State v. Morris
| Decision Date | 22 February 1978 |
| Docket Number | No. 10180,10180 |
| Citation | 564 S.W.2d 303 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Robert Lee MORRIS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Gregory K. Johnson, Springfield, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before HOGAN, P. J., and NORTHERN and MOORE, Special Judges.
Defendant Robert Lee Morris stands convicted of murder in the second degree as defined and denounced by § 559.020, RSMo (1969). 1 A jury has assessed his punishment at imprisonment for a term of 30 years. Defendant appeals, contending (1) that the evidence does not support the verdict, and (2) that the trial court erred in admitting six color photographs of the victim taken after her death. After prolonged consideration, we find no merit in either point.
The victim of the homicide, Kimberly Ann Matney, was the 11-month-old daughter of the defendant's paramour, Carol Jean Matney, or Carol Jean Letterman. Kimberly was admitted to the emergency room at a large general hospital in Springfield, Missouri, about 4:00 p. m. on March 18, 1975. The victim was received in cardiac arrest. By the use of heroic measures a heartbeat was restored. The victim's life signs were sustained mechanically for about 24 hours, whereupon she was pronounced dead. This prosecution followed.
The State's case is wholly and entirely circumstantial and in consequence a detailed recitation of the evidence is necessary. It must be borne in mind, however, that even when the State's case is entirely circumstantial, all evidence upon the whole record tending to support the guilty verdict must be taken as true, contrary evidence must be disregarded and every reasonable inference tending to support the verdict must be indulged. State v. Lee, 556 S.W.2d 25, 32(13) (Mo.banc 1977); State v. Cobb, 444 S.W.2d 408, 412(3) (Mo.banc 1969); State v. Sykes, 372 S.W.2d 24, 26(3) (Mo.1963).
So considered, the evidence shows that on Monday, March 17, 1975, a Mrs. Mary McClary "baby-sat" with the infant victim. Mrs. McClary observed burns on the child's body. Mrs. Matney or Mrs. Letterman, to whom we shall refer as the mother, told Mrs. McClary that the child had fallen on a coffee table and had struck her eye and head; the victim had sustained the burns when she was put "in water" to alleviate the soreness resulting from the fall. Otherwise, the substance of Mrs. McClary's testimony was that the victim was a "good baby" who cried only when she was picked up or moved.
The State's principal witness to the events which immediately preceded the victim's hospitalization was the child's mother. The mother's testimony was that she met the defendant "(A)bout a week before Christmas (1974)" at "Jesse's Club," a tavern or bar. Defendant "moved in" with the mother a few weeks after they met and the two were living together on March 18, 1975. It is fairly inferable that the mother was regularly employed at "Davis Nursing Home" from late February up to the time of her child's death. She usually worked from 7:00 a. m. to 11:00 a. m. or from 7:00 a. m. to 3:00 p. m.; the defendant regularly took her to work and the child was left with the defendant. The mother further testified that the child was only occasionally left with a baby-sitter; ordinarily, the child was kept by the mother and defendant except when "(the mother and defendant) would go out."
The evidence showed that the victim had sustained severe second-degree burns several days before her death. The mother explained these burns by saying that her child had fallen "out of the pickup seat" while she was being cared for by the defendant. The mother noticed that the victim's legs were swollen. She and the defendant decided to "soak" the child in "warm" water to relieve the swelling and apparent soreness in the child's legs. The child was placed in a dishpan, in warm water, and additional water was heated in a percolater. As the additional water was heated, it was added to that already in the dishpan. According to the mother "the water wasn't hot when I felt of it," but the victim was nevertheless badly scalded. The mother did not take her child to a physician, because the defendant had said "they would take her away from me if we did." However the scalding occurred, postmortem photographs of the victim vividly demonstrate that she suffered extensive burns over the lower part of her body, and especially the lower part of the left leg and foot, which appear to be denuded of epidermal tissue.
It was also demonstrated that prior to her death the victim had sustained bilateral fractures at the junction of the head and neck of the femur, i. e., both hips were broken. The mother's knowledge of these fractures was limited. She testified to two falls; the infant fell once between the seat and the door of the pickup, but the mother was sure "her legs weren't hurt in that fall." Defendant told the mother of another fall in defendant's pickup the mother was not present and thereafter the child's legs became swollen. As indicated, the victim was scalded thereafter.
Certain other evidence should be noted here. In rebuttal, the State produced one Lonnie Hargis as a witness. Hargis was acquainted with the defendant. Hargis testified that on one occasion, two or three weeks before the infant's death, defendant brought the child to Hargis' residence. Asked if he had seen defendant "do anything" to the child, Hargis stated "at one time the baby was sitting on the floor . . . and he was rocking his (defendant's) foot back and forth and hit the baby in the head." Defendant kicked the victim "a time or two" and the victim cried. Hargis had not seen defendant "just haul loose and kick (the victim)." Hargis observed no burns upon the infant, but he did notice that she made no effort to creep "just (sat) on the floor by the footstool."
Defendant's estranged wife testified that on occasion defendant had brought the victim to her house. This witness stated that when defendant had the victim with him, ". . . he usually put her in the middle of the bed and made her stay there." If the victim tried to move, the defendant ". . . would either smack her or throw her back in the middle of the bed." On one occasion when it was very cold, defendant left the victim unattended in the pickup; the witness felt obliged to bring the victim in from the cold.
Returning to the events of March 18, the mother was "off work" on her physician's advice. Apparently, the defendant left "home" for some time in the morning. Early in the afternoon, the defendant returned. He and the mother, accompanied by the victim, went to "Ruby's Roost," a local bar. They then went to the library and then to their residence, arriving there about 3:00 p. m. Defendant had inadvertently locked the front door and "had to go in through the window." Defendant opened the door; the mother took her child and laid her in bed. The child was then dressed in what the mother described as "(A) Raggedy-Ann print dress and red slacks." The "Raggedy-Ann print dress" has been filed here as State's Exhibit 11. It is a very small cotton jacket, stained and torn about the neck and down the front. The child was also wrapped in a blanket or quilt, filed here as State's Exhibit 13.
When the mother had put the victim in bed, she "turned around" and went outside to an outside toilet. Defendant came outside and asked the mother "where his beer was." The mother estimated she was out of the house "about five minutes." When she returned, she found defendant "(L)aying across the bed." Defendant said he had fallen and had hurt his leg. The mother started to assist the defendant, but defendant told her "to go help the baby, that (the victim) was the one that needed it." The mother went to her child; defendant "ran outside." The mother looked at her child, who ". . . vomited, she couldn't hardly breath." The mother screamed; the defendant came back in the house and attempted to administer mouth-to-mouth resuscitation. Defendant turned cold water upon the victim and "yelled at her to fight." At the mother's suggestion, the victim was taken to the hospital.
As we have related, the victim was received at the hospital in cardiac arrest. Her condition, particularly ". . . the terrible second-degree burns . . . from the waist down" apparently prompted hospital personnel to summon police officers. The incident was investigated by a police officer who testified at length upon trial. Only part of his testimony is material here. The officer questioned both the mother and the defendant, obtained their consent to search the premises where they lived, and on March 19 did search the premises and seized several articles. In particular, the officer seized a 7 ounce "pony" beer bottle, introduced as Exhibit 17. The bottle is 51/2 inches high and approximately 21/2 inches in diameter at the bottom. A "pony" bottle of this species weighs 12 ounces when filled and 5 ounces when empty. The investigating officer testified he found Exhibit 17 eight to ten feet (away) from the (baby's) bed."
A good deal of medical and technical evidence was received upon trial. A pediatrician, who had treated the infant on a regular basis, gave evidence that he had seen the victim in his office on February 18, 1975, one month before her death. At that time, this physician found no evidence of any fractures or any burns or any abuse of the child. This physician was summoned after the victim was admitted to the hospital. He stated that the victim was being maintained with respiratory support at that time; there was a heartbeat, but the child was "nonresponsive" neurologically, which meant there was no appreciable brain activity. The witness had noted the burns, which he could not date exactly, but "in (his) best...
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...361-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). "[A]ll the elements of a homicide case may be proved circumstantially." State v. Morris, 564 S.W.2d 303, 309 (Mo. App.1978). Circumstantial evidence is given the same weight as direct evidence. Grim, 854 S.W.2d at 405-06; see also State v. Hutch......
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