State v. Davis

• Decision Date: 28 April 1978
• Docket Number: No. 59779,59779
• Parties: STATE of Missouri, Respondent, v. Lee Burl DAVIS, Appellant.
• Court: Missouri Supreme Court

Page 437

566 S.W.2d 437

STATE of Missouri, Respondent, v. Lee Burl DAVIS, Appellant.

No. 59779.

Supreme Court of Missouri,En Banc.

April 28, 1978.

Blair K. Drazic, Asst. Public Defender, St. Louis, for appellant.

W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM:

After the Court of Appeals, St. Louis District, handed down an opinion written by Simeone, J., we ordered transfer of the cause to this court because of the one novel issue involved, i. e., whether or not a trial court may call a witness as the court's witness in a criminal case. After considering that issue as well as others presented, we agree with the result reached by the Court of Appeals and adopt the opinion thereof without benefit of quotation marks.

I

Introduction

Defendant-appellant, Lee Burl Davis, ¹ was charged, tried and found guilty by a jury and sentenced to life imprisonment for the offense of murder in the first degree. § 559.010, RSMo 1969. He appeals. For reasons hereinafter stated, we reverse the judgment of conviction and remand the cause for further proceedings.

The principal issues raised on this appeal are (1) whether prior inconsistent statements made by a witness called by the court as the court's witness were used as substantive evidence by the prosecutor in closing argument, and if so, whether the use of such evidence as substantive evidence constitutes "plain error"; (2) whether the trial court may call a witness as the court's witness in a criminal case an issue heretofore unresolved in this state; and, having done so, (3) whether the trial court erred in permitting the prosecutor to "impeach" the court's witness by the use of prior contradictory statements made by the witness and statements made by the prosecutor at an earlier guilty plea proceeding, which statements implicated the defendant-appellant in this proceeding.

This case presents a bizarre set of facts and presents complex legal issues:

II

The Facts

The abbreviated facts for the disposition of the principal points on appeal can be briefly stated more detailed facts will follow. Mr. Joseph "Hector" Lane was found dead in an automobile, having been shot. The appellant, Lee Burl Davis, was charged with the offense. Mr. Jahmel Imrod Moore pleaded guilty to the offense sometime prior to the trial of the appellant, Davis. During this trial, Moore was called as the court's witness, and, after denying that he or the appellant was implicated in the crime, the state impeached Moore by reading the statements of the prosecutor and Moore at Moore's guilty plea and introduced the testimony of Rhonda O'Neal, a state's witness, all of which contradicted Moore's "direct" testimony at trial.

It is this introduction of the contradictory testimony and the comments thereon by the prosecutor in closing argument which essentially form the basis of this appeal.

Much of the evidence detrimental to the defendant was related by the state's witness, Leonard O'Neal. The tragic events begin on the rainy night of June 18, 1973. On that evening, Leonard O'Neal and Harold Davis were at the home of their young friend, Mark Bowers. Later in the evening, the three left the Bowers home and walked to the home of Harold Davis, where Harold's brother, Lee Burl Davis, also lived. The Davises lived in the 4200 block of Holly Avenue in the City of St. Louis. At the time of their arrival, Lee Burl Davis was not there. The three young men Mark, Harold and Leonard watched TV. Sometime after eleven p.m., Harold's seven-year-old sister came in and told them that an automobile accident had occurred outside the house. No shots were heard, but the impact of the accident was heard by other neighbors, including Nathaniel Phillips and Anthony Lee Bailey. The three young men, Mr. Phillips and Anthony Bailey, together with others, went out to the street. When they arrived, they saw that an Oldsmobile "98" had hit an automobile which in turn hit another and then hit a tree. The "98" motor was running, and a man Joseph Lane (also known as Hector) "was bent over the wheel with his foot on the gas." Mr. Phillips and Anthony Bailey took Mr. Lane out of the car and placed him on the street. Mr. Phillips took Mr. Lane's pulse, but there was none. ²

Within minutes, Officer Walter Meissert was summoned to the area because of a "fire." When he arrived, the firemen were already present. He saw that "the car that struck the first car was smoking from the radiator," but there was actually no fire. "Hector" Lane had already been taken out of the car and placed on the ground. Officer Meissert found no weapons either in or outside the automobile.

According to Leonard O'Neal, the three young men stayed around the accident scene for a short while and then went back into the Davis home. When they went back into the house, a telephone call was made by a friend of Leonard's Jahmel Imrod Moore a witness called by the court at this trial of the appellant. While the call was not for Leonard, he did participate in the conversation. From the Davis house, Leonard, Mark and Harold went to Leonard O'Neal's house, which was "(o)ne block over." There Leonard saw Jahmel Imrod Moore. Leonard's sister, Rhonda O'Neal, was also present. Leonard testified at trial that at the O'Neal home he saw blood on "(a)ll portions" of Moore's shirt. At this time, the appellant, Lee Burl Davis, was not present at the O'Neal home. From the O'Neal home, Leonard, Mark, Harold and Jahmel Moore, after visiting the house of "Tony" Bailey, went to the mother's home of a friend Debra Kent. When they arrived, the appellant-Davis, Debra and Debra's mother were present.

At Debra's house, Leonard said, ". . . We told (Davis) that Hector was killed." But Davis had no reaction. After staying at the Kent house about five minutes, the group then decided to return to the Davis house. They were walking. In the group were Mark Bowers, Leonard O'Neal, Harold Davis, Jahmel Moore and the defendant, Lee Burl Davis. Mark and Harold were walking in one group, and Leonard, Jahmel and Lee Burl Davis were walking in another. During that walk, according to Leonard's testimony, Davis told Leonard O'Neal that ". . . I (Davis) was in the car with (Joseph Lane) and (I) shot him." According to Leonard, the defendant related to him the incidents of the shooting. Leonard said that Davis told him that Jahmel was in the front seat of Lane's car, and Davis was in the rear seat. "(T)hey was driving down the street," and "Burl Davis stated that they were riding in the car and that they decided to shoot him on Penrose," but that ". . . a car distracted him. He had to turn off Holly. In doing so he (Burl Davis) shot him in the head. Jahmel grabbed the wheel and they had an accident ran into a tree. They jumped out."

According to Leonard, Jahmel Moore was present during this conversation. During the conversation, appellant said that "they" first saw Hector that afternoon at Debra Kent's house, and while there, ". . . Hector was talking about some kind of plan he had. He (Hector) was going to get everybody who lied on him." "(S)o I guess he got him first."

Both on direct and on cross-examination, Leonard admitted that he had been arrested for two previous robberies or attempted robberies, received a five-year sentence on both charges to run concurrently, and was placed on probation. He then enlisted in the Navy. On one of these charges, Jahmel Moore was a co-defendant. Leonard pleaded guilty to these charges on September 10, and was sentenced in late October, 1973. But it was not until sometime in October, probably October 9, that Leonard informed the police of the events that transpired on June 18 involving the defendant. Leonard stated that at no time did anyone promise him anything or promise to grant him probation in return for his testimony at trial of the appellant, Davis.

On October 23, 1973, an indictment was filed charging appellant Davis with the first degree murder of Joseph "Hector" Lane. Several witnesses were endorsed. Davis was arraigned. On July 3, 1974, the state endorsed additional witnesses, one of which was Jahmel Imrod Moore.

On the second day of the trial and after Leonard had testified, the assistant circuit attorney stated to the court,

"Judge, I don't know why we are bringing him (Jahmel Moore) in for sure while (why?) we are bringing him in at this time. I was going to call him as the next witness."

On that second day of trial, the circuit attorney informed the trial court that he had endorsed Moore as a witness but that Moore "earlier pled guilty to the same case that we have before the Court today," that Moore had "indicated . . . that he was in the car when the fatal shot was fired," and was serving a fifteen-year sentence on a charge of murder second degree for his "participation" in the "Hector" Lane shooting. The circuit attorney then requested the court to call Mr. Moore as the court's witness, since "this man has pled guilty to the crime and I was the Prosecutor in the case (and) it would be awkward, if not impossible, to put him on to vouch for his credibility, yet he was an eyewitness to the crime." The defense attorney did not specifically object, but argued that the prosecutor had endorsed Moore and that the "proper position of the Court should be the case of first impression, that it should be that since (the prosecutor) has endorsed him, he has already said that this is a witness." Eventually, the court sustained the motion of the prosecutor and called Mr. Moore as the court's witness.

Jahmel Moore then testified that he had pleaded guilty to a charge of murder the victim being Joseph Lane and received a sentence of fifteen years. He admitted he pleaded guilty to "acting with another" in the murder. He testified that Lane had been a friend of his and that he (Moore) was a "business associate" of the defendant, Davis. In his testimony he denied seeing Davis on June 18, 1973 "No, I didn't see him that day." ³...