State v. Daugherty

• Decision Date: 09 March 1982
• Docket Number: No. 2,No. 62207,62207,2
• Citation: 631 S.W.2d 637
• Parties: STATE of Missouri, Respondent, v. Andrew DAUGHERTY, Appellant
• Court: Missouri Supreme Court

Page 637

631 S.W.2d 637

STATE of Missouri, Respondent, v. Andrew DAUGHERTY, Appellant.

No. 62207.

Supreme Court of Missouri, Division No. 2.

March 9, 1982.

Rehearing Denied April 6, 1982.

Leonard W. Buckley, Jr., St. Louis, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

MANFORD, Special Judge.

This appeal follows a jury conviction for murder first degree, § 565.003, RSMo 1978. ¹ Punishment was affixed at imprisonment for life, vesting exclusive appellate jurisdiction in this court pursuant to Mo.Const.Art. V, § 3.

Five points of error are presented which in summary allege the trial court erred (1) in the submission of verdict directing instructions; (2) in the admission of a line-up photograph; (3) in the admission of a co-defendant's statement; (4) in refusing appellant permission to comment on the range of punishment relative to all charges submitted; and (5) in instructing the jury on murder first degree when appellant was charged with capital murder.

The sufficiency of the evidence is not challenged, and the evidence supports appellant's conviction for murder first degree. Initially, appellant was charged with capital murder, burglary first degree and robbery first degree, but nolle prosequi was entered on the burglary and robbery charges.

The record revealed that the victim, Father Edward Filipiak, a priest of the Shrine of St. Joseph Catholic Church in the City of St. Louis, was observed by two friends watching television in his bedroom at about 8:45 p. m. on September 29, 1979. At approximately 11:30 p. m. the same evening, appellant and his two accomplices encountered one Valdus Turner. One of the trio attempted to sell Turner a portable TV set. This television set was identified at trial as having belonged to the victim. During this same encounter, appellant sold five bottles of soda to Turner. At approximately 8:45 a. m. the next morning, a church volunteer arrived at the church, finding the rear door open, food removed from the freezer and other items moved from their normal location. This volunteer went to the victim's living quarters and found it in disarray. She found the victim on the bedroom floor. Police were called and were later joined by a doctor who was attending mass. The doctor determined that the victim had been dead for several hours. The volunteer, in the company of police, noticed several items of personal property missing, including the TV set, an electric razor and an umbrella. Investigating officers took photographs and seized several items from the scene, including a cardboard box. The TV set and umbrella were later seized. The TV set was secured from a resident to whom one of the trio had tried to sell the set. The umbrella was secured from the residence of appellant. The umbrella and the cardboard box secured by police at the scene bore appellant's fingerprints. An autopsy showed that the victim had died from suffocation and brain hemorrhage. At the close of the prosecutor's case and following a hearing on appellant's voluntary election not to testify, the evidence closed. The jury returned its verdict, motion for new trial was overruled and appellant was sentenced in accordance with the verdict. This appeal followed.

Under point (1), appellant challenges the verdict directing instruction. Appellant argues that the three verdict directing instructions submitted to the jury improperly required the jury to find guilt where death was caused by striking and suffocating the victim, and contends that there was a "total absence of evidence of any striking by anyone or any evidence which could allow such an inference." The premise of appellant's contention is found within his brief and is best illustrated by his assertion that "... the jury was misled into believing that the cause of death was both striking and suffocating," and further, "By the interjection of the term 'striking' in the verdict directors as one of the causes of death, the jury was misled into believing that the cause of death was the result of more heinous and reprehensible conduct on the part of Appellant." The pertinent language of the instructions which appellant attacks is, "caused the death of Father Filipiak by striking and suffocating him".

The basic principle applicable to the submission of instructions is that they should not be given if there is no evidence to support them. State v. Agee, 474 S.W.2d 817, 820 (Mo.1971). Instructions must be supported by substantial evidence and reasonable inferences to be drawn therefrom. State v. Cole, 377 S.W.2d 306 (Mo.1964); State v. Beatty, 617 S.W.2d 87, 91 (Mo.1981); and State v. Fleming, 577 S.W.2d 174 (Mo.App.1979). Instructions which are at variance with the charge or which are broader in scope than the evidence are improper unless it is shown that an accused is not prejudiced thereby. State v. Scott, 534 S.W.2d 537, 540 (Mo.App.1976).

In addressing this contention, the testimony of the expert medical examiner who performed the autopsy becomes the most important evidentiary contribution. In addition to qualification as an expert and testimony regarding external visual examination of the victim, this expert stated:

"Q. What was on his head, Doctor?

A. He had a pillowcase over his head.

Q. Do you know who removed that pillowcase?

A. I removed it.

Q. When you removed the pillowcase, did you observe anything else?

A. Yes, he had a gag around his mouth.

Q. All right, Doctor. After you removed his clothing, would you give us the benefit of your other visual examination.

A. He was very cyanotic. By that, I mean he was blue in color, and the blue color was due to the lack of oxygen in the blood. His fingernail beds were gray. That, again, meant lack of oxygen in his blood. He had neck vein distension; meaning the blood was not going back to his heart. He had a one inch bruise on his left chin. He had a one inch laceration of his left inner lip, the lower lip on the inner side, which was probably secondary to a tooth going through it. Then he had a right subgaleal hemotoma-a bruise-on his head which measured eight inches, and that was in the parietal area. He had two large bruises on the anterior chest, and these were twelve inches; and then on feeling the body, he had a crushing chest injury such that ribs two through ten were fractured on the anterior portion of his chest...

Q. And tell us what part of the body was opened, and how it was opened, and what you found.

A. The next step ... I made an incision from ear to ear, and peeled the skin back, and removed the brain, and there on the right side I found a very large bruise sitting in the parietal area-that's this area on the right side-and then I removed the brain, and I found a hemorrhage into the brain which was a subarachnoid hemorrhage. The most significant thing I found was the right brain hemorrhage.

Q. All right, Doctor. Did you reach a diagnosis as to the cause of this man's death?

A. Yes. There are multiple causes of death. Death is a combination of suffocation secondary to a gag in the mouth, and a pillowcase over the head, and blood on the brain.

Q. ... do you have an opinion based on reasonable medical certainty as to the cause of this man's death?

A. Suffocation and hemorrhage of the brain." (emphasis added)

The foregoing establishes that the victim sustained multiple lacerations and fractures to his body. It was charged at trial that death resulted from multiple injuries, and that the actions of appellant and his accomplices produced these multiple injuries. Appellant offered no evidence, and does not advance any reasonable alternative hypothesis to these charges on appeal. The fact that the medical expert's opinion included suffocation and hemorrhage as causes of death does not invalidate other aspects of the attack as a contributing factor. The evidence established that the victim was brutally beaten and suffocated. Appellant would have this Court believe that murder by "striking and suffocation" is more heinous than murder by suffocation or murder by striking. Such argument, under the facts and circumstances of the instant case, is reduced to nothing more than sheer academic conjecture designed perhaps to suggest prejudice and with the further hope that this Court would seize upon the suggestion of prejudice and proceed to consider such suggestion without reflecting upon the evidence contained in the record. Appellant would have this Court believe that the taking of a persons' life by another is less reprehensible if achieved by a single act as contrasted with multiple acts. Murder is inherently heinous. In such cases, as in the instant case, where the evidence reveals that the victim suffered severe multiple wounds and was suffocated, and the record on trial and upon appeal contains no viable alternative suggesting the cause of death, no prejudicial error arises from the form and substance of instructions as were submitted herein. This premise holds true no matter how absurd the academic suggestion to the contrary. There is no merit to point (1) and it is ruled against appellant.

Appellant next attacks the trial court by charging the court erred when it admitted a lineup photograph. The basis of appellant's contention is that no proper foundation for such photograph was laid prior to admission.

In criminal cases, a photograph is admissible if it corroborates the testimony of a witness, connects the accused with the offense, provides the identity of a victim, or tends to prove any material elements in the case. State v. Jackson, 499 S.W.2d 467 (Mo.1973) and State v. Foster, 600 S.W.2d 207 (Mo.App.1980). On the question of admission, the trial court has wide discretion and that discretion will not be disturbed absent the showing of an abuse thereof. State v. Hurst, 612 S.W.2d 846 (Mo.App.1981). Photographs are generally held admissible if they are relevant to a material issue within the judgment of the trial court. Hurst, sup...