State v. Middleton, Nos. WD
| Decision Date | 06 April 1993 |
| Docket Number | Nos. WD |
| Parties | STATE of Missouri, Respondent, v. Kenneth G. MIDDLETON, Appellant. Kenneth G. MIDDLETON, Respondent, v. STATE of Missouri, Appellant. 46165, WD 44671. |
| Court | Missouri Court of Appeals |
Robert G. Duncan, Gerald M. Handley, Kansas City, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before ULRICH, P.J., and BRECKENRIDGE and HANNA, JJ.
In February 1991, Kenneth G. Middleton was convicted by a jury of murder in the first degree and armed criminal action. In accordance with the jury's assessment of the punishment, the court sentenced the defendant to life imprisonment without probation or parole for murder in the first degree and to 200 years for armed criminal action. The sentences were ordered to run concurrently. The defendant appeals his criminal conviction and the denial of his Rule 29.15 motion. The judgments are affirmed.
The defendant first complains that his motions for judgment of acquittal for the convictions of murder in the first degree and armed criminal action should have been sustained because he was convicted on circumstantial evidence, which did not exclude death either by suicide or accident. The answer to this contention requires a close review of the evidence.
When reviewing the sufficiency of the evidence, the appellate court will consider all substantial evidence and inferences in a light most favorable to the verdict, and will reject all contrary evidence and inferences. State v. Naucke, 829 S.W.2d 445, 459 (Mo. banc 1992) cert. denied, 506 U.S. 960, 113 S.Ct. 427, 121 L.Ed.2d 348 (1992). This court will neither weigh the evidence, State v. Villa-Perez, 835 S.W.2d 897, 900 (Mo. banc 1992), nor will it determine the reliability or credibility of the witnesses, State v. Hamilton, 817 S.W.2d 8, 11 (Mo.App.1991); but will limit its review to a determination of whether there existed substantial evidence from which the jury might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).
The evidence presented to the jury, stated favorably to the verdict, showed that on February 12, 1990, Katherine Middleton was at work at AT & T in Lee's Summit, Missouri, when she received a phone call from her husband, the defendant, who complained of illness. She left work and drove home.
Approximately twenty minutes later, at 1:52 p.m., the 9-1-1 dispatcher received a call from the defendant requesting an ambulance. The defendant told the dispatcher, "A gun just went off and hit my wife ... [i]n the side of the head." Within three minutes, a second call was received by the 9-1-1 operator. The caller told the 9-1-1 operator, While they conversed, police officer John Gale arrived at the Middleton residence located in Blue Springs, Missouri.
As Officer Gale arrived, the defendant came out of the house appearing "real frantic," which caused the officer to draw his gun. The defendant was yelling and asking where the paramedics were. When Officer Gale realized the defendant was unarmed, he holstered his gun and asked the defendant what had happened. The defendant did not answer, but instead kept yelling, "Where are the paramedics?"
It was a bright, sunny day but the blinds in the house, which were almost always open, were drawn and the inside of the house was dark. Upon entering the house, Officer Gale looked into the dining room and saw the victim, Mrs. Middleton, lying in a pool of blood on her right side. She had a bullet wound above her left eye with an exit wound on the right side of her head. He testified that it was apparent she had not been breathing for several minutes.
When Officer Gale returned to the defendant in the living room, he tried to determine what had happened. He asked if his wife had committed suicide, and the defendant replied she had not. The defendant explained that he had been sick and had called his wife home from work. While he waited for her, he was cleaning his Smith & Wesson .357 Magnum. He explained that when his wife got home, she picked up the gun, started to walk to the other room, dropped the gun and it went off.
Officer Spartz and Sergeant Collier arrived about this time and observed the .357 Magnum lying on an ottoman. The defendant said he had picked it up and placed it there. One officer inspected the gun and found five shells and one empty cylinder. The firing pin was depressed on one of the shells, indicating it had been fired. The bullets were jacketed, hollow-point shells, designed to "mushroom back" or expand when they enter the target.
Because the defendant was acting "explosive," Officer Spartz hid the gun behind the television set. The defendant appeared agitated, continuing to yell and flail his arms. This activity caused the officer to pat him down to make sure he did not have another weapon. Immediately following the pat down, the defendant acted surprised, became rigid, and screamed that he was going to be sick. He ran down the hallway to the bathroom. Officer Spartz followed him and saw that he was washing his hands in the sink. Both Spartz and Gale twice told the defendant to get his hands out from under the water. They finally had to pull him out. The officers did not see the defendant vomit or stand over the toilet. They did see him spit saliva into the sink.
The defendant used a hand towel to dry his hands. Officer Spartz took the defendant outside to the garage and tried to calm him down and asked him to explain exactly what happened. The defendant repeated what he had said before, except in more detail. He told the officer he had taken some pills that morning for an infection, and began sweating and feeling ill. He called his wife to come home from work and when she arrived, she told him he looked ill and said she was going to call the doctor. She took the gun the defendant was cleaning and as she walked to the telephone, she dropped the weapon. The defendant explained that when the gun fell to the floor it went off in her face. At this point, the defendant threw up his hands and banged them against the garage door.
During the time the defendant was outside with Officer Spartz, Officer Gale looked for some indication that the defendant had been cleaning his gun. He found no evidence substantiating defendant's explanation, except for a towel upstairs. He later found a gun box and some brushes in the basement.
Paramedics Keebaugh and Wedlock arrived and determined the defendant was hyperventilating, complaining of chest pains, and his blood pressure was slightly elevated. They convinced the defendant to allow them to transport him to the hospital for an examination. As the paramedics prepared to transport him, the defendant reached his hands into a flower planter and began rubbing his hands in the dirt. At some point after this and before the defendant was taken to the hospital, the police performed a paraffin test on his hands.
Officer Spartz rode in the ambulance with the defendant and again asked him "... to be clear as to what exactly had happened in the house." The defendant narrated the events up to the point where his wife was walking to the telephone. He abruptly stopped and closed his eyes in a manner described by the officer as "squinting" and appeared unconscious. This surprised the paramedic and caused him to perform some tests to determine defendant's medical condition. When the ambulance arrived at St. Mary's Hospital in Blue Springs, the defendant continued to appear unconscious.
Officer Spartz positioned himself at the nurses' station and was able to observe the defendant in his room. When no one was in the room, the defendant would open his eyes and look around, but when someone came in, he would shut them. Eventually, he began to interact with hospital personnel. The police officer went into the room and the defendant agreed to resume telling the events that had taken place earlier that day. On this occasion, he described the death of his wife as follows. She came in and told him she was going to call the doctor and went to the telephone. He was sitting in the chair wiping his gun off when he got up to hand her the gun. He related that he was unsure whether he "fell back or what," but he next woke up on the floor. His wife was lying on the floor.
An autopsy showed that Mrs. Middleton was 5'6"' and weighed 128 pounds, and had a single gunshot wound to the head, which the medical examiner testified was the cause of death. The entry point was above the left eye, 3 1/2"' below the top of her head. The exit point was on the right side, 2 1/2"' below the top of her head. There was a prominent area of powder stippling, i.e., small dots, present around the left side of her face over an area measuring 4 1/2"' X 4"'.
The medical examiner testified to multiple contusions on her upper chest, which were caused by a blunt trauma. The bruises were described by the examiner as consistent with someone of the defendant's size (6 feet tall, 200 pounds) "grabbing the woman by the blouse and pressing her against a wall."
The defendant complains that the evidence was not sufficient to sustain the convictions, that the police failed to warn him of his Miranda rights, and requests plain error review of the admissions of certain evidence, and instructional errors. Finally, the defendant advances his Rule 29.15 claim of ineffective assistance of counsel.
On the question of the sufficiency of the evidence, the defendant argues that the evidence did not exclude the "possibility" of an accidental shooting or suicide, citing State v. Priest, 660 S.W.2d 300 (Mo.App.1983), and State v. Black, 611 S.W.2d 236 (Mo.App.1980). The defendant argues that the state could not make a submissible case and therefore, sought to...
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