State v. Eldridge

• Decision Date: 17 May 1977
• Docket Number: No. 37912,37912
• Citation: 554 S.W.2d 422
• Parties: STATE of Missouri, Respondent, v. Leroy ELDRIDGE, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 422

554 S.W.2d 422

STATE of Missouri, Respondent, v. Leroy ELDRIDGE, Appellant.

No. 37912.

Missouri Court of Appeals, St. Louis District, Division Four.

May 17, 1977.

Motion for Rehearing and/or Transfer Denied July 21, 1977.

Application to Transfer Denied Sept. 12, 1977.

Mary Louise Moran, Asst. Public Defender, Robert C. Babione, Public Defender and Joseph W. Warzycki, Asst. Public Defender, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.

ALDEN A. STOCKARD, Special Judge.

Leroy Eldridge, charged by indictment under the Second Offender Act, § 556.280 RSMo 1969, was found guilty of murder in the second degree by a jury and sentenced by the court to the custody of the Department of Corrections for a term of twenty-four years.

Appellant does not challenge the sufficiency of the evidence, but does contend the trial court erred in refusing a requested instruction on self-defense. We shall set forth with particularity the evidence bearing on this issue.

Thomas Davis and his wife resided in the first floor apartment at 1901 Virginia Avenue in St. Louis City. They rented the second floor apartment to Margaret Rickard and her mother. Sometime in September 1974, a Mrs. Brione and her five children moved in with the Rickards. About the same time appellant, a brother of Margaret, began to stay in the Rickard apartment.

On the evening of December 7, Mrs. Davis delivered a note to the Rickard apartment in which she stated that the rent was to be increased from $60 to $65 a month, and that appellant and the Briones would have to leave. When appellant returned to the apartment he was informed of the note from Mrs. Davis. Shortly thereafter he started to go to the basement where his daughters, Cindy and Tina, were doing some laundry. He had been drinking, and on the way he stumbled and fell. Mrs. Davis heard a "stomping" and went to the steps and called, "What in the world happened?" Her husband, who also had been drinking, shouted, "What in the 'H' is he trying to do, tear the house down?" Margaret had followed her brother downstairs and she and Mrs. Davis exchanged some words. Mr. Davis then appeared at the doorway shouting and brandishing a .22 caliber rifle. He and appellant shouted at each other, during which appellant said, "I'll get you, I'll get you," and Mr. Davis waived the rifle in the direction of appellant and his daughters. Mrs. Davis got her husband back inside their apartment and closed the door. Appellant then went to the second floor apartment where he obtained a .30 caliber rifle. As he came down the stairs he loaded the rifle and "levered" it, and then went to the Davis apartment where he beat on the door with the rifle, shouted an obscenity, and called out "Shoot me now." Mrs. Davis told her husband that appellant "was coming to kill him and he'd better be prepared."

Mrs. Davis either did call or attempted to call the police. Her husband picked up his rifle and went to the door. At least two shots were fired. Appellant was hit in the neck and Davis was shot through the heart.

Cindy and Tina were the only eye-witnesses to the actual shooting. Their testimony was offered by the State after having them declared to be hostile witnesses. Cindy, 16 years of age at the time of trial, testified that when appellant first went to the basement she pleaded with him to go back upstairs, but he loaded the rifle and hit the door to the Davis apartment with the rifle, shouted an obscenity and said, "Shoot me down, now." Mr. Davis then opened the door and there was some shouting between the two. According to Cindy, appellant was "looking down" and the gun was "pointing down." He never held the rifle so it was pointing toward Mr. Davis. She and Tina were both asking or telling appellant to go back upstairs and appellant was in the "process of turning" toward Cindy "as if he was coming back down;" he "was turning away" then Cindy heard a gunshot and appellant was hit. He then "fell back" and his rifle "went off." According to Cindy, the second shot was the loudest of the two. She did not see appellant cock the rifle, pull the hammer back, pull the trigger, or "lever" the gun.

Tina, age 15 at the time of the trial, testified to the events prior to the shooting substantially the same as Cindy. As to the actual shooting she testified: "He (appellant) looked up, and I kept screaming and my sister too to put the gun down. He looked at me and looked up again, and he started bringing the rifle down and started turning and just began to turn. * * * He was turning away. * * * He had just began to turn, * * * (and his rifle) was slanted at the ground, but not completely down." She then heard a shot and appellant fell back, and his weapon then went off.

Appellant argues that "viewed as a single episode" the evidence supports a finding that Davis was the aggressor, that both parties were armed, and that the jury could have found that Davis fired first. We do not agree that the events can be viewed as a single episode. There were two episodes. When Davis returned to his apartment the first episode ended. There was no continuing threat to appellant, and no occasion for him to take any action to protect himself or others. What occurred thereafter was a new and different occurrence in which appellant, not Davis, was the aggressor. One who is the aggressor or who provokes the encounter in which ...