State v. Kennedy, s. 17639

Decision Date16 December 1992
Docket NumberNos. 17639,18077,s. 17639
Citation842 S.W.2d 937
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Wilma KENNEDY, Defendant-Appellant. Wilma KENNEDY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
CourtMissouri Court of Appeals

Ellen H. Flottman, Columbia, for defendant-appellant and movant-appellant.

William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent and respondent-respondent.

SHRUM, Judge.

A jury convicted the defendant, Wilma Kennedy, of second degree murder, § 565.021.1, RSMo 1986. The victim was the defendant's husband, Richard Kennedy. In accordance with the jury verdict her punishment was assessed at 20 years' imprisonment. She appeals from the judgment in case No. 17369 challenging the following evidentiary rulings by the trial court: (a) Rejection of medical testimony by a defense witness that the traumatic death of a spouse in a spouse's presence could cause mental confusion, inconsistent statements, and memory problems, and (b) allowing the state to question a rebuttal witness about a statement made by the victim out of the presence of the defendant that "he didn't know what Wilma [the defendant] had up her sleeve ... she'd been asking ... how those guns operate."

The defendant also asserts that the trial court committed "plain error" in giving jury Instruction No. 4, patterned after MAI-CR3d 302.04, because it allegedly allowed the jury to convict the defendant on a degree of proof below that required by due process.

Finding no merit to these points, we affirm case No. 17639.

Following her conviction the defendant-movant filed a motion for postconviction relief pursuant to Rule 29.15. After an evidentiary hearing, the motion court denied relief. The movant appeals from that judgment in case No. 18077. She claims that the motion court clearly erred in finding that her trial counsel was not ineffective. We find no merit to her argument, and we affirm the judgment in case No. 18077.

CASE NO. 17639

--DIRECT APPEAL

FACTS

The defendant does not question the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the following facts are pertinent. The defendant and her husband, Richard, were married in 1958. Their relationship often became turbulent when the defendant would learn of her husband's repeated romantic involvement with other women. She testified she would "get mad" upon learning of his affairs and that this had been a source of unhappiness for her.

Several witnesses called by the state testified about differing instances in which defendant, after learning of her husband's dalliances, threatened to shoot him, his girl friend, or both. Some threats were made directly to the victim, others were made in the presence of independent witnesses, and some were made to the victim's then current girl friend.

Before the shooting the most glaring of the threats were made in December 1988 and January 1989. They were precipitated by the victim's relationship with Thomasita Trammell, a woman he had met through his employment as a member of a country and western dance band.

A final confrontation between the defendant and her husband occurred on February 2, 1989. On that evening, just after 7:30 p.m., Rex, the victim and the defendant's son, and Rex's wife, Debra, went to the defendant's home. They found the defendant standing beside a Ford Bronco owned by the defendant and her husband. (Later the defendant told Mount Vernon Police Chief Turk that the gun that killed Richard was normally kept in the Bronco or in a brief case.) Rex and Debra left after being told by the defendant that she and Richard needed to talk.

Within 15 to 20 minutes Rex received a telephone call from the defendant during the course of which he learned that his father had been shot. Ida Painter, mother-in-law of Rex, initially answered the telephone and then called Rex to the phone. Ida testified that the defendant did not sound hysterical or excited. Asked if the defendant was calm, Ida replied, "[S]he just sounded like Wilma."

At 7:55 p.m. Tony Hinkle, a dispatcher at the sheriff's office, received a telephone call from a woman about the shooting of Richard Kennedy. Hinkle identified the defendant as the person to whom he talked. He testified that the defendant told him that an ambulance was needed, that " '[a] man had been shot, it's Dick Kennedy.' " Hinkle then asked "if she knew who had shot him." In response the defendant first answered, " 'Yes, ... I did'." After a pause in her response the defendant then "either said it was accidental or unaccidental."

Officer Garry Earnest testified that when he arrived (soon after the call to the dispatcher) the defendant was talking on a telephone. The victim, Richard Kennedy, was lying on the family room floor with his head in a pool of blood. He had been shot in the left temple. Earnest asked the defendant about a weapon, and she handed him a .32 caliber pistol that had been lying on a table beneath the wall telephone that she was using. Earnest asked defendant what had happened and she replied, "The gun was in my hand when it went off." She then told Earnest she had a mental block and could remember nothing further. In describing her demeanor Earnest said the defendant was excited and nervous but coherent, giving answers that fit the questions asked.

Robert Gari, the second officer to arrive, testified that the defendant told him that she had been in the living room, heard a shot go off, and then ran in to find her husband on the floor.

A pathologist, Dr. Banner, testified that the gun had been fired 12 to 18 inches from the victim's temple. Experts who examined the bullet taken from the victim's head matched the bullet to the .32 caliber pistol given to Earnest by the defendant. No gunpowder residue was found on the hands of the victim or the defendant. Debra Kennedy, the defendant's daughter-in-law, testified that she saw the defendant wash her hands just minutes after Richard was shot.

The defendant testified that after Rex and Debra left she went into the house. She began to question her husband about another affair, an affair with a woman in Canada. After some conversation he arose from his chair, saying, "I can't take any more." She testified that as Richard got up he had a pistol in his left hand; he started to raise his hand and the defendant grabbed for it, not knowing "if he intended to shoot me and himself." On direct examination she said, "I just grabbed his hand and the gun went off.... I saw the gun, and I grabbed it."

Upon cross-examination the defendant testified that she distinctly remembered how her husband fell, calling the sheriff's office, talking with dispatcher Hinkle, calling her brother, and talking with officer Earnest and a Dr. George. She remembered Dr. George's describing to her the type head wound her husband had, remembered the ambulance crew working with her husband, remembered the name of one of the ambulance crew, and remembered "getting the scanner and stuff off" a table and moving the table so that the ambulance crew could put a light on it to enable them to work on the victim. However, she could not remember telling the dispatcher that she had shot Richard, could not remember telling officer Earnest that "[t]he gun was in my hand, and it went off," and she could not remember telling officer Gari that she was in the other room when she heard the shot.

From Dr. Maria Mendez, a psychiatrist, the defendant attempted to elicit testimony about (a) whether "a traumatic death, such as a shooting, in the presence of a spouse [can] cause mental confusion in the ... living spouse;" (b) "the effect of one's mental stability from having witnessed a traumatic death insofar as making consistent ... logical statements and being able to track the mind rationally;" and (c) what the effect is "on our mind" when confronted with a traumatic event such as a death. The state's objections to the foregoing questions were sustained, as was an objection to the following attempted hypothetical question:

Q. Assuming that on February 2, 1989, Dick Kennedy attempted to shoot himself and did in Wilma's presence, ... shot himself ... what in your judgment [would the effect] be on Wilma Kennedy of that episode having happened to her ... with regards to her mental processes or the consistency of her statements, chopping off statements and sentences, and saying inconsistent things, what, in your judgment, would be the result of that traumatic event, and how would she, Wilma Kennedy, react?"

Family members, called as defense witnesses, testified that the victim had recently been depressed, had been drinking a lot, and had talked about suicide.

Rebuttal witnesses called by the state testified, in part, that the victim had recently been in good spirits. Additionally, Michael Kennedy, the victim's nephew, testified over defense objection that a few weeks before his death, Richard Kennedy had told him that "he didn't know what Wilma [the defendant] had up her sleeve ... that she'd been asking him how those guns operate."

At the instruction conference, the defense counsel interposed no objections to the instructions. 1

DISCUSSION AND DECISION

POINT I: Admissibility of Psychiatrist's Testimony

In Point I the defendant challenges as prejudicial error the trial court's refusal to permit Dr. Mendez to answer questions (a), (b), (c), and the hypothetical question recited in the statement of facts. We reject that argument for the reasons which follow.

"It is within the trial court's sound discretion whether to admit expert testimony." State v. Ward, 745 S.W.2d 666, 671 (Mo.banc 1988). The question of admissibility of expert testimony will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Hooks, 785 S.W.2d 328, 329 (Mo.App.1990). We review only for an abuse of discretion which results in fundamental...

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