State v. Thomas
| Decision Date | 08 December 1981 |
| Docket Number | No. 62067,No. 2,62067,2 |
| Citation | 625 S.W.2d 115 |
| Parties | STATE of Missouri, Respondent, v. Larry J. THOMAS, Appellant |
| Court | Missouri Supreme Court |
Fred Slough, Kansas City, for appellant.
John Ashcroft, Atty. Gen., John Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted of capital murder in the slaying of a Kansas City police officer. The jury assessed punishment at life imprisonment with no possibility of parole for 50 years. Sections 565.001, 565.008 RSMo. 1978. 1 Judgment was entered accordingly. Defendant complains of a spate of errors in the course of his 19 points on appeal. We affirm.
The state's evidence showed the following facts: Defendant was well-known to the police officers working in the area near defendant's home. The slain officer, Officer John O'Sullivan, had arrested defendant three times and had testified against him in court. Defendant called the police to his home numerous times to make complaints. On the day before the crime, December 11, 1978, he made four such calls. On the morning of the murder he called police to complain that someone had stolen one of his dogs. He asked the officers who responded to the call if they knew Officer O'Sullivan, and told them he was going to "get even with that mother fucker if it's the last thing I do."
A short time later on the same morning, a telephone repairman, driving down 68th Street some three blocks from defendant's residence, noticed a black man driving a red Rambler in front of him. The Rambler was identified by license plate number as belonging to defendant. The repairman noticed a Doberman pinscher sitting in the back seat. The Rambler pulled up to Myrtle Street and made a left turn. The repairman was still behind the Rambler, waiting to make a similar left turn on Myrtle. A police car was stopped on Myrtle, and it and the Rambler were now side by side, facing opposite directions. The driver's door of the police car was open. The man in the Rambler said something to the officer in the police car. The officer responded by saying "Wait a minute" to the man in the Rambler. The officer then reached for his radio, and while he was not looking, the man in the Rambler pointed a gun out of the window of the car and shot the officer in the side. The man in the Rambler drove away. The repairman got out of his truck, took the microphone out of the dying officer's hand, and broadcast that an officer had just been shot at 68th and Myrtle. The repairman noticed the officer's revolver was still in its holster.
Officer Dresselhaus was one of the officers who had responded to defendant's call earlier that morning. He had heard the threat defendant had made and he had noticed defendant's red Rambler at the house. Officer Dresselhaus was cruising the neighborhood later that morning, just prior to the shooting. Less than two blocks from the scene of the shooting he saw defendant driving his Rambler, and saw the Doberman sitting in the car. Defendant pulled up next to him and spoke. Then, less than a minute after they parted, Dresselhaus heard the repairman announce over the radio that an officer had been shot at 68th and Myrtle. Dresselhaus was only a block away, and he arrived at the scene immediately. Officer O'Sullivan died shortly thereafter.
Officer Dresselhaus later spoke with the repairman and, upon learning the description of the assailant, he issued a "pickup" for defendant. Sergeant Parker (who had also answered the call at defendant's house that morning) heard the description broadcast and went to defendant's house. As he got out of his car defendant leveled a gun at him from inside the front door. Parker jumped back in his car and called for assistance on his radio. The house was soon surrounded and defendant arrested. He was informed of his rights. The murder weapon was found inside the house.
Defendant confessed to the crime, and his confession was transcribed at the police station. At trial, defendant took the stand and denied having been at the scene as well as having confessed to the crime. He said that he had been watching television and talking with his wife and his mother.
Defendant contends that he had the right to defend himself and to resist an unlawful arrest and that therefore instructions concerning these defenses should have been given. Even though defendant testified that he was not at the scene, he argues that his confessions, used by the state at trial, contain statements which support these defenses. 2
Defendant confessed to Officer Connor, who rode with him to the station in the paddy wagon. Defendant told Connor that he had lost one of his dogs and had reported it stolen to the police, but that he later found it. He was out driving that morning and saw a police car (apparently that driven by Officer Dresselhaus) and went to catch the police car to tell the officer that he had found the dog. Before he caught up with the car, it turned. He continued on and saw Officer O'Sullivan sitting in his patrol car at 68th and Myrtle. He recognized O'Sullivan and as he turned the corner, he rolled down his window and yelled at the officer that he found his dog. As he drove past the officer he noticed O'Sullivan had a revolver under his leg. Defendant then pulled out his gun and waved it at O'Sullivan. At that time the officer stated that defendant was under arrest. Defendant did not understand the reason he was under arrest. The officer began to get out of his car; when his feet touched the ground, defendant noticed a gun on his lap. Defendant decided he had to kill the officer or be killed so he fired.
When defendant arrived at the station he went over the story again and this time it was transcribed by a stenographer. Defendant refused to sign the transcription. What follows is the pertinent part of the transcription which the state introduced at the trial:
I had rolled down my window and was waving my hand at Officer O'Sullivan so I could tell him that I had found my dogs. I drove just past where Officer O'Sullivan was sitting and yelled to him that I had found my dogs, that everything was okay. Officer O'Sullivan told me he didn't know anything about any dogs so I started to back up to him. The officer told me not to back up, to stay where I was at and he would come to me. I went ahead and backed up to where my back bumper was about a car length from his back bumper. I could see Officer O'Sullivan was backing up. He stopped his police car almost directly across from me. I told him again that everything was okay and I waved at him again. I could see the officer's police car door open and the officer turned in the seat and I saw both of his feet touch the ground and as he turned I could see that he had his pistol in his right hand on his lap. I could see the riot gun and the police radio in his car as the officer got out of the car. The officer pointed his gun at me and said to me, "come here". At that time I took my pistol out from under my right leg, holding the pistol in my right hand, I rolled my window down the rest of the way and showed the officer my gun, telling him that everything was all right. The officer was standing almost directly beside me. His gun was pointing at my head and the officer then told me I was under arrest. I asked the officer why and he said something like, you're going to jail. I asked him for what and the officer then put both hands on his gun at which time I put my car into gear and layed down in the seat. As I was starting to pull away I looked up in my rearview mirror and I could see the officer pointing his gun at me, standing almost directly along the left side of my car. The officer was squatting with both hands on his gun and his arms were out straight. At that time I decided I was either going to have to kill him or he was going to kill me. I then stuck my right hand out the window and bent my arm back over to my left shoulder. I turned in the seat to see where the officer was standing, pointed my gun at him and fired one shot. (emphasis ours)
Defendant contends the jury should have been instructed to make a finding on whether the attempted arrest was lawful or unlawful. He argues that if the jury found the arrest to have been unlawful he could be found guilty of, at most, manslaughter. Although this point was not raised in defendant's Motion for New Trial we have considered it and find it to be without merit.
At common law one had the right to resist an unlawful arrest with as much force as was necessary to prevent the arrest. State v. McGehee, 308 Mo. 560, 274 S.W. 70, 72 (1925); State v. Browers, 356 Mo. 1195, 205 S.W.2d 721, 722-23 (1947); Annot. 44 A.L.R.3d 1078 (1972). This right would not, by itself, "furnish a complete excuse for slaying the aggressor," State v. Messley, 366 S.W.2d 390, 394 (Mo.1963), but would reduce the offense from murder to manslaughter. Id. at 395; State v. Burnett, 354 Mo. 45, 188 S.W.2d 51, 53-54 (1945).
This legal principle is no longer viable in Missouri. In 1965 the Missouri General Assembly passed S.B. 190, codified as Section 557.215 RSMo.Supp.1965, which made it a crime to wound an officer "while such officer is actively engaged in the performance of duties imposed upon him by law." It proved to be no defense to prosecution under this statute that the officer was making an arrest without probable cause to do so. State v. Rodriguez, 484 S.W.2d 203, 206-207 (Mo.1972); State v. Bradley, 515 S.W.2d 826, 828-29 (Mo.App.1974); See also State v. Brothers, 445 S.W.2d 308, 310 n.1 (Mo.1969). Nor was it a defense that the law which defendant was arrested for violating was found to be unconstitutional. State v. Briggs, 435 S.W.2d 361, 365 (Mo.1968). Hence under Section 557.215 RSMo.1969 an arrestee no longer enjoyed a right to resist an unlawful arrest by a known police officer. 3 Defendant had no such right, 4 and so his resistance cannot be condoned by reducing the degree...
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