State v. Barbee, 58203

• Decision Date: 17 December 1991
• Docket Number: No. 58203,58203
• Citation: 822 S.W.2d 522
• Parties: STATE of Missouri, Respondent, v. Alfred BARBEE, Appellant.
• Court: Missouri Court of Appeals

Page 522

822 S.W.2d 522

STATE of Missouri, Respondent, v. Alfred BARBEE, Appellant.

No. 58203.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 17, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 10, 1992.

Application to Transfer Denied Feb. 25, 1992.

Henry B. Robertson, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Judge.

Alfred Barbee appeals from a jury conviction for one count of forcible rape in violation of § 566.030 RSMo 1986, two counts of forcible sodomy in violation of § 566.060 RSMo 1986, and three counts of armed criminal action in violation of § 571.015 RSMo 1986. The jury assessed punishment at twenty-five years' imprisonment for each sex offense and five years' imprisonment for each count of armed criminal action. The court ordered the twenty-five year sentences to be served consecutively and the five-year sentences to be served concurrent to each other but consecutive to the sentences imposed for the sex offenses. We affirm.

The sufficiency of the evidence is not in dispute. Viewed in a light most favorable to the verdict, the evidence at trial established the following facts. At approximately 5:15 p.m. on January 20, 1989, the victim went to the lounge of a Holiday Inn in downtown St. Louis. After having several drinks with a friend, A.B., ¹ the victim left for the bathroom. As she attempted to leave the bathroom stall, the victim was confronted by appellant. With a knife in his hand, appellant motioned her to go back into the stall. Appellant entered the stall with the victim, shut the door, and pointed the knife at the victim's throat.

Appellant ordered the victim to take off her panties and skirt. The victim raised her skirt and removed her underwear, and appellant kissed her on the mouth. Appellant ordered the victim to sit on the toilet seat; he then pulled down his pants. While still holding the knife in his hand, appellant placed his penis into the victim's mouth. Appellant then placed his mouth on the victim's vagina, stood up, and placed his penis into the victim's vagina.

Appellant stopped suddenly and placed one foot on the toilet seat when A.B. came into the restroom and entered the next stall. A.B. noticed dark, laced boots come down onto the floor facing the back of the victim's stall. Appellant pulled up his pants and underwear, folded up his knife, and stuck it down the front of his pants. Appellant left the restroom, and A.B. came to the victim's aid.

When the police arrived, the victim described appellant as a slender, black male, slightly shorter than five feet six inches tall, with a scraggly beard. She stated appellant was wearing blue jeans, white underwear with a red band, a steel-blue work coat with a gold plate across the chest pocket, and a steel-blue neck scarf and stocking cap that were darker than the coat. She further stated appellant wielded a brown pocket knife with gold at both ends. The victim testified at trial that during the incident, the lights were on in the restroom stall and at one point appellant's face was roughly one and one-half feet from hers. She further testified that although she had consumed three drinks before the incident, she was not intoxicated. Appellant was in the stall with the victim for approximately fifteen to twenty minutes.

Officer Barry Lalumandier heard the description of appellant over the radio and began searching the area and checking local homeless shelters. After approximately ten to fifteen minutes, Lalumandier saw appellant attempting to enter the New Life Evangelistic Center, located approximately eight blocks west and two short blocks north of the Holiday Inn where the incident occurred. Lalumandier approached appellant and asked him if he was carrying a knife. Appellant reached into his right front trouser pocket and produced a folded knife, which Lalumandier took.

Lalumandier took appellant back to the Holiday Inn, where the victim identified appellant as the man who attacked her. The identification occurred roughly fifteen to twenty minutes after the incident. Appellant was also identified by Tony Hodges, a hotel employee who had seen a black man dressed in work clothes walk past the men's bathroom in the direction of the women's bathroom and leave from the front door lobby approximately fifteen to twenty minutes later. Hodges did not see appellant's face at the time of the incident, but stated that appellant was wearing the same color clothing as the man he saw. The victim identified appellant and his clothing at trial. Further, A.B. stated that appellant's boots looked like the ones she saw in the restroom on the day of the incident.

Blood tests revealed the victim is a type A secreter and appellant is a type B secreter. A vaginal swab from the victim and seminal stain on the victim's underwear contained both A and B antigens. The B antigens were deposited by a B or AB secreter. The presence of spermatozoa in the vaginal sample and on the victim's underwear indicates the victim had sexual intercourse with a B or AB secreter within the twenty-four hours prior to testing.

In his first point, appellant contends the trial court erred in removing him from the courtroom during voir dire. Appellant argues the court violated his constitutional and statutory right to be present at a material stage of the proceedings, and contends the court failed to give him adequate warning of the existence and possible forfeiture of his right to be present.

During voir dire, appellant's counsel in discussing the reasonable doubt standard asked the jury panel, "Does anybody have a problem understanding what we are talking about?" At that point, defendant said, "Yes, I do. May I address the Court. I am on trial here, am I not." The court had appellant removed from the courtroom and out of the hearing of the jury immediately conferred with appellant's counsel and the prosecutor. Appellant's counsel requested a mistrial and asked that the court permit appellant to address the court outside the hearing of the jury. The court overruled the request for mistrial but sustained the request for permission to address the court. Further, the court admonished appellant's counsel to remind appellant that appellant's behavior was contemptuous and that the right to confront witnesses does not outweigh the court's process. The court stated that if appellant did not promise to be quiet, he would not be permitted to remain in the courtroom during the proceedings.

The jury was taken out of the courtroom, and appellant was brought before the court. The following conversation occurred:

COURT: Mr. Barbee, I'm going to tell you something when you come in this courtroom, you submit yourself to the jurisdiction of this court, and I will tell you that you cannot speak out of turn. Everybody in this courtroom has to take their turn.

MR. BARBEE [Appellant]: I appreciate that, very much.

COURT: Mr. Jamieson took his turn. Ms. Grady [appellant's counsel] is taking her turn and if you and Ms. Grady feel that between the two of you that you want to enter into the voir dire process and you want to ask those jurors something, that is fine, but you have to give Ms. Grady her opportunity to have her say at this time.

MR. BARBEE: It seemed I have not been given any opportunity to say one single thing.

COURT: You have to take your turn, do you understand that?

MR. BARBEE: I don't want to take a turn.

COURT: You what? You take your turn and at the time Ms. Grady is finished you sit down and ...

MR. BARBEE: I don't have anything to discuss with Ms. Grady.

COURT: Take this man out. I'm not putting up with this.

MR. BARBEE: May I finish please.

COURT: No, you may not.

MR. BARBEE: May I have my things, that ain't necessary, ma'am, that's what you want.

The court informed appellant's counsel that in the court's opinion, appellant had disrupted the proceedings and had thereby foregone his opportunity to be present in the courtroom. The court stated that the court would permit appellant's counsel to consult with appellant prior to jury selection. Voir dire continued over the objection of appellant's counsel.

Before the jury was sworn, the court permitted appellant to return to the courtroom. The court asked appellant if he would remain quiet, and appellant stated, "I have no more to say." The court warned appellant that he would be removed from the courtroom if he refused to remain quiet while the jury was present.

An accused has a right to be present in the courtroom at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356 (1970); U.S. Const. amend. VI; See Mo. Const. art. I, § 18(a). However, "a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom." Allen, 397 U.S. at 343, 90 S.Ct. at 1060-61, 25 L.Ed.2d at 359.

We cannot say the trial court committed reversible error in finding that appellant's behavior "violated the dignity, order, and decorum of the court, threatened to impede the proceedings, and created the likelihood of prejudice against him." See State v. Moton, 733 S.W.2d 449, 452 (Mo.App.1986). Further, the court's admonition to appellant's counsel immediately prior to the colloquy between the court and appellant, coupled with the colloquy itself, sufficiently warned appellant that he could be removed from the courtroom if he continued to disrupt the court proceedings. Appellant himself chose to absent himself from the courtroom rather than promise the court he would remain quiet. The court could have reasonably believed another disturbance might be forthcoming...