State v. Clements, s. 17582

• Decision Date: 10 March 1993
• Docket Number: Nos. 17582,18043,s. 17582
• Citation: 849 S.W.2d 640
• Parties: STATE of Missouri, Respondent, v. Ronald Charles CLEMENTS, Appellant. Ronald Charles CLEMENTS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 640

849 S.W.2d 640

STATE of Missouri, Respondent, v. Ronald Charles CLEMENTS, Appellant.

Ronald Charles CLEMENTS, Appellant, v. STATE of Missouri, Respondent.

Nos. 17582, 18043.

Missouri Court of Appeals,

Southern District,

Division Two.

March 10, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 24, 1993.

Application to Transfer Denied April 20, 1993.

William J. Swift, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

MONTGOMERY, Presiding Judge.

A jury convicted Ronald Clements (Defendant) of first degree murder, § 565.020, ¹ and he was sentenced to life imprisonment without eligibility for probation or parole. In Case No. 17582, Defendant appeals from that conviction.

Afterwards, Defendant filed a pro se motion under Rule 29.15 for postconviction relief which was later amended by appointed counsel. An evidentiary hearing was held on February 7, 1992, resulting in a denial of Defendant's motion. In Case No. 18043, Defendant appeals from that denial. We have consolidated the appeals which will be separately addressed in this opinion.

This case is before us for a second time. In State v. Clements, 789 S.W.2d 101 (Mo.App.1990), we reversed Defendant's conviction for the first degree murder of Steven Newberry because of the erroneous admission of expert witness testimony which opined that Defendant deliberated about his evil act. The factual background of this case fully appears in Clements I. Since Defendant does not challenge the sufficiency of the evidence, we recite only the facts necessary to resolve each claim of error made by Defendant.

No. 17582

Defendant's first point argues the trial court erred by admitting photographs of the body of Steven Newberry since they were gruesome, served only to inflame the passion and prejudice of the jury and had no probative value.

At trial, the State offered over objection five photographs which depicted the wounds suffered by the victim and the body at the crime scene. The evidence revealed that Defendant and his two accomplices beat the victim to death, striking him with baseball bats at least twenty times each. The body was then dragged and dumped into a nearby cistern where it was later discovered.

When passing photographs to the jury, the prosecutor stated, "... there are some of them that are fairly gruesome. If you don't want to view those, just pass them around." Defendant argues that comment was made solely to inflame the jury.

A trial court has broad discretion in determining the admissibility of photographs, and such admission is error only upon a showing of an abuse of discretion. State v. Kincade, 677 S.W.2d 361, 366 (Mo.App.1984). To establish an abuse of discretion, defendant must show that reasonable persons could not differ as to the propriety of the actions of the trial court. State v. Jimerson, 820 S.W.2d 500, 502 (Mo.App.1991).

Photographs are generally admissible if they are relevant to a material issue. State v. Murray, 744 S.W.2d 762, 772 (Mo. banc 1988). Photographs, although gruesome, may be admitted where they show the nature and location of wounds, where they enable the jury to better understand the testimony, and where they aid in establishing any element of the state's case. Id.

The photographs of the murder victim show the nature and location of the wounds, which enabled the jury to better understand the testimony that the victim was struck approximately sixty times with baseball bats. Furthermore, deliberation was an element the State had to prove to establish first degree murder. The photographs tend to establish that element. Evidence that the victim was struck with a baseball bat some twenty times by Defendant is relevant to the issue of deliberation since it is reasonable to conclude that at least after the first blow, Defendant had time to deliberate before each succeeding blow. For these reasons, the photographs had probative value.

In State v. Smith, 756 S.W.2d 493 (Mo. banc 1988), the trial court admitted five photographs of the victim's body which was riddled with approximately fifty stab wounds. The Missouri Supreme Court upheld the admission of the photographs "because they showed the nature, location and apparent severity of the wounds." Id. at 498. Continuing, the Court said, " 'Insofar as these photographs are unpleasant, it is a reflection of the nature of the crime.' " Id., quoting State v. Pollard, 735 S.W.2d 345, 348 (Mo. banc 1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 682 (1988).

Defendant argues these photographs lacked probative value and were unnecessary because he had stipulated as to the cause of death and admitted participating in the events which caused the death of the victim. This argument was rejected in State v. Schneider, 736 S.W.2d 392 (Mo. banc 1987), where the appellant argued the trial court erred in the admission of twenty-nine photographs depicting various stages of the autopsies of the victims and where appellant "was willing to stipulate to the nature and location of the wounds...." Id. at 403. Our Supreme Court held that "a photograph is not rendered inadmissible because other evidence may have described what is shown in the photograph; nor is the State precluded from introducing the photograph because the defendant expresses a willingness to stipulate to some of the issues involved." Id.

Relying on State v. Floyd, 360 S.W.2d 630 (Mo.1962), Defendant claims the comment of the prosecutor (some of the pictures are fairly gruesome) was only an attempt to inflame and prejudice the jury. Floyd does not support that argument.

In Floyd, a photograph was admitted showing the badly decomposed body of the victim. The Court recited the familiar rule that photographs are admissible to show "the nature and location of the wounds or the position of the body, as well as to corroborate the prosecution's theory as to the motive prompting the infliction of the lethal blow or to refute defendant's plea of self-defense, to prove the identity of deceased,...." Id. at 632. The Court concluded the photograph of the victim was not needed nor offered for any of the reasons just mentioned, especially since the State admitted the body was so badly decomposed "that most of these matters could not be found or illustrated, particularly by this photograph." Id. at 633. Thus, the conviction in Floyd was reversed because the photograph was irrelevant, not for any comments by the prosecutor to the jury. We find no abuse of discretion in admitting the photographs in question. Point I has no merit.

Each of Defendant's last three points of his direct appeal ask for our plain error review since his trial counsel ² failed to object to certain testimony elicited by the State and to a portion of the State's closing argument. Plain error may be considered in our discretion upon a finding that manifest injustice or a miscarriage of justice has occurred. Rule 30.20.

"The assertion of plain error places a much greater burden on a defendant than when he asserts prejudicial error." State v. Hunn, 821 S.W.2d 866, 869 (Mo.App.1991). "A defendant must not only show that prejudicial error resulted, he must further show that the error so substantially affects his rights that manifest injustice or a miscarriage of justice will inexorably result if left uncorrected." Id. at 869-70.

We are further mindful of a recent admonition regarding plain error review in State v. Drewel, 835 S.W.2d 494 (Mo.App.1992). "We do not expect trial judges to assist counsel in the trial of a lawsuit. Too often they are accused of trying 'my lawsuit.' They preside to judge a lawsuit. Sua sponte action should be exercised only in exceptional circumstances." Id. at 498. Keeping this legal background in mind, we turn to Defendant's next three points.

His second point alleges the trial court committed plain error by allowing the prosecutor to ask a defense expert witness, Dr. Daniel, whether Defendant was suffering from a mental disease or defect, as defined by Chapter 552, at the time in question. Without objection, the psychiatrist answered this question in the negative.

"Generally, expert testimony is admissible if it is clear that the subject of such testimony is one upon which the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a proper conclusion from the facts in evidence." State v. Lawhorn, 762 S.W.2d 820, 822 (Mo. banc 1988). An expert may testify as to his opinion on an ultimate issue in a criminal case, but the evidence must aid the jury and it must not invade the province of the jury. State v. Cummings, 714 S.W.2d 877, 885 (Mo.App.1986). It is within the trial court's sound discretion whether to admit an expert's testimony. Id.

In State v. Brigham, 709 S.W.2d 917 (Mo.App.1986), defendant was charged with second degree murder of his ex-wife. After offering testimony of his hired psychologist during trial, defendant withdrew his plea of not guilty by reason of mental disease or defect. Defendant then called another psychologist, Dr. McWay, who testified during cross-examination that defendant had no mental disease or defect and was capable of forming the intent to kill. The jury was instructed on diminished capacity under § 552.030.3, RSMo 1978 (now repealed). Contrary to defendant's assertions, this Court said, "The mental status of the defendant was a proper subject for expert testimony. The subject of his expert opinion was not common knowledge and it was not barred because it invaded the province of the jury. Id. at 920 (citations omitted).

Here, Defendant heavily relies on Clements I where this Court, reviewing for plain error, reversed Defendant's conviction when an expert, Dr. Harte, testified in his opinion Defendant had deliberated prior to killing the victim. This Court said:

Dr. Harte had professional qualifications and an opinion, based upon case history and...