State v. Bland, WD
| Decision Date | 19 July 1988 |
| Docket Number | No. WD,WD |
| Citation | 757 S.W.2d 242 |
| Parties | STATE of Missouri, Respondent, v. Shy BLAND, Appellant. 39783. |
| Court | Missouri Court of Appeals |
Robert G. Duncan, Kansas City, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before SHANGLER, P.J., and LOWENSTEIN and GAITAN, JJ.
Appellant Shy Bland was charged with eight felony counts including forcible rape, § 566.030, RSMo 1986, three counts of forcible sodomy, § 566.060, first degree sexual abuse, § 566.100, armed criminal action, § 571.015.1, first degree robbery, § 569.020, and first degree burglary, § 569.160. Bland was convicted after jury trial, and sentenced to consecutive terms of imprisonment of 30 years for forcible rape, and 20, 15 and 30 years for each forcible sodomy count, to be served consecutively to his concurrent sentences of three years for sexual abuse, 20 years for armed criminal action, 15 years for robbery and 10 years for burglary. Bland appeals challenging the sufficiency of the evidence, the trial court's refusal to submit a "mere presence" jury instruction, and the imposition of consecutive sentences on the rape and three sodomy counts.
Bland's first point on appeal asserts that the guilty verdicts were not supported by sufficient evidence. He states the evidence against him was totally circumstantial and based upon one partial fingerprint inexpertly identified as his. In reviewing the record to meet this contention, this Court accepts as true all evidence, whether circumstantial or direct, tending to prove defendant guilty together will all reasonable inferences supportive of the verdict. State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981). Because this court's function is not to weigh the evidence but to determine whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged, portions of the record contrary to the verdict are disregarded. Id.
All of the charges stemmed from an incident in the Westport area of Kansas City involving the victim MM. The victim testified she was awakened in the early morning hours of October 31, 1985, with a nudge, a knife held to her neck, and the words "wake up, I'm going to fuck you, bitch." MM had moved into a back unit of a three story apartment building three days before. Because of the darkness, MM was unable to distinguish any of her attacker's features except that there was some sort of a light covering over his face. MM stated she could not identify the rapist. She determined it was a black man because he said, "this nigger is going to fuck your white pussy." His voice did not give a clue to his race as he at all times spoke in a low whisper. MM described in detail the course of the rape, which included two separate instances of vaginal intercourse, two instances of anal intercourse, as well as mouth to vagina contact. During the course of the rape the man covered MM's face with a pillow when pain caused her to cry out. He also picked up the knife he had apparently put down and again held it against her neck when she was slow to comply with his instructions. MM testified that after the final act of anal intercourse the rapist told her not to move and that he'd be back. He asked if she had any money, to which she directed him, and then he left the bedroom taking change off a desk as he did so. Eventually MM got up and proceeded to look around her apartment. The apartment's one door was still deadbolted and chained. The apartment's windows were also closed except for one in the kitchen. The open window was a crank type, and it was open all the way. MM attempted to close the window and found it was in fact jammed open and she concluded that was how the rapist had entered her apartment. MM later determined the rapist had taken the ten dollar bill she had told him about as well as the laundry change she heard him take.
Office Michael Weller of the Kansas City, Missouri Police Department testified he was the first officer on the scene. He testified one window in the apartment was open. He also found the victim who was very upset.
Detective Gary Smith was a crime scene investigator for the Kansas City Police Department. Smith, a crime scene investigator for over nine years, testified about a number of tasks he carried out at MM's apartment. He photographed the apartment from various angles inside and out. He testified the apartment door was examined and no evidence of any forced entry was found. As to the window suspected as the point of entry, Smith testified it was operated by means of a crank with a hand latch to secure it, and that it was reported to him that it was locked prior to the crime. He found no evidence to indicate it had been forced open. Smith dusted the window for fingerprints inside and out, including the marble sill. He concluded nothing else the suspect was known to have touched was conducive to prints. The officer testified as to how fingerprints are lifted and that they are sent to the fingerprint identification unit for examination. Smith lifted one card of prints from the inside of one of the lower panes of the open window, and did not recall how many prints were on the card. As part of his investigation, Smith recovered the bed clothing and sheets, which were sent to the Regional Crime Lab.
John T. Wilson testified as the chief forensic chemist at the Regional Crime Lab in Kansas City. His duties included analysis of various types of trace evidence such as blood, hair and fibers. Wilson testified to his educational background and training for his position, and that he had worked at the lab since 1973. In this case, Wilson compared hair taken from MM's pubic hair combings after the rape with a head hair standard from Shy Bland. He explained how such comparisons are done and the features of hair that are analyzed. Wilson found that Bland's head hair was dyed, but that except for color the microscopic features of Bland's hair were indistinguishable from the unknown hair from MM's pubic hair combing. Wilson testified that since the color was different he could not say there was a match, but that he could not eliminate Bland as a contributor. Elaborating, Wilson explained his analysis could never definitely conclude a hair came out of a particular person's head, but that he could eliminate a person as a possible source. Wilson also testified that Negroid pubic hair found in the bedding was not Bland's.
Clarence Gibson testified concerning his interview with Bland as part of a sex crimes unit investigation. Bland denied any knowledge of or involvement in the rape. Confronted with the fact his fingerprint had been found on an inner window, Bland responded that the police must have put it there. He stated he had never been inside any house on Roanoke.
Kathleen Hentges testified as an expert latent fingerprint examiner for the Kansas City Police Department. Hentges had a total of eight years experience working with fingerprints, with five and one-half as a latent print examiner. Hentges had attended a forty hour advanced latent fingerprint course and a 120 hour administrative advanced latent fingerprint course, both taught by the F.B.I. She stated she had identified people by comparing their fingerprints with latent prints "thousands of times," and had testified as an expert in fingerprint comparisons in the range of 40 to 50 times. Hentges testified generally and specifically concerning fingerprinting and the evidence in this case. Of the four prints lifted from the inside pane of the west kitchen window, only one--the left middle finger--was of any value for comparison. This fingerprint, compared with prints taken from Bland by Hentges in December, 1986, yielded nineteen points of identification. Hentges testified that for normal acceptance, eight to twelve points of identification were required. She also testified the fingerprints compared were one and the same, were unique to one person, and that person was Shy Bland. This concluded all of the evidence.
Bland attaches great significance to the fact that the "only evidence" incriminating him was a partial latent fingerprint on a window which when open is on the outside of the apartment building. Presumably Bland is arguing he thereby had access to the window and there is some innocent though unstated explanation for his fingerprint being on the window. The Missouri Supreme Court has said when the evidence connecting the defendant with the burglary is circumstantial,
the facts and circumstances relied upon by the State to establish guilt "must not only be consistent with each other and with the hypothesis of defendant's guilt, but they must...
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State v. Butler
...in terms of the defendant's hair and the unknown hair being "similar," Hoard, 715 S.W.2d at 325; "indistinguishable," State v. Bland, 757 S.W.2d 242, 244 (Mo. App. 1988), or that they "matched," State v. White, 621 S.W.2d 287, 292 (Mo. 1981). Some experts attempt to focus their testimony fu......
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