State v. Cusumano
2013 Mo. App. LEXIS 660
Mo. Ct. App.2013Background
- 1988 assault: two men abduct Victim, threatened with a gun, and coerced sexual acts including rape and sodomy.
- DNA matched Defendant to evidence from the scene and Victim’s underwear; charges filed Feb 10, 2010.
- First trial (Sept 2010): jury instructed on Count I and Count III with alternatives; Count II pursued under accomplice liability but ended in mistrial.
- Jury found Defendant guilty of the lesser offenses for Count I (forcible rape) and Count III (forcible sodomy); Count II unresolved and retried.
- Second trial (Jan 2011): Count II conviction for forcible rape under accomplice-liability theory; sentenced to life imprisonment consecutive to Counts I and III.
- Appeal challenges: (1) double jeopardy/collateral estoppel bar to Count II; (2) admission of victim-impact testimony during guilt phase; court affirmed both convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collateral estoppel barred retry on Count II. | Cusumano argues prior verdicts on Counts I/III resolved issues of accomplice liability and dead weapon use. | Cusumano contends the first jury’s reasoning foreclosed relitigation of those issues in Count II. | No collateral estoppel; first jury did not unambiguously determine those issues. |
| Whether admission of victim-impact testimony during guilt was plain error. | Victim’s emotional testimony relevant to credibility and elements like force and lack of consent. | Testimony was irrelevant or prejudicial, elicited to evoke sympathy. | Plain error not shown; admission did not result in manifest injustice. |
Key Cases Cited
- Ashe v. Swenson, 397 S. Ct. 436 (US 1970) (lead to collateral estoppel principles on prior acquittals)
- Dowell v. State, 311 S.W.3d 832 (Mo. App. E.D. 2010) (collateral estoppel barred related charges after acquittal under theory of evidence)
- Hines v. State, 803 S.W.2d 652 (Mo. App. E.D. 1991) (acquittal of related kidnapping can collaterally estop related charges)
- Moton v. State, 476 S.W.2d 785 (Mo. 1972) (collateral estoppel applicability threshold concepts)
- Wise v. State, 879 S.W.2d 494 (Mo. banc 1994) (lesser-included offenses may be considered without prior acquittal of greater offense)
- Phillips v. State, 670 S.W.2d 28 (Mo. App. W.D. 1984) (victim’s mental state evidence relevant to offense elements)
- Kreutzer v. State, 928 S.W.2d 854 (Mo. banc 1996) (trial court discretion on evidentiary relevance of victim testimony)
- Edwards v. State, 983 S.W.2d 520 (Mo. banc 1999) (statutory framework for trial procedures)