State v. Stewart

Decision Date20 August 2008
Docket NumberNo. 27312.,27312.
Citation265 S.W.3d 309
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Daniel K. STEWART, Defendant-Appellant.
CourtMissouri Court of Appeals

Craig A. Johnston, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

Daniel Stewart (Defendant) was charged by information with committing the class A felony of murder in the second degree. See § 565.021.1 The information alleged that Defendant killed his wife, Kathy Stewart (Kathy), by asphyxiating her. A jury convicted Defendant of this offense. Jury sentencing was waived, and the court imposed a 25-year term of imprisonment.

Defendant presents four points for decision. In Point I, he contends the evidence was insufficient to convict him of second-degree murder. In Points II-IV, he contends the trial court erred by: failing to give a character instruction; not granting a mistrial because a witness mentioned that Defendant underwent a polygraph examination; and overruling an objection to testimony that constituted an impermissible comment on Defendant's invocation of his right to remain silent. Finding no merit in any of these contentions, this Court affirms.

Point I

In Defendant's first point, he contends the trial court erred in denying his motion for judgment of acquittal at the close of all of the evidence. When reviewing the sufficiency of evidence to support a criminal conviction, this Court does not occupy the role of a super juror with veto powers over the actual fact-finders. See State v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993); State v. Meuir, 138 S.W.3d 137, 139 (Mo.App. 2004). Instead, an appellate court gives great deference to the trier of fact. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). The jurors who heard the evidence in this case occupied a superior position from which to assess the credibility of the witnesses and to determine the weight, value and reliability of their testimony. See State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990); State v. Baumann, 217 S.W.3d 914, 917 (Mo.App.2007). Consequently, this Court accepts as true all evidence, and the reasonable inferences drawn therefrom, tending to prove Defendant's guilt; all contrary evidence and inferences are disregarded. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989); State v. Cummings, 134 S.W.3d 94, 100 (Mo.App.2004). The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that Defendant was guilty of the crime of second-degree murder. See State v. Webber, 982 S.W.2d 317, 324 (Mo.App. 1998). The evidence presented at trial has been summarized in accordance with these principles.

Defendant and Kathy married in 1985. The couple had three sons: Chris, Alex and Devon. Kathy worked as a school counselor for the Ava school district. Defendant was the co-owner of A Mustard Seed (AMS), an Ava floral business that also performed some landscaping and lawn care work.

Except for a small shared bank account, Defendant and Kathy kept their finances separate. Kathy had credit cards, bank accounts and a post office box in her name only. In addition, most of the couple's property was titled only in her name. Defendant managed his own finances through a business account. Between 2000 and 2003, Defendant's business had made very little money. To keep AMS afloat, Defendant had borrowed $5,000 to $10,000 from Kathy. Defendant was having trouble making the mortgage payments on his business while paying his share of the bills at home. Around the time of Kathy's death in May 2003, AMS was approximately $82,000 in debt and its mortgage was past due. Defendant was trying to sell a piece of property to raise funds, but the land remained unsold. When an acquaintance asked Defendant whether he could borrow money from Kathy, Defendant stated that he had done that one time previously and would not do so again.

Kathy and Defendant fought frequently, and he described his marriage as "very bad." Defendant told others that he and Kathy had been pretending and that his marriage to Kathy was a lie. At various times, Defendant described Kathy as cold, indifferent and cruel. Defendant said that he wanted to leave Kathy, but he wasn't sure how he would get along on his own because everything was in her name.

May 12, 2003 was a Monday. That evening, Kathy and Defendant had a loud argument in the family home. The couple argued so loudly that their children heard it from the second and third floors of the house. Sometime during the night, Alex saw Kathy's van leave the house with its headlights off. Alex did not have a clock in his room, so he was unsure what time he saw the van leave. His estimates of the time varied from as early as 10:30 p.m. to as late as 3:00 a.m. the next morning.

On Tuesday morning, Defendant went to a gas station between 6:00 and 8:00 a.m. The attendant noticed that Defendant had a black smudge on his face. He told the attendant that he had been mowing. Sometime after Defendant left the gas station, one of his children called to say that Kathy wasn't around and to let Defendant know they needed a ride to school. On the way to school, Defendant and the children stopped at a supermarket. An employee noticed that Defendant had a black streak on the right side of his face, which hid the skin underneath it. When the employee spoke to Defendant, she noted that Defendant seemed to be talking too fast. Defendant told the clerk that he had been mowing that morning.

On Tuesday afternoon, Defendant filed a missing person report. During discussions with police, however, Defendant said Kathy would often leave for days at a time without telling anyone where she was. Defendant told police that, the last time he had seen Kathy, she was wearing her shirt and her underwear. That same afternoon, several witnesses observed a large scratch on the right side of Defendant's face. Defendant gave differing explanations of how he got scratched. In one version, Defendant said he was struck by a wire while mowing. In a second version, Defendant said he was scratched by a limb while mowing. In a third version, Defendant said he was scratched by a branch. In giving these explanations, Defendant often volunteered the information without anyone having asked him how he got scratched. Defendant stated that the scratch looked bad because Kathy was missing, and that he looked "guilty as sin." During an interview conducted after Kathy was reported missing, Alex stated that the scratch was present when he saw Defendant Tuesday morning before school. Defendant claimed he did not receive the scratch until after he had taken the children to school.

Kathy and Defendant mainly drove separate vehicles. Kathy had a van, and Defendant had a truck. One of Kathy's co-workers, Angela Ewing (Ewing), found Kathy's van in a park on Tuesday evening. Ewing drove to the Stewart home to tell Defendant that she had found the van. Defendant refused to go with Ewing to look at the van and said he did not want to be around the vehicle. Three of Defendant's hairs were later found on a rug in the van. On Wednesday morning, Ewing saw Defendant again in the school. At that time, Ewing noticed several scratches on Defendant's neck.

On either Wednesday or Thursday of that same week, Defendant went to a local tire shop to have a lawn mower repaired. Several employees of the tire shop noticed that Defendant's right hand was swollen. Although Defendant claimed that he injured his hand while helping the employees unload the mower, there was testimony that Defendant's hand was swollen before he touched the mower. Defendant also had an injury to his right forearm. He told an acquaintance that Kathy had inflicted the injury on him during their fight on Monday night. Multiple witnesses also noticed scratches on Defendant's neck.

Thereafter, the police took photographs of the scratches on Defendant's face, neck, right forearm, and of the injury to Defendant's right hand. An officer visited the site where Defendant claimed he had hit a wire while mowing, but no wire was found. The Stewart residence also was searched. Inside, officers found a towel with a drop of blood on it and a drop of blood on the utility room floor. Both drops of blood were matched to Defendant. Additionally, officers observed a streak about as wide as a body across one of the floors in the home. In the hallway of the house, a plate was knocked over inside a china cabinet. The house had a strong odor of bleach.

In Defendant's presence, Kathy's brother said he could forgive Defendant if he had anything to do with Kathy's disappearance or if she was killed. Defendant did not respond to that accusation. Throughout the investigation into Kathy's disappearance and the ongoing search for her, Defendant did not appear to be concerned about whether any progress was being made to find his wife. Instead, he appeared more concerned about law enforcement's focus on his relationship with Kathy and with the questions he was being asked by police. Defendant did not participate in any of the searches for Kathy. Neither did he put out any missing person fliers. At one point in the investigation, and before Kathy's body had been found, Defendant referred to Kathy in the past tense, stating, "Why would I kill her, I loved her, I mean I love her." Around that same time, Defendant also said, "You know, I know something bad's happened this time." When a police officer tried to reassure Defendant, Defendant responded that, "No, it's different this time, I know something bad's happened to her."

On Saturday, a search party consisting of over 100 volunteers and law enforcement officers was formed to look for...

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