*1 argue to hold the defendant to a decision unique,
for his own death. The case is
surely will not recur. What harm can allowing
there be a trial? punish-
I would reverse for trial of the phase.
ment Missouri,
STATE of
Plaintiff-Respondent, EVANS,
Terry Defendant-Appellant. EVANS,
Terry Appellant, Lamont Missouri, Respondent.
STATE of
No. 72549. Missouri,
Supreme Court of
En Banc.
Jan. 1991.
Rehearing Denied 1991. Feb.
thе record does any testing not show that or treatment occurred. January
On February 29 and defen- girlfriend dant’s (Curry) went to the Sexu- ally Transmitted Disease Control Clinic in diagnosed St. Louis where she was gonorrhea. treated for supplying While background information, she told health of- only partner during ficials that her sexual this time was defendant. *4 From this and the other evidence ad- Rafert, Cheryl Robertson, Henry St. trial, guilty duced at defendant was found
Louis, defendant-appellant. for raping punishment of M.E. with assessed Webster, Gen., William Atty. L. Robert years’ at fifteеn imprisonment and his Franson, Gen., V. Atty. Asst. Jefferson timely pro seeking se Rule 29.15 motion City, for plaintiff-respondent. post-conviction relief was denied. RENDLEN, Judge. DIRECT APPEAL appeals Consolidated from defendant’s (A) rape overruling conviction for and the Defendant first asserts the trial court his Rule 29.15 motion. allowing Curry’s erred in evidence medical Reviewing light the evidence in a most revealing gonorrhea records infection be- verdict, favorable to the the record dis- cause she had not consented to their re- defendant, 1987, closеs that January, During lease. Curry direct examination spent nights several at the home of his receiving gonorrhea denied treatment for aunt and her six cross-examination, children. On one of those but on the medical nights, upstairs he went to the bedroom of indicating records were introduced she had cousin, M.E., nine-year his old where he diagnosed been so and treated for that raped girl the little and afterward instruct- shortly disease after defendant’s attack ed her to take a shower upon and threatened M.E. When confronted with those physical spoke harm anyone if she to of the they records she admitted were correct. incident. Curry’s Defendant insists records A days few later M.E. a noticed brown inadmissible, 491.060(5), relying were on § discharge panties in her and when this was provides: RSMo 1986 1 which brought to her mother’s attention on Janu- following persons shall be incom- 27, ary emergency M.E. was taken to the petent testify: hospital ward of a local she tested where positive vaginal gonorrhea. and rectal (5) surgeon, concerning A physician or hap- At first she refused to discuss what any may he have information which ac- pened, finally but told her mother and hos- quired patient attending any from while pital officials of the crime. Thereafter character, professional him in a someone, officials, apparently hospital necessary to en- which information was contacted the work house where defendant patient him prescribe able for such as (on matter) was incarcerated an unrelated physician, any a or do act for him as a in- advising of the likelihood that he was surgeon. gonorrhea. Though fected the medi- with privilege cal staff the work house informed defen- While it is correct the extends disease, proceedings, civil they dant would treat him for this to criminal as well as prior applicable to the here. 1. Defendant’s trial occurred 1988 revisions of 491.060 and the 1986 statute is §
511 (Mo. 387, pa- of the Beatty, privilege 770 391 assert on behalf State S.W.2d App.1989), hospital Hospital, and to records of the Rock Inc. tient. Louis Little St. here, 146, presented Gaertner, sort (Mo.App. State ex rel. Benoit v. Randall, (Mo.1968), 1984); Lester E. see also State ex rel. Cox upon physician-pa- defendant’s reliance Keet, 678 S.W.2d Medical Center v. privilege misplaced. tient is nevertheless cases, (Mo. 1984). In those pa- former physicians had been sued Though present the facts a novel during dis- alleging malpractice, tients who situation, appears it defendant is without covery requested physicians that the fur- standing object to the introduction of In regarding patients. other nish records physician-patient privi thеse records. The E. Medical Cen- ex rel. Lester Cox State lege personal patient, is to the Wells v. ter, in the inter- supra, this Court held that Mo. City Jefferson, 345 slightly justice privilege est of could be (1939); Foerstel v. Louis St. modified to allow in camera review of such Co., Public Service S.W.2d 792 protect identity of the documents (includ App.1951), generally person no patients. other Id. at 815. St. Louis ing physician) patient other than the Inc., Hospital, the court of Little Rock may object. so 97 C.J.S. Witnesses § *5 regarding at- appeals held that recоrds (1957). patient’s, Here it was the not de hospital tempted particular suicides at a for fendant’s, right privilege. to assert the In privileged, previous years the five were M_P_S_, re S.W.2d narrowly re- interpreting the in camera (Mo.App.1961); State ex rel. Williams v. exception. at 152. The facts here view Id. Vardeman, (Mo.App. distinguishable unique clearly are from the 1967). Similarly, a defendant a criminal physician-party is re- setting in which a prosecution physician-patient cannot claim quested patients records of other to furnish privilеge testimony to bar from the victim’s asserting privilege, the physician, and the treating physician. 81 Am.Jur.2d Witness- non-party objection on behalf of the makes (1976). es § In at bar defendant was patients. the case M_ P_ S_, in- supra, In re relationship not in the confidential involved mother, abuse, volved a accused of child treating patient physi- and her between the attempted physician-pa- to who raise the Further, patient testi- cian. when the son, privilege tient on behalf of her the she who had stand- fying under oath it was trial, neglect. viсtim of her At the mother privilege. the For ing to assert or waive objected treating successfully to the child’s discussed, question the the reasons now court, physician’s testimony. appellate The Curry’s of the by was set to rest waiver reversing, noted that in normal circum- following exchange in the occur- privilege parent right to stances a would have the ring during direct examination: child, privilege her claim the on behalf of Q: attorney] theTo best [Defendant’s right only exists when it is in the but know, your knowledge you from what of It child’s best interests. Id. at 283. wаs from, like, gonorrhea you have ever had prevent physi- the mother’s benefit to the January on? testimony, contrary but to the inter- cian’s child and the interests so ests of the where [Curry] A: No. conflict, may parent the neither raise nor any the Q: you ever shown Have privilege. In the case at
waive the Id. gonorrhea? symptoms of bar, only the medical records related No. A: she, defendant, right not had the Curry and Q: discharge? You had a privilege and the record dem- to invoke preg- Yeah, being from probably A: objection. onstrates she made no such nant, it. that’s about distinguishable from This action is Q: any type of you never received So holding that even the line of cases gonorrhea? treatment for physi by patient, absence of waiver A: No. may in certain limited circumstances cian privilege
The can be by pa- waived upon Defendant’s final attack tient, Keet, State ex rel. McNutt v. 432 introduction premised of the records is (Mo.1968), statute, upon numerous a federal 42 U.S.C. ways. Klinge 247c(d)(5) v. Lutheran Medical (Supp.1989), Cen- providing that § Louis, ter St. information obtained connection “[a]ll App.1974). Here, patient examination, care, chose a time- with the or treatment of waiver, i.e., by honored mode of placing not, her any individual ... shall without such medical condition at through consent, issue her own except individual’s be disclosed ... testimony. v. City Jefferson, may required Wells by su- as be a a law of State or pra, 132 S.W.2d at political 1010. ap subdivision of a State.” This plies to those institutions which treat sexu brief, pro his defendant who ally transmitted diseases and receive feder testеd- the Curry’s admission of records grants al such opera assistance for during subsequent her cross-examination Again, tions. defendant standing had no argues, state was bound Ms. Cur “[t]he issue; instead, raise the if a there had been ry’s answer that she was not treated for right object to the disclosure of medical gonorrhea ... The medical records were code, records under the cited section of the collateral they evidence because were not Curry’s it would have been and she made present material to the case.” This demon right. no effort to assert such conten misunderstanding strates a of the cross-ex is tion without merit. purpose amination and misses the which the records were introduced. Wide (B) latitude is allowed on cross-examination in point, For his second cases and the trial court is criminal invest *6 complains sup trial the court erred not determining ed with broad discretion the pressing gonorrhea evidence of M.E.’s be Lue, inquiry. extent of such 598 State v. forcibly he cause had been treated without 133, 1980). S.W.2d 138 In this having first for that at been tested disease prosecution’s inquiries instance the fell the work house where he was incarcerated. acceptable range concerning within an the alleges He that when the work house offi history witness’ medical because of her tes forcibly treated him de cials without first timony in direct examination to such mat infected, termining they if he was de Revard, 170, ters. v. 341 State Mo. 106 stroyed any proof available that he did not 906, (1937); 910 Ransom v. Adams disease, depriving have the thus him of a Co., 915, Dairy (Mo.App. 918 possible defense. 1985). Impeachment by conflicting use of proper suppress, medical records and defendant motion defendant his Beck, mistakenly stated, Security relies on v. “The St. Louis Medium State (Mo.App.1990), proposi therapy to S.W.2d 714 for the Institution initiated antibiotic any securing tion that the medical records were immate the defendant without ever instance, independent testing rial. In that evidence introduced as to whether or not by prosecutor during gonorrhea.” had the rebuttal was “col the defendant contracted hearing, evi interjected by рrosecu During pretrial lateral evidence motion no improperly showing the circum tor” to attack “defendant’s dence was introduced surrounding alleged treatment credibility.” Id. at 717. Such is not this stances his Rather, request of Curry’s possible infec for the disease. at the case. fact of counsel, motion was taken by tion defendant was relevant to the issue defense evidence,” girl “along and ruled guilt or innocence. While the with the other inquire determine suspect by the at a later time. We credibility friend’s became supported is introduction of the medical records which whether the court’s decision Johns, direct, testimony evidence. v. with her on this substantial State conflicted 1984), 253, (Mo. banc cert. purpose was incidental for the main 1413, introduction, 1034, proving a fact 470 U.S. 105 S.Ct. record’s that of denied (1985). L.Ed.2d 796 guilt. material to the issue of depart- perhaps the health hospital or contention that he was Defendant’s ment, con- gonorrhea was a supported by that defendant against his will is not treated fact, officials Apprised of that those only mat- tact. the record. The evidence on this that he was reasonably believed testimony the sin- could have ter was defendant’s and Although testing in need of treatment. possibility of such gle reference to course, fail- wiser might have been a direct ex- first appears treatment defendant’s deprived defen- not have ure to test would amination: liberty. We find any constitutional dant of Now, Q: when counsel] [Defendant’s under the officials authority requiring no you did ever you were at the workhouse defen- to have tested thesе circumstances gonor- any receive kind of treatment for and treatment gonorrhea dant for before rhea? implicated have that such failure would They called me to the A: [Defendant] rights. constitutional Captain’s I went to the nurse bench. back, somebody had and she said that Brady distinguishable from This case is treated called and said I had to be over 83 S.Ct. Maryland, 373 U.S. nothing gonorrhea. I told her wasn’t (1963), proge- for and its Missouri L.Ed.2d 215 me, I took no wrong with haven’t suppression hold that ny. Those cases they going give yet, test so how are by thе to the defendant evidence favorable I gonorrhea. me a test for refused to process due where prosecution “violates Captain Casey2, I talked to sign and guilt or is material either to the evidence happened, him what had and he told good faith or punishment, irrespective of anybody you to the asked me “did take Id., prosecution.” 373 U.S. bad faith of the I you clinic or test for this disease?” 1196-1197; at at State Cha- S.Ct. said, said, “no.” He “don’t take no medi- (Mo.App.1983). ney, 663 S.W.2d cation.” Here, by incar- was not inhibited gonor- requesting a ceration from test that, With the direct examination ended discloses he refused rhea and the record only refer- and on cross-examination the showing that work He made no treatment. expla- ence to the matter was defendant’s destroyed evidence house officials refusal of treatment. Noth- nation for his helpful to the defense. might have been ing testimony in the in his or elsewhere *7 gonor- he treated for record indicates was rejects placing general, In Missouri by house His motion rhea work officials. law enforcement offi affirmative duties on properly suppress was denied. pro or assist in to take the initiative cials a defendant curing on behalf of Assuming defendant evidence arguendo necessary his it against though may he deem had treated his will without been 299, disease, S.W.2d Snipes, 478 having tested for the his defense. State been first 979, (Mo.1972), 409 93 denied U.S. not have 302 cert. contention nevertheless would (1972). 332, 242 In 34 L.Ed.2d State provid If defendant had S.Ct. been well taken. Estes, (Mo.App.1978), gonorrhea dur ed evidence he did not have had in argued prosecution the ing question, the time frame in such could failing by case; however, suppressed evidence tentionally helpful to his have been upon a fingerprint test duty to conduct either a usually under a prison officials are the residue test on necessary weapon powder aor require that inmates submit to notion, the court Rejecting this such com victim. treatment in the case of medical existing, line between a clear Prisons delineated diseases. C.J.S. municable undeveloped non and or tаngible evidence 84, (1987). question The would have §§ suppres Prosecutorial officials had existent evidence. the work house been whether of a defen former is violative treating sion of the duty to test before an affirmative the latter is rights while process dant’s due chronology were taken him. If defendant’s judi- In the case sub at 144-145. true, had been not. Id. the work house officials as destroyed ce, showing the state someone, is no probably personnel at there by notified by party. person either identity not disclosed of this is 2. The оr any altered evidence and the trial court (D)
properly denied the suppress. motion to point Defendant’s final on direct
appeal is that the trial court erred when
(C)
refusing
quash
defendant’s motion to
panel
denying
the motion for a mis
Defendant next contends the evi
allegedly
trial after a venireman made an
support
dence was insufficient to
the find
prejudicial
regarding
statement
defen
ing
rape, arguing
there was no
venireman,
guilt.
complained
dant’s
evidence of sexual
intercourse.
this con
Ramsey,
by
prosecu
Marvin
was asked
accept
nection the Court must
as true all
tion in the course of voir dire how he felt
supportive
evidence and inferences
of the
sitting
about
in a case
where
victim
disregard contrary
verdict and
evidence
year
girl
was a nine
little
related to the
old
inferences;
light,
viewed in that
we
Ramsey responded, “Every
defendant.
must determine whether a submissible case
body’s got
thoughts,
some kind of
he
what
Brown,
was made. State v.
(Emphasis
year
girl."
did to this nine
old
(Mo.1983).
added.)
response,
This
defendаnt con
566.030.3,
Section
RSMo
under
tends,
array.
tainted the
The venireman
which
provides:
defendant was convicted
challenged
for cause and excused from
person
rape
A
if
commits the crime of
impar
stating
service after
he could not be
he has sexual intercourse with another
During
ensuing
tial in the ease.
side
person to whom he is not married who is bar,
quash
defense counsel moved
years
less than fourteen
old.
panel
alternatively
or
for a declaration of
but,
mistrial. Both motions were denied
at
“Sexual
intercourse”
is
defined
request,
the defendant’s
the court instruct
566.010.1(1)
“any penetration,
as
how-
§
jury
jurors
“The
are
ed the
as follows:
organ by
ever
of the
slight,
female sex
anything
juror
a
instructed that
said
organ,
male sex
whether or not an emission
case,”
in this
does not constitute evidence
added.)
(Emphasis
results.”
It is defen-
and the voir dire continued.
dant’s contention the evidence failed to
penetration
demonstrate that
occurred.
The trial court has broad discre
determining
jury panel
The victim
one
if a
should
testified that
tiоn
night
January
ruling
not be
defendant en be dismissed and its
should
bedroom, lay
appeal
tered her
down
her on disturbed on
absent a clear abuse of
beside
bed,
Cotton,
panties
pulled
her
down to her
discretion. State v.
penis
vagi
(Mo.App.1986). Usually, disquali
his
her
knees and inserted
into
Using anatomically
juror
dolls the
fication of an individual
for bias or
na.
correct
opinion
insufficient for
nine-year-old
during
expression
victim demonstrated
of an
is
*8
array.
penetration
challenging
did in
the entire
v.
direct examination that
State
Weidlich,
69,
(Mо.1954).
Through
71
To
deed occur.
direct and cross-ex
269 S.W.2d
amination,
story
quashal,
maintained her
merit
movant must demonstrate
she
with
questionable respons
variation. This was sufficient to sub
that the venireman’s
out
issue,
inflammatory
prejudicial
and
testi
es were so
mit the
uncorroborated
right
fair trial has
mony
victim
sustain a conviction that it can be said a
to a
of a
will
Harrell,
testimony
infringed.
v.
637
rape
of
unless such
is so uncon been
State
752,
(Mo.App.1982).
cases
vincing
contradictory as to “cloud the S.W.2d
757
Two
and
Ramsey’s
clear that
lone
point
the court with doubts.”
make
mind of
State
566,
In
Hamrick,
(Mo.App.
of that line.
State v.
comment fell short
(Mo.1959),
1986).
a venire-
appear. Taylor,
such contradictions
324 S.W.2d
No
stated,
prospec
presence
in the
of
Though
years
age,
nine
woman
the victim was
dire,
she
jurors shortly
voir
that
not render the evidence
tive
before
that in itself does
give the defendant the maxi
ready
was
or insufficient. See State v.
inadmissible
468,
not hear the
(Mo.App.1988). mum sentence and she need
Fogle, 743 S.W.2d
court, ex-
The trial
rest of the evidence.
denied.
Contention
woman,
cusing the
panel
performance
instructed the
counsel’s
was so deficient it
disregard
appel-
objective
an
standard of reason-
her comments and in the
fell below
review,
performance preju-
late
this
ableness and that this
Court held there had been
case, id., 466
at 687-
no abuse
diced defendant’s
U.S.
of discretion.
Id. at 648.
In
2064-65,
further,
that
Weidlich,
(Mo.1954),
104 S.Ct. at
and
State v.
couch while slept suggests Willie Evans on the floor objected trial counsel should have and slept that his aunt also ground on floor. to admission of the records on the These apparently inconsistencies were they that were false. and, known to counsel before trial from cross-examination, During girlfriend record, this we cannot declare she was inef- “jogged admitted that the medical records securing
fective in Willie Evans as a wit- indeed, memory” gone her that she had prejudiced ness or that her decision dеfen- clinic, positive gonorrhea tested for and dant’s cause. told the clinical staff that the defendant allegation For his second of inef only partner. was her sexual Not once did assistance, complains fective of she assert that the medical records were counsel’s photographs failure to introduce authority false. Defendant cites to no that of organs, defendant’s sex which he con render inad- would those medical records tends would have demonstrated it was and counsel faulted for missible cannot be physically impossible for defendant to have failing lodge objection. a nonmeritorious M.E., raped damage genital without to her State, Schlup v.
tissues. The introduction of such evidence 1988). strategy, general is a matter trial which ruling post-con- The trial court’s on the ly finding is not a foundation for a “clearly relief not viction motion was erro- ineffective assistance of counsel. Sanders neous.” State, supra, at At the 858. motion Judgments affirmed. hearing, trial counsel stated that she did photographs “[a]ny not offer the because photographs that we would show to the ROBERTSON, HIGGINS,
jury physical Terry’s of the size of sex COVINGTON, BILLINGS, and organ against further would inflame them HOLSTEIN, JJ., concur. him, particularly [trial counsel] jury-assessed concerned because it was BLACKMAR, C.J., part concurs in punishment.” strategic ap This choice separate opinion filed. pears given the reasonable nature of the proceedings, particularly in view of the fact BLACKMAR, Justice, concurring Chief rape require that the offense of does not part. instead, penetration; any penetration, full I concur in the affirmance of the convic- slight, however is sufficient for conviction. tion. testimony The medical indicated that some protest damage again, Once I must about the
penetration could occur without tissues; hence, sorry the state furnishes genital pho situation which victim’s postconviction counsel to the defendant tographs exculpated would not have defen the trial court’s preju then denies full review of dant and there was no demonstrable so judgment in because of the fault counsel resulting dice from the decision not to resulting situation is not appointed.1 The troduce them as evidence. pride. I would one in which we can take Defendant’s final contention is that opportunity presented us to final- take the failing trial counsel was ineffective for courts judgment ize the insofar as the state (the evidence” clinic’s object to the “false concerned, reviewing trial are records) girlfriend medical that defendant’s on the findings and conclusion court’s trial, gonоrrhea. At coun was treated amended motion. objected hearsay on the basis of to the sel this, other Failing only hope I can of the medical records and the introduction to hear the may which have occasion objection was overruled. Defendant now courts *10 State, Vinson, See, (Mo. dissenting); e.g. and Malone State v. 1. C.J., C.J., 1990) (Blackmar, concurring part (Mo. 1990) (Blackmar, concur- banc banc State, dissenting part); result). Smith v. ring in C.J., 1990) (Blackmar, S.W.2d 152 plea give defendant’s findings will these weight conclusions the they deserve. Missouri, Respondent,
STATE of WHEELER, Anthony Appellant.
Lee
Nos. 55958. Appeals,
Missouri Court of District,
Eastern
Division Three.
Aug. 1989. Rehearing
Motion for and/or Transfer to
Supreme Sept. Court Denied 1989.
Application to Transfer Denied
Dec. 1990.