State v. Steward, 69036

• Decision Date: 14 July 1987
• Docket Number: No. 69036,69036
• Citation: 734 S.W.2d 821
• Parties: STATE of Missouri, Respondent, v. Donald STEWARD, Appellant.
• Court: Missouri Supreme Court

Page 821

734 S.W.2d 821

STATE of Missouri, Respondent, v.Donald STEWARD, Appellant.

No. 69036.

Supreme Court of Missouri En Banc.

July 14, 1987.

Holly G. Simons, Office of Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Paul LaRose, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Donald Steward(appellant) was indicted in separate counts for the first degree murders of two sisters, Ruthie Brown(Ruthie) and Faustina Brown(Faustina) pursuant to § 565.020.1.¹It was alleged (Count I)appellant while "acting with others, after deliberation, knowingly killed"Ruthie Brown"by striking her" on October 7, 1984 and (Count II) that appellant while "acting with others, after deliberation, knowingly caused" the death of Faustina Brown"by striking her" on October 7, 1984.Additionally (Count III)he was charged with first degree burglary (§ 569.160)² and (Count IV) with first degree robbery (§ 569.020).³

Following a directed verdict for appellant on Count IV, appellant was convicted on the three remaining counts and it is from these convictions the appeal is taken.After reversal in the Eastern District, the cause was transferred and it is decided here as though on original appeal.Mo. Const. art. V, § 10(1945 amended 1970 and 1976).

At trial, the state presented evidence that appellant would have been aware the two sisters kept substantial sums of money scattered around their apartment.The state sought to prove that appellant and his alleged accomplices had entered and assaulted the two sisters in their apartment in order to steal the money which they kept there.

Challenging the sufficiency of the evidence as to the murder charges, appellant contends: (1) no evidence was introduced that he or the alleged accomplices struck Ruthie; (2) that any evidence of causal relationship between his conduct or the actions of the alleged co-participants and the death of Faustina was "too attenuated" to demonstrate appellant was aware such activities were "practically certain" to cause her death; and (3) no evidence demonstrated deliberation as to either murder count.

When examining for the sufficiency of the evidence, our role is to "accept as true all evidence whether circumstantial or direct, tending to prove [appellant] guilty together with all reasonable inferences supportive of the verdict."State v. Brooks, 618 S.W.2d 22, 23(Mo. banc 1981).Additionally, we must "disregard those portions of the record contrary to the verdict, mindful that our function is not to weigh the evidence but to determine 'whether there was sufficient evidence from which reasonable persons could have found [appellant] guilty as charged.' "Brooks, 618 S.W.2d at 23, quotingState v. Kelly, 539 S.W.2d 106, 109(Mo. banc 1976), quoting fromState v. Johnson, 510 S.W.2d 485, 487(Mo.App.1974).

We first determine whether the evidence presented was sufficient to support a finding that Ruthie was struck by either appellant or an accomplice.A forensic pathologist who performed the autopsy testified she found "an area of [Ruthie's] forehead where there was a little swelling, an area of contusion and a slight abrasion where a little bit of skin was scraped off...."Additionally, the autopsy revealed "several fractured ribs between the two right and left sides."An investigating police officer testified Faustina told him that "Donald [appellant] was the one who struck her and her sister numerous times."From these facts the jury could have reasonably concluded that one of the participants struck Ruthie.

Appellant next contends that any evidence of causal relationship between the death of Faustina and the actions of those implicated is "too attenuated" for purposes of showing he was aware that death was "practically certain" to result.The same pathologist, who performed the autopsy on Ruthie supervised the autopsy conducted on Faustina.She testified that on October 7, 1984 Faustina sustained a head injury as the result of an assault at her apartment and died on January 11, 1985, from the combined causes of a pulmonary infarction, a urinary tract infection, and a "generalized infection in the bloodstream."This witness opined that "the underlying cause that started all of this was the head injury..."and concluded that "the proximate cause [was] a head injury which put her in a position for all of these complications."(Emphasis added.)Appellant makes essentially the same argument presented and rejected in State v. Bolder, 635 S.W.2d 673, 679(Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983(1983) and for the reasons discussed in Bolder we are also unpersuaded here.In Bolder, the defendant, a prison inmate, stabbed another inmate who ultimately died not from the stab wounds but rather the resulting infection.Id.635 S.W.2d at 678.We noted it "[made] no difference that [the victim] died from an infection resulting from the stabbing rather than from the stabbing itself."Id. at 680.Similarly, it is of little consequence that Faustina may have died of complications resulting from the head injury she sustained rather than the head injury itself.The jury could have reasonably found that the cause of her death was not so attenuated that appellant was unaware that death would be "practically certain."

The final challenge to the evidence relates to the finding of deliberation.We have held that "[a] deliberate act is a 'free act of the will,'[citations omitted] that is done 'in furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful purpose and while not under the influence of a violent passion suddenly aroused by some provocation,'[citation omitted]."State v. Davis, 653 S.W.2d 167, 172(Mo. banc 1983).The evidence showed that appellant had run errands for the sisters, who frequently kept substantial sums of money in their apartment "wrapped in tissue or handkerchiefs...."Also, that Michael Sturghill(Sturghill), another of the individuals charged in this matter, was found with one hundred ninety-five dollars, some of which was bloodstained, in one of his tennis shoes.In addition, bloodstained gauze, used by appellant to cover a cut sustained the evening of the assaults, was also introduced at trial and the blood type of that found on the gauze matched that on the money Sturghill concealed in his shoe.From this evidence viewed in conjunction with the testimony that appellant struck the victims "numerous times," the jury could have concluded appellant acted with deliberation.

Appellant next argues that comments of the trial judge to the jury, after deliberations had commenced, constituted an improper instructional substitute for MAI-CR2d 1.10 which coerced the jury to return a verdict.The state argues that the remarks did not constitute a coercive instruction, that appellant failed to preserve his challenge by not objecting at trial, and that the "general and nonspecific allegations of error" in his motion for new trial was insufficient to preserve the claim of error.

The cause was submitted to the jury at 12:30 p.m. on August 13, 1985.At 5:05 p.m. the trial judge had the jury brought to the courtroom at which time he inquired about any votes taken and the numerical standing on any such votes.At that time the trial judge asked whether the jurors thought a verdict might be reached following further deliberation; the jurors indicated that they believed agreement on a verdict was possible.During this exchange the trial judge told the jurors he was not attempting "to tell [them] how long [they were] going to deliberate or should deliberate."After returning for further deliberation, the jury sent two questions dealing with punishment to the court at 8:00 p.m.⁴The jury was again returned to the courtroom at 8:15 p.m. where the following occurred:

THE COURT: Please do not assume in my questions or in my discussion here with you that I have an opinion as to how long you should deliberate.Should have--Should continue, whatever, I have no opinion as to that.

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THE COURT: All right.Is it your opinion that any further balloting will arrive at a unanimous verdict on the three counts presented to you because you have to give me a verdict in order to complete entire [sic] work of the jury.You have to give me a verdict.Guilty or not guilty on each of the three counts placed against you.Count I, Count II, and Count III.

Do you have a feeling that if you continue deliberating you will arrive at a unanimous verdict on each of the three counts?

THE FOREWOMAN: Yes.

THE COURT: Is there any juror who disagrees with anything that the foreman--forewoman has now told us?I'm not encouraging this agreement, I'm only encouraging openness in your response.So if you disagree you disagree and you should say so because very frankly if you all say to me, Judge, we should continue to deliberate, there is a chance we will arrive at verdict, [sic] I don't care what the verdicts are.And under those circumstances considering all the time in this trial and effort that has been put into it and importance of this trial to both parties, I would, of course, ask you continue your deliberation, but that's what I intend to do.

(Emphasis added.)At 8:30 p.m. the jury again retired and at 9:05 p.m. returned its verdict of guilty on the three remaining counts.

Before addressing the propriety of the trial judge's remarks made at 8:15 p.m., we first consider whether the point has been properly preserved.The record indicates defense counsel did not object to any of the 8:15 p.m. exchange now alleged to constitute error.Rule 28.03 provides:

A party may, but is not required to, object specifically or generally on the record to the refusal of any instruction or verdict form which he has requested, or to instructions or verdict forms to be given at the request of any other party, or to instructions or verdict forms which the court...