State v. Gary, s. 65495

• Decision Date: 14 November 1995
• Docket Number: 67444,Nos. 65495,s. 65495
• Citation: 913 S.W.2d 822
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David GARY, Defendant-Appellant. David GARY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 822

913 S.W.2d 822

STATE of Missouri, Plaintiff-Respondent, v. David GARY, Defendant-Appellant.

David GARY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 65495, 67444.

Missouri Court of Appeals Eastern District, Division Two.

Nov. 14, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 4, 1996.

Application to Transfer Denied

Feb. 20, 1996.

Deborah B. Wafer, District Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Beal, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant appeals from the judgments of conviction, after a jury trial, for murder in the first degree, § 565.020.1, RSMo 1986, assault in the second degree, § 565.060, RSMo 1986, and two associated counts of armed criminal action, § 571.015, RSMo 1994. He was sentenced by the court to life imprisonment without possibility of probation or parole for the murder, ten years for the assault and five years each for the armed criminal actions, the terms to be served consecutively. ¹ We affirm.

The evidence in the light most favorable to the verdict is as follows. On September 9, 1989, Defendant had been drinking beer. At approximately 2:30 a.m., Defendant drove to the St. Louis home of his estranged wife's boyfriend to speak to her about reuniting. Their relationship had been tempestuous. During the course of their marriage, he had assaulted her. When she left him in the early part of July 1989, he threatened to kill himself with a shotgun unless she came back. That episode ended when she convinced him not to kill himself. However, on August 19, 1989, he threatened to stab himself with a butcher knife if she would not return to him. She refused, and he plunged the knife into his abdomen, damaging several vital organs. Emergency surgery was required.

In the early morning hours of September 9, 1989, Defendant's efforts to reconcile with his estranged wife concluded with his striking her in the mouth. Another person attempted to intervene, and Defendant struck him also. Defendant noticed that his estranged wife was bleeding from the mouth. He escorted her into his green Ford and proceeded to drive to Barnes Hospital. En route to the hospital, Defendant sped towards a pole and threatened to crash into it unless she said she loved him. She pleaded that he not do it for the sake of his step-daughter (her daughter). Defendant did not carry out his threat.

Defendant's car came to a screeching halt near the emergency room entrance of Barnes Hospital. Defendant's estranged wife was wheeled into the hospital while hospital security guard Harry Williams entered with Defendant. Defendant attempted to talk to his estranged wife, but she refused him. Defendant implied to an attending nurse that he had hit her. Following this admission, he became very upset and distraught. Williams accompanied Defendant outside where Defendant explained that it was "all [Defendant's] fault." Williams tried to calm Defendant. Eventually, somewhat soothed, Defendant attempted to speak to his estranged wife for a second time. Again, she rebuffed him.

Once again, Williams accompanied the increasingly upset and agitated Defendant outside. Defendant explained that his estranged wife would not come back to him. He said "he had to pay for what he did" and that "he felt like taking his car and wrapping it around a tree." "He wanted to hurt himself."

His estranged wife eventually agreed to speak with him. Williams' attention was temporarily consumed by another matter, when he noticed Defendant hurrying out the hospital exit. Williams chased Defendant into the parking lot. Defendant had gotten into his car and was backing it up at a high rate of speed towards Williams. Williams believes Defendant applied the brakes to stop the vehicle. Williams leaned through the driver's side window, attempted to retrieve the car keys, and tried to calm Defendant down. Defendant lurched the car forward causing the vehicle to hit Williams in the side. Williams said "You're taking my arm off. Stop now; get out of the car." Defendant told Williams to let go or Defendant "was going to take [Williams] with him." Williams' calming efforts appeared to have some effect as Defendant took his hands from the steering wheel and leaned back on the seat. However, as he did so, Defendant peered into his rearview mirror and saw a police cruiser and approaching police officers. He again became upset. He exclaimed, "You called the f___ing police, motherf___er" and renewed his threat to take Williams with him if Williams did not let go. An approaching police officer instructed Williams to step away, which he did. Defendant sped out of the parking lot.

Defendant initially returned to his estranged wife's boyfriend's house, but subsequently drove to the nearby home of his grandfather-in-law to seek his comforting. No lights were on at this house, so Defendant continued to drive.

Officers Christopher Kornberger and Frederic Heagney of the City of St. Louis Police Department were in a marked police cruiser near the area Defendant had driven. They had been dispatched to the area to investigate a reported assault. They witnessed Defendant in a green Ford backing up at a high rate of speed through the Boyle and Manchester intersection and saw a man standing nearby point at the green Ford and announced, "That's the car." Officer Kornberger began following Defendant. After briefly observing Defendant, the officers activated their roof-top emergency lights. Defendant initially slowed and began pulling to the side of the street; however, he steered back into the traffic lane and began driving at a high rate of speed. Officers Kornberger and Heagney pursued.

Defendant drove east on Chouteau in excess of ninety miles per hour. Officer Heagney reported the progress of their chase on the police radio. Officer George Moehlenhoff of the City of St. Louis Police Department was cruising in his marked police car east of Defendant's location. He was monitoring the radio dispatches and was aware of the ongoing pursuit of Defendant. With his emergency lights activated, he steered his cruiser west onto Chouteau. Officer Moehlenhoff observed Defendant's green Ford approaching east on Chouteau at a high rate of speed. Officer Moehlenhoff as well as the pursuing Officers Kornberger and Heagney saw the Defendant's Ford cross over the center line and enter the westbound lane of traffic. Defendant's new course placed him in an intercept path with Officer Moehlenhoff's cruiser travelling the opposite way. To avoid colliding, Officer Moehlenhoff abruptly steered his cruiser onto the sidewalk abutting the westbound lane of traffic. Defendant's car passed within a couple of feet of Officer Moehlenhoff's cruiser.

After passing Officer Moehlenhoff, Defendant turned off his headlights, moved back into the eastbound lane, and continued at a speed in excess of ninety miles per hour. When he reached the intersection of Chouteau and Seventh Street, he attempted a high speed, right-hand turn south onto Seventh Street. His car failed to negotiate the turn and skidded into the curb at the southeast corner of the intersection. His car bounced back into the street and stalled. He managed to restart the car and resumed his previous rate of speed but now proceeding south on Seventh Street.

Seventh Street is a multi-lane road with three lanes of traffic and one parking lane for each of the north and southbound directions. Near the Soulard Farmer's Market, a semi-truck and trailer had stopped at a stop sign in the middle, southbound traffic lane. Defendant's Ford sped south towards the rear of the trailer. Officer Heagney believed it was too late for the Ford to avoid crashing into the trailer when it abruptly steered right and passed the semi-truck and trailer. Officers Heagney and Kornberger passed the truck on the left.

From the point where Defendant's Ford passed the truck, Seventh Street has a gentle, downhill roll. Approximately 1,430 feet down the roll was the intersection of Seventh Street and Russell Street. Officer Michael McNew of the City of St. Louis Police Department had stopped his marked police cruiser in this intersection facing east on Russell Street and in the parking lane and slightly in the first traffic lane of southbound Seventh Street. The cruiser's rooftop emergency lights were turned on. Officers Heagney and Kornberger, the driver of the passed truck, and the driver of a northbound vehicle all saw Officer McNew's cruiser in the intersection. Officers Heagney and Kornberger, who were following Defendant and shared approximately the same vantage point as Defendant, could continuously see Officer McNew inside the cruiser from roughly the moment they passed the truck. At the speed Defendant was travelling, he had approximately ten seconds between the moment he could first view Officer McNew's cruiser and the moment he would reach the cruiser. Each witness at the scene saw Defendant's speeding Ford veer from its course down the center of Seventh Street and head into the parking lane of Seventh Street right at Officer McNew's cruiser. Defendant's Ford slammed into the driver's side of McNew's cruiser. No witness observed the Ford decelerate or its brake lights turn on. There was no physical evidence to indicate Defendant applied the Ford's brakes.

An accident reconstructionist estimated that Defendant's Ford was traveling one-hundred-two miles per hour when it impacted Officer McNew's cruiser. The cruiser virtually "blew up" from the force of the impact. The two vehicles caught fire and skidded south on Seventh Street; the wrecked chassis of the cruiser gouged the pavement of the street. The driver's side of the cruiser was smashed so far into the interior that it nearly touched the passenger side. The flaming wreckage of the cars finally came to rest approximately 180 feet from the point of the collision.

Officer McNew was seated in the...