State v Monger

• Decision Date: 27 August 2001
• Docket Number: 00-00489
• Citation: State v Monger (Tenn. Crim. App. 2001)
• Parties: STATE OF TENNESSEE v. LAQUENTON MONGERIN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v LAQUENTON MONGER

No. W2000-00489-CCA-R3-CD

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

March 6, 2001 Session

Filed August 27, 2001

Direct Appeal from the Criminal Court for Shelby County, Nos. 98-01601, 98-01602

John P. Colton, Jr., Judge

The appellant, LaQuenton Monger, was convicted by a jury in the Shelby County Criminal Court of one count of first degree felony murder by aggravated child abuse and one count of aggravated child abuse. The trial court imposed concurrent sentences of life imprisonment in the Tennessee Department of Correction for the felony murder conviction and twenty years imprisonment in the Department for the aggravated child abuse conviction. On appeal, the appellant challenges the sufficiency of the evidence underlying his conviction of felony murder and further challenges the trial court's failure to instruct the jury on lesser-included offenses of felony murder. Following a thorough review of the record and the parties' briefs, we reverse the appellant's convictions of felony murder and aggravated child abuse and remand the cases to the trial court for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Reversed and Remanded.

Norma McGee Ogle, J., delivered the opinion of the court, in which Gary R. Wade, P.J., and David H. Welles, J., joined.

Edwin C. Lenow, Memphis, Tennessee, for the appellant, LaQuenton Monger.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On February 10, 1998, a Shelby County Grand Jury returned indictments charging the appellant with the first degree felony murder by aggravated child abuse of his seven-month-old daughter, Quennisha Monger, between the dates of September 15, 1997, and September 17, 1997, and the aggravated child abuse of Quennisha during the same time frame. The appellant's case proceeded to trial on November 2, 1999, concluding on November 5. At trial, the State established that, on the evening of September 16, 1997, Quennisha and her twin brother Quentavious were briefly in the sole care of the appellant. Specifically, the children's mother, Kenisha Simmons, left the Memphis apartment that she shared with the appellant at approximately 9:15 p.m. in order to pick up her cousin, Utopia Sims, from school and to return videos to a Blockbuster store. She was accompanied by the next-door neighbor's daughter, Angela Averitt Hayes. Simmons and Hayes returned home with Sims at approximately 10:00 p.m. Upon their return, Simmons learned that Quennisha had stopped breathing, and the appellant had taken the baby to the next-door apartment in search of assistance. Simmons entered the next-door apartment along with Hayes and Sims and discovered Quennisha lying on the floor and the appellant speaking on the telephone with a 911 operator. Neither the police nor an ambulance had yet arrived.

Hayes recalled at trial that the scene was "chaotic." Simmons immediately began "crying and hollering," and the appellant also appeared "kind of frantic and hysterical." Hayes attempted to console Simmons. Meanwhile, Sims approached Quennisha and noted that the baby "was pale, her mouth like turned white." She then went to Simmons and the appellant's apartment and retrieved Quentavious from the twins' crib. Sims testified at trial that the baby boy appeared to be unharmed.

The State further established that, sometime between 9:40 p.m. and 10:00 p.m. on September 16, 1997, the appellant's next-door neighbor, Gloria McKissack Wilson, was awakened by someone knocking "rather hard" on her front door. When she opened her front door, she discovered the appellant outside, carrying his infant daughter in his arms. The appellant requested her assistance, stating that his daughter did not appear to be breathing. Upon confirming that Quennisha was not breathing and attempting unsuccessfully to locate the baby's pulse, Wilson advised the appellant to call 911.

There ensued a series of efforts to resuscitate Quennisha. First, the 911 operator guided the appellant in performing mouth-to-mouth resuscitation upon his daughter. The operator was soon informed that the baby was responding to the appellant's efforts in that she appeared to be breathing once again and also had a pulse. Almost immediately thereafter, "a little bit before" 10:25 p.m., officers of the Memphis Police Department arrived. Officer James Sewell testified at the appellant's trial that, at this time, Quennisha was not breathing, nor did she have a pulse. The officers unavailingly administered cardiopulmonary resuscitation (CPR) to Quennisha. Finally, at approximately 10:31 p.m., paramedics employed by the Memphis Fire Department, including Gary Garmon, arrived and continued the administration of CPR to Quennisha. Garmon confirmed at the appellant's trial that, at the time of the paramedics' arrival, Quennisha was not breathing, and her heart was not beating. However, he noted that Quennisha's skin, although cool, was not yet cold; her "color" was normal; and her pupils were not yet dilated. Moreover, upon performing an electrocardiogram (EKG) on the baby, the paramedics discovered "electrical activity to the heart." Nevertheless, they too were unable to revive Quennisha, and she was ultimately pronounced dead at a local hospital.

Wilson testified at the appellant's trial that she observed the appellant's efforts to revive Quennisha. According to Wilson, the appellant appeared to follow the instructions of the 911 operator. Moreover, she asserted that, although she observed the appellant compress Quennisha's chest, she never observed the appellant use more than two fingers, and the appellant pushed on Quennisha's chest "pretty light[ly]." Wilson further observed, and it was undisputed at trial, that the police officers and the paramedics likewise used two fingers when compressing Quennisha's chest. Wilson concluded that she never observed anyone push on Quennisha's chest "with two hands the way you might do on an adult" or otherwise "pound" on the baby's chest.

On the night of Quennisha's death, the appellant reported to Officer Jason Randolph of the Memphis Police Department that there was "a gas leak in [his] apartment and he thought that that was the reason the baby stopped breathing." Moreover, an unidentified woman standing outside Wilson's apartment on the night in question reported to Officer Sewell that "apparently [there was a] gas leak in the apartment [in which] the baby lived." Finally, an unidentified woman standing outside Wilson's apartment informed Richard Waddell, a lieutenant with the Memphis Fire Department, of a possible gas leak in the adjacent apartment. Waddell followed the woman next door and investigated. He recounted at the appellant's trial:

I went around like the appliances in the kitchen and things like that to try to - - where you would check and maybe have gas leaks or any kind of leaks like that in the apartments like the kitchen area, I checked that out and I couldn't detect anything.

Simmons testified at trial that Quennisha and Quentavious were in the care of their grandmother during the day on September 16, 1997. She recalled that, when she collected the babies that evening, they both appeared to be in normal health. Moreover, she related that, during the ensuing evening, only the appellant had sole care of the babies for any length of time. She conceded that the appellant regularly cared for the children at night and on weekends while she was at school or working, and she had never previously noticed any injuries on either baby. However, she noted that Quennisha had been exhibiting various unexplained physical and behavioral symptoms. For example, Simmons recounted that, from the age of four months until her death, Quennisha wouldn't stand up like a normal little seven month will stand on their knee - - on their feet and try to push up. She didn't do none of that, she always bend down and start crying like something was hurting her.

Simmons also recalled that Quennisha "couldn't keep no milk down, they changed her milk several times and she still couldn't keep it down." Finally, Simmons remembered one occasion prior to her daughter's death when Quennisha "gagged" or briefly stopped breathing before resuming normal respiration. Utopia Sims added at trial that, in the past, Quennisha had occasionally appeared to be gasping for breath. On August 5, 1997, approximately one month prior to Quennisha's death, Simmons took her daughter to a Dr. Pisit for an examination but was informed that the baby was healthy.

On the day following Quennisha's death, Wendy Gunther, a forensic pathologist and an assistant medical examiner for Shelby County, performed an autopsy on Quennisha's body. In performing the autopsy, Dr. Gunther first examined the exterior of Quennisha's body. While she observed no "obvious wounds on the baby's body," she did observe approximately one dozen bruises, each measuring approximately one quarter of an inch, on the baby's chest and abdomen. The bruises extended from "a little above the nipple line towards the bottom of the ribs." At trial, she noted:

If I held the child with my hands, thumbs on her spine and my hands in front my fingers roughly matched up to these bruises. I'd have to shift my hands a couple of times to match all of them.

She opined that the bruises occurred prior to Quennisha's "death," i.e., prior to the baby's loss of blood pressure.

Dr. Gunther next conducted an internal examination of the baby's body. Upon incising both Quennisha's chest and her abdomen, the doctor was "met by a gush of blood." In all, two fifths of the blood in Quennisha's body had pooled in her chest and abdomen. With respect to the baby's abdomen, the doctor...