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ROGER DALE MONK v. STATE OF MISSISSIPPI

OCTOBER 12, 1988

ROGER DALE MONK
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., PRATHER AND ANDERSON, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Roger Dale Monk was convicted on October 9, 1986, in the circuit court of the First Judicial District of Harrison County upon a change of venue from Scott County under Miss. Code Ann. 97-3-19 (2)(f) (1972) of the capital murder of his step-daughter, six-month-old Rosa Marie Stephens, and sentenced to life imprisonment. Upon appeal he assigns the following errors:

I. THE TRIAL COURT ERRED IN REFUSING TO SUSTAIN APPELLANT'S DEMURRER TO THE INDICTMENT.

 II. THE TRIAL COURT ERRED IN REFUSING APPELLANT'S REQUEST FOR PEREMPTORY INSTRUCTION D-1 REQUIRING THE JURY TO RETURN A VERDICT OF NOT GUILTY AND IN REFUSING HIS REQUEST FOR A NEW TRIAL.

 III. THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S REQUEST FOR INSTRUCTION D-2.

 IV. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S OBJECTION TO THE ADMISSION OF THE TAPE RECORDING OF THE APPELLANT AND FURTHER THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S MOTION FOR MISTRIAL.

 V. THE TRIAL COURT ERRED IN REFUSING TO SUSTAIN APPELLANT'S OBJECTION TO CERTAIN STATEMENTS MADE BY DISTRICT ATTORNEY TURNER DURING CLOSING ARGUMENT AND IN REFUSING TO GRANT APPELLANT'S MOTION FOR A MISTRIAL AND SUBSEQUENT MOTION FOR A NEW TRIAL?

 VI. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE PICTURES OF ROSA MARIE STEPHENS.

 Finding these assignments to be without merit, we affirm.

 FACTS

 On May 31, 1986, Judy Stephens Monk (Judy) and Monk were married. Judy's daughter, Rosa Marie, also known as Rose, was born on January 7, 1986. The couple lived in a trailer approximately 100 yards from Monk's parents' home in the Sebastopol community of Scott County. The couple separated on Saturday, July 12, 1986, and Judy stayed at her parents' home until Wednesday, July 16, 1986. On this day while Judy and Rose were at the Public Health Department in Forest, where the baby received her six months' shot, Monk telephoned and left a message asking Judy to return his call. Consequently, the couple met later that evening at the home of Adeline Ferguson, a mutual friend, and agreed to resume co-habitation. The events occurring on the following Friday led to the death of Rose. On that Friday, July 18, 1986, Judy, Monk and Rose went to the home of Monk's mother, Bobby Jeannette Monk, to shell butter beans. While Judy remained at the home, Monk, his sister Ann Embry, her son Billy Paul and Rose rode to Forest to pick up Monk's paycheck. Monk, his sister and the two children returned to his mother's house around noon. Rose was later laid on a king-size bed and thereafter rolled off, striking the floor. Judy stayed with the baby to calm her, but noticed no bruises from this fall. Around 3:00 p.m. Monk took Rose to the trailer to feed her. Monk claimed that Judy was also present during this feeding. Judy, however, testified that Monk was alone with Rose and that when he returned to his mother's home with Rose her mouth was" puffed up. "Monk said he thought the bottle he fed Rose could have caused this. Monk, Judy and Rose returned to the trailer around 6:30 p.m. Present at the trailer on this evening were Judy, Monk, Rose and Billy Paul. Rose fell asleep on a pallet in the living room and Judy left all three around 9:30 p.m. to take a bath. When Judy returned to the living room around 10:00 p.m., she noticed that Rose's face and hands had turned black. About this time Monk's brother Bobby, who was at his mother's house 100 yards away, came to the trailer. Bobby

 testified at trial that Monk had yelled for him from his trailer porch to come get Billy Paul. Judy testified that she did not hear anything while she was in the bathroom. Monk and Judy immediately took Rose to Thaggard's Hospital in Madden, and Judy attempted to perform cardiopulmonary respiration (CPR) on Rose during the car trip. At this time Rose's eyes were open and she was gasping for breath. At the hospital the nurses performed CPR and placed Rose on I.V. Zela McBeath, one of the attending nurses, stated that the baby arrived at the hospital with bruises. Dr. David Moody, the attending doctor at Thaggard's Hospital, stated that he initially thought the baby had been in a car accident. While at this hospital, Rose's face and mouth were cleaned off with Betadine or a similar antiseptic solution. Dr. Moody stated that when Rose arrived at the hospital she was flaccid, had fluid in her lungs causing her not to properly breathe, her pupils were constricted and she had decerebrate posturing (fingers and toes curled up and separated), leading him to believe that brain damage had occurred. Rose also had hypoxia, meaning that she was unable to receive oxygen properly. This condition causes the brain to swell and leads to brain damage. Rose was given Epinephrine sub-cutaneously, or through the skin, to help stimulate respiration, stimulate cardiac activity and to open up air passages to the lungs. She was also given Decadron to prevent brain swelling. Rose was placed on a ventilation tube to oxygenate her lungs, a nasal gastric tube and had cardiac monitors placed on her chest to monitor her cardiac status. Rose arrived at the hospital with bruises on her neck and chest which were a few hours old. She also had a cut on her frenulum, or inner upper lip, which was actively bleeding and was also a few hours old. Medical personnel stated that Judy was hysterical and unable to talk to them, but that Monk was calm and told them that he had been holding the baby earlier when she went limp and stopped breathing. He also stated that the bruises were caused when the baby fell off the bed earlier in the day. Dr. Moody arranged for Rose to be flown to the Baptist Medical Center in Jackson where the baby died on Monday, July 21, 1986. Dr. Thomas Bennett, former State Medical Examiner, performed the autopsy on July 22, 1986. He observed multiple acute traumatic injuries which were caused by a blunt instrument (which includes the hands). Specifically, bruises were found on each side of the neck and on the chest. The frenulum was torn, swollen and surrounded by hemorrhage, which was also caused by a blunt instrument. Bruises on the chest were consistent with the baby having been held in a grasp and bruises on the neck were caused by a blow or squeezing force consistent with choking the child. Acute bronchial pneumonia was present and approximately 36 to 48 hours old, and was likely caused by the administration of CPR. Additionally, the

 area of the attachment of intestines to the spine was freshly torn, known as a mesenteric tear, and caused by a severe blow to the abdomen. A subdural hematoma (hemorrhage surrounding the brain) was present over both surfaces of the brain and was approximately one to two days old. Again, this was a result of a blunt trauma, specifically, extreme shaking of the infant causing the brain to shake inside the skull. Dr. Bennett stated that the cause of death was attributable to whiplash shaken infant syndrome in which a baby is held and forcefully shaken causing the head to literally whip. He further stated that the bruises on the chest and jaw were consistent with this shaking and that the bruises on the chest would correspond to where thumbs would be placed when holding the child. Testimony presented at trial showed that the baby had had trouble since birth with losing her breath and that Judy would shake the baby or blow in her face to help her catch her breath.

 Monk testified and related the following events occurring on July 17 and 18. On Thursday, July 17, 1986, while he was watching Rose, he noticed bruises on the chest area and a swelling and redness of the lip. On Friday, July 18, 1986, Judy was present while he fed the baby during the afternoon. Later that night, while Judy was taking a bath, he picked up Rose when she began crying. While he was holding Rose in his lap, she started" drawing up. "He immediately called for Judy and suggested that they go to the doctor. He stated that Judy then shook the baby before leaving for the hospital to help her catch her breath. He further testified he did not know when these injuries occurred and he did not notice any blood on or around Rose when they left for the hospital.

 At the trial held on October 6-9, 1986, a portion of a tape made on July 3, 1986, of Monk threatening and yelling at Rose was played for the jury. The conversation is as follows:

 MALE VOICE:

 Son of a bitch, one of these days I'm going to hit you and see if you can squall.

 FEMALE VOICE:

 Oh, no, you're not.

 MALE VOICE:

 You watch. All she does is holler. Ain't never shedded [sic] a tear in this month we've been married.

 FEMALE VOICE:

 U-u-u-u-u.

 MALE VOICE:

 Don't say she has, because you know she ain't.

 FEMALE VOICE:

 I know she has.

 MALE VOICE:

 One of these days, she's going to be squalling, and I'm going to see just how damn hard I can hit her to make her squall.

 FEMALE VOICE:

 Un-huh.

 MALE VOICE:

 To see her shed tears.

 FEMALE VOICE:

 Un-huh. Your dinner's in the refrigerator.

 MALE VOICE:

 Squall bag.

 FEMALE VOICE:

 Tell Daddy to shut up.

 MALE VOICE:

 I wish she would tell me that. You're going to keep - you're going to cause her to be a ass whipper. You watch! You're already starting it, and I ain't - I ain't - Tony's daddy - I ain't putting up with what Tony says. Tony tries (inaudible).

 FEMALE VOICE:

 She ain't going to start that.

 MALE VOICE:

 You keep (inaudible). And if its the first word she says, it will be the first ass whipping she gets, and you can take it any way you want to, a threat, a promise, whatever you want to. I've got it wrote down in my black book.

 FEMALE VOICE:

 What black book, Roger Dale?

 MALE VOICE:

 Dash this hot coffee on you and see if you squall.

 FEMALE VOICE:

 No, you will not. Roger Dale, you better not. If you do, I'm going to divorce the shit out of you, fixing to pour that hot coffee on that baby, or me, either one. Quit now!

 MALE VOICE:

 (Laughs) Yeah, I am.

 FEMALE VOICE:

 You ain't going to pour it on ...


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