State v. Gray

• Decision Date: 17 May 2011
• Docket Number: No. ED 94420.,ED 94420.
• Citation: 347 S.W.3d 490
• Parties: STATE of Missouri, Plaintiff/Respondent,v.Quintin GRAY, Defendant/Appellant.
• Court: Missouri Court of Appeals

347 S.W.3d 490

STATE of Missouri, Plaintiff/Respondent,

v.Quintin GRAY, Defendant/Appellant.

No. ED 94420.

Missouri Court of Appeals, Eastern District.

May 17, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied July 26, 2011.

Application for Transfer Denied

Oct. 4, 2011.

Timothy A. Blackwell, Jefferson City, MO, For Plaintiff/Respondent.Timothy J. Forneris, St. Louis, MO, For Defendant/Appellant.SHERRI B. SULLIVAN, P.J.

Introduction

Quintin Gray (Appellant) appeals from the trial court's judgment entered upon a jury verdict convicting him of second-degree murder and abuse of a child (causing death). We affirm.

Factual and Procedural Background

On August 10, 2009, the State charged Appellant with first-degree murder and abuse of a child causing death. The evidence presented at trial, viewed in the light most favorable to the verdict, is as follows.

M.T., the daughter of Ashley Turner (Ashley) ¹, was born on September 14, 2004. In February 2008, Ashley was living in an apartment with her boyfriend, Appellant, and M.T. Appellant was not M.T.'s father. Appellant's four-year-old son, Q.G., lived with his mother but also spent time at Ashley's and Appellant's apartment. On February 24, 2008, Appellant took M.T. and Q.G. outside to play in the backyard with the family dogs.

After the children came inside, Ashley bathed them. Ashley testified that M.T. had small dents in her palms from catching herself on the gravel, a small nick on her knee, and a welt under her eye from playing outside. Ashley then fed the children dinner, but M.T. spit her food out. M.T. was constipated that day so Ashley took M.T. to the bathroom to have a bowel movement. Afterwards, M.T. felt better and Ashley put the children to bed.

The next morning, Ashley left for work shortly after 6:00 a.m., leaving M.T. at home in Appellant's care with Q.G. Neachelle Gentry (Gentry), the downstairs neighbor, testified that she heard a lot of unusual noises coming from Ashley's and Appellant's apartment for about 30 to 45 minutes that morning. Gentry testified that it sounded as if something heavy, like furniture, was being moved across the floor.

Around 10:30 or 11:00 a.m., Ashley received a call from Appellant and rushed home. When Ashley arrived home, M.T. was on the floor and the paramedics were giving her CPR. Ashley noticed a pair of M.T.'s underwear in the bathtub with feces in it but it was not the pair M.T. had worn to bed the night before. Ashley rode to the hospital in the ambulance with M.T. while a friend drove Appellant and Q.G. to the hospital.

M.T. arrived at the hospital in full cardiac arrest. Emergency room physician Dr. James Matthew Gerard (Dr. Gerard) testified that M.T. had a contusion or swelling on her forehead and multiple abrasions, lacerations, and bruises, many of which appeared fresh. Despite emergency treatment, M.T. died.

Detective Robert Jauer (Jauer) responded to the hospital. Jauer talked to Q.G. alone about what had happened to M.T. Q.G. stated that Appellant had whipped M.T. with a belt and his fist. Q.G. later told Jauer that after M.T. “got a whipping,” Appellant gave M.T. a bath.

Q.G. was next interviewed at the Children's Advocacy Center, and then by Christina Hemkens (Hemkens), a social worker with the Children's Division. Hemkens testified Q.G. stated that Appellant “whooped” M.T. because she wet the bed and was not listening. He choked her with a belt, threw her on the ground and punched her in the stomach. Q.G. stated Appellant then gave M.T. a bath and M.T. got sick. Q.G. stated Appellant then tried to “make [M.T.] alive” by pushing on her stomach three times.

Detective Jimmy Hyatt (Hyatt) testified that when the police arrived at the apartment to investigate, the water was running in the bathtub and there was a pair of underwear in the bathtub with fecal matter in it.

The autopsy report indicated that M.T. had internal injuries including a lacerated liver, and that she died from abdominal blunt trauma. The report also indicated that M.T. had numerous external injuries, including abrasions on her cheek, forehead, chin, lips, arms, back, buttocks, hand and leg and contusions on her forehead, temple, cheeks, wrist, back, hand and buttocks. M.T. also had a scar on the back of her right hand that appeared to be a previously healed thermal injury. Hyatt testified Ashley told him that there were injuries to M.T. that she had not seen before and that Ashley could not explain all but a few of M.T.'s external injuries.

Ashley testified that M.T. was healthy and did not have a heart problem; M.T. was toilet-trained and never had any accidents; Ashley was responsible for disciplining M.T.; and the weekend before her death, Ashley “popped” M.T. on the butt and arm with a house shoe and had possibly twice hit M.T. with a belt. Ashley testified Appellant gave Q.G. a “whooping” with a belt that same weekend for peeing on himself.

Ashley had only once left M.T. with Appellant prior to the incident. A couple of days before Christmas 2007, Ashley came home and discovered M.T. had a blistering burn covering her hand for which she took M.T. to the emergency room for treatment. Ashley testified that she was initially told that M.T.'s hand was burned when she tripped over the dogs while playing with water in the bathroom. M.T. later told Ashley that Appellant had burned her hand. After this, M.T. wanted to stay with Ashley's mother, Vickie Turner (Vickie) all of the time. Vickie testified that shortly before Christmas 2007, M.T.'s hand was burned and that after it appeared M.T. did not want to go home and afterwards always wanted to stay with Vickie.

Dr. Gerard testified M.T.'s injuries were not consistent with a minor fall, hitting her head on something, or playing with dogs. Dr. Gerard stated it would be unlikely for someone to sustain all of these injuries in a single fall and he “would absolutely consider [M.T.'s injuries to be] consistent with abusive behavior or suspicion of abusive type of injuries.” Dr. Gerard opined that the liver is a “tough” organ which is well protected, taking a tremendous amount of force to lacerate it, and he had only seen accidental liver lacerations occur in children involved in high force mechanism accidents such as vehicle accidents. Dr. Gerard testified M.T.'s internal injuries were not consistent with chest compressions but were from a very forceful blow. Dr. Gerard had never seen nor heard of a case where any manner of CPR caused a liver laceration and he did not believe that any kind of compression, including properly or improperly performed CPR, could cause this type of liver injury because a compression could not generate enough force in light of the elasticity of the chest wall.

Dr. Gerard stated that cardiac arrhythmia in children is relatively uncommon, and is usually accompanied by an underlying infection. The child would exhibit symptoms such as shortness of breath, weakness, or tiredness for days or weeks and it is extremely unlikely for a three-year-old with no history of heart problems to suddenly manifest arrhythmia or a primary heart defect.

Dr. Jane Turner (Dr. Turner), a forensic pathologist and medical examiner, performed the autopsy on M.T. Dr. Turner testified that she did not observe any postmortem damage to M.T. and that the abrasions on M.T. appeared red, which indicates that M.T.'s heart was still beating when they were inflicted. While some of the injuries may have occurred within a day or two of death, most of M.T.'s external injuries were inflicted concurrent to her death.

Dr. Turner testified that M.T.'s liver had two very large lacerations and, given their location, would have bled very quickly. Dr. Turner testified her exam revealed that approximately 30 to 33 percent of M.T.'s blood volume, a significant amount of blood loss, had settled in her abdominal cavity and was sufficient to kill M.T. by causing M.T.'s body to shut down from shock.

Dr. Turner examined M.T.'s heart and found nothing wrong with it and no evidence of cardiac dysrhythmia or arrhythmia. Dr. Turner testified that M.T.'s heart stopped because she lost a significant volume of blood. Dr. Turner stated that if M.T.'s heart had stopped before the liver was lacerated, she would have expected to see little or no blood in M.T.'s abdomen. Dr. Turner testified that the amount of blood in M.T.'s abdominal cavity indicates that her liver was lacerated before her heart stopped. In addition, M.T. had acute congestion, or accumulated blood, in her lungs, which indicates that M.T. was alive for a while after she was injured.

Dr. Turner testified that liver lacerations are normally associated with the application of force seen in motor vehicle accidents. Dr. Turner has never seen CPR cause a liver laceration and that CPR cannot cause liver lacerations because compressions are not compatible with the sudden forceful blow necessary to cause a laceration. Dr. Turner stated that a sudden forceful blow consistent with a car accident would be a kick, a punch, or a full body knee drop, and that such a blow to the abdomen could cause an involuntary bowel movement.

In addition, Dr. Turner testified that there were hemorrhages in the tissue around M.T.'s intestines, in her colon, on each side of her scalp, and in the soft tissue of the neck, indicating there was some manipulation of her neck consistent with strangulation or intubation.

Appellant did not testify at trial but called Dr. Thomas Young (Dr. Young), a forensic pathologist, to testify on his behalf. Dr. Young opined that the liver lacerations were caused by CPR and did not cause M.T.'s death.

The jury found Appellant guilty of second-degree murder and abuse of a child resulting in death. On February 19, 2010, the trial court sentenced Appellant to concurrent 25–year sentences on each count. This appeal follows.

Points Relied On

In his first point, Appellant argues the trial court erred in excluding a 911 call as hearsay...