State v. McBenge
| Decision Date | 15 November 2016 |
| Docket Number | No. ED 102277,ED 102277 |
| Citation | 507 S.W.3d 94 |
| Parties | STATE of Missouri, Respondent, v. Cecil Russell MCBENGE, Appellant. |
| Court | Missouri Court of Appeals |
Chris Koster, Attorney General, Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
Rosemary Percival, Missouri Public Defender, Kansas City, MO, John G. Mermelstein, Columbia, MO, for Appellant.
Cecil Russell McBenge ("Defendant") appeals the judgment entered upon a jury verdict convicting him of first-degree murder for his alleged involvement in the 1984 killing of Eleonora Knoernschild ("Victim"). We reverse and remand for a new trial.
Over two decades after Victim's murder, a DNA analysis linked Defendant and his brother Brian McBenge1 to evidence found on or near Victim's property shortly after she was killed. In separate underlying cases, Defendant and Brian were each charged with and found guilty by a jury of first-degree murder based on accomplice liability.2 The State's third substitute information in lieu of indictment in Defendant's case ("the information") charging him with first-degree murder alleged he acted in concert with another, and after deliberation, knowingly caused the death of Victim on or between November 2nd and 4th of 1984 by beating her. The information also gave Defendant notice that the State may submit an instruction for second-degree felony murder to the jury based on the death of Victim as a result of Defendant's perpetration of the class B felony of first-degree burglary. Defendant's jury trial was held on September 22–October 3, 2014.
Viewed in the light most favorable to the verdict, the following evidence was presented at Defendant's trial.3
Defendant's brother Brian met Victim's granddaughter ("Granddaughter") in 1977 when they were both teenagers and they eventually started dating. They dated for approximately eight months until sometime in 1979. During the timeframe Brian and Granddaughter were dating, they would frequently go to Victim's home and spend time in her kitchen. It was not unusual for Brian and Granddaughter to eat while they were at Victim's home. In addition, while Brian was dating Granddaughter, he became aware Victim kept extra cash in a Calumet baking powder can ("the Calumet can") located in the lower kitchen cabinets next to her refrigerator, because Brian saw Granddaughter steal money from the Calumet can when Victim was not looking. Granddaughter testified she met Defendant sometime in 1979, when the two of them were attending the same children's home.
In March of 1980, Victim's house was broken into while she was in the hospital. Police classified the break-in of Victim's home as a burglary ("the 1980 burglary").4 Around the time the crime occurred, police officers lifted a latent fingerprint from the refrigerator door handle; however, it went unidentified until 1986, when officers determined the fingerprint belonged to Defendant's brother Brian. Nevertheless, Brian was not a suspect in the 1980 burglary near the time it occurred and he was never charged in connection with the crime.5 In addition, Defendant was not ever a suspect in or charged with the 1980 burglary.
Sometime after the 1980 burglary, Victim had bars installed on the basement windows of her home. Victim also moved the Calumet can to her bedroom.
Victim's murder occurred sometime between November 2nd and November 4th of 1984. Around that same timeframe, Defendant and his brother Brian lived in a home located about one mile away and within walking distance of Victim's home.
On November 2, 1984, before Victim's body was discovered, Victim's longtime housekeeper cleaned Victim's home, including the kitchen and kitchen floor. The housekeeper testified Victim always kept her house tidy, with everything put in its proper place.
During the morning of November 4, 1984, Victim's daughter called the police after she went to Victim's home to bring her the newspaper and noticed the glass window on the front door had been broken out and removed. Police responded to Victim's home, searched the premises, and conducted an investigation which revealed the following.
Police discovered a person or persons had gained entry to Victim's home. It appeared that whoever entered Victim's home crawled through the space where the glass window on the front door had been, because the front door was still locked. Victim's bedroom, kitchen, basement, and hallway had been ransacked, and several drawers, cabinets, and items were opened throughout the house.
In the bedroom, Victim's body was found lying on the floor underneath clothes and papers which had been thrown around. Victim, who was elderly and weighed less than one-hundred pounds, had blood and multiple bruises on her face
, a split lip, and two broken ribs on each side of her body caused by blunt force. In addition, part of the bedspread was looped around Victim's neck as if she might have been strangled. However, Dr. Clarke Harding, the pathologist who performed Victim's autopsy, determined she did not die from strangulation. Instead, Dr. Harding determined Victim's cause of death was repeated blunt trauma, from being beaten multiple times. Dr. Harding testified he could not determine how many people had beaten Victim.
Two kitchen-type knives and lock boxes were found on the bedroom floor, and the Calumet can was found in Victim's bedroom closet, which was open and appeared to be ransacked. There were two dressers in the bedroom, both of which had multiple drawers open and at least one drawer rummaged through extensively. In addition, the tops of both dressers were in disarray. A total of eight nylon stockings, which all appeared to be the same style and size, were found in the bedroom; some of them were hanging from one of the dresser drawers and the others were lying on the floor. In addition, some of the bedding was rolled up toward the head of the bed, while other bedding was on the floor.
In the kitchen, four lower cabinets and two drawers next to Victim's refrigerator were open, but the top cabinets were closed. Various items were dumped out on the kitchen countertop; the bread box and multiple containers were open; and gloves were found on the kitchen floor. Finally, the refrigerator door and crisper drawer were open, and lying on the floor in front of the refrigerator were a large plastic bag containing some grapefruit, a frozen meal, a Tupperware container, a piece of cheese with a bite mark taken out of it, and an empty single-serve cheese wrapper.
In the basement, lock boxes had been dumped on the floor and personal papers were spread across the floor. In the hallway, doors on two cabinets were opened and items were dumped on the floor. In the dining room, one cabinet had a drawer which was open and another cabinet had a door which was open.
Outside the house, near the back of Victim's property by an alley, two nylon stockings were found lying on the ground. Victim's flashlight, which she usually kept on top of shelves built into the headboard of her bed, was found a little farther away across the alley. In addition, two gloves, one blue and one maroon, were found in a bush in the front yard of a nearby house.
Police suspected more than one person was involved in the 1984 crime because of the two knives found in Victim's bedroom and evidence of two pairs of gloves found in the kitchen and outside of Victim's property. DNA testing was not performed until 2011 on, inter alia , the cheese wrapper found on the floor of Victim's kitchen, the two nylon stockings found by the alley near the back of Victim's property, and the blue glove found in the bush of a nearby home. Daniel Fahnestock, who worked for the crime lab at the St. Charles County Sheriff's Department, conducted DNA testing on the items. The presence of DNA found on the items was compared with Defendant's and his brother Brian's DNA, who were both Caucasians, as well as Victim's DNA. Testing performed on the cheese wrapper revealed the presence of single-source DNA on the wrapper which was consistent with Brian's DNA, and the probability of someone else in the general Caucasian population having the same DNA profile was 1 in 741,000. In addition, testing performed on the two nylon stockings revealed the presence of only Victim's DNA on one stocking but a mixture of her DNA and a male's DNA on the other stocking. The male DNA found on the stocking was consistent with Defendant's DNA, and the probability of someone else in the general Caucasian population having the same DNA profile was 1 in 6.17 million.6 Finally, testing performed on the blue glove revealed the presence of DNA which was consistent with Victim's DNA.
At the close of the State's evidence and at the close of all of the evidence, Defendant filed motions for judgment of acquittal which asserted the State failed to prove the elements of the crimes alleged in the information.
During Defendant's jury trial, he objected to the admission of evidence relating to the 1980 burglary of Victim's home, arguing it was improper evidence of a prior uncharged crime. In addition, over Defendant's continuing objection, Officer Leslie Simpson,7 who was present at the crime scene after the 1980 burglary of Victim's home and after the 1984 break-in of Victim's home and her murder, was allowed to testify about the details of the 1980 burglary and the similarities between the two crimes.
Defendant also made an objection...
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