State v. Davis

• Decision Date: 02 October 1978
• Docket Number: No. KCD,KCD
• Citation: 572 S.W.2d 243
• Parties: STATE of Missouri, Respondent, v. George Hilliard DAVIS, Appellant. 29786.
• Court: Missouri Court of Appeals

Page 243

572 S.W.2d 243

STATE of Missouri, Respondent, v. George Hilliard DAVIS, Appellant.

No. KCD 29786.

Missouri Court of Appeals, Kansas City District.

Oct. 2, 1978.

Robert B. Paden, Maysville, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

SOMERVILLE, Presiding Judge.

Defendant was charged with second degree murder (Sec. 559.020, RSMo 1969), found guilty of manslaughter (Sec. 559.070, RSMo 1969) by a jury, and sentenced to ten years confinement in the Missouri Department of Corrections.

The points of error relied on by defendant, four in number, are as follows: (1) the trial court erred in overruling defendant's motion for verdict of acquittal at the close of the state's case because under the evidence introduced by the state defendant, as a matter of law, acted in self-defense; (2) the trial court erred in admitting State's Exhibit No. 9 (a knife) in evidence over defendant's objection that there was a "break in the chain of custody" with respect to said exhibit; (3) the trial court erred in permitting the "late" endorsement of a witness by the state on the information; and (4) the trial court erred "in failing to direct a verdict of acquittal in favor of the defendant during the (closing) argument of the prosecuting attorney" because of the latter's comment "on the failure of the defendant to report to law enforcement officers from the date of the homicide until February 3, 1977."

Defendant's points relied on, particularly his first and second points, necessitate a somewhat comprehensive review of the evidence introduced by the state. In doing so it should be noted that in certain critical areas much of the state's proof consisted of two extrajudicial statements made by defendant, one to agents of the F.B.I. on February 3, 1977, in Pasadena, Texas, and the other to the Sheriff of DeKalb County, Missouri, on February 14, 1977, in DeKalb County. The admission of these extrajudicial statements has not been challenged by defendant on appeal.

The defendant and Grover Slawson Silvers (hereinafter the victim), according to the extrajudicial statements heretofore referred to, first met in the convivial atmosphere of a bar in St. Joseph, Missouri. The defendant was from Pasadena, Texas, and the victim was from Union Star, DeKalb County, Missouri. The two struck up a "friendship of sorts" and defendant accompanied the victim home. On July 22, 1976, the victim and the defendant (a guest in the victim's home) "got up real early and started drinking". They favored "peppermint schnapps and beer". During the afternoon two teenage boys came by the victim's home. After they left defendant took a nap and was awakened "about dusk" by the victim. Thereupon the victim talked to defendant "excessively about (one of the teenage boys) . . . being a homosexual". Defendant advised the victim that he "didn't participate in any homosexual activities and didn't like that sort of talk". However, the victim kept "aggravating" defendant with such talk. In order to avoid being subjected to further "talk" of that kind, defendant went into the kitchen of the victim's home. The rear door of the victim's home was approximately five feet from a counter which contained a kitchen sink. An open door led from the kitchen to an adjoining bedroom. At this point the two extrajudicial statements, in certain important respects, vary considerably. According to the statement given to the F.B.I. agents, the following then occurred: "When I got into the kitchen he grabbed at me at which time I hit him in the head with a Coke bottle which I had in my hand at that time. I then picked up a butcher knife that I saw laying on the counter. At that time Silvers said, 'I'm going to get you,' and turned running toward his bedroom. I then went after Silvers, when I saw him in his room he was standing next to his bed. When he turned around I stabbed him in the chest with a butcher knife that I had in my hand. I then became extremely frightened and ripped the telephone out of the wall, went to the kitchen where I washed my hands and the knife and thereafter put the knife back where I got it. The keys to Silvers' 1966 Chevrolet stationwagon were on the table so I picked them up and left in his vehicle. After leaving Silvers' house, I drove all night and just before getting to the Arkansas border, picked up a hitchhiker who wanted to go to the house of a friend of his, Wayne Rogers, who lived in Springdale, Arkansas. . . ." According to the statement given to the Sheriff of DeKalb County, the following then occurred: "He took hold of my arm and shoved me. I kept telling him to leave me alone but he wouldn't do it. I picked up a Coke bottle from the kitchen table and hit him on the forehead but it didn't phase him. He grabbed me and started pulling me toward the bedroom and said, 'I'll get you' or 'I'll fix you', I don't know which. I reached over and got a knife off the sink there. Then we were in the bedroom. I said, 'Let me go, let met go', but he wouldn't. I popped him one he fell on the bed backwards. I pulled the knife out and went to the kitchen and washed the knife and my hands. I went back to the bedroom and I believe I put his feet up on the bed. I reached over and jerked the telephone wires loose. I went in the kitchen and saw the car keys and picked them up. Then I got my other stuff together and took off. I went out the front door and got in his car and left. I drove all night before I got to Kansas City. I drove in Missouri all day Friday and I picked up a hitchhiker before I got to Arkansas. . . ."

The state's evidence, apart from defendant's extrajudicial statements, also disclosed the following. The victim's body was not discovered until Sunday, July 25, 1976. When discovered it was lying upon a bed in the bedroom adjacent to the kitchen. No foul play was suspected at the time and the victim's death was presumably believed to have resulted from natural causes. However, when the victim's body was being prepared for interment embalming fluid "spurted out" of an aperture caused by an incision in the victim's chest. Nevertheless, funeral services proceeded and the victim's body was buried.

Several neighbors and relatives who entered the victim's home at or near the time his body was found testified that nothing in the house was in a state of "disarray". One of the neighbors further testified that he did not "notice a knife or any other type of instrument in the bedroom" were the victim's body was found.

On July 28, 1976, the Sheriff of DeKalb County, in response to a call from the City Marshal of Union Star, conducted a limited investigation at the victim's home. During the course of his investigation, the sheriff found a knife in the victim's house "in a dish drainer" on a counter adjacent to the kitchen sink. The knife was left in place at the victim's home until September 2, 1976, when the sheriff returned and picked it up from the place where he had first seen it on July 28, 1976, i. e., "in a dish drainer" on a counter adjacent to the kitchen sink. The knife which the sheriff removed from the "dish drainer" was marked State's Exhibit No. 9 during the trial, identified and admitted into evidence over defendant's objection that there was a "break in the chain of custody". A neighbor of the victim testified that the victim's home was locked from July 25, 1976, until September 2, 1976, except for a period of time on July 28, 1976, when it was unlocked to admit the Sheriff of DeKalb County. This witness further testified that the windows of the victim's house were "up" during the entire period of time just mentioned.

Disinterment of the victim's body was judicially ordered approximately thirty days after it was buried, and an autopsy was then performed. The pathologist who performed the autopsy testified that the victim "died from a stab wound of the chest which resulted in internal bleeding". The pathologist described the would inflicted upon the victim as follows: "(T)he knife entered in the third right rib, actually sliced a little bit of the top of the rib off, split it longitudinally, and cut the upper lobe of the right lung. It cut the sack enclosing the heart and cut the aorta, the large vessel at the top of the heart where it leaves the heart, and then went on through, through the back layer of the sack enclosing the heart, then ended in one of the vertA bra, that is a bone of the spine." The pathologist equated the force required to inflict such a wound as being "about as much force as it takes to crack some spare ribs with a cle(a)ver."

In pursuing his first point defendant argues that the extrajudicial statement which he gave the F.B.I agents was preempted by the later and more favorable one he gave to the Sheriff of DeKalb County, and therefore only the latter should be considered in resolving his first point. The state acquiesced as evinced by the following statement found on page 19 of its brief: "Because state's Exhibit 2 (the statement defendant gave to the F.B.I agents) does not raise any claim of self-defense only state's Exhibit 3 (the statement defendant gave to the Sheriff of DeKalb County) need be considered in deciding whether the state's admission of the confession established as a matter of law that the appellant acted in self-defense."

State v. Thornton, 532 S.W.2d 37 (Mo.App.1975), is principally relied upon by both the defendant and the state as illuminating the way for disposing of point one. There, as here, the accused contended that the state's evidence, as a matter of law, established that he acted in self-defense. In State v. Thornton, supra, at p. 42, the court emphasized four constituent requirements of self-defense. Substantially paraphrased, they are: (1) he who relies upon self-defense must believe that he is faced with the danger of having death, great bodily harm or a felony...