State v. Freeman, SC 89119.

• Decision Date: 28 October 2008
• Docket Number: No. SC 89119.,SC 89119.
• Citation: 269 S.W.3d 422
• Parties: STATE of Missouri, Respondent, v. Samuel A. FREEMAN, Appellant.
• Court: Missouri Supreme Court

269 S.W.3d 422

STATE of Missouri, Respondent, v. Samuel A. FREEMAN, Appellant.

No. SC 89119.

Supreme Court of Missouri, En Banc.

October 28, 2008.

Rehearing Denied December 16, 2008.

Stephen E. Walsh, Daniel T. Moore, John M. Albright, Moore, Walsh & Albright, LLP, Poplar Bluff, MO, for Appellant.

Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

MARY R. RUSSELL, Judge.

Samuel A. Freeman ("Defendant") challenges the sufficiency of the evidence in this appeal of his conviction for first degree murder. He argues that his DNA, which was found on items at the murder scene, could have been transferred there at an earlier time. He asserts that this evidence alone could not support an inference that he was there at the time of the murder. Because the jury had a sufficient basis and made reasonable inferences in finding guilt beyond a reasonable doubt, this Court affirms the judgment.

I. Background

Defendant and the female victim were regular patrons at the Poplar Bluff VFW club. On the night of the murder, they had been there for four to five hours. At some point in the evening, they argued over whose turn it was to use a pool table. Witnesses noted their raised voices and Defendant's slight agitation. Later, he attempted to flirt with her, briefly sitting down next to her and offering to buy her a drink, which she rebuffed. Defendant remembered having no direct physical contact with the victim or, at most, it was limited to his tapping her on the shoulder.

At last call, Defendant left the bar with an empty bottle of Galliano liqueur, which the waitress had given to him as a souvenir. Fifteen minutes later, the victim left the bar heading home, which was approximately a quarter-mile away. Her upstairs neighbor heard her arrive shortly thereafter and, going to his window, saw her exit her car and struggle to open her apartment's door. At this point a man approached from behind her, and they entered her apartment together. The neighbor did not see the man drive up, and there were no other cars in sight. The next day, the neighbor was only able to give a very general description of the man and apparently had not suspected foul play.¹

The victim's body was found in her apartment the next afternoon by her mother. She was naked except for one knee-high stocking remaining on her leg. The other stocking was tied tightly around her neck, and her cause of death was found to be asphyxia. The autopsy also revealed a hemorrhage behind her ear, which was caused by some type of blow to the head before her death by an instrument with a smooth surface or perhaps a fist. The examination showed bruises on her thigh and buttocks and injuries to her vagina and near her cervix, likely caused at or just before death and consistent with penetration by a foreign object.²

There was reason to believe that the murderer made some effort to cover his tracks, and police discovered no helpful fingerprint evidence at the scene. The investigation proved fruitless. The case lay dormant until 2005 when samples were submitted to the Highway Patrol for DNA analysis.³ The tests revealed Defendant's DNA on a piece of toilet paper that was found beneath the victim's shoulder. His DNA was also consistent with samples taken from the victim's two stockings, including the one found around her neck. He does not refute the presence of his DNA on the three objects. The DNA samples were from a fluid source, but it could not be determined whether it was blood, saliva, or some other type.

The jury returned a guilty verdict for first degree murder. Defendant was sentenced to life imprisonment without the possibility of parole. This Court granted transfer after opinion by the court of appeals.⁴ Mo. Const. art. V, sec. 10.

II. Sufficiency of the evidence

Defendant argues that his conviction rests on insufficient evidence in that the only evidence connecting him to the crime scene was his DNA found on several objects. He asserts that, given the transferability of DNA, this evidence alone cannot support an inference that he was present in the victim's apartment. He suggests that unlike fingerprints, which are larger, more fragile, and more likely to be obliterated when moved, DNA traces are amenable to inadvertent and intact transfer from one locale to another. He asserts that his DNA's presence on the victim is of little significance because they were both present at a common location prior to the murder.⁵ Defendant suggests that it is likely that the jury erroneously gave the DNA the same weight as fingerprints as an indication of his presence.

In reviewing the sufficiency of evidence, this Court limits its determination to whether a reasonable juror could have found guilt beyond a reasonable doubt. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). In so doing, the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict. Id. As such, this Court will not weigh the evidence anew since "the fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case." State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002).

Viewing the evidence under this standard, there is a sufficient basis for a jury to find guilt beyond a reasonable doubt. The DNA analysis was reliable, scientific, and untainted. The jury was presented with evidence that Defendant's DNA was on a piece of toilet paper underneath the victim's body in her apartment. The toilet paper in her apartment's bathroom also had the same distinct pattern. As such, an inference arises that Defendant was present where this paper was found in the apartment. The opposite inference—that Defendant's DNA arrived on the tissue in some innocent manner—requires an unlikely series of events: the victim needed to bring the tissue with her that night to the VFW, to expose it to his DNA in some manner, and then, upon returning home, to either use it herself just before being murdered or for the killer to have retrieved it from her purse while cleaning the scene. But, no witness testified to seeing her with this tissue at the VFW, and no witness saw Defendant make physical contact with her. As such, nothing but speculation supports the inference of his DNA's mysterious innocent transport to her apartment, particularly when Defendant denied ever being there.

Other evidence also corroborates the inference of Defendant's guilt. His DNA is consistent with the samples taken from the victim's stockings, one of which was still on her leg, the other of which was found around her neck. Here, again, his transfer theory lacks support. Testimony showed that the victim wore jeans over her stockings that night and that Defendant had no contact with her legs whatsoever. Also, there is no evidence of sneezes, coughs, or other fluid discharges that might have transferred his DNA either directly or indirectly to her at the VFW.

In addition, Defendant generally matched the description of the likely murderer given the day after the crime, and it certainly did not exclude him from being regarded as the possible perpetrator so as to undercut the DNA determination. See note 1. Given the inherent oddity and unreliability of the neighbor's dramatically more precise memory 14 years after the events, it was reasonable for a jury to disregard his more recent version as not credible.

Further, the evidence showed that Defendant had the opportunity and means to commit this crime. After both arguing and flirting with the victim, Defendant left the VFW club on foot at approximately 10:23 p.m. She left the VFW at 10:38 p.m. and drove the quarter-mile home. Given its proximity, he would have had time to arrive at her apartment. He then had at least an hour to commit this crime, though the jury may have believed that the timeframe was even longer.⁶ In addition, he left the VFW with a bottle, and the jury could have inferred that it was used in the assault. But, even without this inference regarding the bottle, the DNA evidence, the timeline, the argument and rebuffing at the VFW, and the nature of the victim's injuries supported the jury's findings that Defendant committed this crime with some object, if not the bottle itself.⁷

In sum, the location and statistical match of the DNA evidence here, together with the other evidence favorable to the verdict, show that a reasonable jury could have found guilt beyond a reasonable doubt.

III. Demonstrative use of bottles

Defendant objects to two Galliano liqueur bottles that were used as demonstrative evidence. The demonstrative evidence consisted of one 12-inch and one 18-inch Galliano bottle, presented during the questioning of a waitress who worked the nightshift at the VFW. She stated that Defendant took a Galliano liqueur bottle with him that night, which she had given him for his bottle collection. The State showed examples of both bottles, announcing that they were for the purpose of demonstrating the bottle's appearance.⁸ Defendant contends that the use of the bottles was improper because they were not logically and legally relevant. He argues that this evidence likely misled the jurors into making an unfounded connection and inflamed them with the image of a sexual assault performed with the bottles.

The standard of review for the admission of evidence is abuse of discretion. State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002). This standard gives the trial court broad leeway in choosing to admit evidence; therefore, an exercise of this discretion will not be disturbed unless it "is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006).

Defendant alleges an abuse of discretion due to the bottles' irrelevancy because it was never conclusively shown that a...