State v. Adams

• Decision Date: 08 June 1964
• Docket Number: No. 50379,No. 2,50379,2
• Parties: STATE of Missouri, Respondent. v. Elvin Wayne ADAMS, Appellant
• Court: Missouri Supreme Court

Page 362

380 S.W.2d 362

STATE of Missouri, Respondent. v. Elvin Wayne ADAMS, Appellant.

No. 50379.

Supreme Court of Missouri, Division No. 2.

June 8, 1964.

Rehearing Denied July 13, 1964.

Thomas F. Eagleton, Atty. Gen., Jefferson City, and James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.

L. L. Bornschein and Charles M. Shaw, Clayton, for appellant.

EAGER, Judge.

Defendant was convicted of rape and, after a finding by the Court of prior felony convictions, he was sentenced to life imprisonment. His motion for a new trial had previously been overuled. Defendant was represented at the trial by able appointed counsel; no brief has been filed here, so we examine the merits of all sufficient assignments of error contained in his motion for a new trial, and also those parts of the record required by Rule 28.02, V.A.M.R. Such has long been our universal practice.

The record is lengthy, but we shall need to recite such facts as are necessary for a determination of the sufficiency of the evidence, since that point is made. Shirley Hartupee, her husband Tom, and their three-year-old daughter had been living for about a month in Unit No. 7 of the Twin Oaks Tourist Court, at 1226 South Kirkwood Road, in the City of Kirkwood. Shirley worked at the Katz store in Kirkwood but had not been working on the day involved here, February 22, 1963. The husband worked at a service station from midnight to 8:00 a. m. Each of them was 20 years old; at the time involved here their child was at her grandmother's. On that day Shirley (whom, for convenience, we designate as such) engaged in more or less ordinary activities during the day and early evening and at approximately 11:00 p. m. she was at home ironing her husband's uniform. He, the husband, had been sleeping since some time in the afternoon; Shirley awakened him so that he could get ready to go to work, but he had not yet gotten up. At about 11:15 a friend of Shirley's, Greta Jean Buchanan, who, with her husband, also lived at the Twin Oaks, came in; she was employed at Katz and had just left work at 11:00 o'clock. Apparently neither the inner door nor the glass storm door was locked. When Greta entered, she apparently closed the storm door but left the inner door open or partially so.

The unit consisted of one medium sized room, a kitchen or kitchenette adjoining it with merely an opening between, and a bathroom separated by a door. In the main room there was a double bed, a dresser or chest of drawers, one or more chairs, a bench, and perhaps other furniture. There was a built-in wash basin in this room with a light bulb over it; there was another light in the bathroom. Both were apparently turned on and off by means of short chains. There was only one outer door to the unit; the motel or tourist court consisted of several separate buildings and there was only one other unit in this particular building.

Greta testified: that she had just come in and talked a few minutes (with Mr. Hartupee still in bed) when 'a colored man came in the door. And he had a gun in his hand and he said, 'Don't move, turn around, or I'll you.'' What we now relate is a composite digest of the testimony of the three persons, Shirley, her husband and Greta. The man pushed Shirley over by the dresser, Tom raised up, and the man told him to 'lay down and cover up his head'; the man then turned off the bedroom light, pointing the gun at Shirley, holding it at one time so that it touched her ear. At that point a second man, also a negro, came in the door. We interject here to say that this second man was positively identified as the defendant Adams. The first man to enter was later identified as one Frank Spears. Adams told the first man to hold the gun on the man in the bed, which he did; Adams then pushed the two girls into the kitchen, holding them by their necks, and demanded their jewelry and money; they gave him two rings, one a wedding ring and one a class ring; Shirley told him there was money in a billfold on the chest of drawers. This man then took the two girls back into the bedroom, and pushed them down so that their knees were on the floor and their heads were in the seat of a chair, while he looked for the money; in this process things were thrown around and generally disarranged; after a short time this man (Adams) 'jerked' Shirley up off the floor and had her look for the billfold, keeping his hand on the back of her neck. During much of this time she had been telling the man to take the money and get out. When she did not find the billfold, he, Adams, pushed her 'back down on the chair.' Soon thereafter Adams began taking liberties with Shirley, feeling under her sweater while holding one hand on her neck, and telling her to take her clothes off. This she refused, crying and pushing at him and telling him to leave her alone; he succeeded in pulling all her clothes down from the waist ('slim jims,' a pantie girdle and a sanitary belt), pushed her across the bed, jerked her up, and then pushed her down on the floor on her back, telling her repeatedly that 'they would kill us if I didn't be quiet.' In this situation he proceeded to have sexual intercourse with her, as definitely established by her testimony. During this time she, in her own words, 'kept pushing at him and turning and trying to get up from under him, and crying and telling him to leave me alone'; she further testified that while on the floor she tried to push defendant off of her with her hand and with her leg. She was permitted to testify, on being recalled, that she 'was scared to death.' We have omitted some of the sordid details of the evidence, as unnecessary to the proof of rape. In the meantime, the other man Spears, had taken Greta into the kitchen where she was kept for substantially the same length of time as was consumed by the foregoing acts. The evidence, of course, did not detail what occurred there except that Greta was permitted to testify, without any objection, that Spears hit her on the head three or four times with the gun which he still had, and that he tried to take her clothes off; she also testified that she heard Shirley crying and begging Adams to stop, take the money and leave.

After these acts the men came back together, pushed the women into the bathroom and locked the door, after telling them that if they called the police or tried to follow, they would come back and kill them. During all of this time the bathroom light was burning. The police were called promptly and both girls were taken to the St. Louis County Hospital.

We add here certain parts of the evidence concerning Tom Hartupee, the husband. For a time he was guarded by Spears with the gun, after the latter had fully or partly covered up his head. Tom testified that Spears said if he moved he would 'blow my head off,' and that he was hit on the head several times with a hard object when he tried to get up. Shirley testified that Tom kept trying to get up, that they kept hitting him and that even from the floor the defendant Adams 'kept reaching up and hitting him.' At any rate, Tom never succeeded in getting out of bed.

Shirley and her husband, with Greta and certain relatives, were taken to a 'line-up' at the Sheriff's Office on the evening of February 23, 1963. There they viewed six negro men and heard all of them speak. Adams was identified by Shirley, both by appearance and voice, and by her husband from his voice. Actually, the matter of identification has become a minor consideration in view of the defendant's own testimony. Spears was also identified there. All persons concerned were then taken to the County Police Headquarters where, according to the State's evidence, Adams admitted in the presence of these various people that he had raped Shirley. Following that, he was questioned at some length by two detectives of the County Police force; according to these witnesses, he gave a full oral statement which was related in detail in the evidence. For our purposes, it is sufficient to state that it corroborated generally the essential testimony of Shirley and Greta, so far as the present charge is concerned. In this statement defendant stated: that Spears took a clock radio when he left, and also had the girls' rings; that they drove away (as they came) in Adams' car, and when Spears got out to get some sandwiches he left the gun, radio and rings in the car; that Adams then drove away and took them to the home of a cousin of his on New York Street in Kirkwood. After taking the oral statement and on the same evening, the police recovered the gun and radio from that address, taking Adams with them. The people there denied getting the rings. The defendant was then taken to the unit in question of the Twin Oaks Motel where he was instructed to point out the different locations and objects involved, inside and outside the cabin, and photographs were taken; these were later used as exhibits at the trial.

Shortly after midnight, which would be on the very early morning of February 24, 1963, a written confession was taken. This was later intoduced in evidence. It followed generally the oral statements and it also recited that defendant understood that he did not have to make a statement. It was signed by defendant, and the corrections of all typographical errors were initialled by him. In this confession defendant confirmed the material elements of the charge of rape in considerable detail; he denied that he and Spears took any money. The confession recited that no threats or promises had been made to defendant to induce the making of the statement.

The State showed by evidence from hospital employees the presence of male sperm in smears taken from the vagina of the victim when she was examined almost immediately after the occurrences. She testified that, since she was in her menstruation period, she had not had intercourse with her husband for five or six days prior to the date here in question. The...