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06/21/83 STATE MISSOURI v. RICHARD STEVEN ZEITVOGEL

June 21, 1983

STATE OF MISSOURI, RESPONDENT,
v.
RICHARD STEVEN ZEITVOGEL, APPELLANT.



From the Circuit Court of Randolph County; Criminal Appeal; Judge Samuel E. Semple.

Motion for Rehearing Overruled, Transfer Denied August 2, 1983. Application to Supreme Court for Transfer Denied September 20, 1983. Overruled March 25, 1986.

Before Lowenstein, P.j., Wasserstrom, Manford, JJ.

The opinion of the court was delivered by: Manford

This is a direct appeal from a judgment entered in accordance with a jury conviction for capital murder in violation of § 565.001, RSMo 1978. The jury imposed a life sentence without eligibility of parole until a minimum of fifty years is served. This court has jurisdiction of this appeal by amendment to the Missouri Constitution, Art. V, § 3 (effective December, 1982). State v. Martin, 644 S.W.2d 359 (Mo. banc 1983). The judgment is affirmed.

Prior to setting forth the pertinent facts and considering errors alleged, it is noted that the file on appeal contains two appellant briefs. These dual briefs show filing dates of January 12, 1983 and January 13, 1983 respectively. The first brief in time appears to be filed pro se and the second is filed by counsel. For purposes of Disposition of this appeal, the points presented by the dual briefs are addressed collectively without specific reference to either brief.

The errors charged are so numerous and in most instances so lacking in clarity that it is impossible for this court to determine if there is a direct challenge to the sufficiency of the evidence as a whole. In light of this briefing deficiency, this opinion recaps the necessary pertinent facts upon the record.

In combination, the dual briefs present 17 alleged errors. By review of this total and by cross-checking, this number is reduced to 11, as six points between the dual briefs are repetitions.

In summary, appellant charges the trial court (1) committed plain error by admitting a photo of him nude from the waist up, because the photo was not relevant to any disputed issue, was inflammatory and prejudicial, and these features outweighed any probative value; (2) committed plain error by admitting an autopsy photo of the victim, because said photo was inflammatory and prejudicial, and these features outweighed any probative value; (3) erred in admitting (over objection) other photos of the victim, because said photos were inflammatory and prejudicial, and these features outweighed any probative value; (4) committed plain error by admitting a series of photos showing bloodstained floors and stairs, because said photos were inflammatory and prejudicial, and these features outwieghed any probative value; (5) committed plain error by admitting hearsay evidence of a witness; (6) committed plain error by ordering appellant and defense witnesses placed in restraints during trial; (7) committed plain error in the submission of an instruction; (8) committed plain error by overruling appellant's motion for acquittal to the charge of capital murder, because the state failed to prove premeditation and deliberation; (9) committed plain error by refusing to acquit appellant at the close of all the evidence, because the state failed to refute appellant's special defense, to wit, self-defense; (10) erred because appellant was denied effective assistance of counsel; and (11) erred in allowing evidence of other crimes which did not tend to prove any element of the crime with which appellant was charged.

The record reveals the following pertinent facts. Appellant, the victim John McBroom, and one Frank Guinan (who was a co-indictee of appellant) were, at the time of this offense, inmates in the Missouri Penitentiary in Jefferson City, Missouri. At about 10:30 a.m. on January 25, 1981, a duty guard, Frederick Matthais, noticed unusual inmate activity in the area where this murder occurred. Inmates Cleveland, Hewitt and Sherill had gathered in an area where they normally would not be, and they were watching the guardhouse occupied by Matthias. Inmates Cleveland and Hewitt repeatedly requested that Matthias ring the buzzer "for mainline early". *fn1 This was denied by Cleveland and Hewitt. During this same time, Matthias had observed appellant and Guinan make several trips from the lower cell block area (where their cell was located - they were cellmates) to the second level of the cell block where McBroom's cell was located. Approximately at the time appellant and Guinan made their last trip to the second level, inmate Cleveland again requested Matthias to sound the mainline buzzer early. Matthias testified that the sounding of the buzzer would have produced massive inmate traffic and noise in the area. Matthias also had observed McBroom's cellmate, Houchins, leave the McBroom/Houchins cell (Cell 36) unusually early that day.

Because of all of this observed activity, Matthias called his captain, Robert Borghardt, who in turn called Lieutenant Wyrick and instructed Wyrick to meet him in the area. Moments after calling Borghardt, Matthias observed appellant and Guinan exit McBroom's cell. Both appellant and Guinan were covered with blood, and both were armed with knives. Appellant and Guinan observed Matthias looking at them, and both ran to the next level of the cell block. At this time, Borghardt and another officer, McDaniel, arrived in the area. Appellant and Guinan were engaged in a confrontation with another inmate, Camilio, who was also armed with a knife. Borghardt and McDaniel attempted to break up the confrontation between appellant, Guinan, and Camilio. At this point, Matthias observed McBroom, covered with blood, exit his cell. Meanwhile, the attempt at breaking up the appellant, Guinan, and Camilio confrontation continued. Borghardt told the three to give up their weapons, and Camilio stated, "You get their weapons, I'll give you mine." Guinan told Borghardt, "Get out of the way"; he also said to Camilio, "Going to get you like we did your snitching buddy." The evidence further reveals that Guinan stated, "Well we got him, now we are going to get you," while he was looking at Camilio. During this activity, appellant pointed his knife at McDaniel and told McDaniel to "get back".

The evidence further reveals that appellant and Guinan then observed Camilio's cellmate, Medley, and while looking at Medley, appellant stated, "There is another one of the snitches." There also was evidence that appellant stated, while looking at Medley, "That is the other snitching punk mother fucker." Both appellant and Guinan then ran toward Medley. Borghardt pursued Guinan, appellant pursued Borghardt, and McDaniel pursued appellant. When Guinan reached Medley's presence, he tried to stab Medley. Medley defended himself against Guinan's attack by using a box fan. Borghardt caught up with Guinan and restrained him with a bear hug. As Borghardt and Guinan struggled, Medley ran. Wyrick arrived at the scene, and Camilio surrendered his weapon to Wyrick. Guinan attempted to free himself from Borghardt's grasp, while attempting to stab Borghardt. Borghardt called for assistance from Wyrick. In the meantime, appellant had gotten behind Borghardt and told Borghardt, "Turn him lose or I'll kill you, you fat son-of-a-bitch." At this time, appellant raised his knife to stab Borghardt, but was restrained by McDaniel. McDaniel and other officers then subdued appellant and disarmed him. Borghardt subdued and disarmed Guinan.

Other evidence for the state included testimony of Dr. Carl Baker, Chief Medical Officer for the penitentiary, which included his observation of McBroom's body. Baker stated that he observed 16 stab wounds. Some two hours after Baker's examination, McBroom's body was observed by Dr. Ray Doerhoff, Chief Surgeon for the penitentiary. Doerhoff testified to the multiple stab wounds. Dr. Fred Handler, a pathologist, performed an autopsy on McBroom's body. Handler testified to the multiple stab wounds, and as to the cause of McBroom's death stated, "In my opinion he bled to death from the multiple stab wounds."

A penitentiary investigator testified concerning his investigation of the crime scene. Photos secured in that investigation were admitted (over objection) into evidence. Another investigator physically examined appellant some four hours after the incident in question. This investigator testified he observed no visible wounds upon appellant, and appellant made no complaint of injury and did not require or request any medical attention. A photo, taken at the time of the investigation, and showing appellant nude from the waist up, was admitted into evidence.

Appellant called eleven inmate witnesses. In summary, these witnesses testified to having observed the victim McBroom with a pair of scissors on the day of the murder. Some of these witnesses testified McBroom told them he was going to kill Guinan and appellant. Others testified they overheard McBroom telling others of his intention to kill Guinan and appellant.

Appellant testified on his own behalf. He stated that McBroom called him to McBroom's cell and that when he entered McBroom's cell, McBroom attempted to stab him. Appellant further stated that in self-defense, he disarmed McBroom and killed him.

Because one of the inmate witnesses testified the prosecutor promised to help the witness on his own sentence in exchange for favorable testimony, a rebuttal witness was called to refute this allegation.

The evidence closed. The jury returned its guilty verdict. The second phase, as to punishment, of our bifurcated system in capital proceedings was conducted, and upon completion the jury assessed as punishment against appellant a life sentence without eligibility of parole until a minimum of 50 years is served. This appeal followed.

Under his point (1), appellant charges the trial court committed plain error in admitting a photo of appellant (nude from the waist up), because said photo was degrading to appellant, was inflammatory because it showed a tatoo depicting a Nazi swastika and a symbol of "white power", and did not relate to any disputed issue; the probative value of the photo was outweighed by its inflammatory and prejudicial effect.

Our review of this alleged error is under Rule 29.12(b), the plain error rule, because of appellant's failure to present the alleged error in his motion for new trial. State v. Harris, 620 S.W.2d 349, 354 (Mo. banc 1981). The admissibility of demonstrative evidence, such as photos, is within the discretion of the trial court, and a ruling thereon will not be disturbed absent a showing of an abuse of that discretion. State v. Weekley, 621 S.W.2d 256, 260 (Mo. 1981), State v. Burnfin, 606 S.W.2d 629, 630 (Mo. 1980).

Appellant's contention, that the photo of himself nude from the waist up was degrading, is nothing more than a self-declared Conclusion without any substance. His contention that the photo revealed a Hazi swastika and "white power" tatoo is obviously nothing more than an afterthought conjured up for purposes of submitting this claim on appeal. There is nothing upon this record which even remotely suggests any attention was drawn to the tatoo, nor was any reference made thereto so as to suggest the jury's attention was drawn to it.

Appellant further claims the photo should not have been admitted because it did not relate to any disputed issue. What appellant suggests is that there was no dispUte as to whether he received any physical injury. Appellant attempts to draw the issue too narrowly. What was in issue was his claim of self-defense. He testified that when he entered McBroom's cell, McBroom attempted to stab him. In addition, the state called as a witness an investigator who testified that some four hours after the murder he physically examined appellant. The photo was admissible in support of the investigator's testimony.

Appellant suggests since he admitted to having no injury there was no dispute. As noted above, the issue of self-defense remained throughout the entire proceedings. Appellant's admission of no injury, standing alone, does not render the photo inadmissible. State v. Holmes, 609 S.W.2d 132, 135 (Mo. banc 1980), State v. Townes, 522 S.W.2d 22, 25 (Mo. App. 1974).

The evidence indicated the victim, McBroom, had been stabbed 16 times. The photo, coupled with the investigator's testimony regarding appellant's physical condition (lack of injury), was properly admitted to compare the extent of injuries to McBroom with the lack of injury to appellant -- to refute appellant's claim of self-defense. The extent of injury to the victim is inconsistent with appellant's claim of fighting for his life against McBroom's attack, during which he killed McBroom.

It is the rule that photos tending to establish any fact in issue, or which tend to aid a jury in arriving at a correct result, are admissible. Weekley at 261, Burnfin at 630.

The questioned photo did relate to a disputed issue, to wit, self-defense. The photo was not degrading to appellant, particularly when the whole record is reviewed, including appellant's explicit account concerning an alleged homosexual incident between appellant and the victim. The photo accurately displayed appellant's tatoo of a Hazi swastika and a symbol of "white power". No attention was directed to the tatoo or the symbol. The photo was otherwise admissible and as the record shows, was not offered to arouse the emotions of the jury, which is prohibited. State v. Wood, 596 S.W.2d 394, 403 (Mo. banc 1980). Simply because appellant contends the photo tends to be inflammatory, it need not have been refused by the trial court. Weekley at 260.

The photo was properly admissible for the reasons set forth above. The trial court committed no error, plain or otherwise. There is no merit to appellant's point (1), and it is ruled against him.

Under his point (2), appellant contends the trial court committed plain error by admitting an autopsy photo of the victim, because said photo was inflammatory and prejudicial, and these features outweighed any probative value. Our review of this point is for plain error for the same reasons set forth under point (1) above.

The photo challenged by appellant depicted the upper right side of the victim's body, and showed an incision made by the examining pathologist. Appellant claims the photo was inflammatory, and in his argument states, "Argument cannot adequately convey the damage that a picture can do." Appellant then urges that reading of the brief be discontinued, and the picture observed. The court has observed the challenged photo. Appellant then contends that while the photo "was obstensibly introduced to show the location of certain stab wounds . . . what does one find to be the aspect which leaves the greatest impression and remains in the memory the longest? We would submit that it is the pathologist's incision." Appellant then concludes by charging that the court abused its discretion in admitting the photo, particularly since wounds of the victim had been shown by other admitted photos.

First of all, the challenged photo was not repetitious of others previously admitted, but in fact showed the victim's body after cleaning for purposes of the autopsy. In addition, the photo was relevant to the testimony of Dr .Handler, the pathologist who performed the autopsy. The photo had probative value relative to this testimony; where photos are "possessed of probative value, they are not necessarily rendered inadmissible because of any cumulative aspect that may attach to them because of other evidence." State v. Love, 546 S.W.2d 441, 451 (Mo. App. 1976).

The challenged photo was relevant, and possessed probative value upon the matter of proof of the offense charged, capital murder. Further, the photo was relevant and had probative value as regards the issue of self-defense. Appellant, in his testimony, stated that when fighting with McBroom in defense of himself, he was face to face with McBroom. It was established that appellant was right-handed. The photo depicted several stab wounds to McBroom's right side. The photo shows wounds inconsistent with appellant's testimony regarding self-defense.

The trial court did not abuse its discretion in admitting the challenged photo. There was no error, plain or otherwise. Appellant's point (2) is meritless and is ruled against him.

Under his point (3), appellant contends the trial court erred in admitting (over his objection) other photos of the victim, because said photos were inflammatory and prejudicial, and these features outweighed any probative value.

The challenged photos depict different views of the victim's body. Appellant acknowledges the applicable rules to the admissibility of such evidence by citing State v. Sanders, 619 S.W.2d 344 (Mo. App. 1981) (which declares the admissibility of demonstrative evidence is within the discretion of the trial court). Weekley and Burnfin, supra, and by citing State v. Garrett, 595 S.W.2d 422 (Mo. App. 1980) which rules such evidence admissible when the probative value outweighs the possible inflammatory effect.

While appellant offers a conclusory argument that the photos were inflammatory and prejudicial, he does not persuade this court that the photos lack relevancy. The challenged photos (a) tended to prove McBroom bled to death from multiple stab wounds (this corroborates the pathologist's testimony as to cause of death), (b) tended to corroborate and aid the jury in understanding the testimony of the two other physician witnesses, and (c) depicted the multiplicity and severity of the stab wounds which were relevant to appellant's claim of self-defense, and had probative value regarding the state's burden to refute the self-defense claim.

Appellant's argument that the photos were inadmissible, because testimony had already been admitted which described the conditions of McBroom as depicted in the photos, has no validity. State v. Jackson, 499 S.W.2d 467, 472 (Mo. 1973), State v. Moore, 303 S.W.2d 60, 65 (Mo. banc 1957).

There was no abuse of discretion by the trial court in admission of the challenged photos. Appellant's point (3) is meritless and is ruled against him.

Under his point (4), appellant charges the trial court committed plain error by admitting a series of photos showing bloodstained floors and stairs, because said photos were inflammatory and prejudicial, and these features outweighed any probative value. Our review of this point is for plain error for the same reason set forth under point (1) above.

Appellant, in part, contends the challenged photos allegedly leave the impression there "was three times as much blood as there was in fact". This court has difficulty in following such contention. The photos have been viewed by this court. There is nothing shown therein that would support such an absurd contention, that the photos leave an impression of three times as much blood as there actually was at the scene.

The state presented an investigator witness who testified as to the conditions he found and observed at the murder scene. This witness identified the photos as those taken by him, and that they fairly and accurately depicted the scene. The photos were relevant to corroborate the testimony of the investigator witness. The photos had probative value and could aid the jury in its understanding of the conditions and appearance of the crime scene. State v. Toney, 537 S.W.2d 586 (Mo. App. 1976). That the photos were shocking and perhaps even horrible does not, in and of itself, render the photos inadmissible. Moore and Weekley, supra.

There was no error, plain or otherwise, in the admission of the photos depicting the crime scene. Appellant's point (4) is meritless and is ruled against him.

Under his point (5), appellant contends the trial court committed plain error by permitting an investigator to testify on redirect as to a rumor he had heard regarding what might have been the cause of the stabbing of McBroom. Appellant charges that the testimony was hearsay.

Our review of this alleged error is under the plain error rule for two reasons. First, appellant entered an improper objection to the testimony, and second, this point was not raised in his motion for new trial. Harris, supra.

As part of its case, the state called one Mark Schreiber as a witness. He was an investigator for the penitentiary and a deputy sheriff for Cole County. Appellant challenges a portion of this witness's testimony on redirect examination as hearsay. Since the record reveals that on appellant's cross-examination of this witness, appellant opened up the issue of rumored hearsay, it is necessary to set forth the pertinent portions of the cross-examination of this witness, as well as the challenged portion of his redirect examination. The record reveals the following:

"Q. Mr. Schreiber, in your report, which quite frankly I found very thorough, you are an ...


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