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State v. Black

Court of Appeals of Missouri, Southern District, First Division

July 25, 2017

STATE OF MISSOURI, Plaintiff-Respondent,
v.
BRENT DEWAYNE BLACK, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable Gregory Warren AFFIRMED AND REMANDED WITH INSTRUCTIONS

          OPINION

          DON E. BURRELL, J.

         A Pulaski-County jury found Brent Dewayne Black ("Defendant") guilty of child-abuse and murder in the second degree for killing his girlfriend's infant child ("Child") in January 2013.[1] For those crimes, Defendant was sentenced to consecutive terms of, respectively, 12 years and life in prison.

         Defendant's first two complaints on appeal are unpreserved because he has failed to demonstrate that they were set forth in a timely-filed motion for new trial or judgment of acquittal. They are: (1) the trial court abused its discretion in permitting a doctor to testify about "her findings and medical opinion of [Child's] injuries" because "the testimony was repetitive, cumulative, bolstering and prejudicial" in view of another physician's testimony; and (2) the trial court erred in giving the "'hammer'"[2] instruction because it "coerced the jurors to return a verdict of guilty when they indicated that they were unable to unanimously reach a verdict." Our discretionary review of these unpreserved claims reveals no error, plain or otherwise.

         Defendant's third point, however, appropriately challenges the validity of the written judgment's imposition of a 99-year sentence for murder in the second degree instead of the life sentence orally pronounced by the trial court at Defendant's sentencing hearing. We therefore affirm Defendant's convictions and his 12-year sentence for child abuse. We remand the matter for the trial court to correct the written judgment of conviction and sentence to impose a life sentence for second-degree murder.

         Applicable Principles of Review and Governing Law

         "Generally, it is within the trial court's sound discretion to admit or exclude an expert's testimony." State v. Bowman, 337 S.W.3d 679, 690 (Mo. banc 2011). The trial court has discretion over "[t]he length of time that a jury is allowed to deliberate[, ]" State v. Williams, 409 S.W.3d 460, 466 (Mo. App. W.D. 2013), and "the decision to use the hammer instruction lies within the discretion of the trial judge." State v. Fassero, 256 S.W.3d 109, 116 (Mo. banc 2008).

         Rule 27.07(c) requires a motion for acquittal to be filed "within fifteen days after the return of the verdict or the jury is discharged." Rule 29.11(b) requires a motion for new trial to be filed "within fifteen days after the return of the verdict." If these mandatory time limits are not met, nothing is preserved for appellate review. State v. Lubbers, 81 S.W.3d 156, 160 (Mo. App. E.D. 2002). In such a circumstance, we may consider an appellant's "allegations only as to issues deemed plain error." Id.

         "The failure to accurately record the trial court's sentence as orally pronounced in open court is a clerical error." State v. Burns, 478 S.W.3d 520, 527 (Mo. App. E.D. 2015). In such cases, this court may remand the cause to the trial court to correct the written judgment. See State v. Clark, 494 S.W.3d 8, 14 (Mo. App. E.D. 2016).

         Evidentiary and Procedural Background[3]

         Child was born in February 2012. On the evening of January 25, 2013, Child's mother ("Mother") went to Child's room in their Rolla apartment around 8:45 or 9:00 p.m. to put Child to bed. Child was "fussing[, ]" and Mother gave her a bottle. Child eventually fell asleep at "[a]round 11[, ]" and Mother went to bed. Defendant, Mother's boyfriend, remained "[i]n the living room watching TV." Before she went to bed, Mother did not see any bruises on Child's forehead. Child did have a "busted lip" from a previous incident Defendant had told Mother about, but Child's "frenulum . . . . wasn't detached. Just a busted lip."

         Defendant later gave the following account of what took place that night to Rolla Police Detective Robert Derrick Jones. "About two in the morning, [Defendant] heard [Child] crying. He went in and gave her a bottle. He believed he changed her diaper. Laid her back down in the crib. He went back into the bedroom and was watching TV." After about an hour, Defendant "heard [Child] making some babbling sounds and coughing. He didn't think anything much about that because [Child] apparently had a cold previous to that." When Defendant checked on Child again a few minutes later:

She was blue. He checked with his finger to see if there was anything in her mouth. He didn't see anything, but he felt something. He tried to get it out with his finger and every time he tried to get it out, it went further into her mouth.
So he remembered there was a Leatherman. He looked for the Leatherman. Found it in the kitchen, came back and removed the baby wipe, performed CPR. And he picked the baby up and was going into the master bedroom to wake [Mother] up and he fell.

         A neighbor, Chester Schlichter, whose apartment was on the other side of a wall of Mother's apartment, heard Child crying that night, but Child eventually stopped. "[A]round the time [Child] stopped crying[, he] heard like a thud."

         Mother awakened to Defendant standing in the bedroom doorway with Child in his arms and saying, "Babe! Babe! Wake up! She's not breathing." Defendant then called "911" from a neighbor's apartment.

         A paramedic, Lisa Steelman, arrived and found that Child had "[n]o breathing, no pulse" as she carried Child to the ambulance. Ms. Steelman had no difficulty intubating Child, and Ms. Steelman did not injure Child's throat, tongue, or mouth while doing so. Child's pulse returned as they arrived at the hospital. An "EMT, " Jonathan Woolley, "noticed a large bruise on the forehead of [Child]" after Ms. Steelman carried Child into the ambulance. Child was eventually air-lifted to a hospital in St. Louis. After a "brain death examination" indicated that "[t]here was no brain function[, ]" life support was removed, and Child "passed away" on January 28, 2013.

         On November 25, 2015, twenty days after the jury rendered its guilty verdicts, Defendant filed a "MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT OF THE JURY OR, IN THE ALTERNATIVE, FOR A NEW TRIAL" ("the post-trial motion"). The post-trial motion included Defendant's challenge to the admission of Dr. Atzemis's testimony and the giving of the hammer instruction. The record does not indicate that a motion for extension of time to file the post-trial motion was either sought or granted.

         At Defendant's sentencing hearing, without making any comment regarding its timing, the trial court denied the post-trial motion and pronounced the following sentence: on Count 1, felony child abuse, "12 years"; on Count 2, murder in the second degree, "life imprisonment . . . . [t]hat shall run consecutively to Count [1.]" Despite this pronouncement, the written judgment that followed ...


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