State v. Tillman

Citations: 289 S.W.3d 282; 2009 Mo. App. LEXIS 1016; 2009 WL 1916481Docket: WD 69472

Court: Missouri Court of Appeals; July 7, 2009; Missouri; State Appellate Court

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Marshall A. Tillman appeals his convictions for second-degree murder, rape, and forcible sodomy, following a jury trial. The victim, an eighty-eight-year-old woman, was found dead in her home in Kansas City on August 26, 1987, with evidence of severe blunt force trauma, strangulation, and sexual assault. DNA testing conducted by the Kansas City Crime Lab in 2003 and 2004 linked Tillman to the crime scene through sperm and hair samples. Tillman, who lived nearby, claimed he visited the victim's former home daily to collect mail.

During trial, the defense sought to exclude testimony from Dr. Mary Dudley, who reviewed the autopsy findings of the deceased Dr. John Overman. The court permitted Dr. Dudley to testify based on her independent analysis of the autopsy photos and reports, concluding the victim died from asphyxia due to strangulation. In contrast, the defense's expert, Dr. Thomas Young, suggested the victim may have bled to death but could not ascertain if the death was accidental or homicide. The jury convicted Tillman, recommending three life sentences, which the court imposed. The appellate court affirmed the convictions, addressing the admissibility of evidence and the wording of the verdict director.

Tillman contends that the trial court improperly allowed Dr. Dudley to testify about Dr. Overman's conclusions from the autopsy report, arguing this infringed upon his rights to cross-examine witnesses, receive a fair trial, and due process. He asserts that the autopsy report constituted hearsay and that he had no prior opportunity to cross-examine Dr. Overman, which prejudiced his defense as it contested the cause of death. Tillman claims that Dr. Dudley conveyed Dr. Overman's opinions regarding the injuries and cause of death rather than the factual basis for her opinions. The court reviews evidence admission for abuse of discretion, requiring a clear deviation from accepted standards for reversal, and assesses prejudice rather than mere error, reversing only if a fair trial was compromised. It is established that physicians can form opinions based on observed facts and reliable hearsay, and an expert may rely on hearsay in forming opinions as long as it is customary in that field. Testimony from another doctor regarding an autopsy is permissible if it reflects the expert's own analysis rather than the original performing doctor's opinion. In this case, Dr. Dudley conducted her independent assessment of the autopsy using various case materials, which are deemed appropriate for expert reliance in forensic pathology.

Dr. Dudley testified that autopsy reports are routinely prepared close to the time of the autopsy. Her conclusions regarding the cause of death—determined to be asphyxia by strangulation—were based on an independent analysis of photographs and injury descriptions. Despite acknowledging that Dr. Overman conducted the original exam over twenty years ago, Dr. Dudley relied primarily on the autopsy report and photographs to reach her conclusions. 

Though the defense sought to exclude any testimony related to Dr. Overman's findings, the court allowed Dr. Dudley to testify based on her independent assessment of the autopsy and crime scene materials, ruling that Dr. Overman's conclusions were not admissible. The defense maintained that any reference to the autopsy would be hearsay and raised a continuing objection, which the court granted. 

During Dr. Dudley's testimony, the defense objected when she read descriptions from Dr. Overman's report, but the court overruled this objection, affirming the admissibility of Dr. Dudley's independent evaluation. Notably, when Dr. Dudley referenced Dr. Overman's conclusions, no objection was raised by defense counsel. A continuing objection indicates a sustained disagreement with the admissibility of evidence throughout the trial, as clarified in State v. McWhorter.

Tillman maintained an ongoing objection to the use of the autopsy throughout the trial, which was largely abandoned on appeal, except regarding Dr. Dudley's statements about Dr. Overman's conclusions. The court allowed Dr. Dudley to express her own opinion based on the autopsy report and photographs but agreed with Tillman that Dr. Overman's opinions were inadmissible. The issue arose when Dr. Dudley exceeded the court's restrictions by spontaneously mentioning Dr. Overman's conclusions. Though the court had concurred with Tillman on the inadmissibility of such statements, Tillman did not alert the court or seek a remedy when this occurred. The court questioned whether Tillman had a strategic reason for not addressing this at trial, considering various possibilities, such as wanting only a jury instruction to disregard or believing the testimony to be harmless. The court concluded that it could not find error in the trial judge’s failure to act, as the defense did not request a remedy for the unsolicited testimony. This principle aligns with precedents where similar situations arose, such as in *State v. Jackson* and *State v. Kuhrts*, where the courts held that the defense's failure to object or seek corrective action resulted in the preservation of the issue being deemed inadequate for appeal.

Tillman's reliance on prior cases is misplaced due to key distinctions. In *State v. Bell*, the prosecutor elicited testimony from a medical examiner that was deemed objectionable, while in *State v. March* and *State v. Davidson*, reports were admitted without the author's testimony. In contrast, the court ruled that Dr. Overman's opinions were inadmissible, citing *State v. White*, where improper testimony was similarly elicited and used to imply guilt.

In his second point, Tillman argues that the trial court erred by submitting instruction number eight, which he claims violated his rights to notice, due process, and a fair trial. He contends that the instruction allowed the jury to find a conviction based on blunt force trauma, which diverged significantly from the charge of strangulation he was accused of, thus prejudicing his defense. Although he acknowledges not preserving this error for appeal, he requests a plain error review. Missouri law allows for plain error review only in cases where the error is evident, affects substantial rights, and results in manifest injustice. The appellate court follows a two-step review process to assess if the trial court's error was clear and whether it affected the verdict. Generally, for an instructional error to qualify as plain error, it must significantly misdirect the jury's understanding of the case. The burden of proving manifest injustice rests with the defendant, and mere prejudice is insufficient to warrant reversal.

A defendant cannot be charged with one offense and convicted of another, as established in State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992). A material variance between the information and the verdict instruction can be detrimental if it denies the defendant adequate notice of the charges, which is essential for preparing a defense. When a crime can be committed in various ways, the methods specified in the verdict instruction must align with those alleged in the information. A variance is not inherently reversible unless it introduces a new and distinct offense, as articulated in State v. Glass, 136 S.W.3d 496, 520 (Mo. banc 2004). For a variance to warrant reversal, it must be both material and prejudicial, affecting the defendant's notice and ability to defend against the charges. 

In the case of Marshall A. Tillman, the indictment charged him with first-degree murder via strangulation, while trial evidence suggested blunt force trauma as the cause of death. The verdict director for second-degree murder included both strangulation and blunt force trauma. Tillman contended that this addition deprived him of adequate notice and constituted a surprise change in charges. However, the court determined that the verdict director did not present a new offense, as both the indictment and the verdict director required a finding that Tillman knowingly caused the victim's death. This aligns with Section 565.021, which outlines the criteria for second-degree murder, confirming that the charges remained consistent throughout the proceedings.

The variance in the charge against Tillman was deemed non-material, as it involved only a change in the method of inflicting harm, not the nature of the offense. The applicable legal principle holds that if a crime can be committed in multiple ways, the method used in jury instructions must align with those alleged in the information; however, this did not apply to Tillman's case. Tillman argued he was unprepared to defend against allegations of blunt force trauma, claiming his defense focused solely on disproving strangulation. However, he had introduced evidence supporting blunt force trauma as a potential cause of death and could not demonstrate surprise over the jury instruction allowing for this method of death. The court clarified that the cause of death is not a necessary component of second-degree murder; rather, it was sufficient for the State to prove that Tillman knowingly caused the victim's death, regardless of the method.

In a separate issue, Tillman contested the admission of certain photographic evidence (State's exhibits 39-45), claiming a lack of proper foundation and a violation of his fair trial rights. The court noted that it has broad discretion in admitting such evidence, and that a ruling would only be overturned if it resulted in fundamental prejudice or an abuse of discretion. Tillman needed to demonstrate that the admission of these photographs created a reasonable probability that the verdict would differ without them, which he failed to do. Thus, both points raised by Tillman were denied.

A proper foundation is required to admit a photograph into evidence, which can be established through testimony from a witness familiar with the photograph's subject matter. The trial court has discretion in determining whether this foundation is met. In *State v. Thompson*, the State sought to introduce autopsy photographs as non-testimonial business records, and the court permitted this. Business records are admissible if properly identified, as outlined in Sections 490.670 and 490.680, which define business records and the criteria for their admissibility based on the testimony of a custodian or qualified witness. Tillman argued that photographs cannot be classified as business records based on a dictionary definition, but the court clarified that photographs are admissible under the statute as they record an event. Dr. Dudley, the medical examiner, provided sufficient testimony confirming her custodianship of the photographs, their relevance to the autopsy, and their proper handling. The trial court's decision to admit the photographs as business records was upheld, affirming that the foundation for their admissibility was appropriately established.

In Corsi v. Town of Bedford, the court held that an aerial photograph was admissible as a business record. Similarly, in State v. Dumas, a booking photograph of the defendant was also deemed admissible under the business records exception. Quinonez-Saa v. State addressed the admissibility of autopsy photographs as business records. The judgment being referenced was affirmed, with all judges concurring. It was noted that the court is not addressing any alleged errors related to the first-degree murder verdict director, as the defendant was acquitted of that charge. Additionally, the court referenced State v. Davidson, stating that the business record exception does not override the Confrontation Clause regarding testimonial evidence, but clarified that autopsy photographs are not considered testimonial. Consequently, the discussion of Crawford v. Washington was deemed unnecessary for resolving the issues at hand.