State v. Green, s. 15830

Decision Date31 October 1990
Docket Number16747,Nos. 15830,s. 15830
Citation798 S.W.2d 498
PartiesSTATE of Missouri, Plaintiff-Respondent, v. James Henry GREEN, Defendant-Appellant. James Henry GREEN, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Raymond L. Legg, Columbia, for defendant-appellant and movant-appellant.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SHRUM, Judge.

Defendant, James Henry Green, was convicted by a jury of involuntary manslaughter and sentenced to 7 years pursuant to a jury recommendation. He appeals from that judgment and sentence in Case No. 15830. Defendant filed a Rule 29.15 motion seeking post-conviction relief. The 29.15 motion was denied without evidentiary hearing. Defendant appeals from the order and judgment denying the 29.15 motion. That appeal is Case No. 16747 and was consolidated with the direct appeal from defendant's conviction. The appeals will be dealt with separately in this opinion.

Case No. 15830

Viewed in the light most favorable to the support of the jury verdict, the evidence in the case was as follows. Defendant lived with his mother Bertha Winget (hereafter Bertha). The victim, Willa Mae Lester (hereafter Mae), defendant's girlfriend, stayed with defendant in Bertha's home on occasion. Defendant, Mae, and Alphonso Penerman spent part of the daylight hours of October 16, 1987, drinking gin at Bertha's house. Alphonso left between 5:00 and 5:30 p.m. Bertha was at home all day but was not drinking. After Alphonso left, defendant and Mae continued drinking gin. Sometime after Alphonso left, Bertha heard defendant and Mae talking loud. Mae wanted to go home but defendant told her she was too drunk to go home. Bertha also said she "guessed" defendant and Mae were arguing, in part, because Mae had moved out for 4 days or so to "Pinky Daniels' " house. While they were in the living room and arguing, Bertha saw defendant slap Mae with his hand. Later, defendant and Mae went to defendant's bedroom where they were heard to be continuing the argument. Bertha had a bedroom separate from where defendant and Mae slept. She went to bed about 8:30 p.m. because she wasn't feeling well. Later in the evening, defendant came to Bertha's bedroom saying, " 'Mother, come here,' ... 'Mae done had a heart attack or something.' " Bertha went to the porch where Mae was lying with her head in the door and her feet out on the porch. Mae was wearing a sweater but was wearing nothing from the waist down. This occurred between 9:00 and 10:00 p.m.

At the time, defendant had a broken leg. His leg was in a cast. Bertha remembered the defendant hopping around, helping Bertha move Mae into the house. Defendant carried Mae by the shoulders and Bertha had her feet. Bertha said she put some pants on Mae after they carried her into the bedroom. Defendant tried to give Mae "mouth-to-mouth" but Bertha could tell that Mae was dead when they put her on the bed. She told defendant, " 'Baby, you better leave her alone. Mae's dead.' " Bertha then went to the living room. Later she called to defendant, telling him, " '[Y]ou better call the sheriff and tell them Mae's dead, so they won't think you killed her.' " Defendant replied, " 'Mother, I'll call in a few minutes. I want to get myself together.' "

The Sikeston Police Department was called, and at 12:54 a.m. on October 17, 1987, Scott County Sheriff's Deputy Ulmer was requested to go to Bertha's house. When Ulmer arrived at 1:08 a.m., he found Mae lying across the bed. She had dried blood around her nose; she had bruising around her neck; she had a cut above the temple; and she appeared to be unconscious, already deceased. Upon further examination, Ulmer found some bruising on the left side of her face, around the eye; she also had some bruising on the right eye. An ambulance attendant, the Coroner, and Deputy Sheriff Wolsey, all of whom arrived later, noticed the bruising and marks on the victim's body. When Ulmer moved the victim's head, he met some resistance as if rigor mortis had set in.

While Ulmer was making his initial examination, ambulance personnel arrived. The deputy then went to the living room and asked defendant what had caused Mae to be in the condition she was in. Defendant replied that Mae had had a heart attack and had fallen. Defendant further told the deputy, and testified at trial, that he, Mae, and Alphonso had been drinking; and after Alphonso left, defendant and Mae went to bed. He said Mae had needed to go to the bathroom. She got up from the bedroom and headed toward the bathroom but instead of turning right into the bathroom, she turned left. She went into the addition that had been built onto the mobile home, and she went to the porch where she fell off. Because of what he was told by defendant, Ulmer checked the area (in fact, he checked it twice). Each time he found the ground surface around the mobile home to be sandy and damp, but he found no marks where Mae would have landed on the sand. The deputy did not find any blood or marks in the sand near the porch. He found no sand on Mae's body or on her face. Later, Deputy Wolsey's inspection corroborated what Ulmer had to say about the porch, sand, clothing, etc.

While at the defendant's home, Ulmer noted that defendant had a cast on his right leg; he had a cut on his right hand on the index knuckle. The cut, approximately one-half to three-quarter inches long, appeared to be fresh because it was still bleeding. When asked by defense counsel if the cut appeared to be the kind that one could get by hitting someone, Ulmer replied that it was. Ulmer saw blood on defendant's shirt.

A medical technician with the ambulance service determined that Mae was dead upon his arrival at 1:08 a.m. The call received by the ambulance personnel had indicated Mae had had a heart attack, but the attendant described Mae's appearance to be "peculiar to be a heart attack." He saw no dirt, sand, or other foreign substance on her body or clothing. The Scott County Coroner, Scott Amick, examined the body at the defendant's home. He noted bruises about various parts of her body, mostly related to the upper part, around her face and head. There was "a pretty good degree of fixation in the extremities" evidencing rigor mortis. He estimated that Mae had been dead two or three hours. 1

Deputy Jerry Wolsey arrived at defendant's house at 1:52 a.m. After checking the bedroom where Mae's body was lying, he then checked the back room and porch to see if there was any blood, signs of struggle, or a weapon; he found none of those things at either location. He then returned to the living room of defendant's home where he had a conversation with defendant. Defendant had not been placed under arrest at that time. According to Wolsey, defendant told him that at about 10 p.m., Mae had died from an apparent heart attack and that she fell off the back porch. No other explanation was given to the deputy at that time. The deputy then went back to the bedroom to see if he could find any dirt or sand that might be on Mae's clothing. He found none. Deputy Wolsey then returned to the living room, placed defendant under arrest for investigation of homicide, took defendant outside the house and there advised defendant of his Miranda rights. Defendant did not then talk further with the deputy (see footnote 2). He was taken to jail by another deputy.

Dr. Gordon Johnson performed an autopsy of Mae's body. He described bruises about her body; these were present in the chin area, on the neck, around the left eye, right eye, bruises on the scalp, bruises up and down both arms, and a large bruise across the upper chest. In the opinion of this pathologist, bruises "appeared to have been formed at about the time of death." He said he concluded the bruises were "immediately associated with the terminal event." In the tissue across the chest and abdomen, the doctor noticed "not just contusions, but hemorrhage, large blood clots in the soft tissue of this area, very fresh-type blood." He found multiple rib fractures, for the most part on the left side, but some very small fractures on the right side. The pathologist opined that the rib fractures were "associated with death. They were right at the time of death." His examination of the heart revealed she had some arteriosclerosis but not severe and the heart musculature was unremarkable. According to the doctor, he "didn't see no heart attacks." He found Mae's left lung was almost filled with blood caused by a rib puncturing or going into the lung. Dr. Johnson concluded that Mae's death was caused by extensive hemorrhage into the lungs and soft tissue due to mechanical injury; i.e., some type of blow, trauma. Because of the distance apart of the injuries, he determined that more than one blow caused the injuries. Dr. Johnson said that, depending upon the temperature at which the body was kept, rigor mortis in the larger muscles should be setting in "easily in four hours to the extent that some resistance could be expected if someone tried to move an arm.

After the pathologist furnished Scott County authorities with some preliminary autopsy information, Wolsey again talked with defendant after advising him of his Miranda rights. Deputy Wolsey then said to defendant:

A. I advised him--I said it appeared to myself that things went a little too far between himself and the victim, Ms. Lester.

Q. What did he say in response, if anything?

A. He bowed his head and said "Yes, things went a little too far."

All questioning then stopped because defendant asked for an attorney to be present. Defendant told Wolsey in an earlier conversation that he had gotten the cut on his hand from a broken light in the bathroom.

Dr. Robert Alvin, specializing in pathology, was called by defendant. In his opinion, Mae died from her injuries, with a possible contributing factor being her intoxication....

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9 cases
  • State v. Kelley
    • United States
    • Missouri Court of Appeals
    • July 17, 1997
    ...was perjuring himself. Issues not raised in a postconviction relief motion are waived and cannot be raised on appeal. State v. Green, 798 S.W.2d 498, 507 (Mo.App.1990). By not pleading an essential element of the DeClue exception, i.e., that the State was aware of Bell's alleged perjury, De......
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    • September 3, 1992
    ...by the principles enunciated in State v. Battles, 357 Mo. 1223, 212 S.W.2d 753 (1948), Starks, 459 S.W.2d 249, and State v. Green, 798 S.W.2d 498 (Mo.App.1990). In Battles, the defendant was told he was under arrest. He then broke away and ran. The arresting officer pursued the defendant un......
  • State v. Johnson, 66258
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    • Missouri Court of Appeals
    • April 15, 1997
    ...mute when faced with a charge of guilt which called for an admission or denial, thus implying he was guilty. See State v. Green, 798 S.W.2d 498, 503 (Mo.App. S.D.1990). Defendant relies solely on State v. Miller, 655 S.W.2d 797 (Mo.App. E.D.1983). In Miller, the defendant had agreed to take......
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1 books & journal articles
  • Section 20.13 Right Against Self-Incrimination
    • United States
    • The Missouri Bar Criminal Practice Deskbook Chapter 20 Trials
    • Invalid date
    ...no error. This premise is included in the instructions to the jury. See MAI-CR 3.02 (2011). The lack of objection in State v. Green, 798 S.W.2d 498 (Mo. App. S.D. 1990) (cited in the original section), can be cured by plain error if the prejudice resulted from the evidence and the record sh......

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