State v. Tidwell, 19445

• Decision Date: 08 December 1994
• Docket Number: No. 19445,19445
• Citation: 888 S.W.2d 736
• Parties: STATE of Missouri, Respondent, v. Henrietta TIDWELL, Appellant.
• Court: Missouri Court of Appeals

Page 736

888 S.W.2d 736

STATE of Missouri, Respondent, v. Henrietta TIDWELL, Appellant.

No. 19445.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 8, 1994.

George W. Gilmore, Jr., Sikeston, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

A jury found Defendant, Henrietta Tidwell, guilty of murder in the first degree, § 565.020, RSMo Cum.Supp.1990, and assessed punishment at imprisonment for life without eligibility for probation or parole. The trial court entered judgment per the verdict.

Defendant appeals, maintaining the trial court erroneously received in evidence (1) a vial of Defendant's blood, and (2) items seized and photographs taken inside her home.

Although Defendant does not dispute the sufficiency of the evidence to support the verdict, resolution of her claims of error requires an account of a substantial part of the evidence. In narrating it, we are mindful that the facts and reasonable inferences arising therefrom are to be stated favorably to the trial court's rulings. State v. Blankenship, 830 S.W.2d 1, 14 (Mo. banc 1992).

So viewed, the evidence established that on Friday, December 11, 1992, Defendant, then age 63, was living alone in a four-room house on highway 53 between Poplar Bluff and Qulin. Defendant's sister, Elizabeth Harper, then age 73, lived in Poplar Bluff. Sherry Jenkins, a niece of Defendant and Ms. Harper, lived on highway 53 a half mile past Defendant's house, nearer Qulin.

About 9:30 p.m., that date, Sherry drove by Defendant's house and noticed Ms. Harper's automobile parked in front.

About 8:30 the following morning, Sherry and her husband drove to Poplar Bluff. As they passed Defendant's house, Ms. Harper's automobile was still there. Sherry and her husband drove back by Defendant's house about 1:30 p.m., that day, and Ms. Harper's automobile was still there. This time, Sherry "saw a body laying out in the yard."

Sherry and her husband drove to the nearby home of Sherry's brother, Mike Tidwell, and Sherry told him what she had seen. Mike accompanied Sherry and her husband to Defendant's house. Mike and Sherry looked at the body and recognized it was Ms. Harper. Sherry went to the home of a nearby relative, who telephoned the Butler County sheriff's office.

Deputy Sheriff Gary Hobbs was dispatched to Defendant's house. As Hobbs approached it, Mike Tidwell "flagged him down." Mike told Hobbs one of his (Mike's) aunts was in Defendant's yard, apparently dead, and he "didn't know where the other one was." Mike testified, "I told [Hobbs] I didn't know if the other one was in the house dead or was in there with a gun, what the deal was."

Hobbs went to the body, checked it for pulse, and found none. He returned to his vehicle and radioed for assistance.

Deputy Sheriff Jim Keown arrived. He and Hobbs ascended Defendant's front porch and approached the door, pistols drawn. Hobbs knocked. He heard movement inside. He knocked again. Defendant opened the door.

Hobbs asked Defendant to step outside. She complied and was immediately handcuffed. Hobbs asked Defendant if anyone was inside. Defendant did not reply.

Hobbs entered the house. He saw a butcher knife on the kitchen table and a dishpan of water at the sink. He found no one in the house, so he instructed Keown to bring Defendant inside. Hobbs then advised Defendant "of her rights."

The third officer to arrive was Deputy Sheriff Mike Harper, the evidence technician and crime scene processor for the sheriff's office. He got there at 2:20 p.m. By then, an ambulance had arrived and the "EMT's" were attending the body.

Keown was outside Defendant's house when Harper arrived. Hobbs was inside with Defendant. Keown briefed Harper on the situation. Harper then "roped off the yard" to keep onlookers away.

Harper noticed a "trail" of what he believed was "blood and tissue" from the porch to the body.

Inside Defendant's house, Harper photographed the knife on the kitchen table, then took possession of it. He also photographed several areas where he saw what he believed were blood spots.

Deputy Sheriff Dick Law arrived around 2:30 p.m. Sheriff Bill Heaton arrived shortly after Law. Heaton and Hobbs questioned Defendant, but she did not respond. Sometime between 3:00 and 3:30 p.m., Law, at Heaton's direction, took Defendant to jail.

Harper then began "processing inside the residence." As we read his testimony, "processing" included collecting specimens from the suspected blood spots by using "cotton swabs."

The evidence obtained inside Defendant's house is the subject of her second point. It reads:

"The Trial Court erred in admitting into evidence Exhibits 13, 14, 15, 15A, 15B, 15C, 16, 17, 18, 19, 20, and 24 because all of these Exhibits were obtained as a result of an unlawful search of Defendant's home in that the Exhibits were obtained as a result of a warrantless search in violation of the Fourth Amendment, U.S.C.A. Const. Amend. 4."

Describing the exhibits and recounting the facts pertinent to the claim of error is difficult because (a) the exhibits have not been filed with us, and (b) the record yields few details as to the sequence in which the evidence was assembled.

Facing these circumstances, we note that inasmuch as the exhibits have not been filed with us, we may consider them immaterial to the issues on appeal. Rule 30.05. ¹ An objection to the admissibility of an exhibit need not be considered on appeal if the exhibit is not filed with the appellate court. State v. Shire, 850 S.W.2d 923, 932 (Mo.App.S.D.1993); State v. Simms, 810 S.W.2d 577, 582 (Mo.App.E.D.1991). Indeed, the Supreme Court of Missouri held (in a double murder case) that there was nothing to review with respect to a contention that photographs were erroneously received in evidence where the photographs were not included in the record on appeal. State v. Richter, 647 S.W.2d 513, 520 (Mo. banc 1983).

However, because of the gravity of the crime and sentence here, we have chosen to review Defendant's second point ex gratia for plain error. Plain error relief is appropriate only when the alleged error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice results. State v. Isa, 850 S.W.2d 876, 884 (Mo. banc 1993). The accused bears the burden of showing that an alleged error produced manifest injustice. Id. at 884. Mere allegations of error and prejudice will not suffice. Id.

Law testified Harper "began to photograph the crime scene" while Law (and, obviously, Defendant) were there. Some photographs were taken outside Defendant's house and are not in issue.

As appears infra, seven of the exhibits identified in Defendant's second point are photographs Harper took inside the house. With the exception of Exhibit 13, the record does not demonstrate whether he took the photographs before or after Law took Defendant away.

With that preface, we now endeavor to describe the exhibits listed in Defendant's second point to the extent necessary for plain error review.

Exhibit 13. A photograph of "the floor area between the kitchen and living room." According to Harper, "[W]e pulled [tile] back to take blood samples from the floor." It is inferable this was done after Defendant was taken away, as Harper testified, "[Defendant] was not present inside the residence during the time that I was processing inside the residence."

Exhibit 14. A photograph of the "wall and doorway between the kitchen and living room area."

Exhibit 15. A photograph of the "door frame and door facing between the kitchen and living room." According to Harper, the photograph shows what he believed were "blood spatters or blood on the door frame." Harper removed the door frame so it could be "taken to the lab." He explained, "I could probably have lifted the blood off the paneling and taken the sample to the lab, however, any time I get into a situation where I can let the lab lift the sample they have a better way of doing it."

Exhibit 15A. The door frame shown in Exhibit 15.

Exhibit 15B. A piece of paneling Harper removed in the "kitchen-living room doorway area."

Exhibit 15C. A smaller piece of paneling Harper removed "beside the door frame of the kitchen."

Exhibit 16. A photograph of "the tile area ... in the ... doorway of the living room kitchen area." Harper explained the photograph showed how he was using the cotton swabs to take blood samples.

Exhibit 17. A photograph of "the floor between the kitchen and living room area showing the two different types of tile."

Exhibit 18. A photograph of "the doorway between the living room and front bedroom." Harper explained the photograph showed what he believed to be a spot of blood on the floor, beside which he placed a ruler to show the size.

Exhibit 19. A photograph of "the front door sill area between the wooden door and storm door showing what [Harper] believed to be ... a spot of blood on the door sill."

Exhibit 20. The knife seen by Hobbs on the kitchen table when he entered Defendant's house. As reported earlier, Harper seized it after photographing it.

Exhibit 24. A box containing the cotton swabs used by Harper to collect blood specimens. As we comprehend the record, a serologist who tested the swabs found type O human blood on four of them. ² The serologist found blood on another, but could not determine whether it was human.

The serologist also found type O human blood on a piece of bone fragment, tissue and hair found by Harper inside Defendant's house (the record is unclear as to the precise location). Additionally, the serologist found type O human blood on Exhibits 15A, 15B, 15C and 20.

The victim had type O blood.

Before trial, Defendant filed a motion to suppress all evidence obtained from her house. The motion raised the Fourth Amendment objection asserted in Defendant's second point. After an evidentiary hearing, the trial court denied the...