State v. Brusatti
| Decision Date | 22 December 1987 |
| Docket Number | No. 51732,51732 |
| Citation | 745 S.W.2d 210 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Kevin James BRUSATTI, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Steven R. Sallerson, Asst. Public Defender, Clayton, for defendant-appellant.
William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant was found guilty by a jury of rape and sentenced to a term of six years' imprisonment in accordance with the jury assessment. He appeals; we affirm.
Defendant was convicted of raping the 14-month-old daughter of his live-in girlfriend. Prior to leaving for work on June 14, 1985, the mother of the victim changed her infant daughter's diaper. The mother saw no problems, including bleeding, in the daughter's vaginal area at that time. When the mother left with the child at 7:00 a.m. defendant was in bed. The mother went to her sister's home shortly after 7:00 a.m. and left her daughter there for the day. The mother's sister changed the baby's diaper twice that day and noticed no bleeding or anything else unusual in her vaginal area.
The sister called the child's mother around 3:00 p.m. to tell her that defendant had picked up the child. When the mother called home shortly after 3:00 p.m., defendant answered and said the child was playing in her room and "everything was okay." About 10 minutes later defendant called the mother and told her that the child was bleeding from the vagina and he did not know why. The mother told defendant to bring the child to the hospital where she worked. The child's pediatrician, who was on duty at the time, examined her in the hospital emergency room. His examination revealed a blood clot hanging from the vagina opening and a tear of the hymen ring. He said the child had no previous trouble in her vaginal area.
Police officers and a child abuse investigator with Division of Family Services arrived at the hospital, and defendant was taken to the county police station for questioning. After being interrogated, defendant called the child's mother at the hospital and told her that he "did it." She went home where she discovered the "bed was all messed up and there was blood on the bed and on the quilt and on the floor."
Detective John Schupp testified about evidence seized from the house where the crime occurred. Two police officers testified about the questioning of defendant. Detective Sam Yarbrough of the St. Louis County Police Department said he was called to his office on the evening of June 14, 1985, to talk with defendant. After Yarbrough advised defendant of his rights, defendant admitted to Yarbrough that he had engaged in sexual intercourse with the child. Yarbrough stated that defendant "initially said he had been the one to injure the victim and had done so by inserting his finger into the vagina, and then he retracted that and said he put his penis into her vagina."
Michael Williams, a detective with the juvenile division of the county police department, later took a tape recorded statement from defendant in which he "admitted putting his penis into" the child. Defendant's statements to Yarbrough and Williams were admitted into evidence. Defendant testified, denying he used his penis and contending he made the statements because of threats from the officers, including Yarbrough.
In his sole point on appeal, defendant contends the trial court erred "in permitting the state's seventh peremptory challenge after the jury had been sworn." Defendant's allegation of error concerns an incident on the second day of trial. After Detective Yarbrough had testified, the court recessed and admonished the jury. At that time Juror Number 9, Ms. Jo Ann Powell, told the court on the record,
At this point Court was in recess until 10:47 a.m. at which time proceedings took place in court, without the jury, as follows:
THE COURT: Let the record show that I have sustained the State's motion over the objections of defendant to excuse Jo Ann Powell, Juror Number 9, and we will replace her with Mr. Robert Kessler, Juror Number 13.
We note that at trial and in his new trial motion, defendant's complaint was that there was insufficient reason to sustain an objection for cause to Ms. Powell; therefore, the state was, in effect, given an additional peremptory challenge. No contention was made about the timeliness of the state's objection to Ms. Powell.
Defendant's objection misses the mark in two respects. First, it analyzes the state's objection from the viewpoint of cases that find no abuse of discretion on the...
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State v. Lynch
...a variety of factors. Disclosure of the alleged bias may or may not have been called for by the voir dire examination. State v. Brusatti, 745 S.W.2d 210 (Mo.App.1987); Cannon v. Lockhart, 850 F.2d 437 (8th Cir.1988). A defendant may not complain promptly upon disclosure before the verdict. ......
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State v. Cage
...or are found to be unable or disqualified to perform their duties." § 494.485, RSMo Supp.1993. Defendant relies upon State v. Brusatti, 745 S.W.2d 210 (Mo.App. E.D.1987). Similar to the case at hand, a juror in Brusatti realized something after the trial had begun and then brought it to the......