State v. Hamilton

• Decision Date: 09 May 1990
• Docket Number: 56969,Nos. 52830,s. 52830
• Citation: 791 S.W.2d 789
• Parties: STATE of Missouri, Respondent, v. Fred HAMILTON, Appellant. and Fred HAMILTON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 789

791 S.W.2d 789

STATE of Missouri, Respondent, v. Fred HAMILTON, Appellant. and Fred HAMILTON, Appellant, v. STATE of Missouri, Respondent.

Nos. 52830, 56969.

Missouri Court of Appeals,

Eastern District,

Division Five.

May 9, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied June 5, 1990.

Application to Transfer Denied July 31, 1990.

David C. Hemingway, St. Louis, for appellant.

William L. Webster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Presiding Judge.

Defendant was convicted of five counts of rape and one count of kidnapping. He was sentenced as a persistent offender to thirty years for each rape count and fifteen years for the kidnapping count, all to be served consecutively for a total of 165 years. Defendant also filed a Rule 29.15 motion for post-conviction relief, which was denied. Defendant now appeals both his conviction and the denial of his Rule 29.15 motion.

On October 24, 1985, the seventeen year old victim left her home at 6:15 a.m. to walk to school. As she walked, a man wearing a gray jogging suit and white Nike tennis shoes exited a rust colored van and began following her. She asked him if he was following her and he stated that the police sent him to watch girls when they walked to school. Victim felt something was wrong and began to run. The man caught her, pushed her into an alley and they struggled. During the struggle, victim bit her assailant in the forehead, but she stopped fighting because she became afraid that the man was going to kill her.

The man then took victim back onto the street. When she attempted to attract the attention of a passerby, he stuck something heavy into her side and said he would kill her if she did that again. The man put victim into the driver's side of the van then pushed her onto the floor. He drove onto a highway and stopped at a deserted parking lot.

The man then took victim to the back of the van, undressed and ordered her to undress. He laid her down on a bed and had intercourse with her five times, with a period of time between each act. After the first and second acts, the man made victim masturbate him. After the third act, he rested while victim became ill and vomited on some red cloth and out the window of the van. After the fifth act, the man wiped victim off with a red cloth, told her to get dressed and drove to a different street. The man released her with a warning not to look back. Victim then ran to a nearby bank. The security guard at the bank testified that he let victim inside shortly after 9:00 a.m. and called the police when she said she had been raped.

Victim was taken to the hospital where it was determined that sperm was present in her vagina. Victim then assisted a police artist in producing sketches of her assailant and his van.

One month later, appellant was apprehended as a suspect in this case. Appellant matched victim's description of her attacker and he also had a scar on his forehead. Victim identified appellant in a four-person lineup and also identified his van. When apprehended, appellant's van contained certain items matching victim's account of the assault, including red rags, blue work clothes, a bed or couch, a redi-mix tool chest, gray sweats and white tennis shoes.

The state presented evidence of the above facts at trial. In addition, a criminologist testified that based on saliva tests, he determined both victim's and appellant's blood types. He also tested the semen stains from victim's underwear and determined that appellant was in the 61% of the male population who could have left the stain. The criminologist, Joseph Crow, came to this conclusion because victim was a type B secretor and he found B and H antigens in the semen. Thus, a B or O blood type or a non-secretor could have committed the crime. Appellant was determined to be a B blood type.

The defense did not present any evidence, but was able to expose some discrepancies in the victim's initial descriptions of her attacker and his van and the actual appearance of appellant and his van. The jury found appellant guilty of one count of kidnapping and five separate counts of rape.

At the sentencing hearing, the court addressed a defense motion for new trial based on newly discovered evidence. This evidence consisted of army records indicating that defendant received the scar on his forehead in an auto accident and that appellant's blood type was O positive, not B. Joseph Crow then testified before the court that he re-ran his tests and found he had made an error in typing appellant, victim and the semen stains. He was able to determine appellant's and victim's blood types, but the semen stain had been destroyed or so diluted that he could not run a dispositive test. The result of this was that he could not isolate which blood types might have committed the crime. The court denied the motion for new trial, noting that victim's identification of appellant had been overwhelming evidence which rendered the blood tests and scar evidence minimal. The judge then sentenced appellant to thirty years on each rape count, which was the minimum sentence due to appellant's prior offender status, § 558.018.3, RSMo 1986, and fifteen years on the kidnapping count. The court rendered all these sentences to be consecutive under the belief that section 558.026, RSMo 1986, so required.

On January 29, 1988, appellant filed a pro se Rule 29.15 motion for post-conviction relief. The motion court appointed the public defender to represent appellant on March 3, 1988 but on March 11, the public defender was excused and the special public defender assumed the case. The court granted counsel until May 10 to file an amended motion. The motion was filed on that date and a hearing was held in September of 1988. The court denied the motion on November 7, primarily because it found that even if appellant's claims of ineffective assistance were true, he had suffered no prejudice.

Appellant now appeals the denial of this motion as well as the judgment in the underlying action. These appeals have been consolidated and we will first address appellant's direct appeal.

I

Appellant's points I and II on direct appeal concern the trial court's response to the evidence of state expert Joseph Crow's mis-typing of appellant's and victim's blood. First, appellant claims the court erred in denying a new trial because the new evidence required a new trial.

Newly discovered evidence may require a new trial, but that result is not favored and is left to the discretion of the trial court. State v. Amrine, 741 S.W.2d 665, 674 (Mo. banc 1987). One of the things which a defendant must show before he is entitled to a new trial is that the newly discovered evidence is so material that it would probably produce a different result upon a new trial. Id.

That showing has not been made in the case at bar. The trial testimony showed appellant to be within the 61% of the male population who could have committed the crime; Mr. Crow's testimony after the new tests revealed that any male could have committed the crime. While the latter testimony is marginally in appellant's favor, the practical import of both is the same: neither test exonerates appellant and neither test clearly implicates him.

Appellant attempts to argue, in this point and throughout his briefs, that the identification evidence was weak and thus attempts to give more import to his claims of error. He places great emphasis on the discrepancies between victim's description of her attacker and appellant's appearance. Appellant ignores the many consistencies between himself and victim's initial report to the police. Appellant also fails to account for the fact that victim was in her attacker's presence for two and one half hours; it is reasonable to believe she could recall his features well enough to recognize him. In light of the strong similarities and identification, the discrepancies in victim's testimony appear to arise from the fact that she was distraught when she gave the original description and not from any inability to recognize appellant as her attacker.

Given the strong identification testimony of the victim, it is not probable that a new trial would have any different result. The trial court did not abuse its discretion in refusing a new trial.

Appellant next claims the court erred in holding that appellant was not denied a fair trial because false testimony was admitted and thus the conviction was manifestly unjust. State v. Mooney, 670 S.W.2d 510, 515 (Mo.App.1984). The false testimony referred to is Joseph Crow's trial testimony.

The law concerning false testimony applies to situations where a witness committed perjury at trial and the state knowingly used the perjured testimony. Ray v. State, 644 S.W.2d 663, 667 (Mo.App.1982). Appellant's reply brief claims that this point of law is cited merely to show how repugnant false testimony is and cites Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), in an attempt to extend this rule of law to condemn all mistaken testimony as well. Neither that case nor any other this court is aware of makes that leap of logic. As Napue itself states, the law concerning false testimony arises because the concept of ordered liberty cannot allow the state to knowingly use false evidence to obtain a conviction. 79 S.Ct. at 1177. There is no indication here that at the time of trial Joseph Crow's testimony was known to be false either by the state or by Mr. Crow himself. The law concerning false testimony is inapplicable to this case.

The court came to a similar conclusion in Trotter v. State, 736 S.W.2d 536 (Mo.App.1987). Trotter was convicted of murdering a police officer. At trial, a ballistics expert testified that the .357 magnum gun received from another person fired the .38 caliber slug which killed the police officer. After trial, the expert conducted tests on the victim's .38 caliber gun...