State v. Tillman

• Decision Date: 07 July 2009
• Docket Number: No. WD 69472.,WD 69472.
• Citation: 289 S.W.3d 282
• Parties: STATE of Missouri, Respondent, v. Marshall A. TILLMAN, Appellant.
• Court: Missouri Court of Appeals

289 S.W.3d 282

STATE of Missouri, Respondent, v. Marshall A. TILLMAN, Appellant.

No. WD 69472.

Missouri Court of Appeals, Western District.

July 7, 2009.

Ruth B. Sanders, Kansas City, MO, for appellant.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before THOMAS H. NEWTON, C.J., P.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.

JAMES M. SMART, JR., Judge.

After a jury trial on charges of murder in the second degree, rape, and forcible sodomy, Marshall Tillman appeals his convictions. His points on appeal pertain to the admission of evidence and testimony and to the wording of the verdict director. The judgment is affirmed.

Facts

The deceased victim was found dead in her Kansas City home on August 26, 1987. She was eighty-eight years old and lived alone at that time. There was no sign of forced entry at her home, and nothing was disturbed inside the house except for one overturned end table. The victim's body was lying on the living room floor; her dentures were lying next to her body. There was blood spattered in various places in the house. The victim's jaw was broken in two places, there were blunt trauma injuries to her head, and her neck was injured in a manner consistent with manual strangulation. There were no injuries to her body below her neck, though it was determined that semen was present in her vagina and anal cavity. Her body was clad in a housedress, which was bunched up around her upper torso with her bra and garter. A pillowcase partially covered her face and a pair of panties was found next to her.

Investigators recovered pubic hairs from the carpet and intact sperm from the victim's body. These specimens were preserved for later analysis, and the case remained unsolved for over fifteen years. In 2003 and 2004, the Kansas City Crime Lab tested the hairs and sperm for DNA. The lab developed a profile from the sperm, which matched the profile of the hairs. The profile was matched in the DNA database to Marshall Tillman. The lab tested a buccal swab taken from Tillman, and his DNA profile matched the profile of the contributor of the sperm and hairs.

Tillman and his wife had been the victim's neighbors. He was separated from his wife at the time of the victim's death, living in another neighborhood. He told police that he went to his former home (next door to the victim's) every day to get the mail. Tillman was subsequently charged with first-degree murder, rape, and forcible sodomy.

The autopsy of the victim was conducted by Dr. John Overman, who was deceased at the time of trial. Before trial, the defense moved to exclude the testimony of Dr. Mary Dudley, the current medical examiner, regarding the autopsy report and findings of the deceased former medical examiner. The State agreed that Dr. Overman's report itself would not be admissible. It argued, though, that Dr. Dudley could review Dr. Overman's report, autopsy photographs, and the crime scene photographs and testify to any conclusions she independently reached from those sources. The court ruled that Dr. Dudley could testify as to her own opinion formed based upon the autopsy photographs and other materials.

Dr. Dudley testified that the victim was struck in the head at least twice. She stated that the victim had also been strangled. Dr. Dudley concluded that the victim died of asphyxia by strangulation, a homicidal act.

Tillman did not testify at trial. The defense called Dr. Thomas Young, a former medical examiner and a pathologist in private practice, to testify as to his interpretation of the autopsy results. Dr. Young testified that he believed the victim likely bled to death because of blunt force trauma. Dr. Young could not determine whether the manner of death was homicide or accident.

Tillman was convicted of rape, forcible sodomy, and the lesser-included offense of murder in the second degree. The jury recommended three life sentences, and the court sentenced him accordingly to three consecutive life sentences. Tillman appeals.

Point I

In his first point, Tillman claims the trial court erred in allowing the State to elicit testimony from Dr. Dudley regarding Dr. Overman's conclusions and opinions in the autopsy report. He argues that the admission violated his rights to cross-examine and confront the witnesses against him, to a fair trial, and to due process of law. Tillman states that the autopsy report and Dr. Overman's conclusions are hearsay, and the defense did not have a prior opportunity to cross-examine Dr. Overman. He claims he was prejudiced because the defense contested the cause of death, and because Dr. Dudley testified to Dr. Overman's opinions regarding the nature of the injuries and the cause of death instead of testifying to the facts and data she relied upon in forming her opinions. Tillman also maintains that the jury learned that Dr. Overman corroborated Dr. Dudley's conclusions regarding the nature of the injuries and the cause of death.

"We review a trial court's decision to admit evidence for an abuse of discretion." State v. Nabors, 267 S.W.3d 789, 793 (Mo. App.2008). "This standard of review compels the reversal of a trial court's ruling on the admission of evidence only if the court has clearly abused its discretion." Id. "We review trial court decisions regarding the admissibility of evidence for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Id. However, whether a criminal defendant's constitutional rights were violated is a question of law that an appellate court reviews de novo. Id.

"It has long been recognized that opinions of a physician may be drawn from facts which he has observed in the course of his examination and evidence which he has heard and read assuming that it is in the record and assuming it is true." State v. Brooks, 551 S.W.2d 634, 657 (Mo.App. 1977). "An expert witness is entitled to rely on hearsay evidence to support his opinion so long as that evidence is of the type reasonably relied upon by other experts in that field; such evidence need not be independently admissible." State v. Hendrix, 883 S.W.2d 935, 940 (Mo.App. 1994). A medical examiner is permitted to testify as an independently qualified expert who bases his or her opinion on the factual information in an autopsy report prepared by a different doctor. See State v. Owsley, 959 S.W.2d 789, 795-96 (Mo. banc 1997) (holding that such testimony is not hearsay because the testifying doctor did not testify about the autopsy-performing doctor's opinion).

In State v. Haslett, 283 S.W.3d 769 (Mo. App. S.D.2009), a doctor reviewed the autopsy documentation and investigative documentation prepared by others and rendered his own conclusions and opinions as to what caused a child's death. Id. at 776-77. He testified that he was not speaking on behalf of the doctor who performed the autopsy but, instead, offered a second opinion, which was common in his area of expertise. Id. The court concluded that the testimony was not hearsay because the doctor testified as to his own opinions and did not state the other doctor's opinions. Id. at 777-78. The court further noted that the autopsy report was not introduced into evidence. Id. "Generally, an expert may rely on hearsay evidence as support for opinions, as long as that evidence is of a type reasonably relied upon by other experts in the field; such evidence need not be independently admissible." State v. Brown, 998 S.W.2d 531, 549 (Mo. banc 1999); see also State v. Candela, 929 S.W.2d 852, 866 (Mo.App.1996) (holding that "[m]edical records and police reports, such as were purportedly relied on ... here, can be relied upon by expert witnesses in giving their opinions"). The Haslett court found no error.

Dr. Dudley testified that she conducted an independent analysis of the victim's autopsy, relying on the forms and documents in the case file including the autopsy report, photographs, investigation reports, lab reports, and death certificate. She stated that these types of materials are reasonably relied upon by experts in the field of forensic pathology. Dr. Dudley also testified that autopsy reports are made in the ordinary course of business and are prepared at or near the time of the autopsy. Dr. Dudley testified that her conclusions as to how the injuries occurred were based on photographs and descriptions of the injuries. From her independent analysis, Dr. Dudley concluded that the cause of death was asphyxia by strangulation and that the manner of death was homicide. On cross examination, Dr. Dudley acknowledged that Dr. Overman conducted the exam more than twenty years prior. She stated that she was relying on the file, primarily the autopsy report and photographs, to form her conclusions. Dr. Dudley's testimony regarding her independent conclusions and opinions was not error.

Tillman further complains that Dr. Dudley testified as to Dr. Overman's opinions and conclusions. He refers to the following:

Prosecutor: All of these injuries which you've described to the internal anatomy of the neck, what are they consistent with?

Dr. Dudley: They are all consistent and actually listed as the first diagnosis on Dr. Overman's report of strangulation....

....

Prosecutor: Now, based on your independent analysis of the autopsy report the autopsy photographs and the crime scene photographs, have you formed an opinion as to the cause of death?

Dr. Dudley: Yes.

Prosecutor: And what is that?

Dr. Dudley: I agree with Dr. Overman, that this is a — that [the victim] died of asphyxia by strangulation.

Before trial, the defense had moved to exclude Dr. Dudley's testimony regarding Dr. Overman's autopsy report and findings. The State agreed that Dr. Overman's report itself would not be admissible as a separate document, and further agreed that Dr. Overman's opinions were not admissible in any form. The State argued, though, that Dr. Dudley could review Dr. Overman's...