State v. Bolanos

• Decision Date: 10 November 1987
• Docket Number: No. WD,WD
• Citation: 743 S.W.2d 442
• Parties: STATE of Missouri, Respondent, v. Ronald R. BOLANOS, Appellant. 38685.
• Court: Missouri Court of Appeals

Page 442

743 S.W.2d 442

STATE of Missouri, Respondent, v. Ronald R. BOLANOS, Appellant.

No. WD 38685.

Missouri Court of Appeals Western District.

Nov. 10, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 29, 1987.

Application to Transfer Denied Feb. 17, 1988.

Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and PRITCHARD and CLARK, JJ.

PRITCHARD, Judge.

By the verdict of a jury appellant was convicted of forcible rape, three counts of armed criminal action, two counts of forcible sodomy, and one count of stealing. As a persistent offender, he was sentenced to 20 years for the rape, 20 years for armed criminal action, 20 years for each of the two counts of sodomy, and 5 years for stealing, a total of 85 years.

On July 21, 1985, the victim lived at 1811 Lawn, Kansas City, Missouri. Late Sunday evening on that date, she returned with her husband and two children from her father-in-law's funeral. The entire family settled down on the bed in the master bedroom. Sometime after going to sleep, the victim was awakened by a knife to her throat, a hand to her mouth, and a voice saying, "Don't wake him [the husband] or I'll kill you." Lights which had been left on when she went to bed had been turned off, but there was a streetlight outside the three bedroom windows so, as she testified, the victim could see from the light coming in there. She got a second glimpse of the intruder when she got out of bed on his orders, observing his silhouette. The intruder led her into the dining room with the knife to her back where she removed her nightgown and it was used to blindfold her. She suggested that if he did anything in the house he would wake up her husband and suggested that they go outside. He led her blindfolded outside the house where they crouched behind a shrub. There he forced her to perform fellatio on him, then forced her to submit to cunnilingus. She felt the knife throughout this time, and he kept threatening her. Finally he told her he was going "to make love" to her, and got on top of her and performed sexual intercourse upon her. He told her that he did not want her to tell her husband or anyone, including the police, or he would come back and kill her. He said he would be watching her, and he made her promise to leave the side door open for him in the future.

The victim also testified that appellant took her husband's wallet from his pants pocket, and her wallet from her purse throwing its contents on the floor. Over $200 was taken. Viewing a videotaped lineup, Baxter was able to pick out the man who raped and sodomized her and held a knife to her neck, from his voice and by his build and hair. She made an in-court identification of appellant as being that man.

In Point I, appellant contends that the trial court erred, over his objection, in admitting the victim's testimony and Exhibit 3, a videotape of a lineup in which she identified appellant at a pre-trial lineup, in that the circumstances of the lineup were impermissibly suggestive and there was an insufficient basis for identification at the time of the offense because only three of the five persons in the lineup had moustache; only two had visible shirt collars; two greatly exceeded appellant's height and weight; and at the time of the offense the victim was able only to see her attacker's silhouette, hear his voice, feel his moustache and smell alcohol on his breath.

The lineup persons were: # 1, Mike Rodriguez, 187 lbs., 5'9"", no Mexican accent, slightly balding; # 2, Charles McMullin, 200 lbs., 6'1"", dark complexioned, facial hair, dress shirt; # 3, appellant, 185 lbs., 5'7"", Mexican accent, facial hair; # 4, Emanuel Tidona, no accent; # 5, Pete Edlund, 210 lbs., 6'1"", balding, blue collar, facial hair. All of the persons were white. Because the victim arrived late she did not see the live lineup, but viewed only the videotape, which she viewed less than 24 hours after the incident. She picked out appellant, the # 3 man, as being her assailant, noting thereon a police I.D. card and that it was by voice only. [Each of the five men shown on the videotape spoke the same words. The victim's testimony was that during the course of the incident, the assailant spoke to her many times, and, although perhaps an exaggeration, "hundreds of times."] At one point in trial, she testified her identification was based upon voice, build, height, stature and hair; later in trial she testified that she was unable to identify the man by appearance, but could do so only by his voice. On deposition, she testified she had a great hearing loss in one ear, but she denied having any hearing problem at trial. On the pre-trial hearing of the motion to suppress, the victim described her assailant as not being tall, probably five six, five seven, stocky build, dark hair, with a moustache.

Although appellant focuses on the discrepancies and differences in the descriptions of the five persons in the videotaped lineup, that is not the dispositive issue in this case. It rather is, as the evidence shows, an identification alone of appellant's voice. It matters not that the victim was at police headquarters to view some persons who might be suspects, as could be inferable. The police, however, did not tell the victim that they had a suspect in custody, but merely that they wanted her to view a lineup. Her alleged anticipation was not rendered suggestive by her knowledge, if any, that her assailant might be present in the lineup array. State v. Stephens, 708 S.W.2d 345, 348 (Mo.App.1986), and cases cited. The sufficiency of the identification turns upon the victim's identification of appellant as the assailant by his voice. That alone is sufficient. See State v. Bell, 300 S.W. 504, 505 (Mo.1927), where it was said, "Hearing is one of the five senses, and knowledge acquired through it is as certain as though acquired through any other sense. The cause was properly submitted to the jury."; State v. Riddle, 324 Mo. 96, 23 S.W.2d 179, 182[1, 2] (1929), where the court said, "The force of the identification of defendant by means of his voice was a question of fact and within the province of the jury, and, as the facts made a submissible case, the weight of the testimony was for the jury. The identification of defendant did not depend wholly upon circumstantial evidence, as defendant contends, for the identification of a person by means of his voice is direct evidence of identification, as much so as though the identification had been made through sight."; State v. Ransom, 340 Mo. 165, 100 S.W.2d 294, 296[1, 2] (1936); and among the many cases on the subject, see Anno. Identification--Accuseds Voice, 70 A.L.R.2d 995, and Later Case Service thereon, page 487, et seq.

In view of the fact that the victim's identification descended to voice only, as her testimony rather clearly shows, the physical makeup of the lineup would seem to be irrelevant. It has, however, been ruled that identical appearances of people in lineups is not required, State v. Little, 674 S.W.2d 541, 545 (Mo. banc 1984), and that a lineup is not suggestive merely because the individuals comprising it had dissimilar physical appearances, State v. Cooper, 708 S.W.2d 299, 305 (Mo.App.1986). The factors here for determining reliability of the victim's voice identification are comparable to those listed in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), in that (1) she had the opportunity to hear the criminal's voice numerous times at the time of the crimes; (2) she had a high degree of attention, he being in close proximity to her and threatening her with a knife; (3) she did give a prior description, but that is irrelevant as noted; (4) she demonstrated certainty that appellant's voice was the same as her assailant to the scene of the crimes, testifying, "Q. What was it about the voice that you--that made you recognize it? A. It was the same voice. It was--it was the same voice. Q. Is there any doubt in your mind that it wasn't the same voice? A. There's no doubt in my mind, none whatsoever." The victim had the opportunity to compare appellant's voice with those of the four other men in the lineup. No suggestiveness anywhere appears. Point I is overruled.

In Point II, appellant claims that the trial court erred in overruling his motion to exclude the testimony of Terry Carter relating to an assault upon her the day after the assault upon the victim here because it was inadmissible evidence of other uncharged crimes.

In connection with this claim, the facts are these: Terry Carter testified at trial that about 2:30 a.m. on July 22, 1985, she was awakened, while sleeping with her two children, by a man who had one hand over her mouth and a knife at her throat. One child awakened, and the man told Terry to tell the child not to look at him or he would slice her up in little pieces. Terry told her to go back to sleep, that "it's okay." The man walked Terry around the bed toward the door with a knife at her throat. She was able to see more of him as they went by a large mirror, there being some light from a make-up mirror. She was escorted toward the back door, and she learned that the man had not harmed her brother who was sleeping on a divan in the living room. Terry decided that she was not going outside with him, and she backed out from him, getting a cut on her forehead and arm. She picked up a standing ashtray from under a kitchen cart and started swinging it and screaming, and he started stabbing at her, saying, "Bitch, shut up or I'll kill you." She could see his face at that time. She called for her brother, Ricky, who awakened and got to the door. The man fell over the kitchen chair which slowed him down some. Terry told her brother that he had a knife and that he was...