State v. Bevly

665 S.W.2d 46, 1984 Mo. App. LEXIS 4463
CourtMissouri Court of Appeals
DecidedJanuary 10, 1984
DocketNo. 46992
StatusPublished
Cited by9 cases

This text of 665 S.W.2d 46 (State v. Bevly) 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
State v. Bevly, 665 S.W.2d 46, 1984 Mo. App. LEXIS 4463 (Mo. Ct. App. 1984).

Opinion

SMITH, Judge.

Defendant appeals from his conviction by a jury of first-degree murder and two counts of robbery first degree and the court imposed sentences, as a prior offender, of life imprisonment and two concurrent ten-year terms to be served consecutively to the life term. We affirm.

The victim, Eddie Pace, was the driver of an automobile containing two other passengers. He stopped late at night at a self-service gasoline filling station. As he was re-entering the vehicle two men approached and announced a “stick-up.” Mr. Pace reached toward his pocket and was promptly shot. He was severely intoxicated. The robbers then demanded and received wallets from each of the passengers. The robber who shot Pace was armed with a handgun; the second man, who went to the passenger side of the vehicle, had a shotgun. The attendant at the service station had watched the two robbers standing around the station for approximately ten minutes before the robbery observing the arrival and departure of customers. During this period the attendant talked to a friend on the telephone and requested him to call the police and advise them of the presence of two suspicious persons on the premises. Following the robberies both robbers fled and the police arrived shortly thereafter. Pace was dead at the scene.

One of the robbery victims died prior to trial from a brain tumor; the other was unable to make an identification because he had heeded the warning of one of the robbers not to look at them. The attendant viewed several hundred photographs, none of them defendant’s, and made no identification. Subsequently, she called the police and advised them that a picture of defendant appearing in a local weekly newspaper was a photograph of the robber who went to the passenger side of the vehicle. She thereafter identified defendant in a lineup and at trial as the non-shooting participant in the robbery. Defendant presented evidence to support an alibi. Defendant does not challenge the sufficiency of the evidence to support a conviction.

Defendant’s first challenge is to the failure of the trial court to excuse venireman Davis for cause. A defendant is entitled to a full panel of qualified jurors before being required to make his peremptory challenges and it is reversible error for the court to deny a challenge for cause of an unqualified juror. State v. Cucko-vich, 485 S.W.2d 16 (Mo. banc 1972) [10]. A trial court has a wide discretion, however, in determining the qualifications of a venireman and that decision should not be disturbed except for a clear abuse of discretion. The determination of the trial judge involves a judgment based on an observation of the demeanor of the venireman and an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror. The trial court is in a far better position to make that determination than is an appellate court. State v. Cuckovich, supra, [11]; State v. Petty, 610 S.W.2d 126 (Mo.App.1980).

Davis had served as a military policeman during World War II and served thereafter as a police' officer in California for nine months. He ceased that employment because his chief regarded him as “too tough.” Davis had served for many years as chief supervisor of Emergency Medical Services in St. Louis prior to his retirement. In that position he had frequent dealings, primarily by telephone, with police officers and the medical examiner. He had a “lot of dealings” with detective sergeant Stephen Jacobsmeyer, an endorsed witness of the prosecution subsequently called as a witness only by the defense. Davis stated that his dealings with Jacobsmeyer would have no effect “whatsoever” upon his abili[49]*49ty to determine the weight and credibility of Jacobsmeyer’s testimony. Davis also knew several other endorsed police or medical examiner witnesses — “not personally” but from “phone conversations.” He stated uncategorically that this knowledge would not affect his ability to judge their credibility and the weight to be given their testimony. To a general question to the panel as a whole Davis gave no answer when asked: “Is there anyone here who feels that you would either automatically believe a police officer or automatically disbelieve a police officer merely because he happens to be a police officer?”

During voir dire by defendant's attorney the following colloquy ensued:

“Q. Mr. Davis, do you think that you would be more inclined to believe the testimony of a police officer than you would another witness?
A. Well, I’ll have to answer that fairly. I’ve been associated with them for over thirty years here in the City of St. Louis, so I would have to lean towards them, I’m almost positive of that.
Q. You’d almost be inclined to believe them over another witness?
A. They’re in and out of the street every day of their lives and they know what they’re talking about. They have the facts in front of them and they try to ascertain facts. They have the evidence and that’s why I might be partial towards them, I’ll rephrase that.
Q. So do you think there is a possibility that you might give more weight to the testimony of a police officer than you would what we call a lay witness, a civilian?
A. I don’t think so, because the main purpose is to see that justice is served. I’d have to be fair and impartial.
Q. Why do you think that you’d be partial to a police officer’s testimony than you would to another witness?
A. Well, more or less I guess from past experience with them ...
Q. My question to you is what has your past experience with police officers led you to conclude about them?
A. I worked with them daily, seven days a week, three hundred sixty-five days a year out of the police districts ... That just covers a multitude. I can’t begin to spell it out for you.
Q. So you believe that police officers are honest?
A. The majority of them are, yes.
Q. And you think a police officer would be more likely to tell the truth than other witnesses if they came to trial?
A. I think they would tell the truth. I feel they should tell the truth.
Q. My question is, though, do you think they are more likely to tell the truth in a trial than other witnesses would?
A. That’s a tough question to answer. That’s honestly a tough question to answer. I would say they have more experience, that’s all.
Q. ... I want to know if you can answer that question yes or no; do you think a police officer is more likely to tell the truth than another witness at trial?
A. I’d have to say no.
Q. Do you think that you can evaluate the testimony of a police officer the same way you would any other witness?
A. There it is again, the answer would be experience, but that’s not the answer you’re seeking.
Q. No, it doesn’t help me that much.
A.

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Bluebook (online)
665 S.W.2d 46, 1984 Mo. App. LEXIS 4463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bevly-moctapp-1984.