Morice v. Nations

568 S.W.2d 805, 1978 Mo. App. LEXIS 2188
CourtMissouri Court of Appeals
DecidedJune 20, 1978
DocketNo. 39268
StatusPublished
Cited by4 cases

This text of 568 S.W.2d 805 (Morice v. Nations) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morice v. Nations, 568 S.W.2d 805, 1978 Mo. App. LEXIS 2188 (Mo. Ct. App. 1978).

Opinion

STEPHAN, Judge.

Ronald L. Morice appeals from a judgment of the circuit court which affirmed his dismissal from the St. Louis County Police Department.

On June 17, 1976, Superintendent of Police Gilbert Kleinknecht notified Mor-ice of his dismissal and gave him a letter setting forth the reasons therefor. The letter advised Morice of his right to appeal1 the superintendent’s decision to the Board of Police Commissioners, and Morice availed himself of that right. A hearing was held before the board on September 8, 1976, which resulted in findings that Morice was guilty of insubordinate conduct to a superi- or officer and of using abusive language toward a member of the public, as charged in the letter. Morice was found not guilty by the board of a third charge, that he had used unreasonable force in dealing with a prisoner. The board “affirmed” Morice’s dismissal.

Appellant contends that the findings of the board were not supported by competent and substantial evidence, that the board shifted the burden of proof to him, and that the board exceeded its jurisdiction when it affirmed the dismissal after finding appellant not guilty of one of the three charges. For reasons hereinafter stated, we hold these contentions to be without merit and affirm.

A reading of the transcript of the hearing before the board shows the following facts: On November 10, 1975, Morice, a patrolman, was assigned to “C” platoon of the St. Louis County first precinct. His regular tour of duty on that day was to end at 11:00 p. m. His supervisor was Sergeant Joseph M. Kennedy, who testified that at about 11:20 p. m. he was in the process of completing some paper work and talking to the supervisor of the 11:00 p. m. to 7:00 a. m. watch. Kennedy heard some “commotion” and “loud shouting” and went to investigate. He noted that the door to an office, “the west sergeant’s office”, was closed. Upon opening the door, Kennedy observed that the room was occupied by Morice and a prisoner, James Green. Green was seated [807]*807in a chair with his hands handcuffed behind him. Morice was standing over Green, grasping him with one hand by his neck or clothing in the vicinity of the neck. Mor-ice’s other hand was clenched in a fist and drawn back as if he were about to strike Green. Green appeared frightened. Mor-ice was saying to Green, “You lied to me, you ignorant mother fucker, you lied to me.” Kennedy told Morice to “Let him alone.” After Kennedy repeated the directive several times, Morice released his hold on the prisoner and stepped back a foot or so, and it appeared to Kennedy that the situation was under control. At that instant, the door was slammed in Kennedy’s face. When Kennedy tried to open the door, he encountered resistance from the other side and he forced the door open with his shoulder. Morice again had Green by the collar and was standing over him with his fist drawn back. Kennedy said to Mor-ice, “Let him alone.” Morice did not respond but simply looked at Kennedy. Kennedy then said, “Put him in the hold over.” Morice continued to look at Kennedy; Kennedy repeated the directive several times, each time with increasing vociference and vehemence. Morice responded, “If you want to put the mother fucker in the hold over, you put him in the hold over.” Kennedy said, “No, you do it.” Morice finally took the prisoner down the hall toward the holdover cell, shoving him as he went, in spite of Kennedy’s admonition not to do so. Kennedy’s testimony concerning these events was consistent with and corroborated by that of the oncoming watch supervisor, Sergeant Donal Held, and Patrolman Mark Roman, both of whom were in the immediate vicinity of the doorway to the west sergeant’s room. Roman also added that, during the exchange between Kennedy and Morice, the latter referred to the prisoner, who is black, as a “nigger”. Mor-ice, who was present at the hearing, did not testify.

At the outset of our examination of appellant’s first point, that the board’s findings were not supported by substantial and competent evidence, we review briefly the nature of our task in this regard. In Hanebrink v. Parker, 506 S.W.2d 455, 457 (Mo.App.1974), this court said:

“Standards for judicial review of an action of an administrative agency are set out in: Missouri Constitution, Article 5, § 22, V.A.M.S.; Rule 100.07(b), V.A.M.R.; § 536.140(2), RSMo 1969, V.A.M.S. In cases where a hearing is required by law, the reviewing court must determine whether a decision of any administrative body is “supported by competent and substantial evidence upon the whole record”. The term ‘substantial evidence’ both implies and comprehends competent evidence and is evidence which, if believed, would have a probative force upon the issues. State ex rel. Bice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 64[3] (banc 1949). And an appellate court, upon review of a case, after a determination by an administrative board, ‘as a matter of law passes upon the matter of substance and not of credibility. In other words an appellate court may say that particular evidence is substantial if the triers of the facts believed it to be true.’ State ex rel. Rice v. Public Service Commission, supra, at 65[7].”

Measured against the foregoing, we think the evidence before the board fully supported the findings made. It could not be said that the decision was clearly contrary to the overwhelming weight of the evidence, Wood v. Wagner Electric Corporation, 197 S.W.2d 647 (Mo. banc 1946), for there was no evidence to the contrary. Yet, appellant through resourceful counsel argues that the evidence does not meet the standard for reasons which we touch on here. Appellant asserts that there was not competent and substantial evidence to support the finding that he had been insubordinate to Sergeant Kennedy in failing to obey the latter’s orders, because Kennedy did not identify his words as direct orders and that it was improper to admit Superintendent Kleinknecht’s opinion testimony that such statements as “Put the prisoner in holdover” constituted a direct order. We need not consider whether the superintendent was competent to express such an opinion [808]*808for the reason that the record is replete with other compelling evidence from which the board could have inferred that Kennedy’s directives to Morice constituted direct orders. Considering the totality of the facts surrounding the occurrence — a sergeant of police talking to an obviously angry and excited patrolman in a police station during the interrogation and in the presence of a manacled prisoner whom the patrolman appears to be threatening with imminent violence — we have no difficulty in holding that the board could reasonably find that the sergeant’s words were direct orders. It was not necessary for Kennedy to preface his commands by such words as “I order you . . ” or “This is an order .” Under the circumstances, such phrases would be redundancies.

Similarly, we find devoid of merit appellant’s claim that there was not substantial evidence to support the finding that Morice employed a “racial slur” in referring to Green. Appellant would have us so hold because only Patrolman Roman testified that Morice used the word “nigger”. While Kennedy and Held did not testify that Morice used the word, neither did they testify that he did not use it.

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Bluebook (online)
568 S.W.2d 805, 1978 Mo. App. LEXIS 2188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morice-v-nations-moctapp-1978.