State v. Terry

Decision Date11 October 1971
Docket NumberNo. 55875,55875
Citation472 S.W.2d 426
PartiesSTATE of Missouri, Respondent, v. Carl Anthony TERRY, Appellant.
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Donald U. Beimdiek, Ira H. Sharp, Armstrong Teasdale, Kramer & Vaughan, St. Louis, for defendant-appellant.

HENLEY Judge.

Carl Anthony Terry, defendant, was indicted for the killing of Bernice Cunningham, and charged with first degree murder. Section 559.101. 1 A jury found him guilty of that charge and assessed his punishment at death. Section 559.030. Sentence was imposed in accordance with the verdict and he has appealed from the judgment. We affirm.

The evidence would support a finding by the jury that there was a party in the second floor three-room apartment of Bernice Cunningham in the City of St. Louis during the night of February 6, and the morning of February 7, 1969, attended by defendant, Miss Cunningham, Sanders Harris and JoAnn Murphy; that at about 9:30 a.m. on the 7th defendant shot Miss Murphy with a .38 caliber revolver and then immediately shot and killed both Mr. Harris and Miss Cunningham.

Defendant's stepfather testified that defendant told him later in the day of the shooting that he had just killed two people, and had shot a third and hoped she would die.

JoAnn Murphy testified that she, Mr. Harris and defendant were in the living room and Miss Cunningham was in the adjoining bedroom when defendant started shotting; that she and Mr. Harris were sitting on a couth; that defendant shot her in the right side of her chest and then turned to Harris and inquired whether he would tell of this incident; that he then shot Harris who fell to the floor dead; that defendant made her walk with him into the bedroom where Miss Cunningham was asleep on the bed; that he walked around to a position behind Miss Cunningham, knelt on the bed, and put a shot through her head; that she (Murphy) ran to the window and jumped through it.

The testimony of police officers generally corroborated the testimony of Miss Murphy relative to the physical characteristics of the apartment and the location of the two bodies. Miss Murphy was found by the officers unconscious and prostrate on the front steps below the broken second floor window. A spent .38 caliber bullet was found in a pool of coagulated blood on the bed under the head of Miss Cunningham. Comparison tests demonstrated that this bullet was fired by a pistol found near a flight of stairs over which defendant fled when attempting to escape arresting officers some eight days after the shooting.

Defendant testified that he had been at Miss Cuningham's apartment that night but left before the shooting occurred; that all persons present at the party, including Miss Murphy, were using amphetamines.

Defendant contends that the evidence is not sufficient to sustain the conviction in that there was a failure to prove (1) deliberation, (2) mental capacity to commit murder, and (3) the death of the Bernice Cunningham by gunshot wounds.

Deliberation is overwhelmingly demonstrated by the testimony of JoAnn Murphy that defendant walked into the bedroom to a position behind Miss Cunningham, knelt on the bed and put a bullet through her head. As to mental capacity to commit murder, there was no evidence that defendant had a mental disease or defect excluding responsibility for his conduct. In the absence of such evidence the presumption is conclusive that he was free of mental disease or defect. See paragraph 7 of § 552.030. Defendant's contention that there was no proof of the death of Bernice Cunningham seems to be that there was no proof of a chain of custody of the body of the person identified by JoAnn Murphy as Bernice Cunningham from the latter's apartment to the hospital. The record refutes this contention. There is evidence of an unbroken chain of custody of the body of the person found by police lying on Miss Cunningham's bed from the moment it was taken from her apartment until it was delivered to the hospital, pronounced dead on arrival, and taken from there to the morgue. Furthermore, the body was identified by comparison of its fingerprints with those of Bernice Cunningham on file with the police department.

The next point briefed by defendant is in two parts. The first part is that '* * * the state failed to prove that the defendant had the capacity to understand the proceedings against him or to assist in his own defense.' More specifically, defendant's point is that the state failed to make such proof because the written report of the psychiatric examination of defendant ordered by the court shows that the examination was not made by a 'board-certified psychiatrist,' but instead was made by three doctors of osteopathy not qualified to make psychiatric examinations; that therefore he did not receive a 'psychiatric' examination as required by the statute (§ 552.020); that the report of examination was for that reason insufficient and did not constitute sufficient proof that he had the capacity to understand the proceedings against him and to assist in his defense.

The record does not support defendant's contention. The record shows that defendant was examined by a board-certified psychiatrist. Defendant filed a 'Motion to set aside findings of psychiatric examination' shortly after the report required by § 552.020 was filed. Evidence was heard on this motion in which it was developed that one of the doctors participating in the examination was a board-certified psychiatrist. The motion was overruled. We do not reach or rule the question of whether the statute requires an examination by a board-certified psychiatrist.

The second part of the point is that '(t)he statutory scheme for determination of capacity to stand trial unconstitutionally discriminates against the poor and violates the right to equal protection of the law.' In other words, defendant says that he was denied equal protection in that because of his poverty he could not have an examination by a private board-certified physician of his own choosing as authorized by § 552.020(4), whereas persons able to pay the expense of such examination may have the benefit of the testimony of a private physician.

A little over a month after the examination ordered by the court had been made and the report filed, defendant moved for another examination, one by a physician of his choice at state expense. The motion was overruled. This is the basis for his contention that he was denied the right of equal protection.

The contention is closely analogous to that made in State ex rel. Hoover v. Bloom, Mo., 461 S.W.2d 841. In that case an inmate in a state mental institution applying for release on the ground that he was now sane, sought an examination by a physician of his own choice contending he was entitled to the examination at state expense. The contention was rejected. In that case we recognized the need for a disinterested physician to examine the inmate, where the director of the institution in which the petitioner was confined was opposed to release. The cases concerning the alleged equal protection violation involved in making possible an examination by a physician of the petitioner's own choice for moneyed inmates but not for indigents were reviewed, and we did not find a constitutionally impermissible discrimination. We do not find one here. Moreover, the motion was not timely filed. See paragraph 4 of § 552.020. It is also noted that there is no cause to doubt the objectivity of the examining physicians in this case. Unlike the Hoover case, supra, the custody of defendant was only for purposes of the psychiatric examination ordered by the court, so that the element of interest, the vindication of a personal administrative decision, does not exist here. Defendant was not denied equal protection of the law.

Defendant next contends that the court erred in failing to grant a mistrial at court erred in failing to grant a mistrial at the close of the opening statement by counsel related, in general, the evidence that would be presented by the state. Near the close of the statement counsel said: '(t)hat, in effect, will be what the State's evidence will show after which time the defendant will be free to offer any evidence he chooses; after which time I will return * * *.' Defendant contends that this statement was an unfair comment on his right to remain silent, that it violated his right against self-incrimination, and improperly led the jury to believe that he had the burden of proving his innocence. The only authority he cites in support of his contention is the federal and state constitutional provisions against self-incrimination, the statute (§ 546.270) prohibiting reference to an accused's failure to testify, and State v. Thompson, Mo., 425 S.W.2d 80, holding that argument that a defendant had the right to introduce any evidence he had was not a comment on his failure to testify.

The remark, coming as it did in the opening statement, could hardly be said to be a comment on failure to testify or on his right to remain silent. Defendant does not explain in argument his bald assertion that the state's remark led the jury to believe he had the burden of proving his innocence. We find no support for this assertion. The remark appears to be no more than a brief statement of the order in which the trial would proceed. The trial court, in its discretion, apparently so considered it. The court did not err, nor did it abuse its discretion, in denying the motion for a mistrial.

Defendant's next point is that the court erred in permitting JoAnn Murphy to testify that immediately before Sanders Harris was shot he '* * * was pleading for his life.' Defendant objected to this testimony on the ground it was hearsay and the objection was overruled. The ruling of the court was proper. Miss Murphy did not state what Sanders Harris had said. The...

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