State v. Clark, No. 48742

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY M. GAERTNER; SIMON
Citation711 S.W.2d 885
PartiesSTATE of Missouri, Respondent, v. Ronald Dean CLARK, Appellant.
Decision Date29 April 1986
Docket NumberNo. 48742

Page 885

711 S.W.2d 885
STATE of Missouri, Respondent,
v.
Ronald Dean CLARK, Appellant.
No. 48742.
Missouri Court of Appeals,
Eastern District,
Division Three.
April 29, 1986.
Motion for Rehearing and/or Transfer Denied June 4, 1986.
Application to Transfer Denied July 15, 1986.

Page 887

Toby H. Hollander, St. Louis, for appellant.

John Lord, Asst. Pros. Atty., Clayton, for respondent.

GARY M. GAERTNER, Judge.

Defendant, Ronald Dean Clark, appeals from his conviction on one count of rape, section 566.030.3 RSMo Cum.Supp.1984, and one count of sodomy, section 566.060 RSMo Cum.Supp.1984. Defendant received consecutive thirty year prison sentences on each count. We affirm.

Defendant does not challenge the sufficiency of the evidence. Viewed in a light most favorable to the verdict, the evidence establishes the following: On July 28, 1983, the victim, a thirteen-year old girl, was living with her family in an apartment in Overland, Missouri. At approximately five o'clock that afternoon, while the victim was alone in the apartment with her younger brother, defendant arrived at the apartment. The victim knew defendant as a friend of her mother's paramour, and thus admitted him to the apartment. After asking the victim some questions, defendant went to a market next door and purchased a bottle of beer. Defendant returned to the apartment and drank the beer. He then asked the victim if she wanted to go with him to a Venture store, and the victim agreed. Defendant drove to the Venture store and parked his car in a secluded area of the parking lot. He then proceeded to rape and sodomize the victim.

After the assault, defendant drove the victim home. He instructed her to take a bath and not to talk to her little brother about what had happened. The victim bathed and changed her clothes. She then went with her younger brother to a nearby store and called her mother. The victim told her mother about the sexual assault by defendant. The victim's mother then took her to the police. The victim gave oral and written statements to the police.

At trial, the victim identified defendant as her assailant and also identified a tattoo on defendant's right leg. Defendant relied upon an alibi defense at trial, testifying that he was drinking beer in a tavern at the time of the offense. After hearing all the evidence, the jury found defendant guilty of forcible rape and sodomy. The trial court sentenced defendant to thirty years imprisonment on each count, the sentences to run consecutively. Defendant appeals from his convictions and sentences.

In his first point on appeal, defendant argues that the trial court erred in denying defendant's motion to quash his indictment because blacks and women were systematically excluded from the grand jury pool. Defendant contends that such discrimination violated his constitutional right to equal protection of the laws.

"The United States Supreme Court has held that a criminal defendant in a state court has a constitutional right to have the grand jury considering his case selected from a fair cross-section of the community." State ex rel. Garrett v. Saitz, 594 S.W.2d 606, 608 (Mo. banc 1980). In order to prove that an equal protection violation has occurred, defendant must show that the particular procedure employed for selecting grand juries has resulted in substantial underrepresentation of an identifiable group over a significant period of time. Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977).

In the case at bar, defendant has failed to show that underrepresentation of blacks or women has occurred over any significant period of time. The only statistical data presented by defendant showed the composition of the grand jury pool at the time the grand jury was chosen in May 1983. Although the director of the Department of Judicial Administration testified that this pool had evolved over a period of six to

Page 888

twelve years, this evidence nevertheless establishes only the degree of underrepresentation at a single point in time. Similar evidence has been consistently held insufficient to prove a prima facie case of discrimination in the grand jury selection process. See State v. Garrett, 627 S.W.2d 635, 639 (Mo. banc 1982), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); State v. Baker, 636 S.W.2d 902, 909 (Mo. banc 1982), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983). Accordingly, this point is denied.

In his second point on appeal, defendant argues that the trial court erred in denying his motion for psychiatric examination of the victim before she testified at trial. Defendant contends that this ruling violated his constitutional right to a fair and impartial trial.

No general right of discovery exists for criminal cases in Missouri. Absent some express statutory provision or rule of court, discovery is not permitted. Westfall v. Enright, 643 S.W.2d 839, 840 (Mo.App.1982). Defendant has cited no Missouri statute or rule authorizing a trial court to order a psychiatric examination of a prosecution witness. Our own research indicates that no such statute or rule exists. Defendant's motion was thus properly denied because it exceeded the scope of permissible discovery.

Defendant cites several cases from other jurisdictions holding that a trial court has "inherent power" to order a psychiatric examination of the complaining witness, particularly in sex offense cases. See, e.g., United States v. Benn, 476 F.2d 1127, 1130 n. 12 (D.C.Cir.1973); Forbes v. State, 559 S.W.2d 318, 321 (Tenn.1977). We must decline the invitation to adopt such a rule in Missouri. Rape, incest and other such offenses continue to tear away at the moral fabric of our society. Forcing the victims of these crimes to submit to the indignity and embarrassment of a psychiatric examination could only exacerbate the current situation. We hold, therefore, that in the case at bar the trial court had no authority to order such an examination. Accordingly, this point is denied.

In his third point on appeal, defendant argues that the trial court erred in granting the state's motion for inspection of defendant's body. This point contains three subpoints.

In his first subpoint, defendant contends that the state's motion did not comply with Rule 25.06(A) because it did not specify the material or information sought to be disclosed. The motion requested "physical inspection of the Defendant's body." Defendant contends that the state should have specified that it wanted to photograph defendant's upper legs. We find that the motion was sufficiently specific. Accordingly, this subpoint is denied.

In his second subpoint, defendant contends that the motion violated Rule 25.06(C) because the trial court did not hear evidence on the necessity of the discovery requested. The court did, however, hold a hearing on the motion before ordering the inspection. We find no error on this subpoint.

In his third subpoint, defendant contends that the trial court's order granting the motion violated Rule 25.06(D) because it did not state the reasons for granting the motion. The court's order stated that the intrusion caused to defendant's body by the inspection was "minimal." We find this order sufficient. Accordingly, defendant's final subpoint is denied.

In his fourth point on appeal, defendant argues that the trial court erred in refusing to strike one of the veniremen, Mr. Mumbower, for cause. During voir dire, the following colloquy took place between defense counsel and Juror Mumbower:

Q Do you have any children?

A A daughter forty years old.

Q Do you think having a daughter, having gone through raising her up successfully, thinking back to her childhood, would that in any way affect your feelings of sympathy for the child witness that will appear in this case?

A I think back in those...

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13 practice notes
  • McDonald v. Delo, No. 89-1282C(8)
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 11, 1995
    ...psychiatric examination of a witness. See, e.g., State v. Sinner, 772 S.W.2d 719, 720-21 (Mo.App. 1989) (physical exam); State v. Clark, 711 S.W.2d 885, 888 (Mo.App.1986) (mental exam). Finally, the record does not support a finding of petitioner's probable innocence. 897 F. Supp. 1256 Ther......
  • State v. Robinson, No. 74599
    • United States
    • United States State Supreme Court of Missouri
    • June 2, 1992
    ...granting authority to order psychiatric examination of a witness, trial judges lack authority to order such examinations. State v. Clark, 711 S.W.2d 885, 888 (Mo.App.1986); see also State v. Sinner, 772 S.W.2d 719, 721 (Mo.App.1989); State v. Wallace, 745 S.W.2d 233, 235 (Mo.App.1987); Stat......
  • Joy v. Morrison, No. SC 88690.
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 2008
    ...1990); State v. Jordan, 778 S.W.2d 283, 285-86 (Mo.App. 1989); State v. Schwer, 757 S.W.2d 258, 262 (Mo.App. 1988); State v. Clark, 711 S.W.2d 885, 889 (Mo.App. 9. All statutory references are to RSMo 2000. --------------- ...
  • State v. Gabrielson, No. 89-13
    • United States
    • United States State Supreme Court of Iowa
    • December 19, 1990
    ...nor inherent authority to order sexual abuse victim to undergo psychiatric examination designed to evaluate credibility); State v. Clark, 711 S.W.2d 885 (Mo.Ct.App.1986) (trial court has no authority to order a psychiatric examination of a sexual abuse victim); State v. Liddell, 211 Mont. 1......
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7 cases
  • State v. Robinson, No. 74599
    • United States
    • United States State Supreme Court of Missouri
    • June 2, 1992
    ...granting authority to order psychiatric examination of a witness, trial judges lack authority to order such examinations. State v. Clark, 711 S.W.2d 885, 888 (Mo.App.1986); see also State v. Sinner, 772 S.W.2d 719, 721 (Mo.App.1989); State v. Wallace, 745 S.W.2d 233, 235 (Mo.App.1987); Stat......
  • State v. Garner, No. 16604
    • United States
    • Court of Appeal of Missouri (US)
    • November 9, 1990
    ...statutory provision or rule of court, discovery is not permitted. State v. Sinner, 772 S.W.2d 719, 721 (Mo.App.1989); State v. Clark, 711 S.W.2d 885 (Mo.App.1986). However, defendant asserts he should have been granted access to Officer Mills' personnel file because impeachment evidence as ......
  • State v. Williams, No. 50613
    • United States
    • Court of Appeal of Missouri (US)
    • October 28, 1986
    ...the venireperson has been equivocal Page 106 or unequivocal in answering questions about his impartiality." State v. Clark, 711 S.W.2d 885, 889 (Mo.App.1986). This determination is made on the basis of the entire examination. State v. Smith, 649 S.W.2d 417, 425-26 (Mo. banc 1983), cert......
  • State v. Wallace, No. 52753
    • United States
    • Court of Appeal of Missouri (US)
    • December 22, 1987
    ...when the trial court refused to order a psychiatric evaluation of the victim. We find this claim to be without merit. State v. Clark, 711 S.W.2d 885 Defendant's second issue is that the trial court erred in sustaining the State's objection to defendant's statement on voir dire "... As ......
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