State v. Stewart
| Decision Date | 28 March 2000 |
| Parties | (Mo.App. E.D. 2000) . State of Missouri, Respondent, v. Brian Stewart, Appellant Case Number: ED75655 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Charles County, Hon. Ellsworth Cundiff
Counsel for Appellant: Joseph I. Murphy
Counsel for Respondent: Breck K. Burgess
Opinion Summary: Brian T. Stewart appeals from a judgment entered pursuant to his jury conviction for the class A felony of assault in the first degree. He was sentenced to life imprisonment and appeals.
AFFIRMED.
Division Seven holds: (1) The trial court did not plainly err in failing to sua sponte declare a mistrial when the prosecutor made a reference to Stewart's failure to testify. (2) The trial court did not err in failing to exclude all references to Stewart's character and propensity to commit criminal acts. He made no objection to the admission of much of this evidence at trial, and he suffered no manifest injustice. Some character evidence was properly admitted to establish his motive. The improperly admitted evidence did not prejudice him. (3) The trial court did not err in admitting Exhibit 39, as Stewart had consented to the admission of the result of the test. (4) Stewart consented to the trial court's decision to give the "hammer" instruction and waived any claim of error on appeal. (5) The trial court did not err in denying Stewart's discovery requests. Part of the information sought was not in the State's possession and/or was protected by physician-patient privilege. Stewart failed to request permission from the trial court to broadly disseminate a St. Louis Health Department report. (6) His sixth point is insufficient for appellate review. (7) The trial court did not err in denying Stewart's motions for judgment of acquittal and motion for new trial because there was sufficient evidence from which a reasonable juror might have found him guilty beyond a reasonable doubt.
Brian T. Stewart (hereinafter, "Defendant") appeals from a judgment entered pursuant to his jury conviction for the class A felony of assault in the first degree, Section 565.050, RSMo 1994, obtained in the Circuit Court of St. Charles County. Defendant was sentenced to life imprisonment. We affirm.
Defendant was charged by information with assault in the first degree for attempting to kill or cause serious physical injury and by actually inflicting serious physical injury to his biological son, B.S.J., by infecting him with the Human Immunodeficiency Virus ("HIV").1
The sufficiency of the evidence to support Defendant's conviction is in dispute. On review, we accept as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Viewed in the light most favorable to the verdict, the following evidence was adduced:
Defendant was a phlebotomist at Barnes-Jewish Hospital in St. Louis. His duties there were to collect blood from patients. He often brought tourniquets, syringes and needles home from work. He frequently kept such supplies in his lab coat. He also brought home vials of blood. He made threats that he could take things from the lab where he worked, infect people, and that they would never know what they had or how they got it. He said that he had the power to wreck people's lives if they "messed with him." He had access to blood that was infected with the HIV virus.
In May of 1990, he began a relationship with the victim's mother (hereinafter, "Mother") and lived with her from time to time. In July of 1990, Mother found out that she was pregnant with Defendant's child. When she told this to Defendant, that same month, he became very angry. He claimed that the child could not be his because he could not have children. In December of 1990, Defendant and Mother went to a hotel together. Defendant took a tourniquet, syringe, and needle out of his bag and said that he was going to kill himself. Mother begged him not to do it, and Defendant said that if she did not leave him alone he would kill her by injecting her with air. However, Defendant did not harm either himself or Mother at that time.
The victim, B.S.J., was born on February 24, 1991. Defendant first saw B.S.J. three months later. At that time, Defendant did not display affection for B.S.J. and told Mother that she needed to have paternity tests in order to prove that he was the father.
In May, June and July of 1991, the victim was examined as part of an infant vaccination study. These exams revealed that he was a healthy child who was not infected with HIV. However, subsequent exams revealed that the victim had asthma.
On February 2, 1992, Mother brought B.S.J., who was eleven months old, to St. Joseph's Hospital West in St. Charles County because his asthma had worsened. Mother called Barnes-Jewish Hospital and left a message for Defendant that indicated that the victim had been hospitalized. The victim's room contained a bed for his mother, and she stayed with him in the hospital.
On February 6, 1992, the victim's doctor determined that his condition had improved so that he could be released from the hospital. Before he was released, however, Defendant unexpectedly arrived at the hospital with his lab coat, which had deep pockets for carrying supplies.2 Defendant placed his lab coat over a rocking chair.
Defendant asked Mother when the victim was going to have some stitches from a previous injury removed from his head. Mother said they would be removed before the victim went home that day. Defendant said that the victim's face was going to be scarred and imperfect and that the victim was not worth having.
Mother left Defendant in the room with the victim when she went to the cafeteria to get something to drink. When she returned to the victim's room about twenty minutes later, the victim was sitting on Defendant's lap crying hysterically. Defendant's lab coat had been moved while Mother had been gone from the room.
Mother was concerned for the victim and called for nurses. The nurses were not able to diagnose what was wrong with the victim. Defendant moved near the door as the nurses examined the victim, then said that he had to go to work and left. The victim became exhausted and fell asleep. However, he continued to exhibit a difficulty in breathing, a fever, and a fast heart rate. This sudden change in his condition was consistent with him receiving an injection of incompatible blood (a hemolytic reaction).3 The victim was transferred to Cardinal Glennon Children's Hospital instead of being sent home and remained at the Children's Hospital for four days. Defendant never again visited the victim in the hospital.
Testimony at trial established that an injection could best be hidden through a prior injection site or the site of an intravenous line. The victim had an intravenous line during his stay at the hospital that had been removed from his hand before Defendant's visit.
In August of 1992, Mother ended her relationship with Defendant. She called him at work to ask him for financial support for the victim because she did not know his home phone number or address. Defendant argued that he was not the victim's father and that he had no financial responsibility. He said that paternity had not been legally established. Defendant said, "I told you that when I leave, I'm going to leave for good and I'm not going to leave any loose ends or ties behind." Defendant said, "you won't need to look me up for child support anyway because your child is not going to live that long." Mother asked what Defendant meant by that and he replied, Defendant said that if Mother tried to find him he could have her taken care of and that nobody would be able to trace it back to him.
Steven Zegar, a member of Defendant's Illinois National Guard Unit, testified that Defendant told him that if someone "messed with" Defendant, he would inject them with something and that they would never know what hit them.
Mother filed a paternity suit in 1993, but could not locate Defendant. Defendant moved several times in an attempt to avoid being located by Mother. He also used different names and social security numbers.
In April of 1996, the victim began having persistent fevers, vomiting, weight loss, lethargy and leg pains, and also had a low lymphocyte count. The victim tested positive for infectious mononucleosis. He had not been tested for AIDS, because his doctors did not believe that he was at risk of receiving that disease. However, on May 23, 1996, Dr. Linda Steele-Green, the victim's physician, realized that Defendant had access to blood and that he had stated that the victim would not live long. Accordingly, she asked for the victim to be tested for AIDS.
On May 24, 1996, the victim was tested and diagnosed with AIDS, which was in a very advanced state. The victim's condition was consistent with his being infected with HIV in February of 1992. It was believed that he would die within six months; however, subsequent treatment has improved his condition.
Since the victim was diagnosed with AIDS, Defendant has not visited the victim or called regarding his welfare. Defendant told a woman he was living with that someone was trying to claim that a child was his, but the child was not his. In July of 1996, he told her that the child tested positive for AIDS, but that he tested negative. He said that even if the child was his, he would not pay child support, and that the child would be dead soon.
The victim was checked for evidence of sexual abuse, but...
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