State v. Bass

• Decision Date: 21 May 2002
• Docket Number: No. WD 59447.,WD 59447.
• Citation: 81 S.W.3d 595
• Parties: STATE of Missouri, Respondent, v. Mary BASS, Appellant.
• Court: Missouri Court of Appeals

81 S.W.3d 595

STATE of Missouri, Respondent, v. Mary BASS, Appellant.

No. WD 59447.

Missouri Court of Appeals, Western District.

May 21, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

Application for Transfer Denied August 27, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for Respondent.

John M. Schilmoeller, Assistant Appellate Defender, Kansas City, for Appellant.

Before: SPINDEN, C.J., and EDWIN H, SMITH and NEWTON, JJ.

EDWIN H. SMITH, Judge.

Mary Bass appeals the judgment of her convictions, after a jury trial in the Circuit Court of Jackson County, of two counts of murder in the second degree, § 565.021;¹ six counts of abuse of a child, § 568.060; and four counts of armed criminal action (ACA), § 571.015. As to her convictions on second degree murder and ACA, and two counts of abuse of a child, she was sentenced to eight consecutive life sentences. As to her convictions on the remaining four counts of abuse of a child, she was sentenced to prison terms of fifteen years on two counts and one year on the other two counts, with all four sentences to run concurrent with each other and the eight consecutive life sentences.

The appellant raises four points on appeal. In Point I, she claims that the trial court erred in admitting at trial, pursuant to § 491.075, the hearsay statements of the victims' brother, Jerry Bass, eight years old at the time of the statements, because in doing so the court erroneously declared that § 491.075 permitted the admission of out-of-court statements of a child-declarant under the age of twelve relating to an offense charged under Chapter 565, 566 or 568, even though the child was not a victim of such offense. In Point II, she claims that the trial court erred in overruling her Batson objection to the State's peremptory strike of the only African-American member of the venire panel, because the strike was racially motivated and the State's race-neutral explanation for the strike was pretextual. In Point III, she claims that the trial court plainly erred in asking her expert witness a question as to her prognosis for the appellant's recovery from her alleged mental illnesses because her right to a fair trial before an impartial judge and jury was violated in that the court's question improperly focused the jury's attention upon the potentially short amount of time that she might be held for treatment of her mental illnesses if the jury was to find her not guilty by reason of mental disease or defect. In Point IV, she claims that the trial court erred in overruling her motion for judgment of acquittal at the close of all of the evidence because "the state failed to produce sufficient evidence from which a jury could find, beyond a reasonable doubt, that [the appellant] did not suffer from a mental disease or defect excluding responsibility at the time of the alleged criminal acts."

Facts

On October 20, 1999, officers of the Kansas City, Missouri, Police Department; emergency medical technicians; and members of the Kansas City, Missouri, Fire Department responded to a 911 call from the appellant's home at 300 South Elmwood, Kansas City, Missouri. Upon arrival they found the appellant kneeling on the living room floor near the head of her son, Larry Bass. Larry, Jerry and Gary, were eight-year-old triplets. Larry, who was extremely frail and emaciated, was not wearing any clothes besides a pair of socks. Displaying no signs of life, the paramedics declared Larry dead at the scene.

Several of the appellant's other children, Ronald Bass, Jr., Catina Bass, and Jerry, were at the scene and were visibly upset. A police officer, who had gone upstairs to one of the bedrooms, called for the paramedics after finding Gary lying on a vomit-stained mattress. Gary, who was also very emaciated, was screaming and crying when the paramedics arrived. While transporting Gary to the emergency room at Children's Mercy Hospital, the paramedics removed his socks and observed serious burns, which extended from below his knees to his feet. The paramedics also noticed that several of Gary's toes were dead and rotting, and that he displayed various contusions and abrasions on his back.

After arriving at the hospital, Gary was taken to the burn unit where he was treated by Dr. Steve Klem. At the time of his admission, Gary was 47 inches tall, but weighed only 32 pounds. Gary went into cardio respiratory arrest because of an imbalance in the levels of potassium and phosphorous in his bloodstream, but he was resuscitated by Dr. Klem and other medical personnel. Such chemical imbalances are often seen in someone who suffers from malnutrition. Dr. Klem then discovered that pseudomonas, bacteria that causes serious infections, were growing in Gary's bloodstream. Dr. Klem also noticed that Gary had symmetrical third-degree burns on both of his legs and feet, and concluded that his legs had been submerged in a very hot liquid. For the next several days, Gary was treated with large doses of epinephrine, in an attempt to stimulate his heart and prevent shock, but the treatment was unsuccessful and Gary died in the early morning hours of October 22, 1999.

Autopsies were then performed on Larry and Gary to determine their causes of death. When Larry was examined on October 21, 1999, he was 45 inches tall, but weighed only 31 pounds. Dr. Thomas Young, who performed the autopsy on Larry, found full-thickness immersion burns on his legs and feet, similar to the burns found on Gary. Dr. Young determined the cause of Larry's death to be starvation and bacteria-infected thermal burns, and classified the death as a homicide. Dr. Sam Gulino, who performed the autopsy on Gary, observed multiple scrapes and bruises all over his body, and concluded that he suffered from battered child syndrome. Dr. Gulino determined Gary's death was caused by complications from starvation and bacteria-infected burns to his legs and feet, and classified his death as a homicide.

The appellant was arrested and gave a videotaped statement to the police on October 20, 1999. During the interview with the police, the appellant said that she took food away from Larry and Gary and locked them up because they misbehaved. She mentioned that she would feed the boys bread and water when they were locked up. The appellant stated that on October 14, 1999, she came home from work and the boys were bickering and yelling, and she began arguing with them. At some point, she filled the bathtub with hot water and placed them in it. As soon as Larry and Gary got into the bathtub, they began screaming. When the appellant removed the boys from the tub, she could see that their legs were burned. The appellant told the police that she did not seek any treatment for their burns because she was scared that people would think that she did it on purpose.

Upon further questioning by the police, the appellant stated that on October 20, 1999, she came home from work and found both Larry and Gary very sick. After she gave Larry some Tylenol and Pedialyte, she noticed that he had stopped breathing. The appellant told Jerry to call 911, while she tried to revive Larry with the odor from a bottle of Pine-Sol and a can of beer. Soon thereafter the emergency personnel arrived.

On June 13, 2000, the appellant was charged by indictment in the Circuit Court of Jackson County with two counts of murder in the second degree, § 565.021; four counts of ACA, § 571.015; eight counts of abuse of a child, § 568.060; and two counts of first degree endangering the welfare of a child, § 568.045. The two counts of endangerment, along with one count of abuse, were dismissed prior to trial.

The appellant's case proceeded to a jury trial on October 11, 2000. The State called seventeen witnesses, including emergency medical technicians (EMTs) and police officers who testified as to what they observed when they arrived at the appellant's home on October 20, 1999. In addition, the State called several Division of Family Services (DFS) employees and school teachers who testified as to the appearance and behavior of Larry and Gary immediately prior to their deaths. In that regard, the State called Janet Brown, an EMT; Melanie O'Donahue, a teacher; and Elizabeth Stevens, a DFS employee, to testify as to statements made to them by the victims' brother, Jerry, about how the appellant had treated Larry and Gary. The appellant objected to these three witnesses testifying as to what Jerry had told them inasmuch as it was inadmissible hearsay. The trial court overruled her objections, finding that Jerry's statements were admissible under § 491.075. At the close of the State's case, the appellant made a motion for judgment of acquittal, which was overruled. Although the appellant did not testify in her own behalf, she did present evidence. Her evidence consisted primarily of several medical experts who testified in support of her asserted insanity defense. In rebuttal, the State called several of its own medical experts to refute the appellant's defense. At the close of all of the evidence, the appellant again moved for judgment of acquittal, which was also overruled. The case was submitted to the jury on October 20, 2000. The following day, the jury returned guilty verdicts on twelve of the thirteen counts submitted, convicting her of two counts of second degree murder, four counts of ACA, and six counts of child abuse, while acquitting her of one count of abuse.

On November 15, 2000, the appellant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. On December 14, 2000, the trial court overruled the appellant's motion and sentenced her to eight consecutive life sentences on her convictions for second degree murder, ACA, and for two counts of abuse of a child. As to her convictions on the...