State v. Bragg, s. WD

• Decision Date: 21 December 1993
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. Joseph E. BRAGG, Appellant. Joseph E. BRAGG, Appellant, v. STATE of Missouri, Respondent. 45346, 46861.
• Court: Missouri Court of Appeals

Page 284

867 S.W.2d 284

STATE of Missouri, Respondent, v. Joseph E. BRAGG, Appellant.

Joseph E. BRAGG, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 45346, 46861.

Missouri Court of Appeals Western District.

Dec. 21, 1993.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and KENNEDY and LOWENSTEIN, JJ.

BRECKENRIDGE, Presiding Judge.

Joseph E. Bragg appeals both his conviction and ten-year sentence following a jury trial for murder in the second degree, § 565.004, RSMo 1978, ¹ and the denial of his Rule 29.15 motion for postconviction relief after an evidentiary hearing. Mr. Bragg raises five points on appeal, alleging error (1) by the trial court in overruling his motions for judgment of acquittal and in sentencing him because the state's evidence was insufficient to support the jury's finding of guilt beyond a reasonable doubt; (2) by the trial court in overruling his objection to the state's closing argument which improperly asserted that Mr. Bragg had made a tacit admission; (3) by the motion court in denying his Rule 29.15 claim that his counsel was ineffective for failing to introduce into evidence a letter from Mr. Bragg to Detective Gonzalez; (4) by the trial court in refusing to submit his Instruction E and in submitting the case to the jury under a verdict director that did not require a finding that Mr. Bragg intentionally and with premeditation and malice aforethought committed the murder; and (5) by the trial court in submitting to the jury Instruction No. 4 which defined reasonable doubt as proof that leaves one "firmly convinced" of the defendant's guilt. The judgments of the trial court and the motion court are affirmed.

In January of 1982, Joseph E. Bragg lived in Kansas City, Missouri with Nancy Grufford, their two daughters, five-year-old Jolene and two-month-old Veronica, and Ms. Grufford's fifteen-year-old daughter, Winona. Veronica, who had been born prematurely, was hospitalized from her birth on November 6, 1981 until December 14, 1981. In January of 1982, however, Veronica was progressing well. Although she was small for her age and had suffered respiratory problems at birth due to her prematurity, at the age of two months, Veronica was gaining weight and she no longer had respiratory problems.

On January 10, 1982, Ms. Grufford left for work around 3:00 p.m., leaving Jolene and Veronica in the care of Mr. Bragg. Winona came home from her paper route sometime in the afternoon or early evening.

Ms. Grufford returned from work between midnight and 1:00 a.m. on January 11, 1982. When checking on Veronica, Ms. Grufford noticed she was moaning and groaning and that the infant appeared "lifeless." Ms. Grufford called the baby's doctor, Joe Spurney, M.D., who directed Ms. Grufford to bring Veronica to the emergency room of St. Joseph's Hospital. Ms. Grufford transported Veronica to the hospital in an ambulance.

Medical records indicate that an examination of Veronica at the hospital revealed small bruises to her nose, left ear lobe, and stomach. Veronica was later found to have a torus fracture of the right wrist, edema of the head (swelling of the brain), and a subarachnoid hemorrhage. After being maintained on a life-support system for three and one-half weeks, Veronica died on February 5, 1982.

Mr. Bragg was arrested on January 13, 1982, and was charged on February 5, 1982 with murder in the second degree in connection with Veronica's death. On August 16, 1982, Mr. Bragg, who was free on bond, failed to make a court appearance. A warrant for Mr. Bragg's arrest was issued on August 18, 1982.

In August of 1982, Mr. Bragg left the state of Missouri. From August of 1982 until sometime in 1990, Mr. Bragg lived under his mother's maiden name in Knoxville, Tennessee, with Ms. Grufford, Jolene, and two children born to Mr. Bragg and Ms. Grufford after Veronica's death. In 1990, Mr. Bragg was arrested and returned to Kansas City, Missouri to stand trial.

A jury trial was held in this case. Isaac Rosenberg, M.D., a pediatrician who treated Veronica after her birth and after she was taken to the emergency room on January 11, 1982, and Dr. Bonita Peterson, a former medical examiner for Jackson County, Missouri who performed an autopsy on Veronica, testified that Veronica suffered from "shaken infant syndrome." Dr. Rosenberg explained that shaken infant syndrome results when a child is shaken "so violently that the head jerks back and forth, sort of like a whiplash." The violent shaking causes the veins in and around the child's brain to tear, leading to brain hemorrhaging and swelling. Both Dr. Rosenberg and Dr. Peterson stated that Veronica's injuries and death were caused by having been violently shaken back and forth repeatedly. Drs. Rosenberg and Peterson testified that Veronica's injuries could not have been self-inflicted and were not consistent with being dropped into a bathtub of water.

Ruth Schwenk, the director of social services at St. Joseph's Hospital during the time Veronica was treated there, also testified at the trial. She recounted a meeting she and Dr. Rosenberg had with Mr. Bragg and Ms. Grufford about Veronica's condition. This meeting occurred on January 12, 1982, during Mr. Bragg's one visit to the hospital to see Veronica. Ms. Schwenk described Mr. Bragg as being "pretty uncooperative" during the meeting, refusing to answer questions posed to him and failing to make eye contact with them. When Dr. Rosenberg asked Mr. Bragg what had happened to Veronica, Mr. Bragg stated he was giving the child a bath and dropped her into the tub two times. According to Ms. Schwenk, he also told them that he "sometimes played rough with the child," "throwing it up in the air and catching her." When Dr. Rosenberg and Ms. Schwenk expressed their amazement and asked him if he actually threw Veronica in the air, Mr. Bragg said, "Well, maybe I just bounced it on my knee." Mr. Bragg attributed the bruise on Veronica's nose to his twisting it in play.

Ms. Schwenk stated that when Dr. Rosenberg explained the seriousness of Veronica's condition to Mr. Bragg and Ms. Grufford, "[Mr. Bragg's] only reaction was how soon they could take the baby out of the hospital because it was costing a lots [sic] of money." Mr. Bragg then abruptly left the hospital. Ms. Schwenk testified that Mr. Bragg never denied during the meeting that he was the sole caretaker of Veronica the night before her admission to the hospital.

Shortly after meeting with Dr. Rosenberg and Ms. Schwenk, Mr. Bragg was interviewed by Detectives Angel A. Gonzales and James Stuckey of the homicide unit of the Kansas City, Missouri police department. At trial, both detectives read into the record police reports detailing statements made by Mr. Bragg during their interviews with him. ² Mr. Bragg told Detective Gonzales that when Ms. Grufford left for work at approximately 3:00 in the afternoon on January 10, 1982, he stayed home with Veronica, Jolene, and Winona. Mr. Bragg stated that during the course of the evening he fed Veronica and gave her a bath. When asked by the detective if anything unusual happened while he was bathing Veronica, Mr. Bragg replied that "while he was picking up Veronica in the tube [sic], she slipped out of his hands and fell back into the tube [sic]." He could not recall whether the baby fell on her front or on her back. Veronica cried, but Mr. Bragg "otherwise noted nothing unusual."

Detective Stuckey noted that Mr. Bragg was told during his interview that the police were investigating the possible child abuse of Veronica and that "he was the only one that had custody of her during the time the abuse took place." Mr. Bragg told the detective that Veronica was in "good physical condition" when Ms. Grufford left for work on January 10, 1982, and that while she was gone he changed Veronica's diapers numerous times and bathed her in a standard size bathtub. Mr. Bragg stated that except for the time he took Veronica to the bathroom to bathe her, Veronica spent the evening lying on a bed in the bedroom.

When informed that medical personnel at St. Joseph's Hospital believed Veronica would die when removed from the life support system, Mr. Bragg replied that "he would just have to live with that." Detective Stuckey reported that "[d]uring the course of the interrogation Bragg would occasionally laugh at things that were asked of him such as did he drop the baby and how the baby sustained the injuries and then he would reply that he did not know." Often when Veronica was mentioned, Mr. Bragg would talk about problems he was having with Ms. Grufford "and how she would not do what he said." Detective Stuckey specifically noted Mr. Bragg's behavior during the interview:

After continually denying--continuously denying any knowledge about how the baby sustained the injuries and repeating this numerous times, Bragg would hang his head down towards the table, leave it there for a short period of time and then again repeat that he would tell us how the baby was injured, but it would be a lie. When Bragg would raise his head back to his normal position, if a question was asked about the child abuse, he would then chuckle out loud and start talking about the victim's mother Nancy Grufford.

Mr. Bragg took the stand at his trial and testified in his own defense. He stated that he did not cause Veronica's injuries and that he did not know who was responsible for her injuries. He testified that he cared for Veronica when he was at home that afternoon and evening and that he did not notice anything wrong with her while he was taking care of her. Mr. Bragg attested that he had briefly left Veronica alone with Jolene and Winona on three occasions on the night of January 10, 1982, but that he did not hear or notice anything unusual about the baby when he returned home on each occasion. Mr. Bragg did, however,...