State v. Thompson

• Citation: 985 S.W.2d 779
• Decision Date: 23 February 1999
• Docket Number: No. 80442,80442
• Parties: STATE of Missouri, Respondent, v. Kenneth H. THOMPSON, Appellant.
• Court: United States State Supreme Court of Missouri

Page 779

985 S.W.2d 779

STATE of Missouri, Respondent, v. Kenneth H. THOMPSON, Appellant.

No. 80442.

Supreme Court of Missouri,

En Banc.

Feb. 23, 1999.

Melinda K. Pendergraph, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser. Asst. Atty. Gen., Jefferson City, for respondent.

JOHN C. HOLSTEIN, Judge.

Defendant Kenneth Thompson was convicted of two counts of murder in the first degree, in violation of sec. 565.020, RSMo 1994. He was sentenced to death. This Court has jurisdiction. Mo. Const. art. V, sec. 3. The judgment of guilt is affirmed. The death sentence is reversed, and the cause is remanded for a new sentencing hearing.

Defendant does not contest the sufficiency of the evidence. The facts are reviewed in a light most favorable to the verdict. State v. Kreutzer, 928 S.W.2d 854, 859 (Mo. banc 1996), cert. denied, 519 U.S. 1083 The next weekend, Tracie arranged for the children to stay with defendant while she traveled out of town. Defendant picked up the children on Friday, August 2 and returned them on Sunday, August 4. At that time, defendant argued with Tracie about her desire for a divorce and her relationship with another man. Defendant eventually left for his mother's home. Tracie returned to the Menning home with her children.

117 S.Ct. 752, 136 L.Ed.2d 689 (1997). In July 1996, defendant and his wife, Tracie Thompson, were experiencing marital problems. On August 1, 1996, Tracie's stepfather, Clarence Menning, asked defendant to leave his home. Defendant had been living in the Menning home with his wife and children after a fire had damaged their house.

As the evening of August 4 became the morning of August 5, defendant left his mother's home. Defendant drove to the Menning home and remained in his parked van across the road for a while. Around 2:30 in the morning, defendant cut the telephone wires running to the Menning home and entered the home with a gun and some other tools, including a splitting maul handle.

Inside, defendant checked on his wife and children and found them asleep. He wished to talk with his wife, but did not want to be interrupted by her mother and stepfather. Defendant considered tying the Mennings up with duct tape, but decided against doing so because Mr. Menning was much larger than he was. Defendant struck Mr. Menning in the head at least four times with the maul handle. Mr. Menning died "as a result of multiple blunt impact injuries to the brain." Defendant's attack left Mr. Menning's brain visible. Defendant then struck Mrs. Menning in the head three times. Mrs. Menning died after suffering a fractured skull and brain injuries as a result of defendant's attack. Mrs. Menning also suffered a bruise on her left hand and scrapes and tears on her index finger, suggesting that she attempted to defend herself.

After defendant finished beating the Mennings, he moved to his wife's bedroom. Tracie awoke to find defendant undressed and standing over her, holding a gun. Defendant then jumped onto the bed and straddled Tracie. He ripped off her underwear, pinned her hand against the headboard, and forced her legs apart. Defendant then raped Tracie, despite her resistance and cries for help.

After the rape, defendant forced his wife out of the house and into his van. After Tracie was in the van, defendant pulled up to the Menning home and collected the children, whom he also placed in the van. At one point, defendant bound his wife's arms and legs with duct tape to keep her from resisting.

As they drove away, Tracie asked defendant to return to the Menning home so that she could check on her parents. Defendant told his wife that he had killed them. Eventually, after Tracie promised not to call the police, defendant drove her and the children to a friend's home at approximately 5:30 that morning. Defendant gave Tracie some clothes he had placed in his van. Tracie told defendant to leave, and he did. Tracie and her friend returned to the Menning home later that morning and discovered the Mennings' bodies.

Meanwhile, defendant had traveled to Sedalia, where he abandoned his van and borrowed a car from his aunt. Then, defendant cashed a check, purchased a suitcase and continued west to Warrensburg where he hoped to catch the train to Kansas City. In route to Warrensburg, defendant took some money from newspaper vending machines using Mr. Menning's keys.

At the Warrensburg train station, defendant telephoned his mother's house. He spoke to family members and the Morgan County sheriff. Eventually, defendant agreed to surrender to the sheriff. He told the sheriff he was in Warrensburg and would stay there until the sheriff arrived. The sheriff traveled to Warrensburg. He met defendant there, arrested him, and informed him of his Miranda rights. The sheriff then called the Johnson County sheriff's department and placed the defendant into its custody. Defendant consented to the Johnson County sheriff's search of his aunt's car and his van. Sergeant Ripley of the Missouri Highway Patrol interviewed defendant. Later In July 1997, defendant escaped from the Benton County jail, where he was awaiting trial. He was caught the same night after fleeing to Jackson County.

the defendant made a videotaped confession.

At trial, appellant asserted the defense of diminished capacity due to a mental disease or defect. Dr. Richard Smith testified that defendant experienced a "psychotic episode" on the night of the killing that rendered him unable to deliberate. Dr. Smith opined that the killings were "an outburst related to his illness over which [defendant] at that time had no control."

The jury returned guilty verdicts on both counts of murder in the first degree.

During the penalty phase, the state offered the testimony of defendant's ex-wife, Linda Carver. She testified about defendant's abusive, threatening conduct during their marriage. Carver also recalled an occasion on which defendant shot someone he had seen "messing with [his] car." The state also offered testimony of Deputy Sheriff Darrell Patterson, who stated that defendant told him he would try to escape from jail again if given the chance. In addition, the state elicited victim impact testimony from two of the Mennings' children. At the close of its penalty phase case, the state admitted records of defendant's prior convictions.

Defendant presented more testimony from Dr. Smith. Defendant also elicited testimony from Sheriff Roger Brink as to defendant's good behavior in jail. Defendant called his friend, Melvin Parks, and his mother, Mary Lou Sanders. They testified about their personal relationships with defendant.

At the close of the evidence, instructions, and arguments by counsel, the jury recommended the death penalty on both counts, finding two statutory aggravating circumstances existed with respect to each murder. The court entered a sentence of death on each count. Defendant appeals, raising twelve points of error. ¹

GUILT PHASE

Disclosure Issues - Point II

Defendant claims that the state repeatedly violated Rule 25.03 and that the trial court abused its discretion by overruling defendant's (a) motion to compel discovery, (b) motion for sanctions, (c) motion for a continuance, and (d) by admitting certain evidence over defendant's objections. Defendant claims that these abuses of discretion violated his constitutional rights of due process, confrontation and compulsory process.

Notwithstanding the state's disclosure of over two hundred pages of documents and dozens of responses to other discovery requests, defendant claims the following evidence relating to his conviction was disclosed too late or not at all, in violation of Rule 25.03: the testimony of Tracie Thompson that defendant had moved a bag of clothes from her car; the testimony of Darlene Anderson about how defendant behaved toward his wife; "physical evidence, written statements and other evidence" in the possession of the Benton County sheriff's department; defendant's prior convictions, defendant's jail records and defendant's medical records; and notes of expert witnesses.

A.

Although defendant complains of the trial court's denial of his motion to compel discovery, defendant fails to identify any specific ruling of the trial court that he now appeals. Defendant claims that the state disclosed evidence late or not at all, but does not identify any instance where the trial court

denied defendant's motion to compel disclosure. This claim is denied.

B.

Defendant correctly points out that the trial court did deny his motions for sanctions and contends that these denials were an abuse of discretion. Even assuming that defendant's accusations of discovery violations are true, the decision to impose a sanction for a party's noncompliance with the discovery requests lies within the sound discretion of the trial court. State v. Kinder, 942 S.W.2d 313, 338 (Mo. banc 1996). "Failure to impose sanctions for a discovery violation will be considered an abuse of discretion if the violation resulted in fundamental unfairness or substantively altered the outcome of the case." Id. Fundamental unfairness occurs when the state's failure to disclose results in defendant's "genuine surprise" and the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the evidence. State v. Johnston, 957 S.W.2d 734, 750 (Mo. banc 1997). Defendant claims that late and nondisclosures prejudiced his ability to investigate, prepare for trial, confront witnesses and rebut the evidence, and injected arbitrariness in the proceeding. Before the trial court and on appeal, defendant does not specify how further investigation or preparation would have benefited his defense. Defendant's bare assertions of prejudice are not sufficient to establish fundamental unfairness nor do they demonstrate how the outcome of the case was substantively altered. State v. Brown, 902 S.W.2d 278, 290 (Mo. banc 19...