McDonald v. State
| Decision Date | 14 June 1973 |
| Citation | 307 A.2d 796 |
| Parties | Jacob McDONALD, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
Upon appeal from Superior Court in and for New Castle County.
Henry A. Wise, Jr., and William J. Taylor, Asst. Public Defenders, Wilmington, for appellant.
Jerome O. Herlihy, Chief Deputy Atty. Gen., Wilmington, for the State.
The defendant appeals his conviction of first degree murder and rape.
The defendant entered the apartment of the deceased, her daughter, and the daughter's infant son, around 12:15 p.m. He slapped the daughter and threatened the deceased, and forced them into a bedroom. He then bound and gagged the daughter.
The defendant then forced the deceased into the living room. The daughter, still bound in the bedroom, heard her mother groaning. In about five minutes, the defendant returned to the bedroom for a pillow, which he took into the living room. The mother began groaning again and begged to be left alone. In a short while, the daughter no longer heard her mother.
The defendant told the daughter her mother was dead and then brought her to the living room. She saw her mother, apparently dead, on the couch with her dress pulled up. The defendant's leather jacket and belt were nearby. The defendant and the daughter moved the deceased's body to the bedroom.
The defendant then made the daughter cook him some hot dogs. After eating, he then raped the daughter and left the apartment, about an hour and a half to two hours after he first entered.
An autopsy of the deceased performed around 4:30 p.m. revealed live sperm in her vagina. The motility of the sperm indicated that they were three to four hours old.
The autopsy indicated that the deceased had been smothered. There were indications that she struggled while being smothered. In addition, the deceased suffered facial injuries.
The daughter was also found to have had recent intercourse.
F.B.I. tests established that fibers found on the defendant's shirt were similar to those of articles at the crime scene.
The defendant presented several witnesses who claimed he was home at the time the crime occurred. He raises, essentially, four arguments in attacking his conviction.
First, he argues that it was error to refuse to order the daughter to submit to a psychiatric examination. The argument is based on the fact that the relatively young (17) daughter had previously, on two occasions, accused men of rape. On both occasions, no action was taken against the accused.
The matter of ordering such an examination is within the discretion of the Trial Court. See Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838 (1966); State v. Klueber, 81 S.D. 223, 132 N.W.2d 847 (1965); State v. Clasey, 252 Or. 22, 446 P.2d 116 (1968).
We find no abuse of discretion here. The jury knew that the daughter had twice previously made unsubstantiated claims of rape. This left the issue to the jury purely on the basis of credibility. Since there is no showing of any compelling reason to the contrary, there is no abuse of discretion in the refusal of the Trial Judge to order a psychiatric examination of the witness.
The defendant next argues that it was error to join the murder charge and the rape charge at his trial because they were two separate crimes, committed against different individuals at different times. The essence of the argument is that evidence of one crime is inadmissible in the trial of the other.
A motion for severance is addressed to the sound discretion of the Trial Court. Jenkins v. State, Del.Supr., 230 A.2d 262 (1967). We find no abuse in refusing to sever the offenses.
The criminal activity of the defendant with respect to the two crimes was so inextricably intertwined so as to make proof of one crime impossible without proof of the other. Thus, the joinder was proper. Bantum v. State, 7 Terry 487, 85 A.2d 741 (1952). The mere fact that the crimes were 'separate', committed against different individuals with a lapse of time between them, does not require severance. Indeed, such was the case in Bantum. 1
Next, the defendant urges that the Trial Court's instruction on the felony-murder rule 2 was erroneous. The Trial Judge instructed the jury as follows:
'You are further charged that it is not necessary, in order for you to return a verdict of first degree murder, for the State to prove that the defendant, Jacob McDonald, intended to kill Francis Elliot, also known as Frances Dickerson, but simply that the killing occurred as part of the rape or in furtherance of the commission of the rape or to conceal the rape.'
Relying upon State v. Opher, 8 W.W.Harr. 93, 188 A. 257 (1936), the defendant argues that a murder committed to conceal a rape does not come within the felony-murder rule. But, according to the argument, such a murder comes within the ambit of the Trial Judge's instruction.
In Opher, the defendant raped or...
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