Opinion
No. WD 63710
August 30, 2005 Opinion Withdrawn: September 13, 2005.
Appeal from the Circuit Court of Clay County, Missouri, Honorable Larry Dale Harman, Judge.
Before: Ronald R. Holliger, P.J., Robert G. Ulrich and Joseph M. Ellis, JJ.
This opinion has been withdrawn.
Wayne Dumond appeals his conviction following jury trial for first-degree murder, section 565.020, and sentence of life imprisonment without the possibility of parole. He claims that insufficient evidence was presented to support the conviction and that the trial court plainly erred in permitting the State to present evidence that he exercised his right to remain silent after being arrested and receiving Miranda warnings. The judgment of conviction is affirmed.
All statutory references are to RSMo 2000 unless otherwise indicated.
Facts
On September 20, 2000, at approximately 8:30 a.m., Carol Shields, the victim, arrived at her boyfriend's apartment in Kansas City North. Her boyfriend and his roommate had already left for work. Ms. Shields went to the apartment apparently to obtain a traffic ticket and money that her boyfriend's roommate had left for her to facilitate her paying the attendant fine for him. Inside the apartment, Ms. Shields put her keys on the table and wrote a note for her boyfriend's roommate stating that she would bring back his change after paying the ticket. A few minutes after she arrived, Ms. Shields was attacked. She screamed, and a struggle ensued. The struggle occurred in more than one room over a period of time, leaving furniture in disarray. During the struggle, the attacker pulled out a clump of Ms. Shields' hair. Ultimately, Ms. Shields' wrists and ankles were bound. Ms. Shields suffered numerous injuries from the attack that left bruises and abrasions on her head, face, elbows, fingers, thighs, knee, and foot. The attacker removed all of Ms. Shields' clothing and cut off her bra. Eventually, the attacker killed Ms. Shields by asphyxiating her. The attacker then removed the restraints and left Ms. Shields' body on her boyfriend's bed partially covered with a towel. The attacker left the scene with all of Ms. Shields' clothing except for a piece of her bra.
At the time of the murder, Ms. Shields was married but having an affair with her boyfriend. She spent a lot of time at her boyfriend's apartment.
No eyewitness saw the attacker that morning. At some point during the attack, Ms. Shields was able to call 911, but the call was disconnected before she could say anything. Police officers were dispatched to the apartment at 9:35 a.m. but left after getting no response from the apartment or from neighbors.
Ms. Shields' boyfriend found her when he returned from work that evening. Police were notified and began an investigation. Various pieces of evidence were collected from the crime scene and the victim's body, including hairs from the bed and scrapings from beneath Ms. Shields' fingernails. From the genetic material found in the scrapings obtained from under Ms. Shields' fingernails, two genetic profiles (one only a partial profile) were generated: a major contributor (Ms. Shields) and a minor contributor. The minor contributor's partial profile was submitted to a national database, and Wayne Dumond, the appellant, was identified as a "match." Based on this match, Mr. Dumond was arrested. Subsequent examination and testing revealed that one of the hairs found on the bed was microscopically indistinguishable from Mr. Dumond's hair and that the hair contained mitochondrial DNA that was consistent with Mr. Dumond's mitochondrial DNA.
This evidence will be discussed in greater detail when addressing Mr. Dumond's Point One.
At trial, the defense sought to suggest that Ms. Shields' husband had a motive to murder her. The jury found Mr. Dumond guilty of first-degree murder. Judgment was entered, and Mr. Dumond was sentenced to life imprisonment without the possibility of parole as required by section 565.020.2. This appeal followed.
Sufficiency of the Evidence
In his first point on appeal, Mr. Dumond claims that the trial court erred in overruling his motion for judgment of acquittal and entering judgment on the guilty verdict because insufficient evidence was presented to prove beyond a reasonable doubt that he perpetrated the crime. Specifically, he contends that the only evidence to arguably connect him to the murder was hair and certain DNA evidence but that the State's experts could not positively identify him within a reasonable degree of scientific certainty as the source of the hair and genetic material.
Review of a challenge to the sufficiency of the evidence to support a criminal conviction is limited to determining whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Chaney , 967 S.W.2d 47, 52 (Mo. banc 1998), cert. denied , 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). The evidence and all reasonable inferences drawn from the evidence are viewed in the light most favorable to the jury's verdict, and any contrary evidence and inferences are disregarded. Id. Great deference is given to the trier of fact. Id.
"[T]he State has the burden of proving beyond a reasonable doubt the identity of the person who committed the crime." State v. Rockett , 87 S.W.3d 398, 403 (Mo.App.W.D. 2002) (quoting State v. Robinett , 63 S.W.3d 236, 239 (Mo.App.W.D. 2001)). The evidence presented at trial must establish beyond a reasonable doubt that the defendant was the person who committed the charged crime. Id. at 403-04.
In this case, the State presented evidence that genetic material was recovered from under Ms. Shields' fingernails. Two genetic profiles were produced. The first genetic profile — the major contributor — was consistent with Ms. Shields' DNA. The second genetic profile — the minor contributor — was a partial male profile and was consistent with Mr. Dumond's DNA. The statistical frequency with which a match of the partial profile to Mr. Dumond's genetic profile would occur is one in 470 billion people. Despite this small frequency, the State's expert could not, under the standards established by the Kansas City Crime Lab, state that the match with Mr. Dumond's DNA was an "identification-level" match. The Lab's threshold for declaring an identification-level match is one in 5.9 trillion people. While the DNA test results in this case did not constitute an identification-level match under the testing lab's standards, the jury was entitled to afford the results significant weight in determining Mr. Dumond's identity as the killer. See Id. at 405 (where the statistical frequency with which a match to defendant's DNA would occur was one in 900 million people, the jury was entitled to afford significant weight to the test results in determining whether defendant was rapist, regardless whether test results constituted positive identification). The weight afforded to such evidence is within the province of the jury. Id.
There are approximately three billion males on the planet. Ms. Shields' husband, her boyfriend, the boyfriend's roommate, and a neighbor were all excluded as the minor contributor.
Mr. Dumond claims that reliance on the DNA evidence is also problematic because the State's expert subjectively refused to consider findings that would have absolutely excluded him. The expert testified that she declared four alleles, various versions of genes, from the fingernail scrapings as not true alleles but rather stutters, or peaks that occur during the amplification process that are not truly genetic information. He argues that "[i]f any had been a true allele that did not match [his genetic profile], it would have excluded him." This argument, however, ignores the expert's testimony that her conclusions were based upon a reasonable degree of scientific certainty and that another DNA analyst in the lab agreed with her findings that the alleles were not true alleles. The jury was entitled to believe the expert's testimony.
In addition to the DNA evidence resulting from the tissue removed from under Ms. Shields' fingernails, several hairs were found at the scene of the crime. Eleven hairs were microscopically indistinguishable from Mr. Dumond's hair. Further testing of the hairs revealed that one of the hairs — a hair found on the bed where the victim was found — contained mitochondrial DNA. This mitochondrial DNA was consistent with Mr. Dumond's mitochondrial DNA. The particular profile from this substance appears in eleven of 1655 people in the Caucasian population. Thus, Mr. Dumond — unlike 98.9 percent of the Caucasian population — could not be excluded as the source of the hair. While not a conclusive identification, the hair comparison and mitochondrial DNA test results provide further substantive evidence that Mr. Dumond committed the crime. See Id.; State v. Butler , 24 S.W.3d 21, 27-28 (Mo.App.W.D. 2000) (Lowenstein, J., concurring) ("Hair comparison evidence is accepted in this state as reliable for identifying individuals accused of crimes.")
The same hairs were also microscopically indistinguishable from Ms. Shields' boyfriend's hair.
Mr. Dumond argues that even if the DNA and hair comparison evidence was enough to place him at the scene or in contact with Ms. Shields, it does not show when and where that contact occurred. He claims that DNA evidence alone is insufficient to support a conviction and that no other evidence was presented to connect him to the crime. Mr. Dumond's argument, however, ignores the other evidence in this case. A struggle occurred in the apartment after Ms. Shields arrived. Two neighbors heard screams in the apartment building between 8:00 and 9:00 the morning of the murder. One neighbor heard a "bunch of knocking around" from one bedroom to the other. Ms. Shield was found dead in the apartment that evening. She had numerous injuries on her body including bruises and abrasions on her head, face, elbows, fingers, thighs, knee, and foot, and a clump of her hair had been pulled out. Genetic material was found in scrapings from under her fingernails.
Evidence was also offered that Mr. Dumond was unaccounted for on the day of the murder and that he sustained injuries around the time of the murder consistent with having struggled with Ms. Shields. On the morning of the murder, at approximately 7:00, Mr. Dumond met with Robert Trotter for 10 or 15 minutes. Mr. Dumond indicated to Mr. Trotter that he was suffering from a stomach virus and that he would not be going to work that day. In fact, Mr. Dumond did not go to work that day. Mr. Trotter noted that Mr. Dumond's physical appearance was normal when he and Mr. Dumond spoke and that he did not have scratches on his face. The day after the murder, Mr. Dumond saw a physician for treatment of injuries he said he sustained when he fell down stairs. Mr. Dumond complained of pain in his shoulder, thigh, and face. The physician observed scratches on Mr. Dumond's face, swelling of his shoulder and elbow, and discoloration of his thigh. The physician thought the scratches on Mr. Dumond's face were a day or two old. Two days after the murder, Mr. Dumond telephoned Mr. Trotter and told him that he had fallen down stairs and had hurt his shoulder and back. At their next meeting a week after the murder, Mr. Trotter observed scratches on Mr. Dumond's face. Mr. Dumond told Mr. Trotter that he also had a swollen arm and separated shoulder. He said that he had suffered these injuries in a fall down stairs. This evidence, along with the DNA and hair comparison evidence, was sufficient evidence for reasonable jurors to conclude beyond a reasonable doubt that Mr. Dumond attacked, struggled with, and killed Ms. Shields. Point one is denied.
Post-Arrest Silence
In his second point on appeal, Mr. Dumond claims that the trial court plainly erred in failing to sua sponte declare a mistrial or, in the alternative, failing to admonish the jury to disregard after the State presented evidence that he exercised his right to remain silent after being arrested and receiving Miranda warnings. The testimony of the lead detective about which Mr. Dumond complains is as follows:
Q: Did you place him under arrest?
A: I didn't, but he was placed under arrest at the scene.
Q: What did you do after that?
A: Detective Dorothy and I, one of my partners, transported Mr. Dumond down to police headquarters where we Mirandized him and attempted to get a statement from him.
Mr. Dumond argues that because no evidence was offered that Mr. Dumond ever made a statement, the jury was left to conclude that he exercised his right to remain silent.
The silence of an accused while under arrest is not admissible against him. State v. Mack , 903 S.W.2d 623, 627 (Mo.App.W.D. 1995), superseded by statute on other grounds as recognized in State v. Anders , 975 S.W.2d 462 (Mo.App.W.D. 1998) (citing Doyle v. Ohio , 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976)); State v. Howell , 838 S.W.2d 158, 161 (Mo.App.S.D. 1992) (citing State v. Stuart , 456 S.W.2d 19, 22 (Mo. banc 1970)). The State may not use post-arrest silence either as affirmative proof of a defendant's guilt or to impeach his testimony. Howell , 838 S.W.2d at 161. "It may not be shown that an accused failed to volunteer an exculpatory statement, nor may it be shown that, by his silence, he failed to deny or explain, while under arrest, an incriminating fact about which no question was asked." Id. Application of these principles is mandated where the record reveals that a defendant "stood mute" or claimed his privilege to remain silent in the face of accusation. Mack , 903 S.W.2d at 627; Howell , 838 S.W.2d at 161. Conversely, these principals do not apply where a defendant did not stand mute in the face of an accusation because no accusation was made. Id.
In Mack , the prosecutor asked a police officer at trial if he attempted to ask the defendant any questions and what the defendant said. The officer replied, "After I advised him of his right to remain silent under the Miranda warning, the party refused to answer any questions." No other reference to the defendant's post-arrest silence was made. This court held that because the record indicated that the defendant was not being questioned directly about the charged crime, driving under the influence of alcohol, or that he did not "clam up" in the face of a charge of guilt made under circumstances calling for an admission or denial, no reasonable inference of guilt could have arisen from the challenged discourse. 903 S.W.2d at 627-28. Thus, the prosecutor's questions and the officer's answers did not constitute an impermissible reference to the defendant's right to remain silent. Id.
In Howell , the prosecutor asked a police officer at trial if the defendant made any statements after being advised of his Miranda rights, and the officer answered, "No, sir." 838 S.W.2d at 160. The prosecutor made no other reference to the defendant's post-arrest silence. Because the record showed that no questioning or discussion about the crime of which the defendant was convicted had occurred, the Southern District concluded that no inference of guilt of the crime could reasonably have been drawn from the prosecutor's question or the officer's answer. Id. at 163.
As in Mack and Howell , the circumstances in this case do not mandate application of the principles protecting against admission of a defendant's post-arrest silence. First, the colloquy between the prosecutor and the detective at trial does not directly indicate that Mr. Dumond exercised his right to remain silent after his arrest. The officer merely stated that he and his partner advised Mr. Dumond of his constitutional rights and attempted to get a statement from him. Whether the officers actually obtained a statement from Mr. Dumond is not shown in the record. Admittedly, the use of the word "attempted" by the detective may imply that the officers tried and failed to obtain a statement from Mr. Dumond. However, the record does not reveal the reason the officers did not get a statement. Certainly, the detective did not testify that Mr. Dumond exercised his right to remain silent. Compare State v. Dexter , 954 S.W.2d 332, 338 (Mo. banc 1997) (detective testified that defendant stated he would not answer any further questions without his attorney). Even if it is assumed from the detective's testimony that Mr. Dumond halted the interview, the record does not reveal any incriminating facts with which Mr. Dumond was confronted, any facts that might incriminate him if he remained silent, or any facts that he needed to deny or explain. The record is devoid of any evidence that Mr. Dumond was confronted with the DNA match or that the DNA match was discussed in his presence or that Mr. Dumond was questioned about Ms. Shields' murder. Nothing in the record indicates that this is a case where Mr. Dumond "clammed up" in the face of a charge of guilt made under circumstances calling for an admission or denial. Furthermore, the prosecutor made no other reference to Mr. Dumond's post-arrest silence during the case. Under the circumstances, no inference of guilt could reasonably have been drawn from the detective's answer. The point is denied.
The judgment of conviction is affirmed.
Holliger, P.J. and Ellis, J. concur.