State v. Lieberknecht, 39151.

• Decision Date: 14 November 1980
• Docket Number: No. 39151.,39151.
• Citation: 608 S.W.2d 93
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Harold I. LIEBERKNECHT, Defendant-Appellant.
• Court: Missouri Court of Appeals

608 S.W.2d 93

STATE of Missouri, Plaintiff-Respondent, v. Harold I. LIEBERKNECHT, Defendant-Appellant.

No. 39151.

Missouri Court of Appeals, Eastern District, Division One.

September 23, 1980.

Motion for Rehearing and/or Transfer Denied November 14, 1980.

COPYRIGHT MATERIAL OMITTED

Rau, Martin & Cervantes, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 14, 1980.

SIMON, Judge.

Defendant, Harold I. Lieberknecht, was found guilty by a jury of murder in the first degree of Peter Muir under § 559.010¹ and sentenced to life imprisonment by the court pursuant to the Second Offender Act, § 556.280. Defendant appeals that conviction, contending that the court erred in (1) failing to grant defendant's motion for acquittal at the close of the entire case in that there was not sufficient evidence of the defendant's criminal agency; (2) failing to grant an acquittal at the close of the entire case in that there was insufficient evidence of premeditation and deliberation for a conviction of first degree murder; (3) failing to direct a verdict of not guilty by reason of mental disease or defect; (4) failing to direct a verdict of acquittal in that there was insufficient evidence to establish that the victim was Peter Muir, the person named in the indictment; (5) excluding the results of a polygraph examination.

We find these points against the defendant. Accordingly, we affirm the judgment.

This appeal is properly before our court; it is not within the exclusive jurisdiction of our Supreme Court since alternate punishments of death or life imprisonment could not have been given under § 559.010. State v. Curry, 578 S.W.2d 283, 2841 (Mo.App. 1979); Mo.Const. Art. V, Sec. 3.

The evidence showed that the defendant and the victim were talking and drinking together at the bar in the Milner Hotel on the night of May 14, 1975. At about 9 or 10 o'clock they bought some beer and ice, and left the lounge.

The defendant was next seen at the bar at approximately 11:40 that same night. He got a drink and left.

The nude body of the victim was discovered by a maid at 2:30 P.M. on May 15, 1975 in Room 750 of the Milner Hotel. Room 750 was registered in the name of Peter Muir. The condition of the room did not indicate that a struggle had taken place.

Dr. Watson Kiaminsky, M.D., the coroner's physician, in his post mortem examination, determined that the victim had six stab wounds to the upper back, eight stab wounds to the chest, two stab wounds to the right arm, two stab wounds to the left side of the abdomen and a stab wound on the left side of the nose. There was a large wound of the neck which extended from the left to both sides of the neck and down to the cervical spine, lacerating both the internal jugular veins and the trachea. There was also a transection of the penis at the base, and a large knife was lodged in the left side of the victim's chest. Dr. Kiaminsky determined the cause of death was primarily due to the wound of the neck.

The evidence also showed that the knife found lodged in the victim's chest was covered with blood, type O. Laboratory tests performed on pants seized from the defendant's apartment and pants found in the victim's room revealed the presence of human blood, type O. The victim's blood was found to be type O. Laboratory tests also indicated an alcoholic content in the victim's blood of .171 grams per milliliters. Based on that finding, Dr. Kiaminsky was of the opinion that the victim was under the influence of alcohol at the time of death.

When the defendant was first interrogated by the police he denied having any knowledge of the victim. After the police discovered cuts on the defendant's legs he gave a statement concerning his activities on the night of May 14. The defendant stated, in substance, that he was seated at the bar in the Milner Hotel on the night in question having a drink when a gentleman sat down next to him and they began talking. He later learned that the gentleman was Peter Muir. After talking for about an hour and a half Peter Muir suggested that they go up to his room in the hotel to watch television. Peter Muir ordered six cans of beer and they left the bar together, going upstairs. Once in the room he sat down beside Peter Muir, but Peter Muir got up and put the beer in a basin in the bathroom, and then began showing the defendant a set of knives lying on the dresser in the room. He indicated he didn't touch the knives. He then began switching T.V. channels to show Peter Muir that the T.V. set was working since Peter Muir was upset that the T.V. wasn't working. At that point he did not recall what happened, but the next thing he knew he was lying on the bed nude and Peter Muir had a knife in his hand and told him to perform a sex act. The next thing he recalled was that there was fighting and he felt pins in his legs and blacked out again. When he came to, he was still lying on the bed in the nude. His legs were cut and bleeding and Peter Muir was lying on his back on the floor alongside the bed covered with blood and lying still. He recalled cutting Peter Muir one time. He got up and went to the bathroom and using a towel and water attempted to dress his leg wounds. He then got dressed and left, taking two cartons of Marlboro cigarettes with him that were given to him by Peter Muir prior to any struggle. He then left the room and returned to the Milner Hotel bar, ordered a drink and after drinking it, got on the Delmar Bus and went home. He identified the knife that was removed from the body of Peter Muir as being identical to the knife which he obtained from Peter Muir during the struggle.

An automobile registered in the name of Peter Muir was found approximately one-half to two-thirds of a block from defendant's apartment. The barmaid at the Milner Hotel identified the victim and the defendant as the men in the bar on the evening of May 14, 1975, who left together. A patron of the bar that evening identified the victim and defendant as being together at the bar that evening.

Fingerprints of the victim were identified through F.B.I. records as being those of Edward R. McDermott of Tampa, Florida and the indictment charged the defendant with the death of Peter Muir.

Dr. Gary Kulak, M.D., a psychiatrist, testifying on behalf of the defendant, examined the defendant several times in June, 1976, testified with a reasonable degree of medical certainty that the defendant suffered from an uncommon kind of paranoia and that the defendant had a mental disease or defect within the law of the state of Missouri.

Dr. Henry R. Bratkowski, D.O., Director of the Maximum Security Unit of Fulton State Hospital and a Board certified psychiatrist, testified on behalf of the state. Dr. Bratkowski examined the defendant on two occasions in August of 1975. Dr. Bratkowski concluded with a reasonable degree of medical certainty that the defendant was not suffering from psychosis and could have conformed his conduct to the law and did not have a mental disease or defect within the law.

The case was submitted on instructions of murder in the first degree, murder in the second degree and manslaughter. The jury returned a verdict of guilty of murder in the first degree.

Defendant contends in his first point that the trial court erred in refusing to direct a verdict of acquittal at the close of the state's case, and at the close of all the evidence pursuant to defendant's motion in that the evidence is insufficient to sustain a verdict of guilty in that the time of death of the victim is not medically consistent with or causally related to the presence of the defendant or his opportunity to commit said murder.

Our review of this point shall be confined to the motion of acquittal at the close of all the evidence since the defendant introduced evidence following the overruling of his motion at the close of the state's case. Holtkamp v. State, 588 S.W.2d 183 (Mo.App.1979). In ruling the motion at the close of all the evidence, the probative evidence favorable to the state is taken as true, as are all the legitimate inferences to be deduced therefrom, and all evidence and inferences contrary thereto are disregarded. State v. Deyo, 358 S.W.2d 816, 8192 (Mo. 1962).

It is unclear from the defendant's brief whether he is challenging the sufficiency of the evidence presented by the state concerning the medical causation of death, the corpus delicti of the crime, or the criminal agency of the defendant.

Medical causation involves the question of what caused the victim to die rather than who killed the victim. The evidence clearly established that the victim's death was caused by the multiple stab wounds, primarily the neck wound.

Defendant's argument on the criminal agency of the defendant revolves around the testimony of Dr. Watson Kiaminsky, the coroner's physician. Dr. Kiaminsky performed the post mortem examination and indicated as a part of his finding that at the time of his examination, that rigor mortis was complete and that the "rigor mortis" condition of the body indicated that the victim had been dead for approximately twelve to eighteen hours. Dr. Kiaminsky also stated that the victim would have died within five to ten minutes after receiving the neck wound. The post mortem examination was performed at 11 A.M. on May 16, 1975. Dr. Kiaminsky, not knowing the environmental condition of the room where the victim's body was found and where the victim's body was kept prior to the examination, stated that his finding that rigor mortis was completed at the time of the post mortem examination, would not be inconsistent with the victim having been dead between thirty to thirty-six hours.

Defendant contends that since Dr. Kiaminsky placed the time of death at eighteen hours prior to his post mortem examination, and that the victim would have died within five to...