*1 two, mend he make the denial of relief on that three course done, clearly should have and under circum- erroneous. these stances and all of the evidence that I have Judgment affirmed. today heard here feel Hontz that Mr.
did charges understand nature of the C, WELBORN, plea concurs. and that he did voluntarily enter his guilty charges both and that he was PER CURIAM: effectively represented by counsel. will
“The motion be overruled.” HIGGINS, C., foregoing opinion by adopted opinion of the court. is The evidence has been stated in Judges All of the concur. some detail it demonstrates because proof burden of movant failed findings
that the court’s and denial of relief clearly
are not erroneous for either supra ;
asserted reasons. Rule State, Mo.,
Crosswhite v. 426 S.W.2d 70. not
Appellant entitled relief is In the under his Point I for two reasons. Missouri, Respondent, STATE of respect testimony place, the first bearing on jail conditions whether by the statement pleas is shown guilty Appellant. MITCHELL, Albert Junior conflict, resolved to be in No. 56908. conflict, and such not such resolution Supremo Missouri,
clearly erroneous this record. Court of Second Court en Banc. ly, jail dissatisfaction with conditions and hope change by entering the better March 1973. guilty plea are not factors to be con plea determining sidered in a guilty whether State,
was voluntarily entered. Collins v.
Mo., 186, 190, quoting 450 S.W.2d Verdón States, Cir.,
v. United 296 F.2d
Appellant is not entitled relief because, contrary Point II to his
under his
assertion, “clearly the record does not es two-year promised that counsel
tablish” parole. Com
concurrent sentences and a Rose, Mo.,
pare State v.
At is in conflict with “promised” to whether counsel two- opposed
year concurrent sentences as for,
request of, or recommendation such
sentences, Similarly, which he did make. discussed, actually parole, matter of nothing
could have judg been more than a showing
ment counsel. a record pleas
as this guilty one does voluntarily, assertions,
entered such shown evidence, conflicting best do only *2 Danforth, Preston Atty. Gen., C. John City, Gen.,
Dean, Atty. Asst. Jefferson respondent. for Ma- Dillard, Everett Van Howard S. R. appellant. tre, HIGGINS, Commissioner. Mitchell, charged Albert Junior by jury which rape, was forcible convicted im- years’ punishment assessed judgment prisonment. Sentence accordingly. V.A.M.S. rendered § 1972.) January (Appeal taken bed, I asked, your brought I use points man ‘Can presents his Appellant’s statement Mrs. Simms’ was sufficiency you something.’ Then appeal and demonstrates in the bedroom and forced down on the bed as well: his conviction to sustain ‘raped again.’ leave Mrs. Simms wanted to day June, Lorene 3rd “On get medicine. After some some heart *3 ** * Simms, at years age, lived said agreed discussion but that the man * * Missouri *. minutes he she wasn’t back five that young day a colored of that late afternoon would kill went home and her. Mrs. Simms apartment front door. her man knocked The Bells neighbor, called Alvin Bell. a taxi. phone call He to use the asked police came over and the were called. re- just that he had He Mrs. Simms told came, into Mrs. Two officers Simms’ She dialed turned from Vietnam. apartment and the other outside. She told ain man was dressed for him. The number police happened. step- Later what she outfit, same as the defendant khaki Griffin, ped Sergeant outside and one of cab talking trial. After wearing at officers, police pointed out the defend- apart- company left Mrs. Simms’ the man custody ant who was in the of Lieutenant 4:25 about 4:20 or time was ment. The Park front Williams’ home Walter 4:30 p. returned about The same man m. and said: have the man in custody, ‘We phone again to p. use the He asked to m. there he is now.’ She identified defend- Simms, Mrs. which gave he (cid:127)call number ant in court as the man had who attacked ap- The number for him. she dialed Mrs. her. Simms was taken from her home leaving instead of but parently out of order hospital to the she where was examined ** *. television just and watched he sat Dr. highly Garcia. He found her to be and again number tried Mrs. Simms excitable, nervous and with a contusion of man got At this busy signal. eye swelling the left cheek and and of the remarks to Mrs. Simms vulgar some made throat, vaginal and abrasions of the inlet. choking her. then came over and started An vaginal specimen examination of a pushed away and ran Simms Mrs. sperm revealed vagina. in the caught but toward the front door “Defendant was arrested Lieutenant glasses her were struck the man and Park at the home. When the Williams’ knocked off. fainted and came She asleep in a arrived he was chair be- lying kitchen where she was tween the living room hall. He tearing floor and man was off wearing clothing khaki and his trousers penetration of There was underclothes. were undone. testified Walter Williams organ by organ sexual the sexual that the defendant and Mrs. Simms had trying push the man. Mrs. Simms was come from her earlier that evening, house got up he away. man The man when that brought ‘Albert Mitchell her down wiped finished, had off with himself there.’ panties. man Mrs. Earlier the Simms’
had told Mrs. name Simms his “The clothes were submitted knew a Eddie She lived Williams. Williams * * * for Positive examination. reaction nearby. This man Mrs. Simms’ for seminal found on the fluids was under- sleeve, scissors, them under his concealed Also, positive wear shorts. seminal fluid told Simms to make noise reaction on Mrs. Simms’ was obtained around or he would her with look stick panties blood on her and dried dress. apartment They left Mrs. Simms’ them. past housing other units walked Sulgrove, “Sheriff of Audrain Harold * * * adjacent to Mrs. home and entered Simms’ County, that the khaki testified ** * unit. she saw third There in court clothes the defendant wore wearing been lying living room the same that he had Walter clothes Williams arrest. Sheriff shortly ever since whiskey bottles on floor. some proof of constituted prejudicial, and County, legally had Price, Randolph who Orville separate and distinct crimes. custody for several had trial, testified that months brought the County Audrain Sheriff rule general recognized the in court clothes Mitchell wore separate proof commission of the Saturday County Randolph Jail admissible, un is not distinct crimes Mon- commenced preceding the tendency legitimate some proof less such has day, March guilt directly the defendant’s establish trial. That charge which he is on testified, of the ob- over Price also “Sheriff of other recognized that case also the defendant jection, that overheard specific prove competent to crimes is prisoners other making statements to some *4 motive, to establish it tends crime when good how as 'From an old woman follows: accident, intent, com of mistake or absence was, just guilty as his cousin per of plan, mon scheme or was, they drunk he and that both half were of charged commission son with the not had happened.’ when it The Sheriff crime trial. place reported which the conversation took 1971, Prosecuting At- January, to the made a In this case defendant torney night he until the testified. identity and, his as will be seen issue of point, appellate by an his next he makes also opening argument “In point posture, such of his identification. In Prosecuting Attorney stated that rape, closely the evidence of the second evidence had shown that the defendant following rape for he was on raped East Central and Mrs. Simms at 507 competent to show would have been ripped then used ‘First he these words: had for, opportunity and the identification undergarments off her he and then after of, rapist.1 as the As con raped wiped her her he himself off with sequence, trial favor to defendant obtained pants. picked up pair Then of scissors which he not the court entitled when her forced out the back door objections sustained his instructed the and that the defendant took Mrs. Simms disregard to the second references 515, place down, a couple of doors area, it is in the same will we have some there, you, pictures to show her point 3, By appellant complains of the persons apartment, there were in this other refusal of the court strike the in-court project this is a area in and there identification of defendant the com- on a again.’ bed The defendant His plaining argument witness. is that the objected Prosecuting to the statement of conduct of the at the time of arrest Attorney and moved for mistrial.” suggestive tainting of in-court identification. See United States By points appellant 1 and 2 charges the Wade, 218, 1926, v. 388 U.S. S.Ct. 18 87 refusing with error in his motions for 1149; Denno, L.Ed.2d v. Stovall 388 U.S. going mistrial the State’s 293, 1199; 1967, 87 S.Ct. 18 L.Ed.2d Gilbert ment and the com- evidence California, 263, 1951, v. 388 U.S. 87 S.Ct. 18 mitted a second at a later time L.Ed.2d 1178. a different than the on trial. His argument is that statement Appellant’s argument au proffered inflammatory, applicable evidence il- thorities are not to this case. By way robbery distinction, 1. the reversible er some ed at a different location 1221, charged ror in v. State Mo. hours 364 274 after murder. 304, admitting Such, obviously, S.W.2d occurred bore no relation iden attempted tity irrelevant of an arm murderer. 296 was, therefore, identified her assailant a short related Simms sheriff. assault, purview
time within the commission Miranda v. assault, Arizona, virtually 436, 1602, at the scene of the and as 384 86 16 U.S. S.Ct. L.Ed.2d State, the arrest occurred. Prior to those inci- Gregg Mo., v. 446 S.W. 630, Mo., 2d [1, 2]; Peck, her assailant-to-be when 632 dents she seen 429 door, 247, he knocked on her in his conversation S.W.2d [6, 7], 250-251 Vietnam, about return as he used his from twice, telephone as he watched trial court (b), television, assault, and at at the time of the determining invested with discretion in addition, completion. its she noted cross-examination, the extent of State v. appearance clothing. circum- Such Mo., 710, Davenport, and no S.W.2d in- gave stances defendant’s victim an abuse such discretion is shown since dependent source and basis for her identifi- question matter arose cross- from cation of defendant both at the time examination general of a defense witness trial; by sug- arrest and at taint opposed himself, to defendant so,
gestion,
effectively
overcome
West,
221,
S.W.2d
Mentor,
independent
such
basis. State v.
[2-4],
818-820;
Mo.,
United
Wade,
supra,
States v.
examination of the he had tes- C., when sheriff concurs. directly only
tified on the matter where obtained; (c) clothing
defendant’s PER withholding CURIAM: tactics of inculpatory statement until sheriff was HIGGINS, opinion The foregoing by clothing called as a defense on witness C., adopted opinion of the Court prior warning issue without that such testi- en Banc. mony was available. All concur except SEILER, J., who dis- argument, appellant admits no “that in separate sents dissenting opinion filed. directly point case can be found to bolster claim(s) on 4.” SEILER, Judge (dissenting). circumstances, In these say: suffice to circumstances of a crime are like-
Where ly passion, to (a), hostility to the statement arouse the court product interrogation, was not a but was should exercise the with re- utmost care voluntary a by gard statement made defendant to the fairness of the trial. This a prisoner, here, and, to result, fellow overheard not done as a effectively rapes punished tried and for two had before jury The thus rapes young negro, under guise being tried for a old widow year a 69 one. be supposed to he was when instructed the court is true rape, but disregard the second jury charged rape Defendant oc- with a accurately quoted in the oft put as so Central, curring Missouri. Krule- ment made Mr. Jackson Justice statement, However, 453, States, 336 U.S. witch United prosecutor, relating of the details “ . . . L.Ed. 790: 69 S.Ct. rape at then said: “Then ef- assumption that prejudicial The naive picked up pair of scissors and forced by instructions fects can be overcome out the back door that the de- lawyers practicing ... all fendant place took Mrs. Simms .” . unmitigated . known be fiction couple down, 515, of doors it is in here. So it is area, same we pictures will have some you, there, show per- there were an un- years for The sentence of 75 sons in apartment, proj- this other is a this mature of a widow complicated rape ect area Mexico, and there on a bed aggravating particularly no circumstances her again.” rape) demonstrates (except second inflammatory the second effect ruled objected. Defendant jury.1 show prosecutor permitted be would place. “was at the other Just question agree do not there it, there”, over- minimize what took of defendant involved objection, ruled defendant’s and instructed justify permitting would evidence of as to “disregard statement oppor- necessary to second show *6 subsequent a offense.” prosecutrix to tunity part on the the him, court,
identify the trial nor did rape the reference to the considered second During the direct examination of the improper, its to shown direction prosecutrix, after she had related the de- jury disregard There was to it. never rape tails of the she told identity slightest question of this case. being about to forced to 515 Central and prosecutor mention first made When then, in an unresponsive ques- answer to the rape opening of the second in the tion, there in the living “What was room?' ment, sought on the justify it not there?”, stated, Was there a bed she necessary ground that it establish describing living room at 515 Central identity, but all on the that it was and contents, some of Mitchell “And its one continuous act and therefore admissi- said, Walter, bed, your Uncle can I use I prosecutrix ble. When the was asked brought you something. And Uncle Walter prosecutor identify she just mumbled, so I was forced on the ob- so without hesitation and did without right bed and again there.” jection from On cross-exam- defendant. prosecutrix ination steadfast Again the overruled defendant’s nowas identification of defendant. There in- objection request and for and mistrial effort made to shake her identification jury structed the “disregard the last prosecutor it was not The asked shaken. statement of the witness at this time.” policemen prosecu- one of the whether the charges rape pending argument that are still at oral second We informed against defendant. getting it into evidence identification, guise of under the hesitant in her
trix was oppor- other victim had that the quick to show was that “she was answer the defendant who tunities to observe him, yes.” identify robbery degree prosecuted for a first being statement, state’s During the Louis, Vandeventer, St. occurring at relating how the prosecutor when the the victim brought out from the state hack arresting took defendant officers occa- other on two he had seen defendant was, coun- defendant’s where Mrs. Simms Kennerly, sions, Vandeventer contrary to the Unit- objected sel this was again him, robbed where defendant sug- about Supreme Court cases ed States him. robbed alley, defendant also an where court over- gestive The confrontations. rob- already testified to The victim objection was objection. This ruled he rec- and that bery at 1425Vandeventer case repeated at the state’s close of up, ognized the man who held object- also again overruled. Counsel bring before error ruled reversible his tell- recital of ed to the officer’s other crimes. jury they had ing they believed Mrs. Simms This “there he is now.” the man and that no need us, there was In the case too was overruled. prosecutor or justification for the sec- prosecutrix about to tell hopeless objections These technical and permit rape it. ond and we should defense counsel to conduct easily shown that state have could way they displayed officers defend- loca- at another Simms was with ant to after the arrest did not Mrs. Simms first after the period time tion way justify prosecutor or Mrs. second rape bringing out the without bringing rape before Simms in the second Getting rape before the second jury. The state’s claim there was trial. having a fair kept defendant from issue of is no more than an doubt as to shows no It is true the record man, afterthought or a in the knock- straw must insist on guilt. But we ing prejudicial down of which the guilty. are fair trial for those who even second held admissible.2 forego judicial might as well Otherwise we authority majority Under in the cited police. guilt up to the trials and leave opinion, respectfully dissent and would reverse the second is inad- remand. *7 missible, . If because it holds “. . identity of the accused is established to be reversed If case is long- favor other evidence is therefore no then I would be remanded, years, er an un- improper it is issue, punishment to admit to 25 reducing the theory proving V.A.M.R., other crimes on the der Rule ” than, . this Application greater . . punishment assessed case, principle recently ought made in the circumstances under Hudson, where, (Mo.Sup.) 478 S.W.2d to be inflicted. majority
2. The state its brief and the of defendant tification opinion, upholding scene, in-court iden- minutes within few by prosecutrix, supports tification the in-eourt iden- This arrest. tification, many opportunities question. out also without prosecutrix defendant, notice real issue or there was never shows appearance, dress, size, voice, dispute etc. in this as to rape, positive identity. to either and that her iden-