State v. Olds

• Decision Date: 09 September 1980
• Docket Number: No. 61432.,61432.
• Parties: STATE of Missouri, Respondent, v. Robert Nathaniel OLDS, Appellant.
• Court: Missouri Supreme Court

603 S.W.2d 501

STATE of Missouri, Respondent, v. Robert Nathaniel OLDS, Appellant.

No. 61432.

Supreme Court of Missouri, En Banc.

July 15, 1980.

Rehearings Denied September 9, 1980.

Peter Stragand, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.

Opinion Modified On Court's Own Motion.

HIGGINS, Judge.

Robert Nathaniel Olds was convicted by a jury of first degree murder, § 565.003 Laws of 1977¹; statutory rape, § 559.260, RSMo 1969; attempted statutory rape, §§ 556.150 and 559.260, RSMo 1969; and two counts of kidnapping, § 559.240, RSMo 1969. His punishment was fixed at life imprisonment for first degree murder, fifty years for statutory rape, ten years for attempted statutory rape, and ten years for each count of kidnapping. Sentences and judgment were rendered accordingly with sentences to run consecutively except for one kidnapping count.

Appellant charges error to: (1) his arrest, (2) the search of his automobile, (3) his interrogation, (4) sufficiency of evidence to convict of attempted statutory rape, (5) failure to instruct on second degree murder and manslaughter, (6) conviction of felony murder and the underlying felony, and (7) closing argument by the State. Judgment affirmed except for the conviction of kidnapping underlying the felony murder.

On Friday, February 24, 1978, eleven year olds Kim Benton and Kathy Robinson lived a few houses apart on the north side of the City of St. Louis. At approximately 4:30 p. m. Kim and Kathy were walking west on Pershing Street toward a nearby market to purchase orange juice for Kim's mother. Defendant was parked on Pershing Street.

Defendant was a six foot one inch, huskily built, dark complexioned, black male, weighing more than 200 pounds, with short, black hair, sideburns, and a short beard. His car was a dirty brown-colored Chevrolet station wagon with brownish seats and a large whip antenna. The side windows were covered by a protective screen mesh and the back ones with brown curtains. The rear section contained a bed. A pine tree-shaped air freshener hung from the rear view mirror and beneath the dashboard was a C.B. radio.

As the girls passed by, defendant called out to them and asked where they were going. Kim told defendant she thought she recognized him as having come out of the 7th District police station earlier that day. Defendant explained that he was a plain clothes police officer. When the girls told defendant they were going to the grocery store, he gave them fifty cents and asked if they would buy him a Twinkie. They purchased a small confection, brought it to defendant in his car, then returned to the store to buy the orange juice. On their way home, defendant again called out to them from his parked car. He told them there was a bug in his cake, that he wanted them to return it, and persuaded them to accept a ride back to the store. When the girls got into the front seat of the station wagon, defendant made a U-turn and parked his car behind nearby vacant buildings.

He ordered the girls to undress; they complied. He forced Kathy to lie across his lap face down and tied Kim up with her own clothes, stuffed cloth into her mouth, put a sweater over her head, and pushed her onto the bed in the back of the station wagon; he then did essentially the same to Kathy. The girls were told to keep quiet or they would be killed.

After driving for a time, defendant stopped the car and got into the rear section with the girls. A short time following, Kathy cried out loudly. An autopsy later revealed blood on her legs in the pubic area, a ripped vagina, and semen within.

Defendant got back into the front seat, returned to the back, and turned his attention to Kim. He removed the sweater from her head and she saw that he was naked at least above the waist. He took off the pants binding her legs, told her to raise her legs, and tried twice to force the girl's legs apart. Unsuccessful both times, he asked her what was the matter, tied her up again, and returned to the front seat. A few minutes later he started driving again.

Sometime after 8:30 p. m. defendant stopped and took Kathy, naked, bleeding and crying, out of the car. Kim, still inside, freed her hands and peered out the side window through a hole she scraped in the frost. Outside, she saw Kathy leaning up against a pole. Defendant was hitting her about the head and face with a large screwdriver; Kathy cried and screamed. As defendant continued to hit her, she slid down the pole. Finally, the beaten child slumped over and her crying stopped.

Defendant left her there in the snow, returned to the car, told Kim to get into the front seat, and drove onto U. S. Highway 40. He bundled up all the clothing except for Kim's coat, which he told her to put on, wrapped it in the white sheet from the bed in the rear, and tossed the bundle into a ditch. He then asked Kim some questions and wrote the name, address, and telephone number of her mother on a page in a music book. Near McKnight Road, defendant put Kim out into the snow wearing only her overcoat. She climbed up the embankment next to the highway where, after trying unsuccessfully to flag down cars, she just stood looking down.

Sometime later a passing motorist stopped to help the child and called the police. Kim was taken to the police station where she gave a detailed description of defendant and the station wagon. Based on that description the following bulletin was issued and was broadcast periodically:

Wanted, negro male, thirty-five to forty years of age, six foot one, weight, two hundred and forty-five pounds. It's got a big abdomen. She said a big belly. Short black hair, Sideburns to the bottom of his ears. Short, neat beard that started slightly below the ears. Wearing green work clothes or coveralls that button to the waist, and some teeth missing from the rear of his mouth. Wanted subject was driving a dirty, light green station wagon, possibly Ford. The windows on the driver's side and passenger side in the front have some sort of protective wire screening, and there is a bed in the rear with rollers. Under the dashboard is a CB sender with a red light in the upper part of the radio. There is a gray toolbox that did not have a lid as related by the witness. The vehicle has a long whip antenna on the right side. Witness also related that the assailant was wearing brown leather gloves and driving a vehicle having some sort of brown or beige curtains in the rear of the station wagon.

At about 11:30 p. m. Ladue police found the bundle of clothes and white sheet along U. S. 40, one-half mile east of McKnight Road. At approximately 12:20 p. m. the next day, Saturday, February 25, 1978, Officer Hoover on mounted patrol saw the nude body of a little girl with a white cloth tied around its neck lying half on the bank and half on the ice at the base of a bridge in Forest Park. She was pronounced dead on arrival at City Hospital. The body was later identified as that of Kathy Robinson. The cause of death was strangulation, blunt trauma to the head, and laceration of the vagina.

Officers Schmittgens and Wood were on patrol in the City of St. Louis later the same day. They heard broadcast the description of defendant and his car and recognized it as similar to a vehicle and driver they had stopped a month earlier. They called their sergeant and defendant's vehicle was located parked on the north side of the city. After observing its similarity to the radio description, Sgt. Forsting assigned Schmittgens to watch the car while he and Wood left to contact homicide officers. Fifteen minutes later defendant and a juvenile got into the car and drove away. Two blocks later they were stopped. Defendant got out without being asked to do so. Schmittgens told defendant he was being "stopped for an investigation" and patted him down, finding no weapons. At the pre-trial suppression hearing, Schmittgens testified he did not arrest defendant and that he was free to leave any time.

Two or three minutes later, detectives from homicide arrived. Defendant was arrested, handcuffed, advised of his rights, and taken to the police station. Although officers looked into the vehicle at the scene of the arrest, and one door of the car was opened, no one entered the vehicle and nothing was seized. The car was towed to the police garage where Kim identified the vehicle and a number of items within. For the next five hours the Evidence Technician Unit thoroughly searched the car without a warrant. Found inside and seized were blood and semen stains, the music book containing the name, address, and phone number of Kim's mother, the mattress and blanket, the car air freshener, toolbox, briefcase, brown gloves, C.B. radio, pillow, Kim's panties, and a screwdriver with blood on it. Numerous photos were taken of the inside and outside of the car. Over defense objections, all of this evidence was admitted at trial.

At the police station, defendant was again advised of his rights and signed a consent to the search of his residence. Defendant accompanied two officers who searched his apartment and seized several items. They went from there to the police garage, then back to the station where defendant was given his rights again and questioned. He denied everything. At 8:45 p. m. the questioning stopped for a line-up, in which Kim positively identified defendant from a line of six subjects. He was returned to the homicide office for another fifteen or twenty minutes of questioning.

On the afternoon of the next day, defendant again requested he be taken to the homicide office. There he was read his rights and agreed to make a tape recorded statement. On this tape, played at trial, defendant admitted picking up the two girls, that something happened that should not have, that he had disposed of a body in Forest Park and released a girl on U. S....