Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable Gregory
Warren AFFIRMED AND REMANDED WITH INSTRUCTIONS
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. For those crimes, Defendant was sentenced
to consecutive terms of, respectively, 12 years and life in
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'" 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.
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.
Principles of Review and Governing Law
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).
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.
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).
and Procedural Background
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
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
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
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
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."
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.
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.
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.
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