State v. Dunn

• Decision Date: 24 March 1981
• Docket Number: No. 40363,40363
• Citation: 615 S.W.2d 543
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Searl DUNN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 543

615 S.W.2d 543

STATE of Missouri, Plaintiff-Respondent, v.Searl DUNN, Defendant-Appellant.

No. 40363.

Missouri Court of Appeals, Eastern District, Division One.

March 24, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 24, 1981.

Application to Transfer Denied June 8, 1981.

Robert C. Babione, Public Defender, Blair Drazic, Michael David, Asst. Public Defenders, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Peter Sadowski, Mary Pincus, Asst. Attys.Gen., Jefferson City, George A. Peach, Circuit Atty., Marion Eisen, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

STEWART, Judge.

This case comes to the writer on a recent reassignment.Searl L. Dunn, defendant, was convicted of the crime of murder in the second degree as a result of the death of his mistress' two year old child.He was sentenced by the court under The Second Offender Act to a term of 150 years in the custody of the Missouri Department of Corrections.

For reversal defendant claims that (1) the evidence was not sufficient to sustain the conviction; (2)he was deprived of a fair trial because of prosecutorial misconduct; (3)he was improperly cross-examined with respect to the last time he had seen his own children; (4) it was error to admit into evidence photographs that were unduly inflammatory and prejudicial; and (5) the punishment was in excess of that permitted by law.We affirm.

We consider first defendant's contention that the court erred in denying his motion for judgment of acquittal because there was no substantial evidence to warrant a finding that the victim died as a result of injuries inflicted by defendant.

This issue requires an extensive review of the facts.In stating the facts we review the evidence in the light most favorable to the State accepting as true all of the evidence, circumstantial and direct, tending to prove defendant's guilt, together with all favorable inferences that can reasonably be drawn from that evidence and disregard all evidence and inferences to the contrary.State v. Miceli, 549 S.W.2d 113(Mo.App.1977).

In May of 1977Patricia Bruegge, age 18 years, left her husband.On May 31she met defendant who was 32 years of age.On June 1, 1977, Mrs. Bruegge and her sons, John A., age two years, and Christopher, about six months, moved into his apartment with him.

On June 25, 1977, at about 7:15 PM, a police officer was directed to defendant's apartment.Mrs. Bruegge and defendant were in the apartment.Mrs. Bruegge directed the officer to a bedroom where he found John Bruegge lying unconscious on a mattress.The child's head was wet and he had multiple areas of discoloration over his face and body.He was taken to the hospital where he was declared dead upon arrival.

The autopsy revealed visible injuries consisting of contusions of the right and left forehead, and the left jaw, a patterned contusion of the right jaw, contusions of the right eyelid, the left eye, posterior inferior scalp, and of the upper abdomen that extended to the left, contusions of the right lower abdomen, and the right inguinal area, several small contusions of the chest, and of the left scrotal sac, a patterned contusion of the right buttock, on the right buttock slightly superior, slightly upward and to the outer aspect, of the lower part of the right buttock near the leg, small contusion of the left upper back, a patterned contusion of the left upper arm, small contusions of the right hand, and additional contusions of the left arm, and small contusions of the right upper leg.

Some of these injuries showed healing taking place, others had been suffered within hours.There were burn injuries of the buttocks which were consistent with the area being submersed in hot liquid.

Major internal injuries involved the head and the abdomen.John Bruegge suffered a subdural hemorrhage and brain swelling.Examination of the abdomen cavity showed some hemorrhage and contusions of the intestines, and the liver and two lacerations to the small intestines.The cause of death was given as multiple blunt trauma of the head and abdomen.The expert witness also testified that such trauma could have been caused by a person of defendant's description striking the boy.The injuries "were not consistent with accidental injury including fall."

When Mrs. Bruegge moved in with defendant, Johnny had been accustomed to sleeping in the bed with his mother.Defendant beat the boy on a number of occasions to "break" him of sleeping in the bed with his mother and to get him to sleep on the floor.Defendant also undertook the task of toilet training, and would spank him "pretty hard" with a belt and require Johnny to set on the potty-chair even though the boy did not have to go to the toilet.Defendant would leave him there "until he went."Mrs. Bruegge told defendant not be beat Johnny so hard.Defendant made no response to her request.She did not stop him from hitting Johnny.

Three or four days after Mrs. Bruegge moved in with defendant her cousin Judy observed a bruise on both sides of the child's face.Judy baby-sat with the Bruegge children on a number of occasions and about a week or so later noticed that Johnny's buttocks were red and raw.On one occasion she saw defendant hold Johnny with one hand and hit him hard with the other hand.This was about the third week after defendant and Mrs. Bruegge started living together.This witness also observed defendant strike the boy on one other occasion after that.This was about the fourth week after Memorial Day.

On June 15 a neighbor noticed that Johnny had a black eye and the side of his face was bruised.

On the day before Johnny's death he was seen by a witness at a restaurant with his mother, defendant and Mrs. Bruegge's mother.The witness observed that the child's face was all puffed up and black and blue; his eyes were glazed and "wide like (he) was in shock."The defendant was "poking" a sandwich into the child's mouth but the child's face was so swollen he could not open his mouth.He made no sound.The defendant told the child "(y)ou had better damn well eat it."The witness expressed anger at the treatment of the child and the defendant stopped trying to force the child to eat.

None of the witnesses had ever seen Mrs. Bruegge strike Johnny with the exception that she would slap his hand if he reached for something he was not to have.He showed no signs of injury until after he moved with his mother into defendant's apartment.After that time he did not run and play as he had in the past.He was subdued.

Defendant testified on his own behalf that he never hit Johnny with his fists, never punched him and did not him him in the head.He did not strike the boy with a belt.The only discipline inflicted by him was to ask the boy to stand in the corner or deprive him of his toys.

Defendant testified that the first injury that he noticed was the burns to the buttocks.This was brought to his attention by Mrs. Bruegge who told him that she was giving Johnny a bath and went to see about the baby and Johnny turned on the hot water and sat down in it.A week before the child died he noticed other injuries.He was not present when Johnny was hurt.Mrs. Bruegge told him that Johnny had fallen down the steps and had a few scratches on his face and stomach, a slight cut on the eye and a little mark on the back of his head; he did not appear to be seriously hurt.On the day Johnny died defendant spent most of the morning away from the house.Later in the day as he was leaving the house, Mrs. Bruegge told him "Johnny is having a convulsion again" and he went into the room and found him unconscious.Defendant further testified that Johnny had a convulsion "the night before or something."He denied the testimony of all the other witnesses concerning any abuse of the child.Defendant had previously been convicted of the crime of armed robbery, burglary and theft, robbery and theft, and automobile theft.

This case was tried as one of circumstantial evidence.In such cases the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt.They must also be inconsistent with and exclude every reasonable hypotheses of his innocence.The circumstances do not have to be absolutely conclusive of guilt nor do they have to demonstrate the impossibility of innocence.The existence of other possible hypotheses is not sufficient to remove the case from the jury.State v. Miceli, 549 S.W.2d 113(Mo.App.1977).

In this case the jury was warranted in finding from the evidence that defendant caused the death of Johnny Bruegge.Prior to the time that Johnny moved into defendant's apartment with his mother there was no evidence of his having been abused.His mother was not shown to have been a strict disciplinarian and was not known to have hit him.The jury could find that defendant beat the child to force him from sleeping in the bed with his mother; to toilet break him; to discipline him for running, for not sitting when commanded.Witnesses saw defendant land severe blows upon the child.Defendant exhibited hostility toward the child just the night before his death.The child's death was caused by multiple blunt traumas which could only have been inflicted by one other than the deceased and not by accident or falls.The court did not err in overruling defendant's motion for acquittal.

We next consider defendant's contentions that this cause be reversed because of prosecutorial misconduct.

The first instance of which defendant complains occurred in the argument of the State when the Assistant Circuit Attorney was arguing with respect to the manner in which Johnny Bruegge received the burns to his buttocks.She argued,

"Who has the hostility?Who is the one who has the hatred?Who's good and pure?Not the baby's mother.She's a slut.She's a tramp.She wouldn't do this to this baby.He does.He's...