State v. Clark

• Decision Date: 27 December 1976
• Docket Number: No. KCD,KCD
• Citation: 546 S.W.2d 455
• Parties: STATE of Missouri, Respondent, v. Phillip Odell CLARK, Appellant. 27211.
• Court: Missouri Court of Appeals

Page 455

546 S.W.2d 455

STATE of Missouri, Respondent, v. Phillip Odell CLARK, Appellant.

No. KCD 27211.

Missouri Court of Appeals, Kansas City District.

Dec. 27, 1976.

Motion for Rehearing and/or Transfer Denied Jan. 31, 1977.

As Modified April 18, 1977.

Alex Bartlett, Hendren & Andrae, Thomas J. Downey, Jefferson City, for appellant.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SHANGLER, Presiding Judge.

The defendant Clark, then in service of a life term for murder, was convicted for the manslaughter homicide of his cellmate and sentenced to a consecutive term of ten years.

I. PRELIMINARY STATEMENT

The victim, Charles Wright, was discovered dead in the cell he shared with the defendant and Rodney Cowen. The deputy county coroner came to the scene within minutes after discovery, and on the basis of a cursory examination, and of a more extensive laboratory inquiry later that evening, concluded that the primary cause of death was intracranial hemorrhage due to skull fracture with strangulation as a secondary cause. That night the defendant Clark made statements to Associate Warden Wyrick and two days later, on August 23, 1971, to Sgt. Fluegel of the Missouri State Highway Patrol which admitted that he had killed Wright by striking him with his fists and throttling him with a towel.

A preliminary hearing was conducted on November 24, 1971, on a complaint which charged Clark with first degree murder. Evidence was heard and the magistrate found that a felony had been committed and that there was probable cause to believe that the defendant had committed the offense. An information which charged first degree murder was lodged against the defendant in the circuit court of Cole County and thereafter, at the request of the defendant, venue of the prosecution was changed to Boone County.

In due course, Clark made formal application for mental examination under Chapter 552, RSMo 1969, to determine his fitness to proceed in the prosecution and that Dr. Tom Anderson, a private practitioner of psychiatry, be designated for that purpose. The court approved the request and certificate of examination was returned by the doctor. A competency hearing was conducted at which Dr. Anderson was the witness. It was his diagnosis that the defendant was a latent psychotic, at the time of examination competent to assist counsel in the defense of the action, but subject to a loss of rational control without outward manifestation of onset, a condition which would render him unfit to understand the proceedings against him or assist in the defense. At the conclusion of this testimony, the court ordered a further examination at the State Hospital in Fulton. The results of that examination were filed with the court and the competency hearing was resumed. On the evidence at these two hearings, the trial court ruled the defendant competent to stand trial within the meaning of § 552.020.

The defendant thereupon gave notice of his intent to rely upon the plea of not guilty The information was amended on January 30, 1973, to charge a lesser offense, second degree murder, and was amended again on April 23, 1973, to charge manslaughter in response to a plea of guilty, later aborted by the equivocations of the defendant. The court allowed reinstatement of the second degree murder information. This sequence of reduced charge, equivocal plea of guilty, refusal by the court, and reinstatement of information, was repeated on December 8, 1973. The defendant was ultimately tried on the fifth amended information which charged second degree murder.

by reason of mental disease or defect excluding responsibility as provided by § 552.030.

An evidentiary hearing had been held earlier on the motion of defendant to suppress the statements he made to Wyrick and Fluegel. The court entered a memorandum decision that the statements were voluntary.

The trial was to a jury. In summary, the prosecution evidence was:

On the date of the event, Wright, Clark and Cowen were cellmates in a maximum security unit. At about 10:35 p.m. on August 21, 1971, Cowen passed a note to penitentiary guard Meyer. The guard read the note and notified his superior, Captain Deardeuff, who responded by coming to the cell where he discovered the dead body of inmate Wright. The defendant was taken to Associate Warden Wyrick for interrogation, then during his return to the cell, Deardeuff heard defendant Clark tell another prisoner that he had just killed Wright.

Dr. Strong, the deputy coroner, testified as to what he observed in response to the call to the scene and gave his conclusion that the primary cause of death was from skull fracture, and secondary cause as a strangulation.

Cowen testified that he was in the cell that evening, and as he fell asleep he heard Clark and Wright argue over a card game; he later awoke to see Clark strike Wright, then place the victim in his bunk. Cowen then tossed the note to guard Meyer.

Wyrick and Fluegel testified as to the circumstances and contents of the statements given them by Clark on the night of the event and August 23, 1971, two days later, in which he admitted he killed Wright. (We treat all this testimony more extensively in conjunction with the contentions of error.)

The primary witness for defendant Clark was inmate Hicks who testified that Cowen told him the defendant did not commit the homicide. Clark then took the stand and testified he had seen Cowen hit Wright several times causing him to fall against a homemade rope which served as a towel rack. Cowen then threatened him, so Clark agreed to accept guilt. Then--according to Clark--he and Cowen contrived the story he told Wyrick and Fluegel. To prove that point, Clark described several deliberate distortions he inserted into these statements to show they could not have been true.

The prosecution called rebuttal witness Duncan, a city police officer, who testified that while he guarded Clark during a hearing, Clark admitted he had committed the crime.

The case was submitted to the jury on second degree murder and manslaughter instructions. The jury found the defendant not guilty of second degree murder, but guilty of manslaughter.

The court owes a debt of gratitude for the prodigious labors of Alex Bartlett, Esquire and Thomas J. Downey, Esquire, counsel by assignment to the defendant. The motions and hearings already described only vaguely suggest the massiveness of the litigation which culminated in the jury trial. The transcript, by incomplete count, records at least a dozen fully contested motions which ranged from attack on the sufficiency of the magistrate determination of probable cause to suppression of evidence, confessions, contentions of double jeopardy, and through a gamut of other assertions, seriously made and colorably valid. Counsel also, with patience and fidelity to the cause of defendant, advocated in a reasonable manner the numerous pro se motions brought by Clark. They guided the defendant through two pleas of guilty to reduced We express the same gratitude to the trial judge who met every complaint of the defendant, however redundant, with patience and fairness. He carefully explained each contested decision to the defendant, and so to us. The record shows a particularly difficult litigation, strongly contested and strongly defended, kept in firm control throughout. The conduct of court and counsel has surely enhanced our system of justice.

homicide, both denied because of the vacillations of the defendant. The trial itself was conducted with the same conscientiousness as was the appeal.

II. CAUSE OF DEATH

The contentions which make up the first point on appeal all relate to the claim that the evidence both at the preliminary hearing and at trial was insufficient to prove the cause of death and so the denial of the alternative requests for bill of particulars, direction of acquittal, or new trial were error; and specifically:

1. The evidence at the preliminary hearing did not establish probable cause to believe Clark had strangled Wright to death as alleged in the complaint,

2. The Fifth Amended Information (upon which Clark was tried) improperly charged skull fracture as an additional cause of death so that the information was fatally at variance with the complaint,

3. The Fifth Amended Information unlawfully charged in one count two conflicting methods by which Clark was alleged to have killed Wright,

4. There was not sufficient evidence of an assault or strangulation to support a verdict under Instruction 10 which submitted manslaughter.

The complaint before the magistrate of Cole County, upon which the preliminary hearing was held, alleged that Clark made 'assault upon one Charles Wright with a towel, and . . . did place the aforesaid towel around the throat of the said Charles Wright and did squeeze and shut off the breath of the said Charles Wright thereby causing (his) death . . . by strangulation . . ..' The deputy coroner, Dr. Strong, testified that his first examination of Wright in his cell at about 11:00 p.m. on August 21, 1971, the day of the event charged, revealed that Wright was dead. At that time, he saw blood on the mattress and an abrasion about one-half inch wide on the anterior aspect of the neck. Although autopsy was not performed, Dr. Strong later examined the body more closely in the prison hospital, and discovered a bloody fluid in the cranial cavity among other things which led him to conclude that the primary cause of death was intracranial hemorrhage due to skull fracture, and that the secondary cause was strangulation. His conclusion that the garrotting was a concomitant cause of death was based solely on the one-half inch abrasion which ran about a quarter of the way around the neck of the victim, as none of the other usual signs of strangulation were evident.

The defendant argues that the absence...