Opinion
No. 23887.
January 23, 2002.
Appeal From Circuit Court of Laclede County, Hon. Ward B. Stuckey.
Nancy McKerrow, for Appellant.
Andrea Mazza Follett, for Respondent.
Opinion
Joan E. Marschke ("Defendant") was charged with murder in the second degree, in violation of Section 565.021. A jury found her guilty, and she was sentenced to thirty years of imprisonment. Defendant appeals.
All statutory references are to RSMo 2000, unless otherwise indicated.
As Defendant contests the sufficiency of the evidence supporting her conviction, appellate "review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Chaney , 967 S.W.2d 47, 52 (Mo.banc 1998). In applying this standard, the Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregards all evidence to the contrary. Id . Viewed in this light, the evidence shows:
At 8:00 p.m. on December 31, 1996, Judy and Martin Stawizynski hosted a New Year's Eve party at their home in Sunrise Beach. Defendant and her husband, Carl Marschke, attended the party along with several other couples. The Stawizynskis noted that the Marschkes arrived a few minutes late and stumbled when they walked downstairs into the party. Defendant explained their late arrival by stating that she needed to finish the paperwork from her beauty parlor, the Stylarama, before they could leave for the party.
The partygoers noticed that the Marschkes had been drinking. Carol Woodard noticed that the usually "very coifed" Defendant looked "sloppy," and noted that she behaved in an uncharacteristically "talkative and boisterous" manner. During the evening, Carl Marschke seemed to be enjoying the party, but Defendant acted as though she wanted to go home. Defendant became very upset after Patricia Garrett told Judy Stawizynski that she was "just like Martha Stewart," and Defendant went "on and on" about Martha Stewart to such an extent that Judy Stawizynski changed the subject to subdue Defendant's "out of hand" behavior.
Later, the women challenged the men to a game of Win, Lose, or Draw, but Defendant had trouble comprehending the game's rules. Judy Stawizynski believed that Defendant was intoxicated to the point of being unable to "understand what was going on around her." Martin Stawizynski noted Defendant's slurred speech and glassy eyes, and Patricia Garrett noticed Defendant's agitated, loud, and vocal behavior. After the game, Loren Woodard watched as Defendant sat in a chair and stared off into space, and during the New Year's Eve toast, Defendant stood off by herself. The Marschkes left the party at approximately 12:15-12:30 a.m.
At approximately 1:45 a.m., Chief David Slavens ("Chief Slavens") of the Sunrise Beach Police Department and Officer James Robert Walker ("Officer Walker") of the Laurie Police Department were dispatched to Stylarama. According to the dispatcher, a shooting had occurred in the residence below Stylarama. The officers met Defendant at the door to the residence. Chief Slavens asked Defendant who had been shot, and Defendant replied, "It's my husband and he's in the bedroom." The officers walked back to the bedroom and discovered the body of Carl Marschke lying on the bed. He was lying on his left side with his hand covering the side of his face. A bullet appeared to have passed through his hand into his head. Blood was spattered on the wall and on the ceiling, and a drawer in the bedside nightstand contained a box of .44 Remington magnum ammunition.
Throughout the incident, Chief Slavens noticed that Defendant appeared "awfully calm for a lady that just found her husband shot to death" and seemed to be "faking her emotions." Compared to the reactions of people he had observed at other crime scenes, Chief Slavens thought that Defendant's demeanor was unusual. He detected an odor of alcohol about Defendant, but he could not "tell that she was impaired." Chief Slavens went outside and radioed the dispatcher while Officer Walker remained in the living room. In the living room, Officer Walker noticed a "holster of a large caliber weapon" on the floor in front of a chair.
During the course of the investigation, Defendant asked if they should call an ambulance. Officer Walker replied, "I think it's too late." Defendant sat in a living room chair, cupped her head, and looked as though she were sobbing. Chief Slavens noticed, however, that Defendant shed no tears. She also did not express any fear that an intruder might be inside her home.
Soon, Deputy Robert Bundick ("Deputy Bundick") of the Camden County Sheriff's Department arrived at the scene, and he and Officer Walker secured the residence. Subsequently, out of the corner of his eye, Officer Walker saw Defendant move toward the arm of the living room chair. He then turned around and noticed that the holster was gone from its original position in front of the chair. Later, Officer Walker noticed that the holster had been moved to the side of the chair.
Deputy Bundick asked Defendant what had happened that evening, and she replied that she, her husband, and several other people had been at "Marty's house." He asked Defendant how she discovered her husband, and Defendant replied that after she went upstairs to the beauty salon to check on her business deposits, she entered the downstairs bedroom, turned on the light, and saw spots on her husband. Defendant said that she thought her husband was suffering a stroke. Deputy Bundick asked Defendant if her husband ever contemplated suicide, and Defendant replied, "absolutely not." She then paused for a moment and said, "[W]ell he has threatened to commit suicide in the past due to heart problems."
At that point, Deputy Bundick again asked Defendant how she discovered Carl Marschke. Defendant stated that she went into the bedroom, walked to his side of the bed, touched his shoulder, and said, "Honey, I'm going to bed." It was at that point that Defendant claimed that she discovered spots on her husband. Deputy Bundick thought that Defendant's variation in the sequence of events was "strange," and he also noticed that Defendant was dressed in street clothes and was not wearing pajamas or a robe.
Meanwhile, Lieutenant Tony Helms ("Lieutenant Helms") of the Camden County Sheriff's Department familiarized himself with the residence and searched for hiding places. He detected no obvious signs of an altercation, struggle, or forced entry. After Defendant consented to a search of Stylarama, her vehicles, and outbuildings, Lieutenant Helms discovered that a person could not gain access to the residence through the upstairs beauty shop, but would have had to exit the shop and subsequently enter through the residence's door. He could tell by the covering of fallen leaves that the sidewalk to the Stylarama had not been used recently. As he walked along a makeshift driveway from the residence, Lieutenant Helms saw a bass boat and noticed that the motor cover was "dangling." He approached the back of the boat, flipped over the cover, and saw a large caliber, silver weapon lying inside. Paper towels were wrapped around the gun's rubber-like grips, and the gun was loaded.
Subsequently, Deputy Bundick reported Defendant's inconsistent versions of events to Lieutenant Helms. Lieutenant Helms told him about the gun and advised him to place Defendant under arrest. Lieutenant Helms made another search of the house and found a paper towel rack with towels that appeared to be the same as those wrapped around the gun, and a woman's wristwatch next to the towel rack. He also seized the box of .44 magnum shells that were in the nightstand next to Carl Marschke's body.
Deputy Phillip Cannon transported Defendant to the sheriff's department and administered a gunshot residue test to her hands. Corporal Terri Trokey Harman ("Corporal Harman") read Defendant her Miranda rights and was present while Defendant made telephone calls, and she noticed that Defendant "tried to look like she was crying on the telephone." Corporal Harman was also present as Trooper Rex Scism administered a blood alcohol test on Defendant, which revealed that Defendant had a blood alcohol content of .22.
Dr. Jay Dix ("Dr. Dix") performed the autopsy on Carl Marschke. He found three gunshot wounds on the body. One entered the base of the left hand and exited near the wrist, another entered the top of Marschke's right arm and exited near his upper back and neck, and the third gunshot entered near his right ear and traveled to the left side of the brain. At his death, Carl Marschke had a blood alcohol content of .151. Based on the lack of gunpowder residue on Carl Marschke's body, Dr. Dix determined that the assailant fired the gun from at least three to four feet away from the body.
Criminalist Kathleen Green ("Green") of the Missouri State Highway Patrol compared the bullet recovered from Carl Marschke's head, a bullet found in the Marschkes' bed, the gun found in the boat, and two spent cartridges recovered from the gun. Green testified that the two recovered bullets could have been fired from the gun in question, but the fact that the bullets were damaged may have prevented her from making a positive match to the gun. Additionally, she stated that the gun was dirty and that the "rifling was not showing up well on the bullets." She testified that the spent cartridges "were consistent" with the box of ammunition found near the Marschkes' bed. Additionally, Green compared the roll of paper towels found at Defendant's residence with the paper towel that was wrapped around the gun and determined that the wrapped towel could have come from the roll.
Criminalist Jenny Smith ("Smith") of the Missouri State Highway Patrol tested the gunshot residue swabs that were taken from Defendant's hands. The swabs did not reveal enough barium or antimony to conclusively prove that Defendant fired the gun, but Smith noted that the swabs were taken after the normal six-hour window of testing had elapsed. Smith testified that the levels of barium and antimony that were detected were "elevated from what [they] see normally."
Defendant did not testify on her own behalf, but presented three witnesses. Dawn Eisterholt, a former employee of the Missouri State Highway Patrol crime laboratory, testified that she detected no "latent fingerprints of value" on the gun, the bullets, the spent cartridges, the ammunition box, or the paper towel. She testified that factors such as cold weather, moisture, or the fact that a person wore gloves or held material between himself and an object could prevent an examiner from finding fingerprints. Criminalist Brian Hoey of the Missouri State Highway Patrol crime laboratory testified that he did not detect blood on Defendant's pants. Gene Gietzen ("Gietzen"), the owner of Forensics Consultants, testified that he participated in two gun test-firings within the Marschke residence. During the first test-fire, Gietzen stood in Stylarama while law enforcement fired a gun in the downstairs residence. According to Gietzen, the resulting gunshot did not sound like a shot but rather a "thud." During the second testing, Gietzen stood in various locations within and outside of the Marschke residence to determine if the test shots did indeed sound like gunshots.
On rebuttal, Lieutenant Helms testified that law enforcement conducted the aforementioned test shots because Defendant claimed that she had been upstairs in the Stylarama for twenty minutes before she discovered her husband's body and that she had not seen or heard another person during that time period. Lieutenant Helms stated that he stood near Defendant's desk in Stylarama as test shots were fired in the downstairs residence and that he heard a "loud crack" that sounded like a gunshot. He also stated that he felt the shot's vibrations in the Stylarama's floor.
A jury found Defendant guilty of murder in the second degree, and on October 4, 2000, she was sentenced to a term of thirty years imprisonment. Defendant appeals.
In her sole point on appeal, Defendant contends that the trial court erred in overruling her motion for judgment of acquittal at the close of the State's case and at the close of all of the evidence because the State failed to prove beyond a reasonable doubt that she was guilty of second degree murder. She argues that the evidence shows only that she "had the opportunity to kill her husband, which does not rise to the level of proof necessary to convince a reasonable fact finder beyond a reasonable doubt."
A person commits the crime of murder in the second degree if she "[k]nowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person." Section 565.021.1(1). In the instant case, Defendant argues that "[a]t best, the State has proved that [Defendant] had the opportunity to kill her husband and might have done so. That is simply not enough under the law." In cases involving the use of circumstantial evidence, however, "[t]he circumstances do not need to show absolute conclusions of guilt or impossibility of innocence. Just because other possible hypotheses exist does not contribute reason enough to remove the case from the jury." State v. Yoksh , 989 S.W.2d 227, 233 (Mo.App.W.D. 1999). Evidence is sufficient if the State shows presence, opportunity, and additional circumstances consistent with the commission of the crime. State v. Gordon , 915 S.W.2d 393, 396 (Mo.App.W.D. 1996).
When taken together, the condition of the scene of the crime, the physical evidence recovered from the scene, and Defendant's responses and demeanor in the hours following her husband's death provide the necessary presence, opportunity, and additional circumstances consistent with the commission of the crime. First, Lieutenant Helms testified that he searched the residence that Defendant shared with her husband, and that he detected no obvious signs of an altercation, struggle, or forced entry. He also stated that he stood near Defendant's desk in Stylarama as law enforcement officials fired test gunshots in the Marschke residence, and that the resulting shots made a "loud crack[ing]" sound and vibrated in the beauty salon's floor. Reasonable jurors could have concluded from this evidence that no one had forced entry into the Marschke residence and that had Defendant been upstairs in Stylarama during the shooting, she would have been able to detect a gunshot.
Additionally, the physical evidence at the crime scene also linked Defendant to the crime. In a bass boat off a makeshift driveway in the back of the residence, Lieutenant Helms found a large caliber, silver weapon. Paper towels were wrapped around the gun's rubber-like grips, and the gun was loaded. A comparison of the bullet recovered from Carl Marschke's head, a bullet found in the Marschkes' bed, the gun found in the boat, and two spent cartridges recovered from the gun revealed that the bullets could have been fired from the gun, and that the spent cartridges "were consistent" with the box of ammunition found in the bedroom's nightstand drawer. There was also testimony that the paper towel wrapped around the gun could have come from the roll of paper towels found in Defendant's house.
Defendant's demeanor before and after the crime could also lead reasonable jurors to conclude that she murdered her husband. Numerous people who attended the Stawizynskis' New Year's Eve party noticed that Defendant was uncharacteristically disheveled, boisterous, and agitated. They also believed that she was intoxicated. When Chief Slavens arrived at the scene of the crime, he observed that Defendant appeared "awfully calm for a lady that just found her husband shot to death," and seemed to be "faking her emotions." He also noted that she smelled of alcohol. During the course of the investigation, Defendant sat in a living room chair, cupped her head, and looked as though she were sobbing, but Chief Slavens observed that she shed no tears. Defendant also did not express any fear that an intruder might be inside her home. Later, at the sheriff's department, Corporal Harman noticed that Defendant "tried to look like she was crying on the telephone."
Defendant also changed her responses to police questioning. When asked how she discovered her husband, Defendant replied that after she went upstairs to the beauty salon to check on her business deposits, she entered the downstairs bedroom, turned on the light, and saw spots on her husband. Defendant claimed that she thought he was suffering a stroke. Minutes later, Defendant stated that she went into the bedroom, walked to the side of the bed, touched his shoulder, and said, "Honey, I'm going to bed." It was at this point that Defendant claimed that she discovered spots on her husband. Notably, however, Defendant was dressed in street clothes. When asked if her husband ever contemplated suicide, she replied, "absolutely not." She then paused for a moment, and said, "[W]ell he has threatened to commit suicide in the past due to heart problems."
Defendant asserts that the State's case was based on "speculation, conjecture, supposition and suspicion." The State, however, is not charged with presenting a case containing "absolute conclusions of guilt or impossibility of innocence." Yoksh , 989 S.W.2d at 233. Here, the State presented numerous pieces of evidence from which reasonable jurors could conclude that Defendant murdered her husband.
Defendant also argues that much of the State's evidence regarding her demeanor was irrelevant. The trial court is vested with broad discretion as to the admission of evidence, and appellate courts will reverse only if that discretion was clearly abused. State v. Morrow , 968 S.W.2d 100, 106 (Mo.banc 1998). In order for evidence to be admissible, it must be relevant, logically tending to prove a fact in issue or corroborate relevant evidence that bears on the principle issue. State v. Weaver , 912 S.W.2d 499, 510 (Mo.banc 1995). Here, testimony regarding Defendant's demeanor was relevant to the State's case. Defendant's lack of emotion was relevant because "[a] permissible inference of guilt may be drawn from the acts or conduct of a defendant, subsequent to an offense, if they tend to show a consciousness of guilt." State v. Isa , 850 S.W.2d 876, 894 (Mo.banc 1993). Throughout the investigation, Defendant acted in a way quite unlike the majority of people who discover murdered loved ones. The jury was entitled to take Defendant's lack of emotion into consideration.
For the foregoing reasons, the trial court did not err in denying Defendant's motions for judgment of acquittal. There is sufficient evidence from which reasonable jurors might have found Defendant guilty beyond a reasonable doubt of murder in the second degree. Therefore, Defendant's point must be denied.
AFFIRMED.
Prewitt, J. and Parrish, J., concur.