State v. Dayton, KCD27649

• Decision Date: 01 March 1976
• Docket Number: No. KCD27649,KCD27649
• Parties: STATE of Missouri, Respondent, v. Jimmy D. DAYTON, Appellant.
• Court: Missouri Court of Appeals

Page 469

535 S.W.2d 469

STATE of Missouri, Respondent, v. Jimmy D. DAYTON, Appellant.

No. KCD27649.

Missouri Court of Appeals, Kansas City District.

March 1, 1976.

Motion for Rehearing and/or Transfer Denied March 29, 1976.

Application to Transfer Denied May 5, 1976.

Philip F. Cardarella, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

The defendant Jimmy Dayton was indicted on four separate counts of felony. He was accused, in concert with others, of kidnapping two male youths and practicing upon them abominable and detestable crimes against nature. The jury returned convictions of ten years imprisonment for each count of kidnapping and ninety-nine years of imprisonment on each of the other two counts. The trial court ordered that the sentences be served consecutively.

The evidence of the State showed that Jerry Dayton and Sam Dayton, brothers of the defendant, and Millard Swenson, their uncle, were co-actors in the episodes of abduction and pederasty for which the defendant was convicted.

The defense was both alibi and innocence on the open-court testimony of Jerry Dayton that it was he and three others who had seized the youths and submitted them to torture and molestation.

The victims of these perversions were D.E., a boy of eleven years and his playmate, G.D., who was then seven years old. On the late afternoon of April 12, 1974, the boys had rummaged a trash bin on the parking lot of the Baltimore Bank at 31st and Main and were about to leave, when a blue-green car pulled onto the lot. According to the testimony of D.E., the older of the boys, after a preliminary inquiry of street location, the two occupants identified themselves as police officers and told the boys they were in arrest for the trespass of private property. (The witness identified the defendant as the driver.) One of the men flashed a badge and ordered the boys into the car. The men then told the boys that they were in search of two others for shoplifting; the car proceeded south on Main to Linwood where they encountered two men walking down the street carrying J. C. Penney bags. The car stopped, picked them up, then proceeded to a motel (identified by photogtaphic exhibit as the Travelodge at 3240 Broadway), and entered room 210.

It was the further testimony of D.E. that once inside the room, their abductors continued to conduct themselves as police officers; they feigned a search of the room, undertook a mock interrogation of the other two men and ordered the boys to disrobe and be searched for weapons. The men also disrobed. The boys were then made to shower on the pretext that such an amenity would not be available in jail. The boys were separated; D.E. was brought into the bedroom and the younger boy was made to remain in the bathroom.

Once in the bedroom, the defendant directed D.E. to take his penis into his mouth, but the boy refused. The boy was then made to lie on the bed, and thus prone, was gagged and blindfolded with cloth and tape, and tethered by his wrists and ankles to the four corners of the bed. D.E. testified that five separate acts of anal penetration followed, the first four by men of different weights who lay upon him in succession, and the fifth by a hard irregular object which hurt him. (The latter reference was to the dildo, an artificial priapus of exaggerated size, the boy had first seen in the bathroom of the motel and then in the bedroom strapped to the defendant.) At the time the dildo (exhibit 11) was inserted into the boy, one of the men warned the others that it would kill him, but it was applied anyway. This penetration caused the boy to scream and induced a defecation which covered the bedsheet. The boy was also shocked and hurt by the intermittent application of a cattle prod against parts of his body. At the conclusion of these molestations, the ties, gag and blindfold were removed and D.E. was released to wash in the bathroom and dress. The boys were separated once again; while D.E. was in the bathroom, his younger companion was taken into the bedroom.

The testimony of G.D. corroborated the narrative given by D.E. of abduction by two men who identified themselves as police officers, and their asportation by car to the motel in the company of the other two men picked up by the others. G.D. identified the defendant as the driver of the vehicle. He, too, was told to disrobe and bathe and remained there alone while his companion was in the bedroom. First one of the men, and then another (neither of whom he could identify), came into the bathroom and placed his penis into the mouth of the boy. Then he was taken into the bedroom, spread upon the bed and tied, gagged and blindfolded, he was subjected to a single act of rectal sodomy. Also, he was shocked by the cattle prod. G.D. recalled the defendant led him into the bedroom from the bathroom, but could not say whether he was in the room when the perversions were practiced upon him or who or how many took part.

When the boys had dressed, they were taken to the automobile, warned not to report the event, and released at the Foremost Dairy premises at 31st and Gilham Road. Immediately upon their return home, each boy reported what had happened to his parents. The mother of G.D. noticed rope burns on the hands and legs of her son. (D.E. testified that similar impressions had been made on his body.) She testified that her son arrived home about 8 P.M. on that day and that she had last seen him with D.E. at about 4:00 P.M. Thus although neither of the boys could remember the time of the criminal events at the trial, it is apparent that they took place sometime between those hours. The police were called and they responded shortly after 9:00 P.M. The boys were taken to Childrens Mercy Hospital for examination. D.E. was found to have suffered a tear of the anal mucosa; the findings on the medical examination of G.D. were not disclosed in evidence.

The older of the two boys, D.E., then led Officer Dale Meadows and Detective Bernard Gowin of the Kansas City police department to the site of the abduction, and then led them along the same route they had been taken to the motel. He told of the blue-green Chevrolet, gave a general description of the four suspects, the badge and other paraphernalia used in the crimes. At the motel parking lot, D.E. pointed out the car, and then led the officers to room 210. The officers learned from the desk that the room was let to the defendant, his two brothers and uncle. In order to avoid a confrontation between D.E. and the suspects, the boy was left with the manager. It was about 1:00 A.M. when the officers knocked on the door of room 210 and were admitted. They found the three Dayton brothers and Swenson ready for bed. The four suspects were arrested and a search of the premises recovered tape from a receptacle in the bed area, towels, washcloths and bedpad from the bathroom. These were given to a police evidence technician at the scene for laboratory analysis. He testified that towel and cloth were stained red and yellow, and that marks of blood and defecation appeared on the bedpad. A search of Sam Dayton revealed a knife (identified by G.D. as the weapon wielded by one of the abductors).

As the men were led to the police wagon, Sam Dayton asked Officer Gowin for his jacket from the car. He gave the officer the key to the Chevrolet. Gowin then picked up the jacket from the car seat and noticed a wallet which was found to contain a badge with the inscription: Special Police, Maryland. The four suspects were taken to the police station where Officer Gowin conducted a line-up.

Six men comprised the line-up; the four suspects and two others. The two boys were kept separate and free from suggestion during the identification procedure; each was given a card for the notation of the number designation of any of the men on view who had been involved in the events earlier that day. The numbers noted by D.E. identified the three Daytons and Swenson as the men who had abused him. At the trial, he identified the same four men from a photograph of the line-up taken by Gowin. The younger boy, G.D., picked three from among the six men at the line-up, Jerry Dayton, Millard Swenson and the defendant Jimmy Dayton, but identified all four from the photograph at the trial.

The final witness for the prosecution was Doctor Matthias Yoong, a forensic chemist, who examined the property impounded by Mosby, the police evidence technician. He obtained cranial hair standards from the two boys and the four suspects for comparison with hair filaments taken from the tapes found in the motel room receptacle. The strands from the tapes fell within the limits of variance of the cranial standards taken from the two boys, but not within those taken from any of the suspects. Hairs collected from the bedpad were compared with standards taken from the four men and were found to fall within the limits of the head hair standards taken from Sam Dayton and Millard Swenson. Doctor Yoong also found seminal and fecal stains on the bedpad, blood on the washcloths, and seminal stains on the towel.

The defense was alibi. The defendant Jimmy Dayton testified that he had come to Kansas City from his Maryland residence and registered at the Travelodge Motel. On the day of events in issue, he with his brothers, Jerry and Sam, and uncle, Millard, left the motel at about noon for the residence of one Tyler. Once there, he spent the afternoon in an upper bedchamber with Susan Hogan, who lived there with the Tylers, and did not emerge until about 5 P.M. He, brothers and uncle, left about 9 P.M. but did not arrive at the motel until after 10:30 P.M. They found the room in disarray. It was not until two weeks later that his brother Jerry told him that he and three others, strangers to the defendant, had...