. Defendant drove his automobile into the driveway, told Van Troba to wait, and went into the house. Defendant returned a short time later with a knife. Van Troba described the knife as "a boot knife." He explained, "It had about a six-inch blade, double-edged, black handle."

Defendant drove to Scott City then back to Cape Girardeau. Van Troba fell asleep in the car. He awakened about 2:30 or 3:00 a.m. They were entering Scott City. Defendant drove to a house where his sister-in-law, Traci Davis, was living. Traci and her husband, defendant's brother, were separated. Defendant told Van Troba to stay in the car and went inside the house. Van Troba testified, "And then he came back and got me and told me that he told Traci that we were being chased by the police and we could stay there for a while."

Defendant and Van Troba went inside the house. Van Troba laid down on a couch. Traci asked if they wanted blankets. They told her, "[N]o." She went back to bed. Van Troba was asked the following questions and gave the following answers:

Q. [by the prosecuting attorney] What happened, then, after Traci went back into the bedroom?

A. Well, we laid there and really didn't say much. Then he started asking me questions, what I thought about her. And I told him I, you know, thought she was cute. And he said, yeah, I'm planning on getting a piece of that.

. . . . .

Q. What happened next?

A. Well, I--We just laid there. And the more I thought about it, I wanted to leave. And I told him I wanted to go back to my truck. And he said, well, we drove by it while you was asleep and it was all right.

Q. So what happened next?

A. We laid there some more, and he got up and went to another room and came back with a stick or a club or something.

Q. Can you describe this stick or this club?

A. It was about that long (indicating). Probably six inches--I mean, six foot--No. Three foot.

Q. And how big around, if you can recall?

A. About the size of a broom handle.

Defendant stuck the stick in his sleeve and sat down. He told Van Troba they would leave in a little bit. Defendant gave Van Troba the keys to the car and told him to go start it. Van Troba left the house. He got into the car on the passenger side and turned on the car stereo. He heard a scream. Defendant ran from the house, opened the passenger's side door and told Van Troba to drive. Van Troba explained, "And he started pushing me over to drive, so I got over and started driving and asked him what happened or asked him what the scream was and he said he killed her." Van Troba asked defendant why he killed her. Defendant told Van Troba she had caused problems in his family.

Van Troba drove defendant's automobile to a truck stop about two or three miles from Traci's house. Van Troba got out of the car. As he walked away, defendant asked him not to call the police. Van Troba called his mother from the truck stop and asked her to come get him.

At approximately 4:37 a.m., November 9, 1991, the Scott City Police Department dispatcher received a call from a woman who said she was bleeding. The dispatcher asked the woman her address. She replied, in a faint voice, that her address was 508 Oak Street. Paramedics and police officers were dispatched to that address. They began arriving two or three minutes after the call was received.

When the officers and paramedics arrived, lights were on inside the house. There was blood on the doorknob at the rear of the house. Defendant's knife was lying in grass near the door. The officers and paramedics forced the door open and entered the house. Traci was lying on the floor in the kitchen. The telephone was wrapped around her arm. Traci's daughter, two or three years old, was standing in a doorway between the living room and the master bedroom of the house.

Traci Davis was alive when the officers and paramedics arrived. She was asked who had assaulted her. She said her brother-in-law, Michael Davis, did it.

A helicopter transported Traci to Southeast Missouri Hospital. She died at 6:35 a.m. An autopsy revealed fourteen stab wounds to Traci's body. The pathologist who performed the autopsy gave his opinion of the cause of death as "[e]xtensive hemorrhage or bleeding, secondary to stab wounds."

After Billy Van Troba left defendant at the truck stop where they had driven from Traci's house, defendant drove on Interstate Highway 55 heading to Michigan. He intended to go to his mother-in-law's house in Lansing. He stopped at a rest area along the way and called her. He told her he needed to talk to her; that he "got into it with Traci and some stuff had happened." Defendant drove back onto the road heading toward Michigan.

Later, defendant called his mother-in-law again. He was in Berrien County, Michigan, the state's southwestern-most county. He called her from a gas station. When she answered her telephone, she was crying. She told defendant that Traci died. Defendant asked what he should do. She told him to go to the police.

Defendant saw a police officer at the gas station. He told the officer what happened and that he wanted to turn himself in and "get things taken care of." The officer arrested defendant and took him to the Berrien County Sheriff's Department in St. Joseph, Michigan. Defendant gave a statement that was videotaped. The statement was given the date of arrest, November 9, 1991. It was admitted in evidence at trial.

Defendant's first point on appeal is directed to a second videotaped statement the state did not offer in evidence. After the state rested its case, defendant's trial counsel told the trial court that defendant intended to offer into evidence a second statement that defendant gave Michigan police officers. The attorney announced:

The defense is intending to call [Michigan Deputy Sheriff] Tom Beardslee to the stand in regards to a November 15th statement that was videotaped. And part of it was done in written form also of Michael Davis when he was still in Michigan.

The prosecuting attorney objected to the proposed testimony of Deputy Sheriff Beardslee on the basis "that a defendant may not offer a self-serving statement as substantive evidence." The trial judge stated, "I'm persuaded at this point that would be improper and not offered for any relevant purpose at this time, unless you have some authority to permit it." Defendant's trial counsel stated, "Not at this time, Judge."

Defendant, in his first point on appeal, characterizes the state's objection to the second videotaped statement as a motion in limine and asserts the trial court erred in sustaining the motion. Defendant contends "that the state injected the issue of [defendant's] demeanor during the first videotaped statement as proof of [defendant's] guilt, thus making his demeanor during the second videotaped statement necessary to rebut the state's case."

Defendant points to testimony by the Michigan officer who interrogated defendant in the videotaped statement that was admitted in evidence, and to certain statements the prosecuting attorney made to the jury in closing argument. The officer was asked if he heard defendant say "I'm sorry." The officer answered, "Not that I can recall." The officer was asked, "Did you ever see a tear or anything indicating any emotion or remorse during this interview?" He answered, "No, sir. In fact, upon my professional experience in this, I thought it was very--"; whereupon an objection was posed. The witness continued, "--unusual to see that." He concluded, "He was completely--very calm, cool during the entire interview, very matter-of-factly presenting the statement to me."

During closing argument the prosecuting attorney compared defendant's demeanor during the videotaped statement that was admitted in evidence with defendant's demeanor during his testimony at trial. The prosecuting attorney suggested to the jury that defendant showed remorse during his testimony at trial because he had been "prepared for this performance," but that the videotaped statement showed no remorse.

The record on appeal does not reflect that any videotape, other than the recording of the November 9 statement, was marked as an exhibit. Neither does it include testimony of Deputy Sheriff Beardslee. No videotape was filed...