State v. Gonzales

• Decision Date: 12 April 1983
• Docket Number: No. WD,WD
• Citation: 652 S.W.2d 719
• Parties: STATE of Missouri, Respondent, v. Benigno R. GONZALES, Appellant. 33633.
• Court: Missouri Court of Appeals

Page 719

652 S.W.2d 719

STATE of Missouri, Respondent, v. Benigno R. GONZALES, Appellant.

No. WD 33633.

Missouri Court of Appeals Western District.

April 12, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

May 31, 1983.

Fred Duchardt, Liberty, for appellant.

John Ashcroft, Atty. Gen. and Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, P.J., and KENNEDY and LOWENSTEIN, JJ.

KENNEDY, Judge.

Defendant Benigno R. Gonzales was convicted upon jury trial of first-degree assault upon Kansas City Police Officer Larry Lewis. In accordance with the jury verdict he was sentenced to 15 years' imprisonment. He appeals to this court. ¹

We reverse and remand for a new trial.

The facts are as follows:

A little before 2 o'clock a.m. on June 1, 1981, Highway Patrolman Frank Coley was driving along Highway I-35 in Clay County in his patrol car when bright lights reflected in his rearview mirror drew his attention to a car following him. He pulled off on the shoulder of the highway, waited for the car to pass, then fell in behind it. The car, a 1977 silver-grey Lincoln with four occupants, was traveling at 37 miles per hour. The minimum legal speed limit was 40 miles per hour. Highway Patrolman Coley turned on his red lights as a signal for the Lincoln to pull over and stop. The Lincoln took an exit ramp off the highway at Davidson Road exit and came to a stop. The driver proved to be defendant Gonzales. Officer Coley suspected he was intoxicated, and required him to get out of his car and take a field sobriety test. Defendant's unsteady and uncoordinated performance on the field sobriety test, as well as his slurred speech and the odor of alcohol, seemed to confirm Officer Coley's suspicion. He undertook to place Gonzales under arrest. An altercation ensued. As the officer was struggling with Gonzales, Gonzales called to a companion, who was still in the car, to help him. The companion started to get out of the car. Officer Coley momentarily released defendant from his grasp in order to get his nightstick from his car and to radio for assistance. Gonzales took advantage of the respite to leap into his car and speed away.

A chase of Hollywood dimensions began. The Lincoln sped through the highways and streets of North Kansas City at furious speeds, oblivious of traffic signals. Coley in his highway patrol car was in headlong pursuit, red lights flashing and siren in full voice.

From where the altercation and attempted arrest had taken place, the Lincoln returned to southbound I-29. Taking the Parvin Road exit off I-35, it failed to negotiate a sharp turn in the exit ramp, drove onto an island and came to a stop. Coley brought his patrol car to a stop directly behind the Lincoln, but was forced to put it in reverse at once and to back up to avoid being struck when the Lincoln began backing toward him. The Lincoln got back on the roadway and resumed its forward course.

Immediately after it turned right on Parvin Road, the Lincoln turned off Parvin Road at the I-35 exit designated for traffic intending to go north on I-35. When it reached I-35, though, it turned the wrong way and drove south in the northbound lanes at the rate of 90 miles per hour. The highway patrol car was clinging to its rear. When the two speeding cars reached a point about one-half mile north of the Armour Road exit, the Lincoln brakes suddenly, causing Coley to apply his brakes sharply to avoid striking it. The Lincoln made a U-turn and headed north along Highway I-35.

The alleged assault took place as the Lincoln left I-35 at the Parvin Road exit.

Kansas City Police Officer Larry Lewis, patrolling in the area in his police car, had learned via his police radio of the northward chase along I-35. Lewis had driven from Parvin Road onto the I-35 entrance ramp. As one drives off Parvin Road onto the I-35 northbound entrance ramp, it was explained, the ramp for some short distance serves both as an entrance ramp and an exit ramp, the lanes separated by a double yellow line painted in the middle. Nearer I-35 the lanes separate, the entering traffic executing a hairpin curve to enter the flow of northbound traffic on the highway. The other lane connects with I-35 at a point farther south, for traffic coming off the highway to Parvin Road. Lewis had driven up on the ramp to the point where the two traffic lanes divided. He had stopped his car horizontally across the entrance side of the ramp, to prevent traffic off Parvin Road entering the highway. This was in the vicinity of an island which is located where the entrance and exit lanes divide. We cannot make out from this record the exact shape and dimensions of this island, but we learn that it is filled with asphalt and bordered by a concrete curb. On the island are located some highway directional signs and markers on metal posts. Lewis had his red lights flashing. He saw the Lincoln come off Highway I-35 traveling at the rate of 60 or 70 miles per hour. The highway patrol car, with its siren and its flashing red lights, was four or five lengths behind it. Lewis testified that as the Lincoln came down the exit ramp he flashed his spotlight once in the direction of the oncoming cars, to attract attention. The front car, the Lincoln, drew near the point where Lewis's police car was stopped; it left the exit ramp and headed directly toward the island. Lewis said: "At this point the car left the roadway immediately after I did this, it left the roadway and started coming across the curb like this. When he started doing this it was quite evident that he was either going to hit these signs here or was going to come right on across." To his horror the speeding car jumped the curb of the island, missed the signs, and came directly toward his stopped car. Lewis scooted toward the passenger side of the seat, "gunned" his car which was in low gear with motor running, and shot over the shoulder into a ditch. The Lincoln missed the rear of his car by inches, coming off the paved portion of the ramp and onto the unpaved shoulder.

It turned west on Parvin Road. The pursuing highway patrol car continued in the exit lane of the ramp, entered Parvin Road behind the Lincoln and the chase continued toward the west without interruption.

The Lincoln turned north off Parvin Road and drove along Davidson at speeds that reached 90 to 100 miles per hour.

It turned east on Vivion. Still traveling at 90 to 100 miles per hour, the driver lost control of the Lincoln and collided with the concrete curb separating the east from the west lines of traffic.

At Antioch Road it went through a red light at 90 miles per hour.

After passing the Antioch intersection it entered a discount store parking lot and executed a wide circular maneuver, Coley in his patrol car following closely. Instead of leaving by the parking lot exit, the Lincoln came out over a large concrete curbing, across a ditch, reentering Vivion Road and striking the center curbing. According to Coley's testimony, the Lincoln became airborne in leaving the parking lot. Its rear license plate was torn off and the underneath part of the car was damaged.

At Chouteau the Lincoln turned south. At this point another police car joined in the chase behind the highway patrolman, red lights flashing and sirens screaming. As the Lincoln went south on Chouteau, the two police cars close behind, it was traveling at more than 110 miles per hour. It was traveling at this speed as it went through two red lights at the I-435 interchange.

Arriving at the Parvin Road exit again, the Lincoln went through a red light at 80 to 85 miles per hour. Continuing along Chouteau, it slowed down on a hill to about 40 miles per hour. The Kansas City police car, which had followed behind, now caught up and attempted to pass the highway patrol car and the Lincoln in order to execute a "moving road block." The Lincoln accelerated, though, and foiled the plan.

At the entrance to Highway 210, the Lincoln, with the highway patrol car six or seven car lengths to the rear, jammed on its brakes and tried to execute a sharp left turn into the entrance to Highway 210 (which would have put it on the highway going in the wrong direction). He failed to complete the left turn and instead struck dead center a large concrete base of a light standard, three to four feet in diameter. The rear of the car went ten feet in the air, Coley testified, and settled down in a cloud of steam and glass. The highway patrol car, following six or seven lengths in the rear, crashed into the rear of the Lincoln.

The highway patrolman was not injured. He got out of his car and approached the Lincoln on the driver's side. Gonzales, still seated in the driver's seat, tried to crawl away from the approaching officer toward the passenger side of the car. Coley went over the hood of the Lincoln and caught Gonzales as he emerged from the passenger side. Gonzales was still quite belligerent, striking and kicking at Coley, although he had a fractured knee and other injuries. He was taken to the North Kansas City Hospital. There they undertook to give him a breathalyzer test, but abandoned the attempt when he knocked the machine off the table. He was hospitalized for 16 days.

The other occupants of the Lincoln were injured, although one of them was released after examination, without being hospitalized.

Sufficiency of evidence.

We first take up defendant's contention that the evidence was insufficient to support the verdict.

Defendant was charged and convicted of first-degree assault, § 565.050.1(2), RSMo 1978. That statute says a person commits first-degree assault if "[h]e attempts to kill or to cause serious physical injury to another person."

An attempt is defined by § 564.011.1, RSMo 1978, as follows:

A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of...