State v. Sager
| Decision Date | 05 May 1980 |
| Docket Number | No. KCD,KCD |
| Citation | 600 S.W.2d 541 |
| Parties | STATE of Missouri, Respondent, v. Mark E. SAGER, Appellant. 30389. |
| Court | Missouri Court of Appeals |
Roy W. Brown and James R. Brown of Brown & Brown, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Asst. Atty. Gen., Kansas City, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
This is a direct appeal from a jury conviction for manslaughter. The trial court affixed punishment at ten years in the Missouri Department of Corrections. The judgment is affirmed.
On this appeal, the court is faced with five alleged points of error, which in summary are as follows: (1) the trial court erred as a matter of law in overruling appellant's At approximately 3:20 p. m. on September 2, 1977, 14 year-old Julie Wittmeyer got off the Platte RIII school bus. The bus had stopped at its regular stop on HH Highway, which was at the entrance to the roadway leading to the Wittmeyer farm. A passing motorist observed Julie leave the school bus and proceed to her family's mailbox. Between 5:30 and 6:00 p. m. on this same date, Julie's father called the bus driver, only to learn Julie had gotten off the bus earlier in the day.
motion to suppress evidence of an alleged oral statement of October 1, 1977 and further, in permitting appellant to be cross-examined about alleged oral statements of October 2 and October 5, 1977, and the further use of said statements, because all of said statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) the trial court erred as a matter of law by allowing opinion evidence as to who placed a bite mark upon the body of the deceased because (a) bite mark identification has not reached the point of scientific reliability and credibility to permit the use thereof as evidence in criminal trials, (b) the state's witnesses were not sufficiently qualified as experts in the field to permit of their rendering an opinion as to the identity of the perpetrator of the bite mark and (c) the factual basis for such opinion was not supported by reliable and credible evidence; (3) the trial court erred as a matter of law in giving instruction No. 8 (MAI-CR 15.18 Manslaughter) because this instruction failed to inform the jury with the particular time of death (3:30-5:00 p. m.), allowing the jury to find appellant guilty without proof of the death of the victim during the time specified; (4) the trial court erred as a matter of law in giving instruction No. 8 (MAI-CR 15.18 Manslaughter) because there was no evidence to support said instruction, and the credible evidence fails to support a finding of guilty for manslaughter, and the court erred in not granting appellant's motion for acquittal notwithstanding the verdict; and as his final alleged error (5) appellant contends the trial court erred as a matter of law in denying him a new trial for the reason that the cumulative and prejudicial denial of due process resulted from the deliberate failure of the prosecutor to timely fully disclose the evidence ordered disclosed by the trial court and other complaints more fully set out in appellant's motion for new trial contrary to the Mo.Const. Art. I, §§ 10, 12, 14, 15, 16, 17, 18(a), 19, 20 and 21 and the U.S.Const. Amends. IV, V, VI, VII and XIV.
The father, accompanied by his son, commenced to search for Julie. As the two had covered a distance "pretty well down" the 3,161 foot driveway, the son discovered personal items belonging to Julie. These items consisted of a pair of brown shoes, part of a brown shirt, a pair of tan slacks, a blue notebook and an algebra book. These items were in an asparagus patch adjacent to the driveway, and within an area approximately 4 feet by 8 feet consisting of vegetation. This area of vegetation was matted down, indicating signs of a struggle.
The Platte County Sheriff was then contacted, and an intensive search commenced, which continued until about 1:30 a. m. the following morning. Rain temporarily interrupted the search. On the afternoon of September 3, 1977, part of a blouse and a bra were found and an evidence technician was sent to the scene to photograph these items. The search continued, involving some 200 to 300 persons, both law enforcement officials and volunteers. On September 4, 1977, a local citizen was searching the area on horseback and discovered a body. Law enforcement officials were notified, and the body was identified as that of Julie Wittmeyer. The following are scaled drawings, depicting the area, the location of personal effects and the body of the victim. 1
At about 1:30 p. m. on September 4, 1977, an autopsy was performed. The autopsy revealed a three-centimeter 2 abraded laceration to the forehead. This wound was described as being compatible with a blunt traumatic blow to the forehead. There was a one-centimeter laceration along the vermillion border of the upper lip, with teeth marks on the opposing side interiorly. The autopsy also revealed multiple lacerations, both superficial and penetrating and both external and internal to the neck and throat; multiple lacerations to the super clavicular; laceration to the mandibular angle extending laterally to a point just below the left ear lobe; laceration to the neck The pathologist who performed the autopsy listed the cause of death as exsanguination 3 resulting from the multiple wounds inflicted upon the victim. Exsanguination was listed as the death cause because of the lack of blood in the internal organs and the amount of blood retained in the vaginal cavity.
with penetration extending to the vertebral column; laceration to the left shoulder region; a bruise overlying the mid portion of the sternum; an abrasion to the superior edge of the areola of the right breast, consisting of two slightly arched segments, suggesting teeth marks; (the right nipple and right areola were abraded with the superficial layer of skin missing with white discoloration of the underlying skin) an abrasion between the right labia minora and majora; a cruciate abrasion external to the mons pubis; an abrasion (posteriorly) from the inferior aspect of the entroitus; a laceration (penetrating) to the fornix of the vagina at about 4 to 5 o'clock from the cervix at the distal end of the vagina; an abraded wound immediately beyond the entroitus; and a penetrating wound in the vagina extending into the massive muscle overlying the vertebral column which had penetrated the terminal portion of the ilium. The autopsy further revealed the presence of tree bark in the peritoneum and a penetrating wound inside the throat, which transected the esophagus and thyroid.
Tests were made to determine whether or not sexual intercourse had occurred. Tests for semen and phosphates proved futile due to the fact that the vaginal cavity was awash with blood.
The time of death was listed between 24 to no more than 72 hours preceding the autopsy. The pathologist testified that there were so many variables that a more definite time could not be affixed. He also testified that he was aware of the time frame regarding the time that the victim was last seen and the time the body was discovered. In his opinion, due to the multiplicity and severity of the wounds, the victim could not have lived more than a few minutes following the attack. He also stated that it was difficult to tell if any particular wounds had been inflicted antemortem or postmortem, but added that the wounds in the internal vaginal area were most likely inflicted postmortem. This conclusion was based upon the absence of blood inside the wounded area.
At the request of local law enforcement officials, the Metro Squad was activated. This special law enforcement agency is a cooperative effort, which is bistate, (Missouri-Kansas), multicounty and multimunicipal in nature. It combines the efforts of law enforcement agencies of several local police departments, the Missouri Highway Patrol, several sheriffs and on occasion, the F.B.I. and other federal agencies. The Metro Squad program is assisted by the Regional Crime Lab. It is activated upon the request of any participating local law enforcement agency and assists with the investigation of area major crimes. In the instant case, the Metro Squad became involved at the request of Tom Thomas, Sheriff of Platte County, on September 3, 1977. Marion Beeler, Chief of Police of the City of Raytown (Jackson County), Missouri was designated to head the investigation.
Several teams of investigators, along with evidence and laboratory personnel from the Regional Crime Lab, were pressed into service. After discovering the victim, the Metro Squad continued its investigation, interviewing several persons and pursuing several leads. Though none of the officers could point to one particular piece of information which led to appellant as a suspect, Missouri Highway Patrolman William Bell described the process of putting all reports and all interviews together to get a total picture, and from that picture, deriving indications that appellant was involved in the matter.
After appellant's name had come to the Metro Squad's attention, (at least two witnesses described appellant's car as having been seen on the Interurban Road and HH Highway, a fellow student stated that appellant Appellant related to the officers what had taken place on September 2, 1977. He stated he left school at 12:15 p. m., and had his mother drive him home to get his car. He got his car and went to work. He stated he left work at 3:30 p. m. and got home at 4:00 p. m. At 4:30 p. m., he helped his friends put a radio in their car at his house, and at 5:00 p. m., his parents arrived home. When they arrived, he...
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