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State v. McBenge

Court of Appeals of Missouri, Eastern District, Third Division

November 15, 2016

STATE OF MISSOURI, Respondent,
v.
BRIAN KEITH MCBENGE, Appellant.

         Appeal from the Circuit Court of St. Charles County 1111-CR05527-01 Honorable Nancy L. Schneider

          ROBERT M. CLAYTON III, Presiding Judge.

         Brian Keith McBenge ("Defendant") appeals the judgment entered upon a jury verdict convicting him of first-degree murder for his alleged involvement in the 1984 killing of Eleonora Knoernschild ("Victim"). We reverse and remand for a new trial.

         I. BACKGROUND

         Over two decades after Victim's murder, a DNA analysis linked Defendant and his brother Cecil McBenge[1] to evidence found on or near Victim's property shortly after she was killed. In separate underlying cases, Defendant and Cecil were each charged with and found guilty by a jury of first-degree murder based on accomplice liability.[2] The State's fourth substitute information in lieu of indictment in Defendant's case ("the information") charging him with first-degree murder alleged he acted in concert with another, and after deliberation, knowingly caused the death of Victim on or between November 2nd and 4th of 1984 by beating her. The information also gave Defendant notice that the State may submit an instruction for second-degree felony murder to the jury based on the death of Victim as a result of Defendant's perpetration of the class B felony of first-degree burglary. Defendant's jury trial was held on August 11-16, 2014.

         A. Evidence Presented at Defendant's Trial

         Viewed in the light most favorable to the verdict, the following evidence was presented at Defendant's trial.[3]

         1. Evidence Relating to Circumstances and Events Occurring in the Years Prior to Victim's Murder, including the 1980 Burglary of Victim's Home

         Defendant met Victim's granddaughter ("Granddaughter") in 1977 when they were both teenagers and they eventually started dating. They dated for approximately eight months until sometime in 1979. During the timeframe Defendant and Granddaughter were dating, they would frequently go to Victim's home, where Victim served them lunch and snacks. It was not unusual for Defendant to get himself food out of the refrigerator, and Granddaughter testified she and Defendant ate a lot of cheese while they were at Victim's home. In addition, while Defendant was dating Granddaughter, he became aware Victim kept extra cash in a Calumet baking powder can ("the Calumet can") located in the lower kitchen cabinets next to her refrigerator, because Defendant saw Granddaughter steal money from the Calumet can when Victim was not looking. Granddaughter admitted that although she did not have a specific recollection of Defendant's brother Cecil being present at Victim's home, she had previously stated she thought Cecil would have been present at the home at some point.

         In March of 1980, Victim's house was broken into while she was in the hospital. Police classified the break-in of Victim's home as a burglary ("the 1980 burglary").[4] Around the time the crime occurred, police officers lifted a latent fingerprint from the refrigerator door handle; however, it went unidentified until 1986, when officers determined the fingerprint belonged to Defendant. Nevertheless, Defendant was not a suspect in the 1980 burglary near the time it occurred and he was never charged in connection with the crime.[5] In addition, Defendant's brother Cecil was not ever a suspect in or charged with the 1980 burglary.

         Sometime after the 1980 burglary, Victim had bars installed on the basement windows of her home. Victim also moved the Calumet can to her bedroom.

         2. Evidence Relating to Circumstances Surrounding Victim's 1984 Murder and the Subsequent Police Investigation of the Crime

         Victim's murder occurred sometime between November 2nd and November 4th of 1984. Around that same timeframe, Defendant and his brother Cecil lived in a home located about one mile away and within walking distance of Victim's home.

         On November 2, 1984, before Victim's body was discovered, Victim's longtime housekeeper cleaned Victim's home, including the kitchen and kitchen floor. The housekeeper testified Victim always kept her house tidy, with everything put in its proper place.

         During the morning of November 4, 1984, Victim's daughter called the police after she went to Victim's home to bring her the newspaper and noticed the glass window on the front door had been broken out and removed. Police responded to Victim's home, searched the premises, and conducted an investigation which revealed the following.

         Police discovered a person or persons had gained entry to Victim's home. It appeared that whoever entered Victim's home crawled through the space where the glass window on the front door had been, because the front door was still locked. Victim's bedroom, kitchen, basement, and hallway had been ransacked, and several drawers, cabinets, and items were opened throughout the house.

         In the bedroom, Victim's body was found lying on the floor underneath clothes and papers which had been thrown around. Victim, who was elderly and weighed less than one-hundred pounds, had blood and multiple bruises on her face, a split lip, and two broken ribs on each side of her body caused by blunt force. Although part of the bedspread was looped around Victim's neck as if she might have been strangled, there was no evidence of ligature marks. Victim's cause of death was subsequently determined to be repeated blunt trauma.

         Two kitchen-type knives were found on the bedroom floor next to a metal box, and the Calumet can was found in Victim's bedroom closet, which was open. In addition, the bottom drawer of a bedroom dresser was pulled out almost all of the way, two other dresser drawers were slightly pulled out, and the back of a clock on the top of the dresser had been opened up.

         In the kitchen, four lower cabinets and two drawers next to Victim's refrigerator were open, but the top cabinets were closed. Various items were dumped out on the kitchen countertop; the bread box, flour tin, and sugar tin were open; and a pair of gloves was found on the kitchen floor. In addition, a white corner cabinet had top and bottom drawers which were open. Finally, the refrigerator door and crisper drawer were open, and lying on the floor in front of the refrigerator were a large plastic bag containing some grapefruit, a frozen meal, a Tupperware container, a piece of cheese with a bite mark taken out of it, and an empty single-serve cheese wrapper.

         In the basement, lock boxes had been dumped on the floor and personal papers were spread across the floor. In the hallway, doors on two cabinets were opened and items were dumped on the floor. In the dining room, one cabinet had a drawer which was open and another cabinet had a door which was open. And in the living room, one cabinet had a door open and a closet door was open.

         Outside the house, near the back of Victim's property by an alley, two nylon stockings were found lying on the ground. Victim's flashlight, which she always kept on top of shelves built into the headboard of her bed, was found a little farther away across the alley. In addition, two gloves, one blue and one maroon, were found in a bush in the front yard of a nearby house.

         DNA testing was not performed until 2011 on, inter alia, the cheese wrapper found on the floor of Victim's kitchen, the two nylon stockings found by the alley near the back of Victim's property, and the blue glove found in the bush of a nearby home. The presence of DNA found on the items was compared with Defendant's and his brother Cecil's DNA, who were both Caucasians, as well as Victim's DNA. Testing performed on the cheese wrapper revealed the presence of single-source DNA on the wrapper which was consistent with Defendant's DNA, and the probability of someone else in the general Caucasian population having the same DNA profile was 1 in 741, 000. In addition, testing performed on the two nylon stockings revealed the presence of only Victim's DNA on one stocking but a mixture of her DNA and a male's DNA on the other stocking. The male DNA found on the stocking was consistent with Cecil's DNA, and the probability of someone else in the general Caucasian population having the same DNA profile was 1 in 6.17 million.[6] Finally, testing performed on the blue glove revealed the presence of DNA which was consistent with Victim's DNA.

         Officers John Young and Leslie Simpson, [7] who were involved in investigating the 1984 break-in of Victim's home and her murder, testified they did not know how many individuals committed Victim's murder. Officer Young testified it could have been as few as one person or as many as five people.

         B. Defendant's Arguments Raised at Trial and Other Relevant Procedural Posture

         Prior to trial, Defendant filed a motion to dismiss the crimes alleged in the information for pre-indictment delay. At the close of the State's evidence and at the close of all of the evidence, Defendant filed motions for judgment of acquittal which asserted the State failed to prove the elements of the crimes alleged in the information.

         During Defendant's jury trial, he objected to the admission of evidence relating to the 1980 burglary of Victim's home, arguing it was improper evidence of a prior uncharged crime. In addition, over Defendant's continuing objection, Officer Simpson, who was present at the crime scene after the 1980 burglary of Victim's home and after the 1984 break-in of Victim's home and her murder, was allowed to testify about the details of the 1980 burglary and the similarities between the two crimes.

         Defendant also made an objection to admission of the cheese wrapper and the stocking, arguing both items should be excluded from evidence because the State could not provide a reasonable assurance that they were in substantially the same condition when tested as they were when they were originally seized.

         The trial court denied Defendant's pre-trial motion to dismiss and his motions for judgment of acquittal. The court also overruled Defendant's objections to the admission of evidence relating to the 1980 burglary and his objections to the admission of the cheese wrapper and the stocking.[8]

         The State submitted an instruction for first-degree murder to the jury and an alternate instruction for second-degree felony murder. Both instructions were based on accomplice liability. The first-degree murder instruction, Instruction No. 6, required the jury to find, inter alia, that Defendant acted alone or aided or encouraged his brother Cecil in causing Victim's death by beating her and did so after deliberation. The second-degree felony murder instruction, Instruction No. 7, required the jury to find that: Defendant committed first-degree burglary at Victim's home as submitted in Instruction No. 8; Defendant or his brother Cecil beat Victim during the burglary; and Victim was killed as a result of the perpetration of the burglary. Finally, Instruction No. 8 required the jury to find that: between November 2nd and 4th of 1984, Defendant or Cecil knowingly entered Victim's home; Defendant or Cecil did so for the purpose of committing the crime of stealing therein; while Defendant or Cecil was in Victim's home, Victim was present therein and was not a participant in the crime; and with the purpose of promoting or furthering the commission of first-degree burglary, Defendant acted alone or Defendant acted together with or aided Cecil in committing the offense.

         Three verdict forms were submitted to the jury and the jury could either, (1) find Defendant guilty of first-degree murder as submitted in Instruction No. 6; (2) find Defendant guilty of second-degree felony murder as submitted in Instruction No. 7; or (3) find Defendant not guilty of both crimes.[9] The jury found Defendant guilty of first-degree murder.

         Defendant then filed a motion for judgment of acquittal notwithstanding the verdict of the jury, or in the alternative, for a new trial ("post-trial motion"), which raised the same arguments discussed at the beginning of this subsection and the claims he brings in this appeal. The trial court denied Defendant's post-trial motion, entered a judgment in accordance with the jury's verdict convicting Defendant of first-degree murder, and sentenced Defendant to life imprisonment without parole. Defendant appeals.

         II. DISCUSSION

         Defendant raises five points on appeal, which we will consider in the following order. In his fifth point on appeal, Defendant contends the trial court erred in denying his motion to dismiss the crimes alleged in the information for pre-indictment delay. In his second point on appeal, Defendant argues there was insufficient evidence to support his first-degree murder conviction under a theory of accomplice liability. And in his first, third, and fourth points on appeal, Defendant asserts the trial court erred in making various evidentiary rulings.

         A. The Trial Court's Denial of Defendant's Motion to Dismiss

         In Defendant's fifth point on appeal, he contends the trial court erred in denying his motion to dismiss the crimes alleged in the information for pre-indictment delay. Defendant argues the State was negligent in failing to conduct DNA testing on the cheese wrapper and the stocking found on or near Victim's property until approximately twenty-seven years after her murder. Defendant also asserts he was prejudiced by the delay in his indictment because a few of the items found on Victim's kitchen floor (the Tupperware container, the large plastic bag which had contained two grapefruits, the grapefruits themselves, and the frozen dinner) were destroyed between the time they were collected in 1984 and the time Defendant was initially indicted in 2011.[10] Officer Herbert Morie testified at trial that those items were destroyed because they became moldy and a biohazard.

         As determined by the Missouri Supreme Court in State v. Griffin, pre-indictment delay only requires the dismissal of charges when it is demonstrated, (1) the defendant was prejudiced by the delay; and (2) the State intended the delay to gain a tactical advantage over the defendant ("the Griffin test"). 848 S.W.2d 464, 467 (Mo. banc 1993). It is the defendant's burden to demonstrate both prongs of the Griffin test have been met. State v. Kleine, 330 S.W.3d 805, 808 (Mo. App. S.D. 2011); State v. Lee, 859 S.W.2d 768, 769-71 (Mo. App. E.D. 1993).

         In this case, Defendant concedes he cannot show the second prong of the Griffin test has been met, "acknowledg[ing] that there is no evidence that the State in the present case caused the delay in order to gain a tactical advantage." Although Defendant argues Griffin should be overruled because he believes a change in the law is necessary, Defendant concedes this point on appeal must fail because our Court is bound to follow the most recent controlling decision of the Missouri Supreme Court in Griffin. See Jones v. Galaxy 1 Marketing, Inc., 478 S.W.3d 556, 574 (Mo. App. E.D. 2015). Defendant admits he only raises the issue of his pre-indictment delay in his appeal to this Court because he wants to preserve his claim that Griffin should be overruled, should this case eventually be transferred to the Missouri Supreme Court. Based on the foregoing, we cannot find the trial court erred in denying Defendant's motion to dismiss the crimes alleged in the information based on pre-indictment delay. Point five is denied.

         B. Whether there was Sufficient Evidence to Support Defendant's Conviction for First-Degree Murder under a Theory of Accomplice Liability

         We next consider Defendant's second point on appeal, in which he argues there was insufficient evidence to support his first-degree murder conviction under a theory of accomplice liability. Because Defendant's argument explicitly and inherently challenges the trial court's denial of his motions for judgment of acquittal prior to submission of his first-degree murder charge to the jury, the question of sufficiency is really an issue of whether the charge should have been submitted to the jury. See State v. Myles, 479 S.W.3d 649, 660 (Mo. App. E.D. 2015).

         1. Standard of Review

         Appellate review of a claim that there was insufficient evidence to support a criminal conviction is limited to a determination of "whether the [S]tate has introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt." State v. Hosier, 454 S.W.3d 883, 898 (Mo. banc 2015). In making that determination, great deference is given to the trier of fact, and an appellate court will not weigh the evidence anew. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011). Additionally, all evidence and inferences favorable to the State are accepted as true, and all contrary evidence and inferences are disregarded. Id. However, an appellate court "may not supply missing evidence, or give the [S]tate the benefit of unreasonable, speculative or forced inferences." State v. Clark, 490 S.W.3d 704, 707 (Mo. banc 2016) (quoting State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (overruled on other grounds)).

         The State may meet its burden of proof by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime. State v. Burns, 444 S.W.3d 527, 529 (Mo. App. E.D. 2014). Furthermore, circumstantial evidence is given the same weight as direct evidence in considering whether there was sufficient evidence to support a conviction. Id. at 528-29.

         2. The Relevant and Admissible Evidence Adduced at Trial

         The following relevant and admissible evidence was adduced at trial.[11] Victim's Granddaughter testified that while she and Defendant were dating in the years prior to Victim's murder, Defendant frequently went with Granddaughter to Victim's home, it was not unusual for Defendant to get himself food out of the refrigerator, and Defendant ate a lot of cheese. Granddaughter also testified that during that same timeframe, Defendant became aware Victim kept extra cash in the Calumet can located in the lower kitchen cabinets next to her refrigerator, because Defendant saw Granddaughter steal money from the Calumet can when Victim was not looking. Granddaughter also admitted that although she did not have a specific recollection of Defendant's brother Cecil being present at Victim's home, she had previously stated she thought Cecil would have been present at the home at some point.

         The 1984 break-in of Victim's home and her murder occurred very shortly after Victim's longtime housekeeper cleaned various areas of Victim's house and kitchen, which Victim always kept tidy. Around the two-day window in which the break-in and murder were committed, Defendant and Cecil lived in a home located about one mile away and within walking distance of Victim's home.

         Police discovered a person or persons had gained entry to Victim's home in 1984 by breaking out the glass window on the front door and crawling through that empty space. Several areas of Victim's home were ransacked, including the lower kitchen cabinets next to her refrigerator and the refrigerator itself. The refrigerator door was found open, and lying on the floor in front of the refrigerator were several food items including a piece of cheese with a bite mark taken out of it and an empty single-serve cheese wrapper. In addition, a stocking was found lying outside near the back of Victim's property by an alley.

         In the bedroom, Victim's body was found lying on the floor. Victim, who was elderly and weighed less than one-hundred pounds, had blood and multiple bruises on her face, a split lip, and two broken ribs on each side of her body caused by blunt force. Victim's cause of death was subsequently determined to be repeated blunt trauma. There was no DNA evidence found in the bedroom which linked Defendant or his brother Cecil to Victim's killing.

         However, DNA testing on the empty single-serve cheese wrapper found on the floor of Victim's kitchen revealed the presence of single-source DNA on the wrapper which was consistent with Defendant's DNA, and the probability of someone else in the general Caucasian population having the same DNA profile was 1 in 741, 000. In addition, DNA testing on the stocking found by the alley near the back of Victim's property revealed the presence of a mixture of DNA consistent with Victim's and Defendant's brother Cecil's DNA, and the probability of someone besides Cecil in the general Caucasian population having the same DNA profile was 1 in 6.17 million.

         Officers Young and Simpson, who were involved in investigating the 1984 break-in of Victim's home and her murder, testified they did not know how many individuals committed Victim's murder. Officer Young also testified it could have been as few as one person or as many as five people.

         3. General Law Pertaining to the State's Burden of Proof

         A person commits the crime of first-degree murder if "he knowingly causes the death of another person after deliberation upon the matter." Section 565.020.1 RSMo Supp. 1984.[12]"Deliberation" is defined as "cool reflection for any length of time no matter how brief[.]" Section 565.002(3). The requirement of deliberation distinguishes first-degree murder from all other forms of homicide. State v. Glass, 136 S.W.3d 496, 514 (Mo. banc 2004).

         Where, as in this case, a defendant is tried for first-degree murder under a theory of accomplice liability, it is not necessary for him to have personally performed each act constituting the elements of the crime or for him to have been present when the victim was killed. State v. Ferguson, 20 S.W.3d 485, 497 (Mo. banc 2000); State v. Gray, 887 S.W.2d 369, 377 (Mo. banc 1994). Nevertheless, in order to be responsible for another person's acts, a defendant must have acted together with or aided the other person either before or during the commission of the murder with the purpose of promoting the crime. Ferguson, 20 S.W.3d at 497. In addition, the State must prove that the defendant personally deliberated upon the murder. Id. Consistent with those principles, the Missouri Supreme Court has held the State makes a submissible case of first-degree murder under a theory of accomplice liability only if it introduces evidence from which a reasonable juror could have concluded beyond a reasonable doubt that, (1) the defendant committed acts which aided another in ...


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