State v. Onken
| Decision Date | 20 September 1983 |
| Docket Number | No. WD,WD |
| Citation | 660 S.W.2d 312 |
| Parties | STATE of Missouri, Respondent, v. Ray Dean ONKEN, Appellant. 33996. |
| Court | Missouri Court of Appeals |
George M. Ely, Hamilton, for appellant.
John Ashcroft, Atty. Gen., George W. Cox, III, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P.J., TURNAGE, C.J., and MANFORD, J.
This is a direct appeal from a jury conviction for murder, second degree, in violation of § 565.004, RSMo 1978. The judgment is reversed and the cause is remanded.
While three points are presented on appeal, only one thereof is considered because of the disposition of this appeal. Appellant charges the court erred in permitting opinion evidence regarding the similarity of the victim's blood and blood found upon appellant's clothing, because there was insufficient foundation, and said opinion was not supported by evidence of the scientific accuracy and reliability of the technique used to establish the statistical validity of blood enzyme and protein appearance in human blood. 1
The record discloses the following pertinent facts:
During the late evening of September 26, 1981 and the early morning hours of September 27, 1981, Brian Stroud and Ricky Sayre were in Green City, Missouri. Upon returning to Stroud's home, they found the doors locked. They observed lights on in the house which was occupied by Cheryl Newcomer, her live-in boyfriend (appellant), her two children, and the boyfriend's (appellant's) son. Stroud and Sayre went to the Newcomer residence and were admitted by appellant. Cheryl Newcomer, as well as the children, had gone to bed. The trio decided to play cards for whiskey. Stroud and Sayre left, and returned after stealing two fifths of whiskey. The trio played cards and drank until about 3:15 a.m., at which time Stroud and Sayre left for home. While Stroud and Sayre were at the Newcomer residence, the victim (the 19-month-old daughter of Cheryl Newcomer) awakened and was brought into the kitchen by appellant. The victim appeared in a normal and uninjured condition. While appellant was in the victim's bedroom, Stroud and Sayre heard a "thump".
Appellant stated that while Stroud and Sayre were gone to secure some whiskey, he took two "Motran" tablets orally, and then injected himself with "Tylox". Appellant stated that he did this because he was having pain in his hip. Testimony relative to the prior day's activities and the card game revealed that in addition to the drugs taken by appellant and the whiskey consumed during the card game, appellant also consumed six or eight mixed drinks.
After Stroud and Sayre left, appellant testified that he went to bed with Cheryl Newcomer. He stated that he removed his pants and shorts. Cheryl Newcomer was asleep, but vaguely recalled someone getting in the bed. She did not know the time. She testified that at about 6:00 a.m., she was awakened by the sound of appellant being sick in the bathroom. She stated that she observed appellant, gave him a shove, and that he "puked" and fell, striking his hand on a floor register. She observed no injury to appellant as a result of his fall. Cheryl Newcomer unsuccessfully tried to get appellant into bed, became "aggravated", gave up, and walked out of the bathroom. She proceeded to the kitchen, got a drink of Kool-aid, and then "looked into the kids' room." She did not enter the room, but looked to see if the victim and appellant's son (appellant's two-year old son shared the bedroom with the victim) were in bed. She returned to bed and found appellant in their bed.
Later that morning, appellant's son brought the family kitten into the master bedroom shared by appellant and Cheryl Newcomer. After playing with the kitten, Cheryl Newcomer asked appellant's son to go awaken the victim. The hour was approximately 10:30 a.m. Cheryl Newcomer heard appellant's son playing with toys, and then the boy returned to the master bedroom shook his head, and said "wake". Cheryl Newcomer went to the children's bedroom. She observed the victim lying on her back, touched her, and noticed that the victim was cold. Cheryl Newcomer went through the house screaming for appellant to wake up. She was not certain whether at this point she observed scratches and bruises on the victim's face, but she did observe that the victim did not have on the undergarments or outer plastic pants which she had placed on the victim when the latter was put to bed. Cheryl Newcomer awakened appellant, and observed him putting on his undershorts and pants.
Cheryl Newcomer's parents, who lived across the street, were summoned, as well as local police authorities. In addition, the Zone Commander for the Missouri Highway Patrol, the local coroner, and an area physician also arrived. Police authorities investigated the scene, and observed no forced entry into the residence. The physician, an area resident pathologist who examined the victim at the scene, testified that she observed bruises to the left side of the victim's face, a cut on the victim's chin, and several bruises about the neck, head, back, and abdomen. She also observed a split or tear in the skin about the size of a fifty-cent piece, at the opening of the victim's vagina, which in her opinion, was consistent with sexual assault. This physician placed the time of death some six to eight hours prior to the discovery of the body.
Autopsy results were consistent with the genital injury depicted by the first examining physician. In addition, the autopsy confirmed multiple bruises and lacerations to the victim. The actual cause of death was listed as "pericardial tamponade ... due to the rupture of the heart and due to the severe trauma to the chest." This autopsy was performed by a staff pathologist with Kirksville Osteopathic Hospital in Kirksville, Missouri.
As part of the scene investigation, officers secured the victim's clothing and certain bedding items. They also interviewed appellant and Cheryl Newcomer, obtaining statements from each. The Missouri Highway Patrol trooper involved in the investigation testified that he took the first statement from appellant at approximately 3:30 p.m. on the afternoon of September 27, 1981. Proper Miranda warnings were given, and subsequently waived by appellant. Appellant's statement gave an account of the day's events for September 26, 1981, and the card game with Stroud and Sayre.
The trooper had observed an injury to appellant's left hand. Appellant stated, "I think I got [that] when I fell in the bathroom." In this statement, appellant declared, "I know of nothing I did to Billie Newcomer to cause her death." At this time, appellant voluntarily gave a sample of his head and pubic hair. While appellant was providing a sample of his pubic hair, the trooper observed a stained area on the front of appellant's shorts. The trooper requested, and appellant voluntarily gave his shorts to the...
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