State v. Broseman

• Decision Date: 24 June 1997
• Docket Number: Nos. WD,s. WD
• Citation: State v. Broseman, 947 S.W.2d 520 (Mo. App. 1997)
• Parties: STATE of Missouri, Respondent, v. Karl Paul BROSEMAN, Appellant. 51864, WD 52949.
• Court: Missouri Court of Appeals

Page 520

947 S.W.2d 520

STATE of Missouri, Respondent, v.Karl Paul BROSEMAN, Appellant.

Nos. WD 51864, WD 52949.

Missouri Court of Appeals Western District.

Submitted March 13, 1997.

Decided June 24, 1997.

Kent Fanning, St. Charles, for appellant.

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

Before BRECKENRIDGE, P.J., and SMART and LAURA DENVIR STITH, JJ.

SMART, Judge.

Karl Paul Broseman appeals his conviction, after jury trial, of murder in the second degree, § 565.021.1(1), RSMo 1994¹ for which he was sentenced to a ten-year term of imprisonment.Broseman also appeals from the denial of his Rule 29.15motion for post-conviction relief, following an evidentiary hearing.In his direct appeal, Broseman contends that the trial court erred in not granting his motion for acquittal at the end of the State's evidence because the evidence concerning intent was insufficient to sustain a conviction.In his appeal from the denial of his Rule 29.15 motion, he claims that the motion court erred in denying his Rule 29.15 motion because trial counsel was ineffective in: (1) failing to give an opening statement; (2) failing to interview and competently cross-examine any of the State's witnesses; (3) failing to identify Broseman as the person performing CPR upon his son; (4) failing to take the deposition of Dr. Mary Case; (5) failing to adequately inform Broseman of the 85% sentencing rule; (6) failing to offer an instruction on voluntary manslaughter; (7) failing to call witnesses on behalf of Broseman; (8) failing to file an appeal as ordered by the trial court; (9) citing Rule 74.02, a civil rule, in the motion for new trial; (10) failing to object to highly inflammatory and prejudicial evidence; (11) failing to object to evidence of another crime; (12) failing to file a motion to suppress Broseman's statements to police; (13) failing to preserve an issue for appeal in the motion for new trial; and (14) failing to have any reasonable trial strategy or theory of Broseman's case at trial.The judgment of the trial court is affirmed.The judgment of the motion court is affirmed.

Karl Paul Broseman lived with Christina Spinks and her two sons, Adam and Carlos.Carlos was also Broseman's son.On February 16, 1995, Ms. Spinks left for work about 5:30 a.m. Broseman was to care for Carlos, who was four months old, until he went to work.Carlos was not suffering from any serious medical problems, although he was "a little colicky" and had "a little sinus infection."Broseman had to work that afternoon.Broseman's usual routine was to take Carlos over to Hair Express, a beauty shop operated by Ms. Spinks' mother, when he went to work.

Shortly before noon, Broseman called a co-worker, Charles Williams, and told him that he could not give Williams a ride to work that day because "he was having a little problem."Later that afternoon, paramedics from the St. Charles County Ambulance District received a "pediatric code blue" at Hair Express.When the paramedics arrived, they noticed a man attempting to perform CPR on Carlos Broseman.The baby was not breathing and had no pulse.The baby was taken to St. Joseph's Hospital West in Lake St. Louis.Carlos Broseman was pronounced dead at the hospital.

Police made contact with Broseman in the bathroom of Hair Express, asking him if there were any special problems they needed to know about in order to help Carlos.Broseman replied that he had been shaking his son and made the statement, "I guess you're going to arrest me."Detective Michael Grawitch asked Broseman to go to the O'Fallon Police Department with him.In the car, on the way to the station, Detective Grawitch advised Broseman of his Miranda ² rights.Broseman told the detective that he understood the rights and was willing to talk.Detective Grawitch asked Broseman about shaking Carlos.Broseman told him that this was not the first time that he had shaken the baby and that the little boy had been crying a lot and that was the only way he knew how to deal with the crying.He stated that the crying had gotten very bad and that this was the worst that he had ever shaken the child.Broseman said that he had shaken Carlos at home and, when he was ready to put Carlos in the car and take him to the hair salon, Carlos was not moving at all.At the police station, Broseman gave a written statement to the police, writing, at one point, "He was lifeless."Broseman was asked to demonstrate how he had shaken Carlos.Using a stuffed bear, Broseman demonstrated."He lifted up the bear and shook it back and forth, and the bear's head was going all the way back and all the way forward."

An autopsy was performed on the baby.Dr. Mary Case, a forensic pathologist, testified that Carlos Broseman's brain showed a subdural hemorrhage on the dura and a subarachnoid hemorrhage on top of the brain.There was evidence of fresh damage and also evidence of old damage.Dr. Case opined that Carlos Broseman had a "blunt injury to the head ... an acceleration/deceleration type of mechanism in which the head moves rapidly and then stopped abruptly, and then at that point, the brain continues to rotate."She testified that the shaking given to Carlos would have been "very violent" and not the result of normal horseplay.She stated that, in her opinion, the injuries were caused by being shaken or by some type of blunt trauma.

At the end of the State's evidence, the defense made a motion for judgment of acquittal which was denied by the trial court.The defense did not present any evidence.The jury returned a verdict of guilty of murder in the second degree.On October 26, 1995, the trial court sentenced Broseman to a ten-year term of imprisonment.

On February 9, 1996, Broseman filed a pro se Rule 29.15motion for postconviction relief.In his motion Broseman claimed that trial counsel was ineffective on the following grounds:

1.Trial counsel failed to competently cross-examine all of the State's witnesses in the murder trial.

2.Trial counsel failed to competently cross-examine Dr. Mary Case and failed to take her deposition prior to trial.

3.Trial counsel was ineffective in failing to tell Movant that if he accepted the plea bargain for seven (7) years on voluntary manslaughter, he would be eligible for parole after serving one-third (1/3) of his sentence, but if he was found guilty of murder in the second degree, he would have to serve 85% of his sentence because murder in the second degree is a dangerous felony.

4.Trial counsel was ineffective for failing to offer an instruction on voluntary manslaughter.

5.Trial counsel was ineffective for failing to call witnesses concerning Movant's character and love of his child.

6.Trial counsel was ineffective for failure to file an appeal as ordered by the Court.

7.Trial counsel was ineffective for citing Rule 74.02 in his Motion For New Trial.

8.Movant's Motion for New Trial only raises two grounds.The main issue in the case concerning the sufficiency of the evidence is improperly raised in the Motion for New Trial stating the "verdict was against the greater weight of the evidence".

An evidentiary hearing on the motion was held May 3, 1996.On June 25, 1996, the motion court issued an order denying Broseman's Rule 29.15 motion.Broseman appeals from his conviction and from the denial of his motion for post-conviction relief.

DIRECT APPEAL

Broseman contends, in his direct appeal, that there was no evidence presented by the State on the element of intent sufficient to sustain a verdict of second degree murder.He argues, therefore, that the trial court erred by not granting Broseman's motion for judgment of acquittal.Broseman claims that although there was evidence that he had shaken Carlos, there was no evidence that he knew or had any reason to believe that by shaking Carlos he would cause Carlos' death.Broseman points out that testimony given by Ms. Spinks showed that he loved his son and had never hurt Carlos in any way.

Section 565.021.1(1) provides that a person commits murder in the second degree when he or she"[k]nowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person."A person acts "knowingly" with respect to the result of his conduct "when he is aware that his conduct is practically certain to cause that result."§ 562.016.3(2), RSMo 1994.

Broseman is challenging the sufficiency of the evidence.In order to make a determination concerning sufficiency, a reviewing court considers all evidence favorable to the State as true, including all favorable inferences arising therefrom.State v. Grim, 854 S.W.2d 403, 405(Mo. banc 1993).By the same token, we discard all unfavorable evidence and inferences.Id.In reviewing a sufficiency of the evidence claim, we examine the evidence to determine whether there is sufficient evidence to permit a reasonable juror to find guilt.State v. Storey, 901 S.W.2d 886, 895(Mo. banc 1995).We do not, however, weigh the evidence, State v. Villa-Perez, 835 S.W.2d 897, 900(Mo. banc 1992), or determine the reliability or the credibility of witnesses.State v. Idlebird, 896 S.W.2d 656, 660-61(Mo.App.1995).Reliability and credibility are issues for the jury to decide.State v. Sumowski, 794 S.W.2d 643, 645(Mo. banc 1990).Broseman repeatedly admitted that he had violently shaken his infant son.He admitted his guilt to police and told them that he needed help.He admitted that he had shaken Carlos on other occasions, that the little boy had a crying problem, and that shaking Carlos was the only way Broseman knew how to deal with the crying.Broseman admitted that this was the worst he had ever shaken Carlos and that he had never shaken the baby so hard in his life.The autopsy results show that Carlos was shaken very violently.

Direct evidence as to a particular mental state is rare.State v. Johnston, 868 S.W.2d 226, 228(Mo.App...