Dеfendant appeals his conviction of forcible rape and a sentence of ten years imprisonment. A brief statement of the facts will be made. Further facts will be developed in the body of this opinion.
On the night of September 25, 1978, complainant was the victim of multiple rapes accompanied by a physical assault upon her person. On her way home after attending school at Meramec Community College, she had stopped to purchase cigarettes at a liquor store on Lindbergh near Big Bend. Approximately seven men were standing in front of the store. When she emerged from her car, one of the men grabbed her purse. Two of the men forced her to drive to a deserted area in Meachum Park where they raped her. They then took her back to the liquor store where they left the car and a third man forced her back to the same spot and raped her. The third man then directed her to a gas station lot. She testified that while at the gas station lot defendant drove up in a silver blue Monte Carlo and approached her trying to sell her some “acid.” She further testified that the third man left the car and defendant Benny Hurst then entered. He forced her to drive back to the same deserted area where he also raped her. She then managed to escape. Defendant denied the rape and testified that he was with his girl friend all night.
Defendant assigns sixteen points of trial court error. We affirm the trial court on all points.
Defendant’s first point on appeal is that the trial court erred in overruling the motion to suppress the identification testimony given by the victim because the pretrial *851 confrontation procedures were so unnecessarily suggestive and conducive to a mis-identification of defendant as to violate due process rights. Defendant also contends that the subsequent in-court identification was tainted because it was based on the same suggestive influence as the tainted lineup and viewing of photographs in the Kirkwood Police Station.
Initially, we note that defendant has failed to properly preserve this point for review because he neglected to object to the victim’s identification testimony at trial.
State v. Perry,
The admissibility of identification testimony is determined in light of the totality of surrounding circumstances.
State
v.
Parker,
The second factor enumerated in
Parker, supra,
is most applicable to the pretrial procedures attacked by defendant — that is, the lineup and the showing of photographs of potential suspects to the victim. In the early morning hours of September 26, 1978, the victim viewed several books of photographs of potential suspects. She identified defendant as one of the men who raped her. Later on in the day she viewed a five-man lineup at the jail in Clayton and identified defendant as one of the men who raped her. Defendant contends that the lineup was unduly suggestive because none of the other participants had features similar to defendant. Noticeable differences in the appearance of participants in the lineup have repeatedly been held not to necessitate a finding of suggestiveness.
State v. Davis,
Defendant also contends that the first and third factors of the Parker test, involving an independent source of identification and positive in-cоurt identification, were not met as well. Identification testimony is admissible even if the lineup and viewing of the photographs were suggestive because the presence of an independent source will serve to remove any taint that might result from a suggestive confrontation. Davis, supra at 14. Isolation of an independent source requires consideration of numerous factors including:
“ ‘. the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ (Neil v. Biggers, supra 409 U.S. [188] at p. 199, 93 S.Ct. [375] at p. 382 [34 L.Ed.2d 401 ])”
Davis, supra at 14.
Applying this test to the present case shows an independent source. The description given to the police was not detailed but there was no hesitancy in the identification at the lineup. Neither was there any hesitancy in picking out the photograph of the appellant at the police station. The record shows that the victim had ample opportunity to view the defendant at the time of the incident. She testified he аpproached her car trying to sell her a bottle of “acid” and that he entered her car and forced her to drive to the isolated spot where he raped her. She was absolutely certain of the in-court identification. Fi *852 nally, it was less than twenty-four hours after the incident that the victim viewed the defendant in the lineup and less than twelve hours when she viewed the defendant’s photograph.
Defendant’s second point on appeal is that the trial court abused its discretion in overruling defendant’s motion for a continuance in that a series of articlеs on rape appeared in the St. Louis Post-Dispatch newspaper immediately prior to trial. The articles did not concern this case but referred to rape in general terms and described typical rape situations and the emotional trauma connected therewith.
It should be noted that defendant’s motion was in the alternative in that he requested a continuance or sequestration of the jury. The court did, in fact, sequester the jury. In order to preserve an allegation of error, proper objection must be promptly made and therе must be an adverse ruling.
State v. Holland,
Defendant assigns error to the trial court in overruling his objection to the prosecutor’s statements during voir dire regarding “reasonable doubt.” The remarks to which complaint is directed are:
Prosecutor:
“The burden of proof that the State has is we must establish Hurst guilty beyond a reasonable doubt. Notice I did not say slight, any doubt or all doubt, I said reasonable doubt.” * « * % * *
“Another thing I want to mention, the State has what we call the burden of proof in any criminal case. What that means is it is on the State to establish Hurst guilty, not on Hurst to establish his innocence. And we have to establish Hurst guilty beyond a reasonable doubt.” “Now notice I didn’t say beyond any doubt or beyond all doubt.”
Objections to both set of statements were overruled.
It was improper for the prosecutor to tell the panel on voir dire examination that burden of proof rests upon the State and to differentiate between beyond a reasоnable doubt and beyond any and all doubt.
State v. Van,
In his fourth point defendant contends that the trial court erred in overruling his objection to the prosecutor’s statement during voir dire concerning the purse snatching which preceded the series of rapes and a *853 reference to a false police report filed by a witness endorsed by defendant. An examination of the record shows that the trial court sustained the objection and instructed the jurors to disregard the statement. Defendant’s fourth point is without merit.
In his fifth point on appeal defendant contends that the trial court erred in limiting defense questioning during voir dire. Specifically, defendant argues that he was not given ample opportunity to rehabilitate one venirewoman who stated that she could not sit fairly and impartially as a juror because the defendant was black and the victim was white. Further, defendant contends that his individual questioning of several prospective jurors who had indicated a prejudice regarding race and the crime of rape was erroneously limited by the trial court. The trial court has considerable discretion in the control of voir dirе examination and the appellate court will interfere only when the record shows a manifest abuse of that discretion.
State v. Mudgett,
Defendant's contention that he was not given ample opportunity to rehabilitate a member of the panel is without merit. One venirewoman was excused at the prosecutor’s request after defense interrogation. The record discloses that defendant asked this panel member a number of questions regarding prejudice. We find no error in limiting rehabilitation. After the trial court limited defendant's voir dire of the panel on the topic of rape, all of the individuals who had read something about this crime indicated to defendant that they could reach a verdict based solely on the evidence and that they would set aside any preconceived notions they held regarding the crime of rape.
Defendant’s sixth point on appeal contends that the trial court erred in limiting his opening statement, particularly in the area of credibility of the State’s witnesses. The primary purposе of the opening statement is to inform the court and the jury in a general way of the nature of the case, an outline of the anticipated proof and the significance of the evidence as it is presented. The purpose is not to test the sufficiency or the competency of the evidence.
State v. Fleming,
For his seventh point defendant contends that the trial court erred in admitting into evidence over his objection during cross-examination of defendant photographs of a lineup which did not include the defendant. Defendant claims the admission of these photographs exceeded the scope of cross-examination in that they did not relate to any evidence presented by defendant during direct examination and that they presented a collateral issue to the jury thus denying defendant a fair trial. It is well established in Missouri that the trial court has wide discretion in determining the permissible scope of cross-examination, especially as to matters of impeachment.
State v. Richards,
Defendant further contends that the court erred by admitting State’s exhibit nine and ten into evidence. These were photographs depicting defendant in a lineup with four other black males. Defendant asserts that the issue of identification had been raised in a motion to suppress, which was overruled; and therefore, these exhibits were irrelevant to the trial. Defendant also asserts that these exhibits suggested the criminality of the defendant to the jury and were cumulative due to the victim’s prior in-court identification. The trial court has wide discretion in admitting photographs into evidence and error is only found when that discretion is abused.
Holtkamp v. State,
Defendant’s ninth point on appeal contends that the trial court erred in overruling his motion for a mistrial based on the response of Officer Whaley that he had shown the victim photographs of “previously arrested subjects” and further that the trial court erred in failing to instruct the jury to disregard this testimony for the reason that such evidence was adduced despite defendant’s sustained motion in limine which dealt with this precise issue. The granting of a mistrial is a remedy so drastic that it is reserved for only those cases where the error committed during the course of the trial is so grievous and preju-dical that its effect cannot be removed in any other way. For that reason the granting of a mistrial rests largely in the discretion of the trial court, and an appellate court is reluctant to disturb the ruling of the trial court denying a motion for mistrial except where the trial court has abused its discretion.
State v. Graham,
Defendant further contends in his ninth point that Officer Whaley’s testimony violated the sustained portion of his motion in limine which prohibited any comments regarding mug shots or soliciting any reference to a criminally related background concerning identification photographs. An examination оf the record shows, however, that the trial court sustained only that portion of defendant’s motion in limine to eliminate any indications on the photograph of defendant that it was a mug shot. Defendant’s ninth point is denied.
Defendant’s tenth point assigns error to the trial court’s admission over objection of the testimony of Officer Nancy Hightshoe and the victim concerning identification of the vehicle and residence of defendant. Defendant contends that the evidence was adduced without a proper foundation and was highly inflammatory. An examination of the reсord on appeal shows that defendant objected at trial on the grounds that the question stated a conclusion, assumed facts not in evidence, that the question called for hearsay and was leading. Objections to testimony must be specific and give a valid reason so that the trial court is afforded an opportunity to rule on the point. Further, the point raised upon appeal must be based upon the theory of the objection as made at trial.
State v. Lang,
In his next point defendant contends the trial court erred in permitting the prosecutor over objection to solicit testimony from the victim regarding the other rapes and physical assault because such testimony was irrelevant and immaterial as it was evidence of other crimes to which defendant was not a party. As a general rule, evidence which tends to prove other crimes is inadmissible. This general rule of exclusion, however, does not apply when there is no evidence linking the accused with the other crimes.
State v. Jones,
In his twelfth point defendant contends that the trial court erred in overruling his motion for mistrial after the testimony of Dr. Bruce Bryan, the victim’s examining physician. Defendant аlso contends that the State’s attorney committed prosecutorial misconduct when he asked Dr. Bryan the following question:
Prosecutor:
“And did she tell you that she had been raped?”
*856 Dr. Bryan:
“Yes, she did.”
Defendant objected to the leading form of the question. The objection was sustained. Defendant then requested a mistrial which was overruled. Defendant had, prior to the testimony of Dr. Bryan, made a motion in limine in which he requested the trial court to instruct the prosecutor to inform Dr. Bryan that he should not base his medical diagnosis on the hearsay statement of the victim that she had been raped. The prosecutor stated he would not attemрt to get Dr. Bryan to testify that the victim told him she had been raped. The trial court stated that, “I would naturally hope the prosecutor could avoid the doctor making this kind of statement.” The court deferred ruling on the motion in limine.
The declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court and an appellate court will disturb the action of the trial court only where we find a clear abuse of discretion.
State v. Carlos,
Defendant contends that the trial court erred in denying his oral motion in limine concerning the State’s anticipated rebuttal testimony of the victim and Officer Nancy Hightshoe. After a denial of a motion in limine, a timely objection is required at trial to preserve the point for appellate review.
State v. Johnson,
Defendant’s fourteenth point contends that the trial court erred in not reading cautionary instruction MAI-CR 1.08(b) prior to the morning recess on August 22, 1979. The trial began on the morning of August 20,1979. The jury was sworn in on August 21, 1979, and the court read MAI-CR 1.08(a) as follows:
“It is the Court’s duty to instruct you now upon a matter about which you will be reminded at each recess or adjournment of the Court. Until his case is given to you to decide you must not discuss any subject connected with the trial among yourselves, or form, or express any opinion about it. And until you are discharged as jurors, you must not talk with others about the case, or permit them to discuss it with you or in your hearing, or read, view, or listen to any newspaper, or television report of the trial.
“The bailiff and other officers of the Court are not permitted to talk to you *857 about any subject connected with the case, and you are not permitted to talk to them about it.”
Nine recesses were held during the course of the trial — two on August 21, four on August 22, and three on August 23, 1979. Prior to eight of these recesses, the court admonished the jury by reading MAI-CR 1.08(b) as follows:
“The Court again reminds you of what you were told at the first recess of the Court. Until you retire to consider your verdict, you must not discuss this case among yourselves, or with others, or permit anyone to discuss it in your hearing. You are not to form or express any opinion about the case until it is finally given to you to decide.”
Defendant relies on Rule 28.02(a) which requires the trial court to read MAI-CR 1.08 to the jury before each recess or adjournment of the court. Rule 28.02(e) states that “giving or failing to give an instruction ... shall constitute error, its prejudicial effect to be judicially determined.” A similar issue was raised on appeal in the case of
State v. Abbott,
In his fifteenth point dеfendant assigns error to the trial court’s refusal to give his proffered cautionary instruction on identification. This was a lengthy nine-paragraph instruction centering on the frailties of observation and recollection of personal identification and requiring accuracy of identification beyond a reasonable doubt. The jury was properly instructed by the verdict-directing instruction, the “alibi” instruction MAI-CR 3.20, MAI-CR 2.01 and MAI-CR 2.20. These instructions fully submit defendant’s theory of mistaken identity.
State v. Quinn,
Defendant’s last point on appeal is that the trial court erred in denying a mistrial when one of the jurors informed thе court during deliberations on the verdict that he had not heard a substantial part of the victim’s testimony during the trial. The note from the jury foreman read: “Judge, one of the jurors says he did not hear a substantial part of the victim’s testimony due to a hearing problem. What can we do?” The record shows that the trial court assumed that the particular juror was venireman Williams in that during voir dire this venireman stated he had a slight hearing defect. The court responded to the note in writing that the jury must be guided by the instructions and the evidence. The court also determined that a mistrial was not warranted.
Defendant contends that the trial court committed reversible error in permitting this juror to be sworn in over objection. The record shows that venireman Edward Williams admitted having a slight hearing problem during voir dire. Defendant, however, did not object to the swearing in of venireman Edward Williams because of a hearing defect. The disqualification of a juror because of an alleged hearing defect must be raised before that juror is sworn to try the case. Section 494.050, RSMo 1978;
State v. Schleicher,
The judgment is affirmed.