State Of mo. v. Simonton, WD 58332.
Decision Date | 17 July 2001 |
Docket Number | No. WD 58332.,WD 58332. |
Citation | 49 S.W.3d 766 |
Parties | STATE of Missouri, Respondent, v. Tolliver J. SIMONTON, Appellant. |
Court | Missouri Court of Appeals |
Irene C. Karns, Columbia, for appellant.
Rachael A. Smith, Asst. Atty. Gen., Jefferson City, for respondent.
Before ELLIS, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
Tolliver J. Simonton was convicted by a jury of murder in the first degree, § 565.020, RSMo 2000, for the death of his eight-year old son, Tate Simonton. He was sentenced to life imprisonment without the possibility of probation or parole. At trial, Mr. Simonton asserted the defense of lack of responsibility due to mental disease or defect under § 552.030, RSMo 19941. On appeal, Mr. Simonton claims that the trial court erred when, based upon discovery violations, it excluded the testimony of a psychiatrist, Dr. Bruce Harry, who would have testified that Mr. Simonton's mental illness prevented him from appreciating the nature, quality, and wrongfulness of his conduct. He asserts that there was no discovery violation, but even if there was, the remedy of exclusion was too harsh. Second, Mr. Simonton claims that the trial court erred in excluding the testimony of Dr. Harry with respect to his testimony concerning his diagnosis of and conclusions concerning Mr. Simonton's mental condition as of the date of Dr. Harry's second report to the court in September 1998, which was properly disclosed. Finally, Mr. Simonton argues that the trial courterred in sustaining the State's objection to defense counsel's rhetorical question during closing arguments. He also claims that the curative instruction given by the court was a misstatement of the law that acted to lessen the State's burden of proof.
In response to Mr. Simonton's claim that the remedy of the exclusion of Dr. Harry's testimony was an abuse of discretion, the State counters that Mr. Simonton presented the testimony of psychiatrist Dr. John Rabun who testified concerning Mr. Simonton's mental state. Dr. Rabun's opinion was that Mr. Simonton was suffering from a mental disease at the time of his son's death and that while Mr. Simonton was aware of the nature and quality of his conduct, he did not know or appreciate the wrongfulness of his conduct at the time he killed his son. The State argues that any testimony by Dr. Harry was cumulative and that the trial court did not abuse its discretion in finding Mr. Simonton was not significantly prejudiced by the exclusion of Dr. Harry's testimony. This court believes that Dr. Harry's testimony was not cumulative, but that Mr. Simonton was significantly prejudiced by the exclusion of Dr. Harry's testimony due to the State's cross-examination of Dr. Rabun which focused on the fact that Dr. Rabun's opinion was only the opinion of one doctor, and he could be wrong. Thus, this court believes that the trial court abused its discretion in disallowing the testimony of Dr. Harry. The judgment of the trial court is reversed and this case is remanded for new trial.
On the morning of Sunday, February 23, 1997, Jeanne Simonton left town to attend a teachers' conference at the Lake of the Ozarks. Her eight-year-old son, Tate, was left in the care of Mr. Simonton, her husband, who was a middle school counselor. The Simontons had been having financial problems, so before she left, Ms. Simonton told Mr. Simonton,
Around 5:00 p.m. that evening, Earl Underwood, Ms. Simonton's father, called the Simontons' house to see, among other things, if Tate had received the fifty-cent pieces he and his wife had sent Tate for his coin collection. During the conversation, Mr. Simonton told Mr. Underwood that he was going to fix bacon and eggs, Tate's favorite meal, for Tate that evening. Mr. Underwood also spoke with Tate about the fifty-cent pieces.
Around 9:00 p.m. that evening, Ms. Simonton called home to check in and to give Mr. Simonton her room number and telephone number. She reminded Mr. Simonton that she had laid out Tate's clothes for the next two days and prepared his lunches and placed them in the refrigerator. She also reminded him that she had left a note on a yellow pad which contained all the information he would need while she was away.
The next morning, Monday, February 24, 1997, Ms. Simonton called home a few minutes after 7:00 a.m. as she was waiting for a shuttle to take her to the conference meeting. At that time and when she tried to call a few minutes later, the phone was busy. She then went on to the conference. Around 8:00 a.m., the principal of the middle school where Mr. Simonton worked called the elementary school secretary to see if Tate was in school. After checking with the teacher, she learned that he was not. Sometime later, the school secretary received a call from Mr. Simonton, who informed her that Tate was sick and would not be in school.
When Ms. Simonton returned to her room that evening around 9:00 p.m., she called home again and spoke with her husband. Mr. Simonton stated that he did not go to school that day because Tate wassick. He stated that he and Tate had been up all night and that Tate had had a fever. Mr. Simonton indicated that he thought it had broken and Tate was feeling better. Ms. Simonton told her husband that both he and Tate needed to be in school. Mr. Simonton replied,
The next morning, Ms. Simonton called home a few minutes after 6:00 a.m. She wanted to call early enough so that there would be time to get Tate up and get him to school. Mr. Simonton told Ms. Simonton that Tate was still sick and they were not going to school that day. Ms. Simonton accused her husband of using Tate as an excuse not to go to work. She told Mr. Simonton that she would be home that day around 2:00 or 3:00 p.m. Sometime before 9:00 a.m., Mr. Simonton called the elementary school secretary to inform her that Tate would not be in that day.
When Ms. Simonton arrived home around 2:00 p.m. on Tuesday, Mr. Simonton met her at the back door. She noticed slimy black streaks on his face and asked what was wrong. He told her to come into the house and that Tate was dead. She then ran screaming to one of her neighbors' house, the Longs, around the corner. Hearing the screaming, Ms. Long went to the door. Ms. Simonton was very distraught and crying and told Ms. Long that her baby was dead. Ms. Long then called 911.
The 911 dispatcher informed Brian Kennon, a detective with the Marshall Police Department who was nearby, that there was a call concerning a dead baby and gave him the Simontons' address. Detective Kennon, believing that this was a SIDS death of an infant, responded to the call. After knocking on the front door, getting no response, and finding it locked, Detective Kennon proceeded to the back door. The back door was open, and as Detective Kennon began walking through the porch, Mr. Simonton opened the door to the residence. Detective Kennon identified himself and told Mr. Simonton that he needed to see the dead baby. Mr. Simonton responded, "He's back here." Detective Kennon asked Mr. Simonton to stay where he was and tell him where the baby was. When Mr. Simonton began walking towards the bedroom, Detective Kennon grabbed his elbow. Mr. Simonton jerked his arm away and kept walking. After first requesting that another officer be sent to the residence, Detective Kennon followed Mr. Simonton to the bedroom.
When Detective Kennon got to the bedroom, he saw the child lying on a waterbed. A large amount of blood was on the bed. He also observed four knives covered in what appeared to be blood, lying on a tissue box on the nightstand next to the bed. Because of the discoloration of the child's body and the odor of the room, Detective Kennon believed that the child was deceased and had been so for some time.
Mr. Simonton, who had been standing by the nightstand, then picked up one of the knives. Detective Kennon drew his service pistol, pointed it at Mr. Simonton, and told him to drop the knife or he would shoot. Mr. Simonton responded, As Mr. Simonton began walking slowly around the bed, Detective Kennon repeated several times that Mr. Simonton should drop the knife or he would shoot. Detective Kennon noticed large cuts on both sides of his neck. Mr. Simonton would not drop the knife and kept saying, At that point, Detective Kennon felt that Mr. Simonton was trying to get the detective to shoot him.
Around this time, Detective Kennon learned that Officer Kenneth Williams had arrived on the scene. Detective Kennon began backing out of the bedroom andthen he ran to the back door to meet Officer Williams. Detective Kennon informed Officer Williams that he thought Mr. Simonton was trying to get him to shoot Mr. Simonton, and he asked Officer Williams if he had any mace. Detective Kennon took the mace and returned his pistol to his holster while Officer Williams drew his gun. By this time, Mr. Simonton had walked to near where the officers were. Detective Kennon sprayed the mace in Mr. Simonton's direction, but Mr. Simonton was able to turn his head and avoid the mace making contact with his face.
Again, Detective Kennon asked Mr. Simonton to put down the knife. Detective Kennon and Officer Williams then followed Mr. Simonton back to the bedroom, where Mr. Simonton picked up another knife. As they followed Mr. Simonton throughout the house, Detective Kennon attempted to spray him with mace several more times. When they had returned to the dining room, Mr. Simonton was facing Officer Williams and Detective Kennon was facing Mr. Simonton's side. Detective Kennon was able to spray the mace while Mr. Simonton was not looking and made contact with the wound on Mr. Simonton's neck. Mr. Simonton angrily responded that the detective did not "have to keep macing him."
Mr. Simonton and the officers then...
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