Joseph W. Haslett (“Appellant”) appeals his conviction by a jury for one count of the Class A felony of murder in the second degree, a violation of section 565.021, 1 Following a jury trial, Appellant was sentenced by the trial court to life imprisonment in the Missouri Department of Corrections. Appellant asserts five points of trial court error. We affirm the judgment of the trial court.
Appellant does not challenge the sufficiency of the evidence to support his conviction. “Viewing the evidence in the light most favorable to the jury’s verdict,”
State v. Smith,
Father testified that he noticed changes in Child beginning in the spring of 2005. He stated Child “would show up with a lot bruises” to parts of his body including his face. He stated that Child became “very sh^’ and “any time you would try to discipline him or raise your voice, he would go and hide in a corner, or he would just immediately start crying.” Father testified that when he last saw Child in early October of 2005 “[h]is bruises had kind of gone away. He did have a slight bruise ... on his head” and a burn on his hand. Father was told by Mother that Child was burned on “a power washer” which “seemed pretty unlikely” to Father, who felt that Child was being abused.
Mother testified that in the summer of 2005 she started seeing injuries on Child such as “[s]ome bruising on his cheeks, there was some bruising down the back of his spine, he had a sprained leg.” She stated Appellant told her Child had climbed or fallen out of his crib and caused the aforementioned injuries. She stated Child suffered a burn to his hand while in Appellant’s care and that Appellant told her Child “had touched the muffler on the power washer.”
Mother testified that on the morning of October 4, 2005, she awoke at 9:00 a.m. and Child and Appellant had gone to run errands. Later in the day, Mother stopped by Appellant’s parents’ house to get gas money from Appellant although she did not see Child at that time. Mother left Child with Appellant for the remainder of the day.
At 5:23 p.m. a 911 call was placed to the Greene County Sheriffs Department reporting that an eighteen-month-old child was not breathing and individuals on the scene were performing cardiopulmonary resuscitation in an effort to revive him. When Deputies Roger Lee (“Deputy Lee”) and Douglas Browning (“Deputy Browning”) arrived at the scene, they observed emergency medical personnel attempting to revive Child. At this point in time the officers made contact with Appellant who was “extremely upset;” crying “rather hysterically;” and “kept saying over and over again it was his fault.” Appellant told Deputy Lee that Child “was taking a bath and that he had stepped outside to smoke a cigarette and that when he came back in the house, he found [Child] unconscious, laying on his side in the bathtub.”
Appellant then told Deputy Stan Hancock (“Deputy Hancock”) he “had taken a shower and when he got done he ... ran the bath water for [Child].” Appellant stated he ran the water to a level “about up to [Child’s] naval” and “[h]e stepped
Child was transported to the hospital where he was pronounced dead. 4 Appellant remained at the scene. Sergeant James Farrell (“Sergeant Farrell”), a personal acquaintance of Appellant’s family, spoke with Appellant and Appellant agreed to accompany Sergeant Farrell to the Sheriffs Department for an interview. At the Sheriffs Department, Sergeant Farrell advised Appellant of his Miranda 5 rights, which Appellant waived, and Appellant told Sergeant Farrell that he was giving Child a bath when he decided to go outside to smoke a cigarette; that he returned to find Child face down in the bathtub; that Appellant pulled Child out of the bathtub; and that he then attempted to revive him. During the interview, Sergeant Farrell told Appellant that Child had passed away and that he did not believe Appellant’s story that Child had drowned. Appellant then requested an attorney; however, he then changed his mind, again chose to waive his Miranda rights, and continued speaking to the police.
At that point, Chief Deputy Jim Arnott (“Chief Deputy Arnott”) interviewed Appellant and Appellant initially told Chief Deputy Arnott that Child had drowned in the bathtub. Appellant then told Chief Deputy Arnott that he had been “in his daughter’s bedroom and that he had put his full weight [against Child], [Child] landed on a corner of a bed which caused [Child] to go into a somersault, fly off the bed and then hit the metal bedframe and land on the floor.” Appellant then made two partial written statements, but fell asleep while trying to do so. 6 Appellant was arrested for endangering the welfare of a child and taken to jail where he was placed on suicide watch.
The following day, on October 5, 2005, Appellant was again interviewed by Sergeant Farrell, and he again waived his
Miranda
rights. Appellant told Sergeant Farrell that he had been “wrestling around with [Child] and he had picked him up and
Appellant was arrested on December 14, 2005, and charged by Felony Information on March 16, 2006, with murder in the second degree and, in the alternative, abuse of a child, a violation of section 568.060. While awaiting trial, Appellant shared a jail cell with inmate Randy Reed (“Mr. Reed”). Mr. Reed testified at trial that Appellant told him several times that Child was injured while he was bathing him; however, on one occasion Appellant told him a different story. Mr. Reed related that Appellant told him he had given Child a bath and Appellant
had [Child’s] head between his arm and his body and he said [Child] was struggling, and he said he picked him up and [Child] was trying to catch his breath. And he said that [Child] started crying and stuff, and he said that’s what gave him the idea about suffocat[ing] him. He said he put [Child’s] head back under there and he put a lot of pressure on him and just held him there until he quit moving.
Mr. Reed testified that Appellant told him he suffocated Child because Mother had an abortion while they were dating and she had “killed his kid.”
At the close of all the evidence, the jury convicted Appellant of murder in the second degree and he was sentenced by the trial court to life imprisonment. This appeal followed.
In his first point relied on, Appellant maintains the trial court “erred and clearly abused its discretion” in overruling his objection to the testimony of Dr. Douglas Anderson (“Dr. Anderson”) and in allowing Dr. Anderson “who neither observed nor performed the autopsy on [Child], to testify about the autopsy performed by Dr. Paul Spence [ (“Dr. Spence”) ], whom the [S]tate claimed was unavailable to testify at trial.” Appellant urges the trial court’s rulings violated his “rights to cross-examine and to confront the witnesses against him ...” in that
Dr. Spence was not an unavailable witness because: 1) the [S]tate failed to prove that Dr. Spence was unavailable to testify at trial by merely producing a doctor’s note stating that Dr. Spence was currently under a doctor’s care and not available to testify; and 2) the [S]tate failed to prove that a good faith effort was made to obtain Dr. Spence’s presence at trial. Dr. Anderson’s testimony regarding the autopsy was inadmissible hearsay that was admitted for the truth of the matter, and admission of Dr. Anderson’s testimony in Dr. Spence’s stead violated the Confrontation Clause.
“A trial court has broad discretion to admit or exclude evidence at trial.”
State v. Madorie,
At trial, Dr. Anderson acknowledged that he did not perform the autopsy on Child, which was actually performed by Dr. Spence. Dr. Anderson related that he had reviewed the autopsy report of Dr. Spence; autopsy worksheets; Child’s medical records; photographs taken at the scene of the crime; photographs taken during the autopsy; and “microscopic slides.” 7 Based on the foregoing documentation, he rendered his own conclusions and opinions as to what caused Child’s death. Dr. Anderson also related he could not speak on Dr. Spence’s behalf and was basically offering a second opinion, which was common in his area of expertise.
Appellant urges in this point relied on that under
Crawford, v. Washington,
In
Crawford,
In
Davidson,
Before we determine whether Dr. Anderson’s testimony is inadmissible testimonial hearsay as defined by
Crawford,
we must determine whether it is, indeed, hearsay at all. “ ‘A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.’ ”
State v. Kemp,
Furthermore, both
Crawford,
In his second point relied on, Appellant asserts the trial court plainly erred and abused its discretion in allowing Dr. Anderson to testify that Child’s “injuries and death were caused by ‘child abuse ... ’” because such testimony “invaded the province of the finder of fact on the ultimate issue of murder in the second degree.” Appellant argues that Dr. Anderson’s expert testimony violates the general rule that an expert may “testify to his opinion regarding an ultimate issue in a criminal case, as long as the expert does not express an opinion on the guilt or innocence of the defendant.... ”
At trial, Dr. Anderson testified he was the current medical examiner for Greene County, Missouri, and was otherwise em
Appellant did not object to Dr. Anderson’s conclusions that Child died from child abuse and this issue was not included in Appellant’s motion for new trial. “In order to properly preserve an evidentiary issue for appellate review, an objection must be made upon introduction of the evidence; that objection must be reasserted as error in a motion for new trial; and the issue must be briefed on appeal.”
State v. Robinson,
“ ‘The plain error rule should be used sparingly and [it] does not justify a review of every alleged trial error that has not been properly preserved for appellate review.’ ”
State v.
Carr,
It is well-established law that “ ‘expert testimony is admissible if it is clear that the subject of such testimony is one upon which the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a proper conclusion from the facts in evidence.’ ”
State v. Faulkner,
In the present matter, Dr. Anderson was obviously qualified as an expert witness such that he could offer his opinion on whether Child died as the result of child abuse. Having offered a detailed review of the medical evidence, Dr. Anderson concluded Child’s injuries were consistent with child abuse based on his special knowledge in the area of child death pathology. Dr. Anderson never testified or inferred that it was Appellant who caused the injuries to Child and never opined on Appellant’s guilt.
See Fewell,
Appellant’s third and fourth points premise trial court error on the basis that the trial court permitted testimony from Lesa Newman (“Ms. Newman”) and Mother regarding their observations that each saw Appellant place his hand, respectively, around Child’s “head and throat” and “mouth.” He maintains their testimony “was not legally relevant and its admission was prejudicial, in that it did not tend to establish an element that was at issue, was not strictly necessary to the [S]tate’s case, and was admitted only to show [Appellant’s] propensity to commit the charged crime.” We review both points conjunc-tively.
Ms. Newman, who lived next door to Appellant’s parents, testified that on September 23, 2005, she saw Appellant’s truck parked outside her house. When she approached the truck she saw Child, who was naked, lying on his side on Appellant’s lap and Appellant had his hands around Child’s face and throat. She also noticed a diaper on the floor of the truck and feces on the seats of the truck and on Child. When Ms. Newman knocked on the window of the truck, she startled Appellant, who asked her for help because Child was choking. Ms. Newman opened the door of the truck and took Child from Appellant. She noted Child was crying, but not making much noise; his neck and upper chest were “very red;” and one of his eyes was swollen shut. Appellant told Ms. Newman that Child had been eating Cheetos when he started to choke. Ms. Newman saw a Cheetos in Child’s hand and when she opened Child’s mouth with her fingers she found orange residue inside. She stated Child calmed down shortly and appeared to be fine. She stated Appellant seemed “nervous” and “agitated” throughout the incident.
Also, Mother testified that one morning in the summer of 2005, she awoke to Child’s “muffled” cries and when she got up to investigate, she found Appellant holding Child in his lap and Appellant’s hands were “close to [Child’s] mouth.” Appellant told Mother that Child had been choking and he was trying to help him. Mother testified that when she took Child from Appellant there was nothing in
As previously related, a “trial court has broad discretion to admit or exclude evidence at trial” and will only reverse such rulings when the trial court has abused its discretion.
Madorie,
“ ‘It is generally recognized that a criminal defendant has a right to be tried only for the offense for which he is charged.’ ”
State v. Turner,
In the present matter, the testimony offered by both Ms. Newman and Mother was admissible in that it showed Appellant’s intent in harming Child, motive, i.e., animus directed toward Child, and the absence of mistake or accident. 10
Ms. Newman’s testimony that she witnessed Appellant with his hands around Child’s face and mouth presenting the possibility of choking Child was evidence from which the jury could have determined Appellant’s intent and motive to purposely injure Child. Likewise, Mother’s testimony that she heard “muffled” cries from Child and then found Appellant with his hands near Child’s mouth was evidence Appellant had the intent to purposely harm Child. “Evidence of prior mistreatment of a child may be considered in establishing the intent required for second-degree murder.”
State v. Padberg,
Additionally, “[e]vidence of pri- or misconduct of the defendant, although not admissible to show propensity, is ad
In his fifth point relied on Appellant asserts the trial court erred in overruling his motion to suppress and in allowing Appellant’s statements to various law enforcement personnel to be admitted at trial in that
1) [Appellant] was subjected to custodial interrogation without being warned of his Miranda rights; 2) [Appellant’s] erratic mental state, emotional swings, and suicidal behavior and statements demonstrated that he was unable to make a knowing, voluntary and intelligent relinquishment of his known rights and privileges and abandonment of his right to remain silent and to refrain reinitiating contact with law enforcement officers; and 3) law enforcement officers gave Miranda warnings to [Appellant] after he had already made unwarned statements.
Appellant maintains “the oral and written statements that [Appellant] gave to officers both before and after the Miranda warnings must be excluded.”
Here, when officers responded to Appellant’s parents’ home and found Child unresponsive, Appellant made several unsolicited statements to police at the scene while Child was being treated by paramedics. From the testimony of the officers, it appears Appellant was distraught, crying rather hysterically, and screaming statements such as “take me, take me” and “I don’t deserve to live. Kill me, somebody needs to kill me.” Further, at the scene Appellant told the officers that Child drowned in the bathtub while he was outside smoking and that the injuries to Child were his “fault.”
After Child was removed from the scene and taken to the hospital, Sergeant Farrell spoke with Appellant as he sat in the garage at his parents’ home. At that time, Appellant was not under arrest, was not in handcuffs, and had been freely speaking to the officers for a long period of time as they searched the home and began investigating the scene. Appellant agreed to ride to the Sheriffs Department with Sergeant Farrell and he was not restrained during the ride. Once they arrived at the Sheriffs Department, Appellant was advised of
After a short break in the interrogation, Sergeant Farrell informed Appellant that Child had passed away. Sergeant Farrell testified that when he told Appellant Child had died and that he “didn’t believe the story about [Child] drowning in the tub, [Appellant] informed [Sergeant Farrell] he wanted an attorney.” At that time, Sergeant Farrell informed Appellant he “was done talking to him” and he had to end the interview due to Appellant’s request for an attorney. Appellant then indicated he “had not specifically requested an attorney” and “[h]e wanted to continue talking....” Sergeant Farrell testified that they were interrupted several times at that point by Chief Deputy Arnott who had information relating to Child’s death and Sergeant Farrell “stepped out” of the interrogation room a few times. When Sergeant Farrell sat down with Appellant to begin questioning him again, he advised him for a second time of his Miranda rights. Appellant again signed the waiver of rights form and proceeded to speak with Sergeant Farrell.
Later in the interrogation, Sergeant Farrell felt that Appellant was lying to him so he asked Chief Deputy Arnott to take over the questioning. Appellant spoke with Chief Deputy Arnott for a period of time and even wrote two partial, written statements. Appellant was interviewed that evening for a total of five hours and, after the interview was concluded, he was arrested.
The following day on October 5, 2005, Sergeant Farrell wanted to speak to Appellant again. Prior to initiating the interview, Sergeant Farrell again advised Appellant of his Miranda rights at which time Appellant stated “he wanted an attorney.” Sergeant Farrell told him he could not question him, “stood up, started to [get] out [his] handcuffs, and told [Appellant] he was going back [to] jail.” Appellant then stated he wanted to speak with Sergeant Farrell, who again advised him of his Miranda rights. Appellant then waived his Miranda rights verbally and in writing. Sergeant Farrell then proceeded to interview Appellant for approximately two and a half hours.
In his motion to suppress filed prior to trial, Appellant asserted all of his statements to police “were not voluntary;” thus, they should be suppressed. A hearing was held on this motion and the motion was ultimately overruled by the trial court. Accordingly, at trial the various police officers testified as to the nature of the statements made by Appellant and certain videotaped portions of the interrogations were played for the jury. Appellant continually objected to the testimony and the objections were overruled by the trial court. This allegation of error was then included in Appellant’s motion for new trial.
Appellate review of a trial court’s ruling on a motion to suppress is limited to a determination of whether the evidence was sufficient to support the finding.
State v. Edwards,
Here, Appellant initially made certain declarations to the officers when they arrived on the scene and then, after Child was taken to the hospital, he made several statements to Sergeant Farrell while sitting in his parents’ garage. The record shows that Appellant was not restrained in any manner during this time, was freely moving around the premises, was being asked questions as part of the investigative process, and was not being subjected to a custodial interrogation at this time. Appellant’s voluntary statements to police which were made while at his parents’ home were admissible in that they were freely made prior to custodial interrogation and as the result of preliminary, investigative questions.
See Newberry,
Appellant next complains about the statements he made at the police station to Sergeant Farrell after he was informed that Child had passed away. “Determining whether the right to counsel has been violated during a custodial interrogation requires a two-step analysis.”
State v. Lanos,
Having waived his
Miranda
rights upon ai’rival at the police station, Appellant was informed of Child’s death at which time he stated, “I guess I probably need an attorney then” and Sergeant Farrell correctly terminated his questioning per the
Miranda
edict. Shortly thereafter, Appellant changed his mind and, as Appellant testified at the motion to suppress hearing, voluntarily “decided [he] was going to talk to [Sergeant Farrell] a little bit.... ” It is clear Appellant willingly initiated contact with Sergeant Ferrell and expressed his desire to continue questioning.
See Farris,
Lastly under this point relied on, Appellant takes issue with his interrogation which took place on October 5, 2005. At the outset of this interview, Appellant invoked his right to counsel and Sergeant Farrell correctly told Appellant he could not speak to him such that he would merely take Appellant back to his jail cell. Appellant again changed his mind and decided to speak with Sergeant Farrell. He was informed of his
Miranda
rights and he signed the waiver of rights form. At the motion to suppress hearing, Appellant informed the trial court that he “understood” the form and “wanted to talk to Sergeant Farrell.” Further, he testified he was not threatened, coerced, or promised anything by Sergeant Farrell during the interrogation. Here, Appellant “knowingly, voluntarily, and intelligently waived the previously invoked right to counsel” such that his statements made to Sergeant Farrell were admissible.
See Lanos,
Lastly, in his Point VI Appellant asserts the trial court plainly erred in overruling his motion to suppress and in admitting his statements to the police officers discussed in Point V above, in that “the trial court adopted the entire [SJtate’s Response to Defendant’s Motion to Suppress Statement, but for the opening paragraph, one heading, the signature block, and the certificate of service, as the court’s ruling on the motion without exercising the court’s own independent judgment.”
While not raised before the trial court or included in his motion for new trial, Appellant now requests plain error review of the fact that the trial court incorporated a large portion of the State’s response to the motion to suppress in drafting its order denying the motion. As already stated, “[r]elief under the [plain error] rule will only be granted if ... [Appellant] can show the action of the trial court was not only erroneous, but also the error so substantially impacted his rights that manifest injustice or miscarriage of justice will inexorably result if the error is left uncorrected.”
Kohser,
As previously related, Appellant asserted in his motion to suppress that his statements to the police officers involved in this case were involuntary and should be excluded from evidence at trial. In response to the motion to suppress, the State filed its “Response to [Appellant’s] Motion to Suppress Statements” and Appellant filed his “Suggestions in Support of [Appellant’s] Motion to Suppress Statements.” The trial court disagreed with Appellant and overruled his motion to suppress.
Although it is not necessary to set out both the trial court’s “Order Denying [Appellant’s] Motion to Suppress Statements” and the State’s “Response to [Appellant’s] Motion to Suppress Statements” verbatim, it appears that the first paragraph of both documents is dissimilar; that the State’s document contains two headings and the trial court’s order includes only one heading; and that the signature block and certificate of service are different. In all
“Adopting all or part of a party’s proposed findings, or adopting by reference the wording of a party’s motion, has become a common practice among lawyers and judges in both criminal and civil cases.”
State v. Kenley,
The judgment and sentence of the trial court is affirmed.
Notes
. All statutory references are to RSMo 2000.
. Child was bom on March 18, 2004, and was approximately twelve months of age when Mother began dating Appellant.
. Following an investigation, the Division found the abuse claims were unsubstantiated.
. Deputy Hancock observed Child at the hospital and testified he saw a burn mark on Child’s pinkie finger, some bruising on his head and neck, a bump on his head, and bruising along his jawline. Likewise, Detective Judy Duren Walker (“Detective Walker”) testified she observed bruising to Child's back, bottom, jawline, and bottom lip; an injury on a finger of his right hand; a spot on his head that was missing some hair; a bump above his right eye; and injuries to his eye, nose and forehead.
.
Miranda v. Arizona,
.Appellant’s first written statement read; "Today, a very bad thing happened that I did not intentionally cause nor did I accidentally do something, and at no time knew that the outcome would be what it was. I know everybody expects an answer if I had — .” Appellant’s second written statement read; “While [Child] was in my care, a terrible thing happened that was not intentional nor an accident that was immediately recognized. I cannot change or make it go away. I feel like everybody really wants me to be this monster. It makes it easier to—
. We note that the autopsy report prepared by Dr. Spence was not offered into evidence at trial.
. We note there were several instances during the cross-examination of Dr. Anderson where Appellant's counsel specifically asked about the conclusions of Dr. Spence found in the autopsy report and how they compared with Dr. Anderson's findings. For example, Appellant’s counsel asked Dr. Anderson, ''[Dr. Spence's] conclusion is not the same as yours, is it?” to which Dr. Anderson replied, "No, not exactly.” Further, Appellant's counsel asked Dr. Anderson about Dr. Spence’s conclusion that Child died from "homicidal violence” and mentioned Dr. Spence also found there was no evidence Child had drowned. "[A] defendant may not take advantage of self-invited error nor complain about matters he himself brings into the case.”
State, v. Uka,
. All rule references are to Missouri Court Rules (2007).
.
See State v. Franklin,
.
See State v. Applegate,