State v. Myszka, WD

• Decision Date: 17 February 1998
• Docket Number: No. WD,WD
• Citation: 963 S.W.2d 19
• Parties: STATE of Missouri, Respondent, v. David H. MYSZKA, Appellant. 53120.
• Court: Missouri Court of Appeals

Page 19

963 S.W.2d 19

STATE of Missouri, Respondent, v. David H. MYSZKA, Appellant.

No. WD 53120.

Missouri Court of Appeals Western District.

Feb. 17, 1998.

Jianbin Wei, Springfield, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before LAURA DENVIR STITH, P.J., and HANNA and RIEDERER, JJ.

RIEDERER, Judge.

Appellant David Myszka, after a jury trial in the circuit court of Platte County, appeals his conviction for murder in the second degree, § 565.021.1 RSMo, ¹ and armed criminal action, § 571.015.1. We affirm.

Facts

In the early morning hours of April 28, 1995, Janice Rodriguez,("deceased") while at her residence at 615 Thomas Street, Weston, Platte County, Missouri, died as a result of a gunshot wound to her chest. The deceased lived at 615 Thomas Street with her fourteen year-old son, Jarrod Dustin Rodriguez ("J.D.") and Appellant, the deceased's boyfriend.

J.D. testified that on the evening of April 27, 1995, he had dinner with the deceased at Applebee's, went to Best Buy, and then came back home and watched movies with her until approximately midnight. Around midnight the deceased went into her bedroom to go to sleep. J.D. rewound the movies, and then got his headphones from his bedroom so he could listen to music on the couch, where he planned to sleep that night. J.D. had been listening to loud rap music on his headphones for approximately 15 minutes. When he took them off he heard something that sounded like a person vomiting. He got up to go check out the noise. He proceeded halfway through the kitchen and heard Appellant say, "your son's comin." J.D. then turned around and ran to his room, where he acted asleep, for fear he might get into trouble. He then heard someone walking through the dining room and the sound of deceased's keys rattling. He knew they were the deceased's keys because she had a large number of keys due to her position at Wadsworth Credit Union. J.D. then saw Appellant on the phone. J.D. noticed that Appellant had blood in his ear. After J.D. asked twice to see his mother, Appellant finally let J.D. see her. She was dead. Appellant told J.D. that his mother had committed suicide.

Between midnight and 1:00 a.m. on April 28, 1995, Officer Terry L. Blanton ("Blanton") of the Weston Police Department, received a call regarding a reported suicide at 615 Thomas Street. The caller was J.D., who told Blanton that he believed his mother had committed suicide. Blanton then proceeded to 615 Thomas Street, where he found the deceased lying on the floor of her bedroom. A handgun, a .32 Derringer pistol, was removed from her left hand. The deceased was right-handed. J.D. and Appellant were both present at the scene. Blanton thought that Appellant was intoxicated due to the strong odor of alcohol on his breath and his blurry red eyes. Blanton asked to perform a breathalyzer test, which defendant refused.

The death was not thought to be a homicide until later that same morning, when the medical examiner's office contacted Chief Larry Winfrey ("Winfrey") of the Weston Police Department. They indicated to him that the victim died due to a gunshot wound to the chest which appeared to be suspicious. Winfrey called William Taylor ("Taylor"), Captain of the Platte County Sheriff's office investigation unit and asked for his assistance in the investigation. Taylor sent a couple of officers to the medical examiner's office, and he sent Deputy Randy Pittman to secure the scene at 615 Thomas Street.

In the meantime, Appellant had already told several individuals that the deceased had "offed herself," and "blew her shit away." At approximately 9:30 a.m. on April 28, 1995, the Appellant arrived at Wadsworth Credit Union in the deceased's van. He went there to give back the deceased's keys to the building. According to employees at the credit union, Appellant appeared drunk, had a scratch on his face, and blood in his ear. Lloyd Nuggent, a colleague of the deceased, decided to drive Appellant back to Weston because of his apparent intoxication. Another colleague, Rich Kowalczk, rode along. Around noon they arrived at 615 Thomas Street. Police were at the scene. Appellant attempted to go into the house, but was refused entry. Soon after, Appellant was placed under arrest. While Taylor was bringing Appellant's hands behind his back, Deputy Pittman noticed that Appellant had a .45 caliber automatic handgun under his shirt. The handgun contained seven rounds. Six rounds of .32 caliber ammunition were found in his pocket. A box of .45 ammunition and a receipt for it, dated the same day, were found in the deceased's van that Appellant had been driving.

After his arrest, Appellant was interrogated late in the evening on April 28, 1995. According to the transcript which had been made of the interrogation, Appellant claimed to have gone to bed with the deceased. After being in bed for approximately fifteen minutes, the deceased got out of the bed. Appellant said, "The next thing boom, and she hits the floor. So I jumped up and turned on the lamp to see what happened. She was laying there bleeding all over. I didn't think that there was actually any hope for her. She was bleeding that bad."

At the trial, the State's firearm expert, Ralph Baney testified that he found no gunpowder residue on the shirt which the deceased wore at the time of her death. The expert further testified that he test-fired the gun and found that at 20 inches gunpowder residue would be present on the garment. This meant that the gun had to be fired at a distance greater than 20 inches from the wound. Based on this information, the expert concluded that this gunshot would have been inconsistent with the deceased shooting herself.

Dr. Thomas Young, Medical Examiner for Jackson, Platte and Clay counties testified that in his opinion, it would be impossible for the gunshot wound on the deceased to have been self-inflicted, given the autopsy report on the deceased and the ballistics report. Dr. Bonita Peterson, who performed the autopsy, testified that, "with the left hand," a suicide "would be difficult and awkward" or "may not even be possible."

Other testimony revealed that Appellant had a drinking problem and that the deceased had told him if he did not quit drinking she would kick him out. In addition, Larry Eubank testified that several months prior to the shooting, he had given Appellant the .32 caliber Derringer in partial payment for painting Eubank's car. When Eubank gave Appellant the gun Myszka said, "You could make it look like somebody committed suicide with a gun." Appellant then told Eubank that he had a friend who killed his wife and made it look like a suicide.

Procedural Background

On June 19, 1996, the Appellant, David H. Myszka, was found guilty of murder in the second degree, and armed criminal action, following a jury trial in the circuit court of Platte County, Missouri. On July 25, 1996, defendant was sentenced to consecutive terms of life imprisonment and 50-years' imprisonment. This appeal ensued.

I. Sufficiency of the Evidence

Appellant's first point on appeal is that the trial court erred in overruling his motion for judgment of acquittal because the State failed to present substantial evidence to prove his guilt beyond a reasonable doubt.

A. Standard of Review

When reviewing the sufficiency of the evidence, all the evidence and its inferences are considered in a light most favorable to the verdict. State v. Franklin, 854 S.W.2d 55, 57 (Mo.App.1993) (citing, State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992)). We reject all contrary evidence and inferences. Id. This court neither weighs the evidence nor determines its reliability or the credibility of witnesses. Id. Our review is confined to a determination of whether the jury had substantial evidence from which to find the defendant guilty beyond a reasonable doubt. Id. at 57-58. "Substantial evidence is evidence from which the trier of fact reasonably can find the issue in harmony with the evidence." Id.

B. Discussion

Appellant claims the State's evidence failed to prove the corpus delicti, or the body of the crime. Specifically, Appellant claims the State's circumstantial evidence failed to prove defendant's criminal agency, that Appellant "knowingly or with the purpose of causing serious injury" killed the deceased, and that the state failed to prove beyond a reasonable doubt that the death was not the result of an accident. Murder requires the proof of two elements: (1) the victim's death, and (2) the criminal agency of another as the cause of the victim's death. State v. Davis, 797 S.W.2d 560, 563 (Mo.App.1990). The state must prove that the death was neither self-inflicted nor the result of natural causes or accident. State v. May, 689 S.W.2d 732, 735 (Mo.App.1985).

A person commits the crime of murder in the second degree if he: knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person. § 565.021.1(1). "Even where evidence of a defendant's guilt is solely circumstantial, the evidence is sufficient to support a conviction if the evidence is such that a reasonable juror would be convinced beyond a reasonable doubt of the defendant's guilt." State v. Bragg, 867 S.W.2d 284, 290 (Mo.App.1993) (citing, State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993)). "All of the elements of a homicide case, including the corpus delicti may be proved with circumstantial evidence." State v. Baker, 859 S.W.2d 805, 813 (Mo.App.1993) (citing, State v. Vincent, 785 S.W.2d 805, 810 (Mo.App.1990)).

Viewed in the light most favorable to the verdict, the evidence at trial established that the deceased was fatally shot in the chest with Appellant's .32 Derringer pistol in the bedroom of the home they shared, and that the victim and the Appellant were the only two persons in the room when the fatal shot was fired.

Although the Appellant...