State v. Davis, 63475

CourtUnited States State Supreme Court of Missouri
Citation653 S.W.2d 167
Docket NumberNo. 63475,63475
PartiesSTATE of Missouri, Respondent, v. James Michael DAVIS, Appellant.
Decision Date31 May 1983

Page 167

653 S.W.2d 167
STATE of Missouri, Respondent,
James Michael DAVIS, Appellant.
No. 63475.
Supreme Court of Missouri,
En Banc.
May 31, 1983.

Page 169

James A. Blackwell, St. Charles, for appellant.

John Ashcroft, Atty. Gen., Priscilla Gunn, Asst. Atty. Gen., Jefferson City, for respondent.


Appellant was convicted by a jury of capital murder, § 559.005, RSMo Cum.Supp.1975, 1 and was sentenced to life in prison without possibility of probation or parole for fifty years. At the time this case was submitted, this Court had exclusive appellate jurisdiction in cases in which a life sentence has been imposed. The 1982 amendment to Mo. Const. art. V, § 3 divested this Court of such jurisdiction, but we have determined that "in the interest of judicial economy" we will "retain those life imprisonment cases under submission to this Court on the effective date of the amendment." State v. Martin, 644 S.W.2d 359, 360 (Mo. banc 1983). We affirm.


At approximately 11:20 p.m. on October 24, 1977, St. Charles Police Officer Leslie Simpson was dispatched to the 905 Tavern in St. Charles to investigate a report that a man was flourishing a gun outside the tavern. As he approached the tavern he saw appellant run in front of the tavern, throw what appeared to be a long gun into a white 1959 Ford, and start to drive away. Simpson attempted to block the street, but appellant drove around Simpson's car and headed west on Morgan Street. As appellant eluded Simpson, Officer Gary Stroud, with whom Simpson had been talking when he was dispatched to the tavern, arrived and pursued appellant with the siren and red lights on his patrol car activated. Simpson checked to see whether anyone in

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the tavern was injured and then joined in the pursuit.

At the intersection of Morgan and Benton appellant lost control of his car and ran it onto some bushes. Stroud arrived as appellant was trying to free the car from the bushes and attempted to block appellant's escape. Appellant got out of his car and fired a shotgun blast into the windshield of Stroud's car. He fired two more shots in rapid succession and then returned to his car. Simpson arrived, having heard shots and seen Stroud's car come to an abrupt halt, and fired six shots toward the driver's side of appellant's car. Appellant managed to free his car, however, and he escaped south on Benton.

Simpson found Stroud slumped over the steering wheel of his car. Blood covered the chest area of Stroud's uniform and was on his left arm and face. Simpson immediately called for assistance, and within a few minutes an ambulance arrived and Stroud was taken to St. Joseph's Hospital. He later died. The autopsy showed that the shotgun blast ruptured or lacerated the aorta as it left the heart, causing fatal bleeding into the left chest cavity. Shotgun pellets also pierced the mid-right ventricle of Stroud's heart and his left lung.

Appellant crashed his car into a utility pole at the intersection of Benton and Jefferson, ten blocks away from the scene of the homicide. Officers Ernie Sutton and David Ramsey found him concealed in a flower bed beside a nearby house. His face and head were bloody, his face was swollen and bruised, and his breath smelled of alcohol. He mumbled something when the officers approached him. Sutton and Ramsey placed him under arrest, and shortly thereafter Simpson arrived. Appellant struggled with the officers and had to be restrained. He was taken to the hospital, where his injuries were treated. There he was read his Miranda 2 rights by Paul Orf, chief of detectives. Under questioning by Detective Orf, and in the presence of two other officers, appellant admitted shooting Stroud with a 12 gauge automatic shotgun. Later at the police station, after again receiving the Miranda warning and signing a written waiver of his rights, appellant gave police the following signed statement: "I left 905 Tavern and went on Morgan. The red lights came on and I let him have it with a 12 gauge something. I don't remember what. I drove away and remember running into something, whatever it was. I didn't remember."

Appellant's sole defense was that he was not guilty by reason of mental disease or defect excluding responsibility. There was evidence that appellant had been a chronic alcoholic for upwards of twenty years and had been hospitalized for alcoholism on several occasions. He had been involved in several automobile accidents in which he suffered head injuries, and he was hospitalized several times as a result thereof. He suffered severe headaches, and he had at least one seizure for which he was hospitalized about one month. There was testimony that it was not uncommon for appellant to be unable to recall previous incidents. Appellant had also been under psychiatric care.

There was evidence that appellant had been taking several different prescription drugs, including Valium, Librium, Dilantin, and Antibuse. He also took Excedrin for his headaches. One witness testified that appellant had also been drinking on the night of the homicide. She said she telephoned him at the 905 Tavern at 11:05 p.m. that night and that appellant sounded "almost incoherent. He didn't make any sense at all. I couldn't make any sense out of what he was saying."

Medical testimony indicated that appellant's problem was neurologic rather than psychiatric. Experts testified that appellant suffered from a vascular malformation or scar tissue in his brain. It is unclear from the record whether appellant suffered from a mental disease or defect excluding

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responsibility on October 24, 1977, the day of the shooting. 3

The jury convicted appellant of capital murder. The state sought the death penalty, but the jury sentenced appellant to life in prison without possibility of probation or parole for fifty years. From that verdict appellant brings this appeal.

Page 172


We first address appellant's contention that the evidence was insufficient to support the conviction for capital murder because "there was not one scintilla of evidence ... proving deliberation and premeditation." The principles that guide our inquiry are well settled. Premeditation and deliberation may be inferred from the circumstances surrounding the homicide. State v. Bolder, 635 S.W.2d 673, 680 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983); State v. Strickland, 609 S.W.2d 392, 394 (Mo. banc 1980). In assessing the sufficiency of the evidence, we must accept as true all evidence and inferences that tend to support the verdict and disregard all evidence and inferences to the contrary. We are limited to determining whether the evidence, viewed in the light most favorable to the state, is sufficient to support the verdict. Bolder, 635 S.W.2d at 679.

Premeditation is present whenever the defendant thinks about the act for any length of time, however short, before he commits it. Id. at 680. In this case appellant made the effort to get out of his car after Stroud arrived and then fire his shotgun into the windshield of Stroud's car. He fired not one shot but three, and he was close enough to Stroud's car that at least one of the spent shells landed on its hood. From these facts the jury could reasonably have found that appellant acted with premeditation.

The jury could also have found that appellant acted after deliberation. A deliberate act is a " 'free act of the will,' " State v. Davis, 400 S.W.2d 141, 146 (Mo.) (quoting State v. McDaniel, 94 Mo. 301, 307, 7 S.W. 634, 636 (1887)), cert. denied, 385 U.S. 872, 87 S.Ct. 142, 17 L.Ed.2d 99 (1966), that is done "in furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful purpose and while not under the influence of a violent passion suddenly aroused by some provocation," State v. Anderson, 384 S.W.2d 591, 608 (Mo. banc 1964). The evidence showed that on at least three occasions, once as close as two weeks before the incident, appellant exhibited disdain for the St. Charles police because of the traffic citations they had given him. He indicated that the police would "get theirs" and that he would kill the next policeman who stopped him. When appellant was arrested he told Simpson that "I should have blew your goddam head off, too," and he told Sutton and Ramsey that "[i]f I had my shotgun, I'd shoot you two som bitches [sic] too just like I did the other one." From these statements the jury could reasonably have found deliberation.

We are unpersuaded by appellant's argument that the killing was "committed on the spur of the moment while [appellant] was under the influence of a violent passion suddenly aroused" when the police gave chase. A finding of deliberation "depends not so much upon the time involved as upon an inference reasonably drawn from the evidence and circumstances surrounding the act." Bolder, 635 S.W.2d at 680. The lawful chase by police in the exercise of their assigned duties did not constitute provocation. See State v. Smart, 328 S.W.2d 569, 574 (Mo.1959). Given the jury's rejection of appellant's defense of not guilty by reason of mental disease or defect excluding responsibility, the intent to kill could be inferred from "the use of a deadly weapon on a vital part of the body of the victim," Strickland, 609 S.W.2d at 394, and "[w]ith evidence of provocation lacking, the ... intent to kill provided deliberation," State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973), overruled on other grounds, State v. Anderson, 515 S.W.2d 534, 542 (Mo. banc 1974).

We conclude that the evidence was sufficient to support the verdict.


Appellant argues that the trial court exceeded its jurisdiction in forcing him to go to trial because he could not remember the events immediately surrounding the homicide and thus could not adequately assist his attorney in the preparation of his defense.

Page 173

The trial court based its ruling that appellant was...

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