Opinion
No. ED76485.
May 9, 2000.
APPEAL FROM: MISSOURI CIRCUIT COURT OF ST. LOUIS COUNTY; HON. KENNETH F. ROMINES, JUDGE.
Priscilla F. Gunn, Todd L. Beekley, Brian D. Kennedy, 200 N. Broadway, Suite 1200, St. Louis, MO 63102-2749, for appellant.
Neil J. Bruntrager, 1735 S. Big Bend Blvd., St. Louis, MO 63117, for respondents.
The Board of Police Commissioners, City of St. Louis ("Board"), appeals the judgment of the trial court reversing Board's decision to suspend Officer Robert Bickl ("Bickl") for ten days without pay. We find the Board's decision was supported by competent and substantial evidence on the whole record. The judgment of the trial court is reversed, and the case is remanded with an order to reinstate the Board's decision.
We review the evidence in a light most favorable to the Board's decision. Kukuljan v. Metro. Bd. of Police Com'rs, 871 S.W.2d 119, 120 (Mo.App. 1994).
Bickl is a police officer with the City of St. Louis with twenty-one years of service. On August 1, 1994, he was a beat officer on Laclede's Landing. At the end of his shift, at approximately 1:30 a.m., Officer Omunhundro ("Omunhundro") picked Bickl up. As they drove to the police station, Omunhundro observed a suspicious van that he had seen earlier in the evening. He turned on his red lights and the van stopped in front of 1015 Locust. Both officers approached the van to question the driver. The driver did not comply with the officers' request. Omunhundro radioed for assistance and Sergeant Calloway ("Calloway") arrived.
The driver continued to disobey the officers' instructions. As a result, Bickl removed air from the van's tires, Calloway broke the passenger side window, and, as the driver drove away, Bickl attempted to Mace him. Omunhundro pursued the van, with Bickl as a passenger in the front seat. Calloway's vehicle followed Omunhundro and Bickl. The van proceeded west on Locust, south on Tucker, and then made a U-turn on the Tucker Street viaduct. The incident ended with the van stopping near 1462 Chouteau and the driver being shot and killed.
Bickl was charged with violation of Metropolitan Police Department — City of St. Louis Special Order 89-S-7 in that he failed to report the pursuit to the dispatcher.
Section (g) of the special order states, "Once a pursuit has been started, the primary unit (vehicle nearest to the pursued vehicle) shall announce the initiation of the chase and relay all pertinent information to the dispatcher."
Section C (1)(a) of the special order defines pursuit as, "an attempt by a police officer driving an emergency vehicle to apprehend the occupants of a moving vehicle who are knowingly evading arrest by maintaining or increasing the speed of a vehicle and by ignoring the police officer's direction to stop." It also states, "Any pursuit of a vehicle, regardless of speed, will be handled as a pursuit."
After a hearing, the Board ruled Bickl violated the "pursuit policy" in that when the pursuit started at 1015 Locust, he was in the primary unit, and he failed to report the pursuit to the dispatcher. He was suspended for ten days without pay. Bickl appealed to the circuit court, which reversed the Board's decision finding the record did not contain any evidence of Bickl being in the primary pursuit unit.
In its sole point on appeal, the Board alleges its decision was supported by competent and substantial evidence. We agree.
We do not review the circuit court's decision, rather we determine whether the Board's findings and order are supported by competent and substantial evidence. Kukuljan, 871 S.W.2d at 120. We may not substitute our judgment for that of the Board on matters of fact. Id. If there is substantial and competent evidence supporting the charges, the decision must stand. Id.
Bickl first argues that the incident did not constitute a pursuit.
The testimony of all three officers established the driver had the following violations: (1) he did not have license plates on the van; (2) he failed to cooperate with the officers; and (3) he resisted arrest by flight.
The evidence was clear that the driver would be under arrest once he was apprehended. Omunhundro testified that as the driver left 1015 Locust, ". . . he took off, he, to me, he resisted arrest by leaving the scene because I told the man, you know, traffic violations is the same as an arrest." He further stated, "I got to go after this guy." He also testified, "I wanted to pull the van over."
Bickl consistently testified he and Omunhundro would have arrested the driver after he drove away from 1015 Locust.
The Board, as a finder of fact, could determine from the evidence that the driver was evading arrest and that a pursuit was in progress because after the driver drove away, officers followed in their vehicles to apprehend him.
We next turn to the question of whether Bickl was in the initial primary pursuit vehicle.
Omunhundro and Calloway made statements shortly after the incident. Omunhundro stated, "When the subject drove off, we entered the police vehicle to give pursuit." (emphasis added). In addition, Calloway declared in his personal statement, "I proceeded to travel south on Tucker to catch the vehicle, and I was directly behind Officers Bickl and Omunhundro's vehicle, who were also traveling south on Tucker with their emergency roof lights and siren activated."
At the hearing, however, Omunhundro's and Calloway's testimony conflicted with their prior reports. Omunhundro testified that he was not in a pursuit as he left 1015 Locust. Calloway testified no lights or sirens were activated as they left the Locust location.
Bickl acknowledged his vehicle was nearest the van as they left 1015 Locust, proceeded west on Locust, and then south on Tucker, and Calloway testified his vehicle was behind Bickl's at that point. Calloway further testified that he took over as the lead vehicle after the van made a U-turn on the Tucker Street viaduct. Bickl's and Calloway's testimony, some 2 years after the incident, was that the pursuit began when the driver of the van fired shots at the police officers and made a U-turn on the Tucker Street viaduct. This evidence is in conflict with Omunhundro's and Calloway's prior statements indicating Bickl's vehicle was in the lead with sirens activated at 1015 Locust.
Although conflicting evidence was adduced at the hearing, the appellate court must defer to the Board's findings on the weight of the evidence. Ricks v. Missouri Local Government Employees' Retirement System, 981 S.W.2d 585, 591 (Mo.App. 1998). If the evidence could support either of two opposed findings, we are bound to uphold the Board's decision. Id.
From the evidence, the Board could reasonably find that the pursuit began at 1015 Locust, not on the viaduct, and that the Bickl vehicle was the initial primary pursuit unit responsible for announcing the chase and relaying all pertinent information to the dispatcher. The Board could find that the evidence in the statements when the officers' recollections of the events were fresh in their minds was more reliable than their testimony at trial 2 years later.
We find there was competent and substantial evidence to support the Board's finding of a pursuit starting at 1015 Locust with Bickl's vehicle being the lead vehicle. We reverse the trial court's decision and remand for the entry of an order reinstating the Board's decision.
Lawrence G. Crahan, J., and Robert E. Crist, Sr. J., concur