State v. Cook, 10339

• Decision Date: 21 October 1977
• Docket Number: No. 10339,10339
• Citation: 557 S.W.2d 484
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert Joseph COOK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 484

557 S.W.2d 484

STATE of Missouri, Plaintiff-Respondent, v.Robert Joseph COOK, Defendant-Appellant.

No. 10339.

Missouri Court of Appeals, Springfield District.

Oct. 21, 1977.

John D. Ashcroft, Atty. Gen., Robert M. Sommers, Frank J. Murphy, Asst. Attys.Gen., Jefferson City, for plaintiff-respondent.

Scott B. Tinsley, Anderson & Tinsley, Springfield, for defendant-appellant.

Before TITUS, P. J., and PARRISH, CASTEEL and HENRY, Special Judges.

HERBERT C. CASTEEL, Special Judge.

Appellant(hereafter defendant) was charged with the second degree murder of William Anthony Sater, an infant of 18 months, and after a jury-waived trial was found guilty and sentenced to a term of 25 years in the Missouri Department of Corrections.On this appeal he asserts 5 points of error which may be summarized as follows: (1) that the evidence was insufficient to support the conviction because of the lack of any evidence of premeditation and intent to kill; (2) that defendant's verbal and written statements were erroneously admitted because they were given in an environment of psychological coercion; (3) that the testimony of two medical experts was erroneously admitted because they had no previous experience with the type injury received by decedent; (4) that defendant's verbal and written statements were erroneously admitted because no corpus delicti was established; and (5) that the testimony of one medical expert as to the time of the injury and as to possible injury from a previous blow was erroneously admitted because it was based on hearsay.

In State v. Rose, 535 S.W.2d 115, 116-117(1-3 and 4)(Mo.App.1976), the guidelines for appellate review of a court-tried criminal case are set forth as follows:

"Since this case was submitted to the court without a jury, the provisions of Rule 26.01(b),Rules of Criminal Procedure, are applicable and, thus, the court's decision of guilty 'shall have the force and effect of the verdict of a jury'.The scope of appellate review is not to weigh the evidence, but rather, to conclude whether or not the court's decision is supported by substantial evidence.If so, such finding and decision should be affirmed.State v. Daniels, 487 S.W.2d 465, 469(4)(Mo.1972);State v. Lane, 475 S.W.2d 91, 94(1)(Mo.1971).It is the basic function of the trial court in such a case to judge the credibility of the witnesses and to resolve any conflicts or inconsistencies in their testimony.State v. Styles, 476 S.W.2d 591, 592(3)(Mo.1972);State v. Landess, 485 S.W.2d 140, 142(5)(Mo.App.1972).

"In determining the sufficiency of the evidence, this court accepts all evidence tending to support the conviction together with all favorable inferences reasonably to be drawn therefrom.State v. Harris, 485 S.W.2d 612, 613-614(2)(Mo.1972);State v. Petrechko, 486 S.W.2d 217, 218(1)(Mo.1972);State v. Lemon, 504 S.W.2d 676, 679(1)(Mo.App.1973).Further, all inferences which could be drawn contrary to the result reached by the finder of the facts must be disregarded.State v. Stapleton, 518 S.W.2d 292, 296(1)(Mo. banc 1975)."

With these principles in mind, we consider defendant's first point that the evidence was insufficient to support the conviction.The necessary elements of second degree murder are willfulness, premeditation, and malice aforethought.State v. Randolph, 496 S.W.2d 257, 260(1)(Mo. banc 1973).In the context of murder, willfulness means " 'intentionally' " or " 'knowingly' "; premeditation means " 'thought of beforehand for any length of time, however short' "; and malice means " ' "the intentional doing of a wrongful act without just cause or excuse " ' ".State v. Woodard, 499 S.W.2d 553, 556(Mo.App.1973).A brief statement of the facts will show that the trial court did hear substantial evidence supporting all necessary elements of the crime.

In late January of 1975, Sue Ann Sater, the mother of Tony, the infant victim, met the defendant and approximately two days later permitted him to move into her apartment.Defendant was 19 years old, 6 feet 2 inches tall, and weighed 285 pounds.He was unemployed but Sue was working as a nurse's aide.On February 7, 1975, Sue terminated the services of a babysitter she had been using for Tony because Tony had been coming home dirty and with scratches and "a few bruises on his arms and shin."After this, defendant took care of Tony most of the time that Sue was at work.After defendant started caring for Tony, Sue noticed more and larger bruises on the child's body.Tony was an active child and appeared to suffer more falls than average.However, one large bruise on the child's buttocks was in the shape of a hand and was much larger than the hand of either of two women who examined the child on February 13 and February 14.

On March 14, 1975, defendant and Sue moved from the apartment to a mobile home.Defendant's parents kept Tony during the move, and in the late afternoon defendant and Sue took Tony to the mobile home and, because he had missed his nap and was sleepy, Sue put him to bed with his clothes on.Later, while defendant and Sue were eating their supper, Tony got out of his bed and came to the table, and Sue then changed him to his pajamas for the night and put him back to bed.During this time defendant told Sue to get back to the table as her supper was getting cold, but she stayed with Tony until he was asleep.She testified that Tony appeared to be in good health.

The small bedroom occupied by Tony contained three pieces of furniture, a bed, a dresser, and a chest of drawers.The bed consisted of a twin-sized mattress and box springs with legs affixed into the bottom of the box spring.It was 19 inches from the floor to the top of the mattress.One side of the bed was against the south wall, and one end of the bed was against the west wall.The dresser was against the west wall with a distance of approximately 8 inches between the bed and the side of the dresser.The dresser was 2 1/2 feet tall, and the corners on the top and front of the dresser were rounded.The chest of drawers was against the north wall several feet from the bed.

After supper defendant and Sue watched television; and about 9:00 o'clock, after checking on Tony, Sue went to bed.Defendant was also lying on the bed watching television and Sue was "half asleep" when they heard a "thump" from Tony's room and defendant got up to check on him.Sue was not sure whether she heard a second "thump" or not because she had dozed off again, but a few minutes after defendant left her room she heard Tony crying, and then defendant came in carrying Tony who was crying, holding his head to one side, and holding his clenched fist against his abdomen.After some discussion they took Tony to a hospital.

Dr. Robert L. Coscia, a surgeon with special training in trauma and shock, operated on Tony the following morning.He found several injuries in the abdominal area, the most significant being a "complete disruption" of the duodenum.This portion of the small intestine was torn completely in two, allowing the intestinal contents to escape into the abdominal cavity, causing a "sepsis" or infection, which resulted in Tony's death on the morning of March 16, 1975.An autopsy was performed later that day by Dr. Robert L. Lovett, a physician and pathologist.Both doctors testified that Tony's injuries were caused by an external force applied generally from front to rear and that a great deal of force was required.They stated the injuries were consistent with the child's being thrown with considerable force against the rounded corner of the dresser and were inconsistent with the usual childhood falls.

The defendant gave an oral statement to law officers on March 19 and then gave a written statement on March 25, 1975.On both occasions he was advised of his rights before he was questioned.The key portion of his written statement follows: "I heard something in Tony's room.I went into Tony's room and he was playing in the floor.I sat him upon the bed and Tony jumped back down.It made me mad.I picked him up and told him to lay down and threw him bodily toward the bed and Tony didn't hit the bed, he hit the corner of the dresser which was flush against the wall and fell back onto the bed and Tony started crying."

There is little question as to the element of malice.The court could and did find that defendant threw the child with great force " ' "the intentional doing of a wrongful act without just cause or excuse " ' ".State v. Woodard, supra, 499 S.W.2d at 556.This supplies the element of malice aforethought.There was substantial evidence from which the court could find that defendant became angry at the child and picked him up and threw him with great force and thus his wrongful act was " 'thought...