State v. Parkus
| Citation | 753 S.W.2d 881 |
| Decision Date | 17 May 1988 |
| Docket Number | No. 69274,69274 |
| Parties | STATE of Missouri, Respondent, v. Steven Wesley PARKUS, Appellant. |
| Court | United States State Supreme Court of Missouri |
Nancy A. McKerrow, Columbia, for appellant.
William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Found guilty of murder in the first degree, § 565.020.1, RSMo 1986 (effective Oct. 1, 1984), for the brutal strangulation of Mark Steffenhagen, appellant was sentenced to death. The cause falls within the exclusive appellate jurisdiction of this Court. Mo. Const. art. V, § 3, and we affirm.
Viewed in a light most favorable to the verdict, the jury could have found the following: On November 24, 1985, Mark Steffenhagen and appellant were inmates in the Missouri State Penitentiary (MSP), in Housing Unit 2-B, a Special Treatment (protective custody) Unit for prisoners who had been threatened with sexual abuse or had exhibited suicidal tendencies. Steffenhagen returned from supper sometime between 5:30 and 6:00 p.m. and was found strangled in his cell about 7:15. Larry Weixelbaum, an inmate walkman on fourwalk 1, who described the routine followed by inmates returning to their cells from supper, stated that upon leaving the dining hall, they returned to their walks and waited at their cells until the guard simultaneously opened all doors, at which time each entered his cell and the doors were locked. On the evening of the murder, Weixelbaum was released from his cell after the lock down to perform his duties as walkman and as he moved along the corridor he noticed the bars of Steffenhagen's cell, number 116, were covered by a blanket but he thought little of it because Steffenhagen often put up a blanket for warmth. At about 7:15, Weixelbaum heard someone calling 2 from Steffenhagen's cell and he saw a hand "waving him over". He went to the cell and appellant, who was there instead of in his own cell, shoved the blanket aside, and said, "[m]an, you got to get me out of here." Weixelbaum pulled down the blanket and told appellant to turn on the light. It was then that he could see Steffenhagen lying on his left side in the bed and he told appellant to roll him over to determine what was wrong. Appellant responded, Weixelbaum immediately notified Sergeant Richard Hagendorf who was, at that time, on twowalk and as Hagendorf made his way to fourwalk, he released the lock on cell no. 116. As Hagendorf approached the cell appellant stepped into the hall, told Hagendorf that "[he] didn't do nothing" and tried to walk away. Hagendorf stopped appellant and ordered him to stay in front of the cell while he examined Steffenhagen. When Weixelbaum had checked Steffenhagen, he thought he felt a pulse but Hagendorf found none and called for medical assistance. About that time appellant began running toward the stairs, but Hagendorf caught him, placed him in handcuffs and moved him to a secure area where he waited for assistance. Further examination revealed Steffenhagen was dead.
An autopsy performed the next day disclosed scrapes on Steffenhagen's nose and chin and a cut on the lip suggesting he had been struck by a blunt object such as a fist. Bruises on the back of his hands, wrist and ankles indicated his arms and legs had been tied and that he had struggled against the bonds. External contusions on the neck as well as internal damage to the larynx demonstrated the cause of Steffenhagen's death was manual strangulation. From an examination of the stomach contents it was determined that death probably occurred less than an hour after Steffenhagen had eaten supper.
Ten claims of error are presented on appeal, four are alleged to have occurred in the guilt phase and six in the punishment phase.
Appellant first contends the trial court erred in denying his motion for judgment of acquittal because the evidence showed he lacked the capacity to coolly reflect and deliberate and that crucial failure of proof requires reversal.
When examining for the sufficiency of the evidence, our role is to "accept as true all evidence whether circumstantial or direct, tending to prove [appellant] guilty together with all reasonable inferences supportive of the verdict." Additionally, we must "disregard those portions of the record contrary to the verdict, mindful that our function is not to weigh the evidence but to determine 'whether there was sufficient evidence from which reasonable persons could have found [appellant] guilty as charged.' "
State v. Steward, 734 S.W.2d 821, 822 (Mo. banc 1987), (citations omitted).
Section 565.020.1, RSMo 1986 3, provides "A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter." We have held that "[a] deliberate act is a 'free act of the will,' that is done 'in furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful purpose and while not under the influence of a violent passion suddenly aroused by some provocation,'." Steward, 734 S.W.2d at 823 (citation omitted). Moreover, "the state need not produce direct evidence of a defendant's premeditation and deliberation; instead, the mental elements establishing murder may be proved by indirect evidence and inferences reasonably drawn from the circumstances surrounding the slaying." State v. Gilmore, 661 S.W.2d 519, 525 (Mo. banc 1983), cert. denied, quoting State v. Turner, 623 S.W.2d 4, 7 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982).
Two psychiatrists testified concerning appellant's mental condition, Melinda Jayaratna for the state and A.E. Daniels called by the defense. Those witnesses agreed appellant was competent to stand trial and had the capacity to appreciate the wrongful nature of his conduct, but disagreed as to appellant's capacity to deliberate, a fact necessary to support a conviction of murder in the first degree; Jayaratna testified he possessed such capacity and Daniels that he did not. Jayaratna testified that in her opinion appellant was able to conform his behavior to the requirements of the law including the ability to deliberate and that evidence was sufficient to support submission of the issue to the jury. Furthermore, the nature of Steffenhagen's injuries provide sufficient evidence from which the jury could have concluded that appellant did in fact act with deliberation. The victim suffered contusions on his face resulting from blows by a blunt object, bruises and markings on his ankles and wrists indicated he had struggled against criss-crossed bindings, and damage to the neck and larynx established that he was strangled manually and rendered unconscious in about one minute after the pressure was applied to his throat. Moreover, the pathologist who performed the autopsy testified that the presence of petechia, or hemorrhaging in the eyes, in conjunction with the fact that Steffenhagen's voice box was not crushed, indicates appellant continued to choke Steffenhagen for perhaps a minute after he became unconscious. These facts are comparable to those in State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973) 4, in which evidence of manual strangulation coupled with evidence that defendant continued to choke victim after he was dead was deemed evidence of deliberation, and as in Sturdivan, absence of evidence indicating provocation reinforces the conclusion that appellant deliberated before strangling Steffanhagen.
Appellant next challenges the validity of the death penalty contending it constitutes cruel and unusual punishment prohibited by the Constitution of the United States as well as that of Missouri. Such contention has been considered and put to rest in numerous cases and clearly is without merit. State v. Driscoll, 711 S.W.2d 512, 517 (Mo. banc 1986) cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986); see Gregg v. Georgia, 428 U.S. 153, 168-188, 96 S.Ct. 2909, 2922-2932, 49 L.Ed.2d 859 (1976).
It is next asserted the trial court erred in failing sua sponte to declare a mistrial following a remark of the prosecutor in closing argument which appellant insists constitutes a comment on his failure to testify. Because the remark went without objection we review for plain error.
During closing argument defense counsel, in an attempt to persuade the jury the state had failed to prove the essential element of deliberation, stated:
And, I think that's an important piece of--piece of non-evidence. It's an important piece of the puzzle that is not here. When you decide murder first or murder second, and you are thinking about deliberation, motive, reason, purpose; no evidence at all, not a single shred of evidence as to any reason as to why this occurred, and that's because we don't know what occurred in that [cell] ... We don't know what happened.
In rebuttal, the prosecutor replied:
Because it's not how--what he thought he was going to do after the fact; it's what he thought before--before he did so.
You can't, and I can't help you crawl inside that man's head and determine what he is thinking. It's not possible. You can only determine what a man is thinking by his actions, or if he tells you. And his actions speak loudly, don't they?
Strips of cloth were carried into that cell. The defendant--pardon me, the victim, Mark Steffenbagar [sic], was bound, beaten and killed.
I don't care how pretty the words are, nonsense is nonsense. And that's what you have from the defense.
The fifth amendment to the United States Constitution, Article I, Section 19 of the Missouri Constitution, RSMo 546.270 (1978) and Rule 27.05 guarantee criminal defendants the right not to testify and forbid comments by others on this right, State v. Chunn, 657 S.W.2d 292, 294 (Mo.App.1983), including direct and indirect...
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