State v. Christeson

• Court: Missouri Court of Appeals
• Writing for the Court: Price, C.J., White, Holstein, Wolff and Benton, JJ., concur. Stith; Stephen N. Limbaugh, Jr.
• Citation: 50 S.W.3d 251
• Parties: (Mo.App. S.D. 2001) State of Missouri, Respondent, v. Mark A. Christeson, Appellant. SC82082 0
• Decision Date: 26 June 2001

50 S.W.3d 251 (Mo.App. S.D. 2001) State of Missouri, Respondent,
v.
Mark A. Christeson, Appellant. SC82082 Supreme Court of Missouri 06/26/2001

Appeal From: Circuit Court of Vernon County, Hon. C. David Darnold

Counsel for Appellant: Janet M. Thompson

Counsel for Respondent: Linda Lemke

Opinion Summary: In January 1989 in Maries County, Mark Christeson raped Susan Brouk and, with his cousin, forced Susan and her two children -- nine-year old Kyle and twelve-year-old Adrian -- into her Bronco and drove them to a neighbor's pond. Christeson cut Susan's throat with a knife. Before Susan died, Christeson cut Kyle's throat and held him in the pond until he drowned. He also pressed down on Adrian's throat until she suffocated and pushed her body into the pond. Christeson and his cousin threw Susan into the pond on top of her children's bodies, and she drowned. On a change of venue to Vernon County, a jury found Christeson guilty of three counts of first-degree murder. He was sentenced to death on each count.

Court en banc holds: (1) A claim of an attorney's conflict of interest based on trial court error in failing to grant the attorney's motion to withdraw -- not on the attorney's alleged misconduct or ineffectiveness -- is properly brought as part of a direct appeal.

(2) The court did not abuse its discretion in denying a defense attorney's motion to withdraw where there was no real conflict of interest between the attorney and the potential state witness she represented in an unrelated matter.

(3) Christeson failed to prove he was prejudiced by the court's denial of his request for a continuance. His cousin confessed to his role in the crime fourteen months before Christeson's trial and was deposed for more than six hours by Christeson's attorneys. At trial, defense counsel elicited detailed testimony from the cousin's psychological evaluators.

(4) The court did not abuse its discretion in denying individual voir dire or motions to strike two jurors where there was no evidence that a newspaper article published about the crime before jury selection would prevent any juror from impartially judging Christeson.

(5) The court did not abuse its discretion in striking for cause a venireperson who equivocated about his ability to impose the death penalty in a capital case and his unequivocal assertion that he could not sign a verdict form assessing the death penalty.

(6) No error occurred in statements made by the prosecutor during voir dire. One is misquoted by Christeson and is not improper. The others were not preserved by timely objections at trial and do not approach the manifest injustice standard necessary for plain error relief.

(7) An autopsy photo showing the injuries to Susan Brouk's head was not improperly admitted because it was relevant to help the jury understand the nature, location and timing of her injuries.

(8) Testimony of the officer who took the cousin's statement was properly admitted as a prior consistent statement to rehabilitate the cousin's testimony.

(9) Juror curiosity about the Bronco, which indisputably was in Christeson's possession during the crimes, does not constitute juror misconduct due to deliberation of the facts before the case was submitted.

(10) No error occurred in statements made by the prosecutor during his guilt phase closing argument. One is taken out of context by Christeson and is not improper. The others were not preserved by timely objections at trial and do not approach the manifest injustice standard necessary for plain error relief.

(11) No plain error was evident in admitting, during the penalty phase, testimony about unadjudicated criminal conduct committed by Christeson while he awaited trial for the Brouk murders.

(12) No error occurred in statements made by the prosecutor during his penalty phase closing argument. One is merely a statement that murder is the worst crime in society and that is why it is the only crime for which the death penalty is available. The others were not preserved by timely objections at trial and do not show error, plain or otherwise.

(13) The statutory aggravating circumstances are not impermissibly duplicative.

(14) Christeson is not entitled to a new trial because his trial transcript is not materially inaccurate. As to most claimed inaccuracies, he fails to specify what the mistake was or how it affects his appeal. The rest either are trivial or inconsequential, or no prejudice resulted.

(15) The death penalty in this case passes independent review pursuant to section 565.035.

Price, C.J., White, Holstein, Wolff and Benton, JJ., concur. Stith, J., not participating.

Stephen N. Limbaugh, Jr., Judge

This is an appeal of defendant Mark A. Christeson's conviction and death sentence for the 1998 murders of Susan Brouk and her two children, Adrian and Kyle. Because the death penalty was imposed, this Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. The judgment is affirmed.

I. BACKGROUND

A. Factual Overview

The facts, which this Court reviews in the light most favorable to the verdict, State v. Johns, 34 S.W.3d 93, 103 (Mo. banc 2000), cert. denied, __ U.S. __, 121 S.Ct. 1745 (2001), are as follows:

On Saturday, January 31, 1998, Christeson, 18, and his cousin Jesse Carter, 17, who were living in the home of a relative, David Bolin, concocted a plan to run away. The Bolin home was located in a rural area near Vichy, Missouri. Susan Brouk, along with her children, twelve year old Adrian and nine year old Kyle, lived about a half mile away. On Sunday morning, February 1, 1998, after Mr. Bolin left for work, Christeson and Carter each took shotguns and went to Ms. Brouk's home. After hiding outside for a few minutes, they entered the home and found Adrian and Kyle sitting on the living room floor. Ms. Brouk came in from the kitchen and encountered Carter binding her children's hands with shoelaces that he had brought for that purpose. Christeson forced Ms. Brouk into her daughter Adrian's bedroom at gunpoint, where he then raped her on Adrian's bed. When Christeson brought her back out to the living room, Carter bound her hands behind her back with a piece of yellow rope. Ms. Brouk said "you had your fun, now get out." At some point during the confrontation, Ms. Brouk and Kyle were both struck in the head with a blunt object.

About that time, Adrian recognized Carter and said "J.R.," Carter's nickname, and "Jesse Carter," which prompted Christeson to tell Carter "we got to get rid of 'em." They forced Ms. Brouk and her children into the back seat of Ms. Brouk's Bronco and also loaded her television, VCR, car stereo, video game player, checkbook, and a few other small items. Christeson drove down the highway, down a gravel road, and then across a neighbor's field to a pond at the edge of a wooded area.

They forced Ms. Brouk and her children to the bank of the pond. Christeson kicked Ms. Brouk just below her ribs with enough force that she was knocked to the ground. Christeson then placed his foot on her mid-section, and reached down and cut her throat with a bone knife. She bled profusely, but she did not die immediately, and as she lay on the bank of the pond, she told Adrian and Kyle that she loved them. Then Christeson cut Kyle's throat twice and held him under the pond water until he drowned. Carter pushed Kyle's body farther out into the pond so the body would sink. At Christeson's direction, Carter retrieved cinder blocks from a nearby barn, and while there, heard Christeson fire a shot from one of the shotguns. When Carter returned to the pond, Adrian was struggling to free herself from Christeson. Carter held Adrian's feet while Christeson pressed down on her throat until she suffocated, and Carter then pushed Adrian's body into the pond. While Ms. Brouk was still alive, but barely breathing, Christeson grabbed her arms and Carter grabbed her legs, and they threw her into the pond on top of her children's bodies. As she drowned, Carter went into the woods to get a long stick, which he used to push the Brouks' bodies further out into the pond.

Christeson and Carter returned to Mr. Bolin's property in the Bronco and parked it near a garbage pile. They took one of the shotguns back into Mr. Bolin's house, loaded their personal belongings into an Oldsmobile, and then drove the Oldsmobile back to the garbage pile and transferred their belongings to the Bronco. At that point, they drove off in the Bronco, eventually heading west on Interstate 44.

Ms. Brouk's sister, Kay Hayes, thought it was unusual that Ms. Brouk and her children did not come to Sunday dinner, as planned, but she was not concerned until Tuesday evening, when she called Ms. Brouk's home and there was no answer. That evening Ms. Hayes called another sister, Joy Lemoine, to inquire if she had heard from Ms. Brouk, but she had had no contact either. When family members went to Ms. Brouk's house the next evening, they discovered that Ms. Brouk's prescription glasses and the children's and Ms. Brouk's coats were still in the house and that the television, VCR, and Bronco were missing. They called the police, and that night officers from the Maries County Sheriff's Department secured the home and searched the premises.

The next morning, officers in a Missouri State Highway Patrol helicopter conducting an aerial search spotted a body floating in a pond located slightly southeast of the Brouk's residence. After landing the helicopter in a field just south of the pond, they found the bodies of Ms. Brouk, Adrian, and Kyle partially submerged. The officers then investigated the area around the pond and found a sixteen-gauge shotgun shell on the south bank, some leaves and soil splattered with blood, shoe impressions, and two cinder blocks on the west bank near the area where the bodies were recovered. There were also tire impressions leading from the pond to the garbage pile on Mr. Bolin's property where...