*1 RENDLEN, WELLIVER, MORGAN, Jackson, presence BARDGETT, JJ., The fingerprints of defendant’s concur. HIGGINS supports the proposition that he was the DONNELLY, J., separate dissents in C. one who lamp removed bulb from the dissenting opinion filed. show, therefore, and tends to that he was point against intruder. This is ruled Justice, DONNELLY, dissenting. Chief appellant. my articulated in I dissent for the reasons Appellant’s point last is that the tri Mitchell, dissent in S.W.d plain al court committed error in not direct (Mo. banc ing a during closing argument mistrial prosecutor prosecutor made the following you— statement: “He told you
Mr. he [defendant], you Willerth told
know, not, rapes is not like us. And he’s burgles robs and threatens old la
dies with baseball bats.” phrase contends “he ... is not like is a us” reference to defend- Missouri, Respondent, STATE of
ant’s racial background unfairly in- prejudiced jury against flamed and prosecu-
fendant. While it is true that the HARRIS, Jr., Appellant. Leroy jury tor and the were all white and that No. 61674. black, we defendant was do not read the prosecutor’s being comment as a reference Missouri, Supreme Court was, rather, to defendant’s It reply race. En Bane. plea jury’s defense counsel’s for the understanding lying of defendant’s at the July 1981. time of his arrest: Sept. Rehearing Denied “It’s a little different situation than if
you stopped and I driving home record; police tonight with no
reaction is be a little different. lie;
I you know it’s a I ask sympathize client, forgive
with my him for that
lie. And it a lie because he’s not the I; you
same carrying as he’s
burden of that record with him when he
goes (emphasis supplied). on the streets.” referring
Defense counsel was to defend-
ant’s position put criminal record and the in with the when counsel you
said “he’s not the same and I.” The us”,
prosecutor agreed “he is not like but given
for a different than that reason
defense “he rapes counsel: and robs and
burgles and threatens old ladies with base-
ball bats.” It is inaccurate to take this as a
reference to racial background.
It was not. no error on the We see court, plain trial otherwise. judgment is affirmed.
351 *2 Defender, G. Robbins, Melvin Public
Gary Jackson, Defender, Franke, Public Sp. Asst. appellant. Bond, Gen., Ashcroft, Jan Atty. John respon- Gen., City, for Jefferson Atty. Asst. dent.
RENDLEN, Judge. 556.030, B § of class
Convicted punishment defendant’s RSMo years. at seven jury assessed (1) an error include His contentions 491.015, RSMo validity of § attack on the rape shield 1978,1 known as the popularly of various statute, it is violative contending Missou- of the United States provisions the trial court and that ri Constitutions evidence under certain improperly excluded challenge It is this the “invalid” statute. brings constitutionality the statute’s V, Art. under § to our Court appeal complains Mo.Const. (2) erroneously permitted trial court jury, as there go to the cause allegedly in- of the victim’s corroboration to instruct (3) failed testimony; consistent abuse of sexual jury on the offense 1978; (4) 566.120,RSMo degree, evidence; (5) limited hearsay admitted victim; (6) of the cross-examination vol- hearing a to conduct refused testimony. victim’s of the untariness evidence, of the supportive following cause to verdict, justified submission evening of blustery the cold jury. On Cape was home 2,1979, victim March daughters, small with her three Girardeau home, closed two, Her three and six. ages weather, on was located because of the open field street, by an end bordered dead house empty and an on one side occupied residence other. The nearest the street. neighbor across that of a evening, 11:30 that 10:30 and Between door, her front knock on victim heard a curtains, saw through the out peering friend, Ben Staf- was her man she believed did she the door opening Only after ford. by limiting interro- designed protections to a RSMo is a statute §1. prior gation conduct. legislature provide sexual as to certain testimonial “Yeah; recognize just to go, responded, it was who had him defendant her, Stating repair knocked. he wanted to talk requested leave.” that he She also defendant, invitation, left, line, without entered phone which he did. After he home, and once friend, inside demanded called first Lourine they engage Amos, in sexual intercourse. re- She tele- immediately thereafter spurned persistent fused and ad- verbal phoned police.
vances. When place he tried to his hands her, them, on “in removed and told him I. way” stop, nice then went the kitch- pretrial hearing At telephoned friend, en Lourine Amos. motion to dismiss the information or in Lourine, learning present, Harris was alternative, rele- to introduce evidence of warned, this, you.” “He’ll vic- To conduct, vant sexual made the “No, tim replied, rape me,” but won’t following “Offers Proof”:2 again cautioned, “Yeah, Lourine he will." PROOF NO. 2: Defense OFFER OF *4 leave, Hoping defendant would the victim counsel stated that the victim’s former Lourine, at length talked with re- but he Stafford, testify boyfriend, Ben sleep. mained the feigning couch Final- that, her, dating, grabbed while he once ly hung when Lourine the re- up, “Oh, rape she responded, please and don’t room, to living turned the the turned off me.” leave, television and told to defendant stat- 3 : OFFER OF PROOF NO. Defense ing “Leroy, ready I’m to the getting put during counsel his cross-ex- stated ” bed, However, go kids you go to so to ... victim, the he elicit amination of stayed put defendant while the victim her raped age she at testimony that was Afterward, daughters to again bed. she was The Court indicated such evidence out, ordered defendant time opening this objections to the offered inadmissible and the door turning porch front and ruling, This proof would be sustained. light, light but defendant off turned the contends, er- reversible constitutes and pressed her to re-enter the house. Be- ror. coming frightened, again attempted she to defendant, oust this he grabbed but time concerning of Offer Proof No. her dragged wrist through her the witness proposed testimony the of Stafford house During strug- into back room. more, facially irrelevant and without gle daughters might the victim feared her clearly frame was inadmissible. No time awakened, be harmed if she to tried might alleged the incident suggested when making Further, avoid noise. she was fear- if It determined have occurred. cannot be fought ful if might defendant kill at a perhaps many years this was earlier her girls. little As was dragged com question time after the crime in kitchen, through grabbed to connect Nothing mitted. was advanced phone attempted operator, dial me”, “Oh, rape outcry, please don’t but yanked away defendant and in so is grabbed by her boyfriend, doing, tore phone loose. Once in the bar, proof negate of sues at nor room, back defendant shoved sum, nothing appears In charged. crime down, pulled off quiet, ordered her to be pertinence prof demonstrating the panties sexually her. assaulted of in the face which flies testimony, fered victim testified did not consent to sexu- of that when the relevance rule settled al relations with defendant. testimony patently suspect, proffered
Afterward, of proof explication her “he want- offer with See, Rogers, again ed to required. do because messed it the nexus is [she] up.” declined, 362,367 he (Mo.App.1979); When she asked if Davis, (Mo.App. could return day, the next induce proof 2. Other offers of defendant were ruled admissible. concerning preclude ruling] proof did review assume In our we must attitudes, attitudes, an stated it as “I think
party making proof stating offer of don’t favorably it, con- fully possible. equates with sexual as I understand Umfrees, one’s figment than in the other duct 1968). The trial cannot be faulted Thus, court only portion imagination.” be ex ruling that the irrelevant evidence 3 which was excluded Proof No. Offer of hence, cluded, of er defendant’s contention of error as a claim and could serve basis for ror as to 2 is denied.3 Offer Proof No. concerning the victim’s contention rape age at 10. Defendant’s argued alleged fact that the It No. 3 is denied. error as to Offer Proof at of Proof age Offer 3, is relevant claim of No. the defense
her vindictiveness and resultant motive II. defendant. charge against fabricate court the trial Defendant next asserts from the While we unable to learn motion for failing to sustain his erred in age, transcript present or briefs the victim’s acquittal because judgment children, we do know she is a woman Implicit testimony was uncorroborated. six, However, ages three and the cir two. alleged is the state’s failure argument observations, judge, cuit court his trial points a submissible case. Defendant make sufficiently temporal could estimate victim’s testi- inconsistencies within the proximity (or thereof) justify lack extrajudicial admissions mony, the victim’s ruling. It is fatal to contention investigator, and to defense counsel and his that no other to show attempt was made *5 oth- the victim’s out court statements appar the relevance of this alleged incident ers, with verdict allegedly all inconsistent ently occurring many years prior to the demonstrating no rape occurred. and crime at bar. The ruled properly trial court that proposed beyond the “the evidence fell testimony of the uncorroborated permissible range interrogation” and a con victim was to sustain rape sufficient though the court considered the offered evi viction, were any therein and uncertainties by statute, dence barred it cannot be v. jury’s for the resolution. State matters ruling said the The ration erroneous. 336, Garrett, (Mo.1973), 494 S.W.2d supporting ruling ale trial court’s 204, (Mo. Davis, 497 207 v. State S.W.2d discussed, 2, Offer of Proof No. previously mandated App.1973). Corroboration pertinent is also the action supports and is so contra testimony unless rejecting Offer of Proof No. 3. facts, physical dictory and in conflict with contends that a ex common surrounding circumstances and of this Offer of statements Proof included ren thereby perience, validity that its that feelings ill towards “has Wood, Mo. 355 State v. dered doubtful. general” men in and feeling manifested 396, (1947); 1008, 1012, 398 199 S.W.2d they “wronged itself if she felt her in had 61, (Mo.App. Russell, 66 581 S.W.2d State v. aspect, some manner.” As to this the court 1979). indicated that although the mention of excluded, in case, alleged rape age at be instant the asserted 10 would In the occurred rape the statute for that ostensible basis as whether consistencies [the court, denying proof, facial irrele 3. The was inadmissible because of its trial the offer dispose provi ruled it was rendered We are able to inadmissible vance. therefore grounds constitu sions of To this defend than the RSMo 1978. contention on other Wilkinson, Fifth, responds challenge, 606 ant that the section violates tional State v. 1980), because Sixth and Fourteenth Unit and Amendments to the 635 S.W.2d I, justified, ruling and ed States Constitution Art. Sec. 10 of the trial court the though assigned, 18(a), Ill, its Sec. and Art. 40 of the Missouri for reasons other than that Sec. affirmed, see, Haynes, However, de Constitution. we do not reach will be action allegations infirmity (Mo. 448 Toliison fendant’s for, of constitutional above, State, (Mo.App. proffered as noted 556 S.W.2d Russell, Further, part explained, supra were in most fatal at incon- to the verdict in when taken context. On explana- accompanying sistencies and the examination, redirect the victim disavowed credibility, went tions to the issue of statements, certain ex- extrajudicial Garrett, jury. for question State plaining religious that her had teachings Davis, supra. supra, As stated in State v. persuasively influenced her to “suffer the and de- “resolution of conflicts evidence wrong” According and “let God handle it.” witnesses credibility termination of the doctrines, to church she should refrain to deter- jury matters and this court is prosecuting sharing in its blame. only mine whether there was substantial addition, In investigator defense counsel’s jury which evidence to be believed had reputation told the victim her in sustain Id. at 207. guilty verdict.”' suffering, community and he would testimony was not We conclude the victim’s resident, mother, inform her an Arkansas facts, expe- contrary physical common about the incident. These indoctrinations surrounding rience and circumstances as to arguably threats induced her state- doubtful, its there was validity render (later disavowed) ments at- defendant’s to have sufficient evidence submitted torney investigator, indicating she had support verdict. jury cause its not in been raped. fact The victim admit- ted on that time cross-examination some remaining We note defendant’s before the have stated in points preservation fail for want of sex with defendant “if ever backslid.” [she] mo were not mentioned redirect, On explained telling she “was tion for new An assertion error trial. Leroy get out my lie him face.” motion leaves an post-trial not raised Defendant makes much of fact that review, nothing appellate court State police failed to call the when Lourine Peterson, (Mo.1974); Amos warned that defendant would Cook, (Mo.1973); Obviously, her. required victim was not Scott, (Mo. then, moment, call the for 1972), plain only and will be examined defendant had nor neither assaulted her (1980). 29.12(b) error. Rule past threatened the assault and *6 been reasonably a friend. The could victim III.
disbelieve prediction Lourine’s dire until began dragging through the the trial Defendant next asserts few days rape, house. A after the while instruct, its own failing erred in on court talking telephone sis- defendant’s motion, the third as to abuse in sexual ter, stated, Ferntang Harris, “I the 566.120, 1978, contending it degree, RSMo § raped your Leroy brother he’s of included offense necessarily is a lesser However, take the blame.” both the victim requested Though neither rape. Ferntang testified their discussion issue in mentioned the such instruction nor was heated and not probably the victim trial, recognize we the his motion for new “talking Additionally, sense.” cases the in non-homicide duty of trial court explained anger had caused her to twist included any lesser properly instruct her words. supported if the evidence. State offense Smith, 1979); v. assertions, the Contrary (Mo. 880, 885 Hawkins, v. 544 S.W.2d State conglomeration of record is not rife with a Fleming, 528 S.W.2d App.1976); v. State raw explained only by inconsistencies However, such an Rather, (Mo.App.1975). in- perjury. apparent lesser of required if the instruction is not against credulities must be considered necessarily included within record, fense is not including backdrop of the entire Fleming, supra charged. calling such as the offense State facts offense necessarily To be included immediately rape, almost after the which at 515. in- greater offense of corroborative its occurrence. it is essential that State 1977), goes saying plain banc without legal elude all of the and factual elements Smith, supra of lesser. State v. at 166. error occurred. Fleming, supra
As stated at 515: “An instruction on a lesser offense is not IV. unless it to commit the proper impossible complains the trial next of lesser, greater committing without first testimony as admitting the victim’s court’s for otherwise properly the lesser statements, “He’ll Lourine Amos’ greater.” lesser offense to the “Yeah, will,” that such you” urging 566.030, Section es RSMo their hearsay and statements constituted (1) tablishes these as the elements of rape: right of con- admission was violative intercourse, (2) sexual with another person frontation. married, (3) to whom he is not without that in-court tes Hearsay evidence is consent, person’s (4) by use of forcible com extrajudicial of timony an statement pulsion. proscribes § RSMo fered to the truth the matters prove following as sexual conduct abuse in the therein, resting upon value asserted for its (1) degree: subjects third person to another credibility of the out-of-court declarant. married, (2) he is to whom to sexual Walker, (Mo. contact, (3) person’s without consent. Harris, The distinguishing rendering feature sexual as (Mo.App.1978). Contrary to defendant’s abuse other than a lesser offense of sertions, were Amos’ statements Lourine under 566.030 in the is found difference § the mat prove truth of offered sexual between intercourse and sexual con therein, was in ters that defendant asserted “any penetration, tact. The former means Instead, lay fact a relevance rapist. their slight, however organ by of a female sex state demonstrating the victim’s fearful the male sex whether or organ, not an acqui any apparent of mind explaining 566.010.1(1), emission results.” RSMo § Walker, Id. part. State v. escence on her “any touching Sexual contact is Hence, not inadmissi the statements were genitals or any person, anus of or the hearsay. ble as any breast of or person, any female such underlying rationale Additionally, touching through clothing, for the pur purpose is that hearsay rule “for the pose arousing gratifying sexual desire as securing trustworthiness of testimonial any person.” added). (Emphasis 566.- sertions, affording opportunity and of 010.1(3), Thus, well pro RSMo 1978. as as witness, asser to test the credit scribing conduct punishable court, subject tions are to be made degree sexual abuse in requires Chernick, 280 cross-examination.” State state, as por mental shown in the italicized No violation statute, tion of the referenced not necessary *7 declarant, as the principle appears, purpose to conviction of rape. In Amos, de Lourine testified on behalf motive are irrelevant. As stated in v. State 948, Berry, S.W.2d fendant. 609 State (Mo.1955), 277 Tompkins, S.W.2d 587 “If the Robinson, 954, n.7 State evidence showed that there carnal Hence, 186, de 484 189 S.W.2d force knowledge, and the commission prejudice by the trial fendant suffered act, no intent is requisite other than that tes admitting victim’s court’s in action by doing evidenced of the acts constitu timony to Lourine Amos’ statements. ting the offense.” Accordingly, Id. at 591. degree in sexual abuse is not a included
lesser offense of crime V. charged. complains of his cross-ex limiting
As it would in have been error to have in- trial court’s action de Specifically, requests, structed down now the victim. as defendant amination of Elliott, 175, been allowed (Mo. State v. 177 he should have fendant claims 356 pursue simultaneously court for inquiry his lines of fault the trial concerning:
an alleged prior
propound
conversation between the
failing
his rationale in
to divine
victim and defendant
wherein
Additionally,
ing the
defend
questions.
request
consented to defendant’s
en-
within
ant’s
not
claim of error does
fall
relations;
gage in sexual
a claim that
308,
Alaska,
ambit
U.S.
94
of Davis v.
415
poor opinion
gener-
victim had a
men in
(limita
1105,
(1974),
S.Ct.
357
to
way
been
“in a nice
precedent for
on her and
told
proposition,
cites no
his
defendant, went into
hearing
stop,
left
urges
prosecutrix
fendant
we direct a
be held
friend, Lou-
kitchen,
telephoned
determine voluntariness of
conversation, Lou-
rine
allegations
During
Amos.
testimony in view of defendant’s
prosecutrix
rine
that defendant
told
of duress and coercion. We find no authori-
he would
denied that
her. Prosecutrix
are
ty
proceeding
disinclined
opinion. Prose-
reiterated her
and Lourine
our
to introduce it to
law.
lengthy
their
conversation
cutrix concluded
thoroughly
cross-examined the
put
daugh-
was
her
saying
concerning
her
of incarceration
fear
hair. These
ters
and wash her
to bed
losing
her children if she
refused
afraid
woman who is
not the concerns of a
testify.
question
goes
The
of voluntariness
her.
a man is about
jury’s
to credibility, a matter for the
resolu-
at trial that
Second,
admitted
496,
prosecutrix
Longmeyer,
tion. State v.
prior to trial
told defense counsel
499-500 (Mo.App.1978).
her
unless she
body
that man could take
no
The
judgment
affirmed.
to,
fight and
she could
wanted him
that
a man.
also
protect
against
herself
She
J.,
DONNELLY, C.
MORGAN
that de-
told
counsel
admitted she
defense
HIGGINS, JJ., concur.
any way
her in
fendant had
threatened
SEILER, J.,
separate
dissents in
dissent-
and that she had offered
resistance.
ing opinion filed.
Third,
defend-
prosecutrix testified that
BARDGETT, J.,
separate
dissents in
dis-
until
pulled
phone
ant
away
senting
filed.
opinion
loose”,
apart.”
“it
it
until
came
popped
“[i]t
him
alleged rape,
when she told
After
WELLIVER, J., dissents and concurs in
phone”, defend-
up
that he “done tore
BARDGETT,
separate dissenting
[her]
opinion of
“ ‘Naw,
put
togeth-
it
replied
ant
I can
back
J.
er’,
hardly
did.”
and that’s what he
This
SEILER, Judge, dissenting.
ex-
one would
sounds like the conversation
I respectfully dissent.
and the
pect
alleged
between
raped
When
and caused her
prosecutrix’s
evidence “is of a man who has
or,
chil-
contradictory
applied
nature
and her
fear for the lives of herself
case,
dren,
facts in
admitted
her testimo-
nor does
seem reasonable
ny
convincing
rapist
provide
means
readily
and leaves the mind of
doubts,
police.
the court clouded
for the victim call the
[then]
must be
judgment
corroborated or a
cannot
Fourth,
sis-
prosecutrix told defendant’s
Baldwin,
be sustained.”
State v.
571 ter,
and he’s
raped Leroy
“I
[defendant]
236,
239
S.W.2d
See also State
gonna take the blame.” This statement
Phillips,
(Mo.App.1979);
quire, as it did for sexual
sexual purpose intercourse be “for is,
arousing or gratifying sexual desire.” It
however, legisla- understandable require.
ture did expressly It
entirely unnecessary. “purpose already
motive” sexual desire are there. are
It is that sexual desire arousal rape;
“irrelevant” to crime are inescapable part
an whereas in indicated, statutory
1. Unless otherwise all cita- tions to RSMo 1978.