State v. Simonton
Decision Date | 17 July 2001 |
Citation | 49 S.W.3d 766 |
Parties | (Mo.App. S.D. 2001) State of Missouri, Respondent v. Tolliver J. Simonton, Appellant. WD58332 0 |
Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Saline County, Hon. Robert H. Ravenhill
Counsel for Appellant: Irene C. Karns
Counsel for Respondent: Rachel A. Smith
Opinion Summary: Tolliver J. Simonton was convicted by a jury of murder in the first degree, Section 565.020, RSMo 2000, for the death of his eight-year old son, Tate Simonton. He was sentenced to life imprisonment without the possibility of probation or parole. On appeal, Mr. Simonton claims that the trial court erred when, based upon discovery violations, it excluded the testimony of a psychiatrist who would have testified that Mr. Simonton's mental illness prevented him from appreciating the nature, quality or wrongfulness of his conduct. He asserts that there was no discovery violation, but even if there was, the remedy of exclusion was too harsh. Second, he claims that the trial court erred in excluding the psychiatrist's testimony concerning his diagnosis of and conclusions concerning Mr. Simonton's mental condition as of the date of the psychiatrist's second report to the court in September 1998. Finally, Mr. Simonton argues that the trial court erred in sustaining the State's objection to defense counsel's rhetorical question during closing arguments. He also claims that the curative instruction that followed the court's sustaining the objection was a misstatement of the law that acted to lessen the State's burden of proof.
Division One holds: The trial court abused its discretion in disallowing the psychiatrist's testimony based upon discovery violations. There was a discovery violation under Rule 25.08 when Mr. Simonton failed to supplement his prior discovery. Nevertheless, the excluded testimony was vital to Mr. Simonton's defense to the charge of first-degree murder and not cumulative, and the sanction imposed of excluding the psychiatrist's testimony resulted in fundamental unfairness to Mr. Simonton. This court's determination that the trial court abused its discretion in disallowing the psychiatrist's testimony thereby resolves the issue presented by Mr. Simonton's second point on appeal in which he claim the court erred in excluding that portion of the psychiatrist's testimony that was contained in a report to the court. Likewise, this court need not address Mr. Simonton's third point, regarding alleged error in closing arguments, since this case will be remanded for new trial and it is unlikely that the issues presented in this point will occur on retrial.
Tolliver J. Simonton was convicted by a jury of murder in the first degree, Section 565.020, RSMo 2000, for the death of his eight-year old son, Tate Simonton. He was sentenced to life imprisonment without the possibility of probation or parole. At trial, Mr. Simonton asserted the defense of lack of responsibility due to mental disease or defect under Section 552.030, RSMo 19941. On appeal, Mr. Simonton claims that the trial court erred when, based upon discovery violations, it excluded the testimony of a psychiatrist, Dr. Bruce Harry, who would have testified that Mr. Simonton's mental illness prevented him from appreciating the nature, quality, and wrongfulness of his conduct. He asserts that there was no discovery violation, but even if there was, the remedy of exclusion was too harsh. Second, Mr. Simonton claims that the trial court erred in excluding the testimony of Dr. Harry with respect to his testimony concerning his diagnosis of and conclusions concerning Mr. Simonton's mental condition as of the date of Dr. Harry's second report to the court in September 1998, which was properly disclosed. Finally, Mr. Simonton argues that the trial court erred in sustaining the State's objection to defense counsel's rhetorical question during closing arguments. He also claims that the curative instruction given by the court was a misstatement of the law that acted to lessen the State's burden of proof.
In response to Mr. Simonton's claim that the remedy of the exclusion of Dr. Harry's testimony was an abuse of discretion, the State counters that Mr. Simonton presented the testimony of psychiatrist Dr. John Rabun who testified concerning Mr. Simonton's mental state. Dr. Rabun's opinion was that Mr. Simonton was suffering from a mental disease at the time of his son's death and that while Mr. Simonton was aware of the nature and quality of his conduct, he did not know or appreciate the wrongfulness of his conduct at the time he killed his son. The State argues that any testimony by Dr. Harry was cumulative and that the trial court did not abuse its discretion in finding Mr. Simonton was not significantly prejudiced by the exclusion of Dr. Harry's testimony. This court believes that Dr. Harry's testimony was not cumulative, but that Mr. Simonton was significantly prejudiced by the exclusion of Dr. Harry's testimony due to the State's cross-examination of Dr. Rabun which focused on the fact that Dr. Rabun's opinion was only the opinion of one doctor, and he could be wrong. Thus, this court believes that the trial court abused its discretion in disallowing the testimony of Dr. Harry. The judgment of the trial court is reversed and this case is remanded for new trial.
On the morning of Sunday, February 23, 1997, Jeanne Simonton left town to attend a teachers' conference at the Lake of the Ozarks. Her eight-year-old son, Tate, was left in the care of Mr. Simonton, her husband, who was a middle school counselor. The Simontons had been having financial problems, so before she left, Ms. Simonton told Mr. Simonton,
Around 5:00 p.m. that evening, Earl Underwood, Ms. Simonton's father, called the Simontons' house to see, among other things, if Tate had received the fifty-cent pieces he and his wife had sent Tate for his coin collection. During the conversation, Mr. Simonton told Mr. Underwood that he was going to fix bacon and eggs, Tate's favorite meal, for Tate that evening. Mr. Underwood also spoke with Tate about the fifty-cent pieces.
Around 9:00 p.m. that evening, Ms. Simonton called home to check in and to give Mr. Simonton her room number and telephone number. She reminded Mr. Simonton that she had laid out Tate's clothes for the next two days and prepared his lunches and placed them in the refrigerator. She also reminded him that she had left a note on a yellow pad which contained all the information he would need while she was away.
The next morning, Monday, February 24, 1997, Ms. Simonton called home a few minutes after 7:00 a.m. as she was waiting for a shuttle to take her to the conference meeting. At that time and when she tried to call a few minutes later, the phone was busy. She then went on to the conference. Around 8:00 a.m., the principal of the middle school where Mr. Simonton worked called the elementary school secretary to see if Tate was in school. After checking with the teacher, she learned that he was not. Sometime later, the school secretary received a call from Mr. Simonton, who informed her that Tate was sick and would not be in school.
When Ms. Simonton returned to her room that evening around 9:00 p.m., she called home again and spoke with her husband. Mr. Simonton stated that he did not go to school that day because Tate was sick. He stated that he and Tate had been up all night and that Tate had had a fever. Mr. Simonton indicated that he thought it had broken and Tate was feeling better. Ms. Simonton told her husband that both he and Tate needed to be in school. Mr. Simonton replied,
The next morning, Ms. Simonton called home a few minutes after 6:00 a.m. She wanted to call early enough so that there would be time to get Tate up and get him to school. Mr. Simonton told Ms. Simonton that Tate was still sick and they were not going to school that day. Ms. Simonton accused her husband of using Tate as an excuse not to go to work. She told Mr. Simonton that she would be home that day around 2:00 or 3:00 p.m. Sometime before 9:00 a.m., Mr. Simonton called the elementary school secretary to inform her that Tate would not be in that day. When Ms. Simonton arrived home around 2:00 p.m. on Tuesday, Mr. Simonton met her at the back door. She noticed slimy black streaks on his face and asked what was wrong. He told her to come into the house and that Tate was dead. She then ran screaming to one of her neighbors' house, the Longs, around the corner. Hearing the screaming, Ms. Long went to the door. Ms. Simonton was very distraught and crying and told Ms. Long that her baby was dead. Ms. Long then called 911.
The 911 dispatcher informed Brian Kennon, a detective with the Marshall Police Department who was nearby, that there was a call concerning a dead baby and gave him the Simontons' address. Detective Kennon, believing that this was a SIDS death of an infant, responded to the call. After knocking on the front door, getting no response, and finding it locked, Detective Kennon proceeded to the back door. The back door was open, and as Detective Kennon began walking through the porch, Mr. Simonton opened the door to the residence. Detective Kennon identified himself and told Mr. Simonton that he needed to see the dead baby. Mr. Simonton responded, "He's back here." Detective Kennon asked Mr. Simonton to stay where he was and tell him where the baby was. When Mr. Simonton began walking towards the bedroom, Detective Kennon grabbed his elbow. Mr. Simonton jerked his arm away and kept walking. After first requesting that another officer be sent to the residence, Detective Kennon followed Mr. Simonton to the bedroom.
When Detective Kennon got to the bedroom, he saw the child lying on a waterbed. A large amount of blood was on the bed. He...
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