State v. Johnson
| Decision Date | 14 October 1986 |
| Docket Number | No. 49088,49088 |
| Citation | 721 S.W.2d 23 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Angela JOHNSON, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Lee A. Bonine, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Kandice K. Johnson, Columbia, for defendant-appellant.
Appellant, Angela Johnson, appeals from a conviction of manslaughter. § 565.004 RSMo 1978. Following a jury verdict in the Circuit Court of Cape Girardeau County, she was sentenced to a prison term of ten years.
On appeal, appellant contends the trial court erred in: (1) overruling her motion in limine thus allowing evidence of other crimes to be admitted at the trial; (2) limiting the number of character witnesses she was allowed to call; (3) refusing to allow appellant's expert to testify to an experiment he performed; (4) in failing to submit MAI-CR 2.28, an excusable homicide instruction, prejudicing her by depriving her of a defense supported by the evidence; (5) overruling her request to strike a venireman for cause when comments elicited during voir dire established a questionable ability to sit as a fair and impartial juror. We affirm.
Appellant does not contest the sufficiency of the evidence. A brief statement of the facts will suffice. Additional relevant facts will be presented upon consideration of appellant's points.
Appellant was charged with the death of her 25 month old daughter, Latasha. Approximately 19 months prior to Latasha's death, the child was treated for a broken arm at Southeast Missouri Hospital. The child was also diagnosed as being severely undernourished when examined and the arm was diagnosed as being broken for two days prior to the hospital visit.
Latasha Johnson died on November 29, 1983. An autopsy was performed by the medical examiner for the City of St. Louis. The autopsy revealed numerous bruises on the victim's legs and buttocks, some that were so deep that the tissue was excised from the bone. The body had numerous burns that were the shape and depth of cigarette burns. The cause of death was determined to be a subdural hematoma caused by a blunt trauma to the victim's head.
Appellant's first point relates to the trial court's refusal to grant appellant's motion in limine to prevent the state from introducing any evidence regarding an incident that occurred 19 months prior to the death of her child. The trial court overruled the appellant's motion in limine and expressly limited evidence on the 1982 "failure to thrive" matter to evidence of a prior condition or history of the child. The evidence concerned a March, 1982 incident in which the victim was removed from appellant's custody. The victim was treated at Southeast Missouri Baptist Hospital in March, 1982, for a broken arm and was found to be severely underweight. The arm had been broken for two days before the victim was brought in for treatment. The treating doctor, Dr. James Dinkins, M.D., testified that the victim appeared to be suffering both from abuse and neglect. The victim's height at that time was in the fiftieth (50) percentile for her age, however, her weight was only in the tenth (10th) percentile. When she was placed in the foster home she weighed eleven (11) pounds and was unable to lift her head because she was so weak. During the two months she was in foster care the victim became more active, stronger, and gained six pounds.
It is appellant's contention that testimony was introduced at trial, by four of the state's witnesses, solely for the purpose of creating the impression that appellant was guilty of the crime of child abuse and neglect, and that appellant was a person of bad character and therefore likely to have committed the offense charged. The state asserts, relying on State v. Letterman, 603 S.W.2d 951, 954 (Mo.App.1980), that the evidence offered to the court was used to show absence of mistake or accident, intent, and common scheme or plan, in complete compliance with the trial court's limitation.
The appellant did not preserve the issue by trial objections and further offered evidence on the same issue during trial. We find no manifest injustice. The appellant's point regarding the improper introduction of evidence at trial is thus without merit. Rule 29.12(b).
Appellant asserts in Point II that the trial court erred in limiting the number of appellant's character witnesses to three when appellant offered thirteen witnesses. The settled rule is that it is within the sound discretion of the trial court to limit the number of witnesses who testify to defendant's good or bad reputation. State v. Lamb, 141 Mo. 298, 42 S.W. 827 (Mo.1897). This rule was narrowed by our Supreme Court in State v. Demaree, 362 S.W.2d 500 (Mo. banc 1962) where the court held that character witnesses testifying regarding a specific trait of the defendant tending to show the improbability of defendant committing the crime charged should not be limited by any specified number of witnesses prior to trial.
In the instant case appellant was allowed to call three separate specific character witnesses because appellant's four previous witnesses were also character witnesses. The trial court ruled that further character witnesses would be repetitive and cumulative.
Appellant argues that the state's witnesses regarding the prior incident were by inference testifying to the bad character of appellant. Appellant further argues that the court should allow these witnesses to be rebutted by additional character witnesses for the appellant. The state argues that their witnesses were not addressing the issue of the appellant's character, but rather were showing the appellant's intent, and her common plan or scheme. The state made no objections to the appellant's offer of thirteen character witnesses. The trial court ruled on the issue sua sponte. The appellant further contends that the trial court was arbitrary in the limitation of only three character witnesses.
The discussion between appellant's counsel and the court displays the nature of the court's use of discretion.
Any three out of the thirteen you want for the issue of character. And, we will let you use those three.
And, we will be discussing the personality traits of her.
Upon review of the testimony of the three character witnesses and the defendant's prior witnesses, we conclude that the trial court's concerns regarding the nature of the witnesses' testimony was well founded. The witnesses all testified to essentially the same facts and opinions.
Cases cited by appellant are not dispositive of the question of the court limiting the number of witnesses under these particular conditions. In State v. Demaree, 362 S.W.2d 500 (Mo. banc 1962), which appellant discusses extensively, our Supreme Court upheld a trial court's limitation on the number of character witnesses on behalf of defendant as the limitation did not intrude on the defendant's right to a fair trial. We find that the analysis described in Demaree leads to a conclusion that the trial court did not unjustly limit the number of character witnesses in this instance.
In Demaree, at 506, an analysis based upon the following considerations was made:
A) nature of the cross examination by state of appellant's character witnesses;
B) the number of state's witnesses testifying to appellant's bad character;
C) whether or not there was a denial of rebuttal testimony.
Although the appellant claims that these factors lead to the conclusion that additional character witnesses should have been allowed by the trial court, we find differently. The state's cross examination of appellant's character was not out of the ordinary. The state's questions in cross examination were not abusive to the witnesses. The state's witnesses testified as to the prior incident and not to appellant's reputation in the community. The state did not offer witnesses to appellant's bad reputation. Rebuttal testimony was properly allowed by the trial court as appellant was able to offer three witnesses in rebuttal. Appellant's point is not well taken.
In her third point, appellant argues that the trial court erred in disallowing expert...
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