State v. Mondaine

• Decision Date: 12 April 1983
• Docket Number: No. WD,WD
• Citation: 655 S.W.2d 540
• Parties: STATE of Missouri, Respondent, v. John L. MONDAINE, Appellant. 33666.
• Court: Missouri Court of Appeals

Page 540

655 S.W.2d 540

STATE of Missouri, Respondent, v. John L. MONDAINE, Appellant.

No. WD 33666.

Missouri Court of Appeals Western District.

April 12, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Aug. 2, 1983.

Application to Transfer Denied

Sept. 20, 1983.

Robert G. Duncan, Gladstone, for appellant.

John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, P.J., and KENNEDY and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

Appellant John L. Mondaine was convicted in a jury-tried case of murder in the second degree, § 565.004, RSMo.1978, ¹ and sentenced to thirty years imprisonment.

On May 15, 1979, the body of Orethia Haney was found in a wooded area of the "inner city" section of Kansas City, Missouri. Her feet were tied together by an electrical cord and she was wrapped in a plastic Jones Store bag and a bed sheet. The body was partially decomposed but the coroner was able to determine that the victim had died by asphyxiation. This determination was made by way of a process of elimination following an extensive internal and external examination of the body and after checking the blood for toxins.

Originally murder charges were brought against Lydell Thomas who was convicted of this crime. Mr. Thomas, on the advice of his attorney, never spoke to the authorities with regard to this crime and never testified at his trial. After his conviction and sentencing, Thomas then spoke to the police concerning the murder. Subsequent to Thomas' conversation with the police, the charges against him and the conviction were dismissed by the state and the present action was brought against Mondaine.

Some background is needed to explain the relationship between Thomas and appellant Mondaine, and to set the scene for the events surrounding the murder of Orethia Haney. Thomas testified at this trial that while in the penitentiary prior to the death of Haney, he met Edgar Carter, who is also known as "Fat Charlie". Carter, who was to be released before Thomas, told Thomas that he would pick him up in Jefferson City when he was released from prison. Thomas was released from prison on March 17, 1979, and when his ride did not show he took a bus to Columbia. Carter and Mondaine caught up with Thomas in Columbia and gave him a ride into Kansas City.

On the way to Kansas City, Mondaine told Thomas that he had room for him in his "organization" and wanted him to run his "shooting gallery", a house where customers would buy various kinds of drugs and use them on the premises. Mondaine was owner of the drug house. Thomas accepted the job.

In early May, 1979, Thomas remembered seeing the victim arrive at the house with Carter, and they went up to the third floor. A short time later, Carter came down to the second floor to take a shower and soon after the victim came down the stairs and Thomas let her out. Mondaine arrived and after going upstairs to the third floor came downstairs ranting and raving that an ounce of cocaine and an ounce of heroin were missing from his refrigerator on the third floor. Mondaine believed that Haney had taken the drugs and ordered Carter to find her. Thomas testified that a few days after the theft of the drugs Carter, Mondaine and a man named L.C. Ward went out to look for the victim in appellant's red jeep. They had determined that she lived at the Commodore Hotel.

James Moore, who lives and works at the Commodore Hotel, testified that about noon on May 10, 1979, he was waiting for a friend outside the hotel. He decided to walk to a nearby store to buy cigarettes. On the way he met Carter, whom he had previously known, and appellant, whom he had seen in Carter's company before. Moore spoke with Carter briefly, then went on to the store. Upon returning to the hotel, Moore noticed that his friend had arrived and he got into his car. As they were leaving, Moore observed appellant and Carter leaving the hotel with the victim. Each had the victim by the arm, one on either side, and were part carrying her and part dragging her out of the building. The victim's feet were off the ground. She was crying and barefoot. Carter and Mondaine put her into the red jeep and drove off. After driving a short distance, Moore, who was the deskman at the hotel, decided to go back to see what was going on and had his friend change directions and return to the hotel. Moore went up to the victim's apartment and observed two men in there, one who lived in the apartment with Haney, and the other was a visitor. At that point a third man, L.C. Ward, came in and asked for Haney's purse and sandals and took them with him. At the police department's request, Moore went down to the police station on May 16, and picked appellant's and Carter's photographs as the two men that left with the victim. The dead body of the victim was found wearing sandals that Moore saw L.C. Ward take from the apartment.

Lydell Thomas testified that Mondaine, Carter and Ward had returned to the drug house with the victim and had taken her up to the second floor. There appellant questioned her about the missing drugs and asked her who was going to pay for them. Mondaine then said that Haney was a "nothing broad" and ordered Carter to kill her. Carter hit the victim knocking her down the flight of stairs to the basement. Mondaine then asked Thomas to kill her, but Thomas declined. All three men then went down to the basement where Carter proceeded to break an electrical cord off a heater and wrap it tightly around the victim's neck. He pressed against the cord with his fingers so as not to leave finger indentations on the neck. Thomas said he then left to answer the door but returned to the basement a few minutes later. By the time he returned, the victim was dead. Thomas testified that appellant stated the reason he had the girl killed was so that people on the streets would not think that they could get away with stealing from him. The victim's hands and feet were then bound with electrical cord and her body was placed in a Jones Store plastic bag. The men then put her into the trunk of L.C. Ward's car and Ward left with the body. The body was discovered a few days later in a vacant lot.

Appellant raises four points of error on appeal. He first contends that there was insufficient evidence to support a verdict of guilty in that there was no substantial evidence establishing the cause of death. Next he contends that the court erred in failing to submit the offense of kidnapping as a lesser and included offense to first degree murder. Third, the appellant alleges the court abused its discretion, to his prejudice, by sustaining the state's objections to appellant's closing argument that in order to convict, the jury must be willing to try one of the defense witnesses for perjury, as the argument was proper as bearing on credibility. Finally, appellant contends he was denied due process and a fair trial because "the state failed to correct the testimony of Lydell Thomas that as a part of his agreement with the state he did not have to testify against the appellant, when the state well knew that such testimony was incorrect, and thus the jury was misled."

Appellant's first point of insufficient evidence to establish the cause of death is ruled against him.

Mondaine does not challenge the evidence showing that his accomplice caused the death of Haney, but merely asserts that there was insufficient evidence to prove how the victim died. In appellate review of sufficiency of evidence, all evidence and inferences in the record tending to support the jury's finding the defendant guilty are accepted as true, and all contrary evidence and inferences are to be disregarded. State v. Morgan, 592 S.W.2d 796, 805 (Mo. banc 1980); State v. Puckett, 611 S.W.2d 242, 244 (Mo.App.1980); State v. Clay, 627 S.W.2d 659, 660 (Mo.App.1981). In Holtkamp v. State, 588 S.W.2d 183, 185 (Mo.App.1979), the court noted, "[a]lthough the State does have the burden of proving the cause of death beyond a reasonable doubt, it may do so using circumstantial evidence." See also, State v. Black, 611 S.W.2d 236 (Mo.App.1980). In the instant case, there was substantial direct evidence as well as circumstantial evidence to show that the victim died as the result of strangulation.

Direct evidence in the form of testimony from Lydell Thomas that he saw appellant's accomplice, Carter, take an electrical cord, wrap it around the victim's neck and press against the cord with his fingers, and that soon afterward Thomas returned and found the victim dead, is sufficient to establish the cause of death. Thomas also described how the men tied the victim with the cord and placed her in a Jones Store plastic bag and a flowered sheet. The victim's body was found by police a few days later, the body was in a Jones Store plastic bag and wrapped in a flowered sheet, the hands and ankles bound by cord, thus corroborating the testimony given by Thomas.

The coroner testified that she had performed a complete internal and external autopsy of the victim's partially decomposed body and could find no obvious injuries. She was able, however, to exclude the possibility of poisoning or disease or natural cause and was thus able to conclude by way of a process of elimination that the cause of death was due to asphyxiation. The appellant challenges the sufficiency of this evidence because the coroner could not testify that she was positive as to the cause of death. This opinion testimony was, however, well within the discretion of the trial judge to admit. The trial judge possesses wide discretion in admitting opinion testimony. Holtkamp v. State, supra, at 187. "Opinion testimony as to causation is admissible despite the fact that it does not go beyond 'possibility', 'probability', 'could have', or 'might have' as long as it is accompanied by other corroborating causation evidence." Id. The state correctly notes in its brief...