State v. Dighera

• Decision Date: 04 May 1981
• Docket Number: No. WD,WD
• Citation: State v. Dighera, 617 S.W.2d 524 (Mo. App. 1981)
• Parties: STATE of Missouri, Respondent, v. Jerry DIGHERA, Appellant. 31261.
• Court: Missouri Court of Appeals

Page 524

617 S.W.2d 524

STATE of Missouri, Respondent, v. Jerry DIGHERA, Appellant.

No. WD 31261.

Missouri Court of Appeals, Western District.

May 4, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 2, 1981.

Application to Transfer Denied July 14, 1981.

Clifford A. Cohen, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.

SHANGLER, Judge.

The defendant Dighera was convicted of the rape and the sodomy of S.D., a deaf, mute and blind female twenty years of age. The defendant was sentenced to serve fifteen-year concurrent terms on the convictions.

The defendant brought a motion in limine to exclude as incompetent the testimony of prosecutrix S.D. on the grounds that, at the time of trial, she was confined to the Western Missouri Mental Health Center under order of the court and that S.D. was otherwise disabled as a witness by inability to see, hear or speak. The trial court heard evidence on the motion, denied remedy, allowed the testimony of the prosecutrix, and the defendant appeals.

The text of § 491.060 renders a person of unsound mind incompetent to testify. The effect of the statute is to create the prima facie presumption that a person confined to a mental institution under lawful process or adjudicated as mentally ill is absolutely incompetent as a witness. State v. Herring, 268 Mo. 514, 188 S.W. 169, 174(5-8) (1916). The presumption may be overcome, however, by extrinsic evidence that the witness understands the obligation of the oath, has sufficient mind and memory to notice, recollect and communicate the events. State v. McCarty, 460 S.W.2d 630, 637(5, 6) (Mo.1970). The burden to rebut the presumption of incompetency of one confined or adjudicated mentally ill by process of law rests on the party who offers the witness. State v. Herring, supra, l. c. 174(5-8). The determination whether the presumption has given way to evidence of competency rests with the trial court, and that decision will be sustained unless an abuse of discretion appears. State v. Burnfin, 560 S.W.2d 283, 284(4-6) (Mo.App.1978).

The determination that S.D. was competent to testify rests on the effect of composite Exhibit 1, a packet of official records kept by Western Missouri Mental Health Center on S.D. during the confinement, received in evidence on the pretrial motion to exclude the prosecutrix as a witness. Those records show that S.D., a juvenile (then twenty years of age) had been under the jurisdiction of the Boone County Court since age five. ¹ On April 4, 1979 ² she was required by the owner to leave Rockhill Manor where she lived and so was taken by the police, drunk and distraught, to the Western Missouri Mental Health Center at the instance of the Jackson County Division of Family Services. Within days, the Juvenile Court of Boone County ratified the placement by an order that S.D. was "in need of protection" and the direction that the Division of Family Services place S.D. with a mental health facility. (The record entry of that facility shows, however, that S.D. was admitted under her signature as voluntary patient under § 202.115.). The replete records show that, whether by voluntary admission or formal order of law, there was ample evidence for the trier of fact to find that S.D. was received, not to treat for a mental illness, but to provide her a shelter. ³

The psychological evaluation record in evidence shows S.D. as of "high average to bright normal intelligence (IQ 105-119)" and a reading skill by fingerspelling (by which she communicated) at the "sixth to seventh grade" level. Other entries by the psychologist describe her language patterns as "near normal ... conversation with her is easy and ideas can be exchanged freely." These aptitudes were appraised as "sophisticated language skills compared to most persons deaf-blinded early in life." This evidence sufficed for an adjudication that S.D. had sufficient mind and memory to notice, recollect and communicate the events on which she was examined and hence her competency as a witness. State v. Herring, supra, l.c. 174(5-8); State v. McCarty, supra, 637(5, 6). The internment at a mental health facility was a factor to disparage her competency, but only presumptively. The other extrinsic evidence was sufficient to overcome that presumption and to allow the trier of fact to draw the inference of competency to testify. State v. Simerly, 463 S.W.2d 846, 848(3) (Mo.1971). That the witness was bereft of sound, speech and sight did not affect her competency as a witness, when she was able to communicate by fingerspelling language through an interpreter and otherwise had capacity to notice, recollect and communicate the events in controversy. Kley v. Abell, 483 S.W.2d 625, 627(4-6) (Mo.App.1972); State v. Smith, 203 Mo. 695, 102 S.W. 526, 527 (1907).

The defendant contends, nevertheless, that the proper course for the determination of competency was the presentation of the witness for voir dire examination rather than for the determination to rest on the institutional records of the mental health facility. We agree that better practice suggests that the person tendered as a witness be produced to the court in advance of trial for that preliminary inquiry. State v. Pierson, 337 Mo. 475, 85 S.W.2d 48, 53(6) (1935); State v. Herring, supra, l.c. 174(5-8). The witness was produced at the trial, however, and the defendant does not contend that any episode or response elicited from her impugned the competency of her testimony. The decision of the trial court to allow testimony from S.D. as a competent witness was not an abuse of discretion.

The defendant contends next that the evidence was not sufficient to sustain guilt on either the rape or sodomy charges and so required judgments of acquittal. The more exact contention, as to the rape conviction, is that the testimony of the prosecutrix was so inherently contradictory and so in conflict with the other evidence as to require corroboration, and in the absence of that validation, the verdict of guilt was without substantial basis.

The unlawful sexual encounters with S.D. alleged against the defendant Dighera were at two sites: the Wrenmoor Apartments and premises privately owned by one Fry. The prosecutrix S.D. was at the time a resident at the Wrenmoor under the supervision of one Eiltz, a functionary with the Center for the Development of the Disabled. The defendant Dighera was the manager of the Wrenmoor Apartments. The prosecutrix S.D. had performed sexual acts with Dighera on at least one prior occasion. S.D. was also intimate with Ryan, her boyfriend, and father of the child she carried. They planned to marry, (Ryan was a convicted felon and described as a borderline mentally defective.) S.D. and Ryan quarrelled over Dighera on January 28, 1979, but settled that matter of jealousy by an agreement to refer the concern to counsellor Eiltz. Ryan also expressed to her his displeasure at her inclination to linger in the lobby of the apartment building and so (presumably) attract male attention. Ryan confronted Dighera some six times and warned him to discontinue his advances to S.D. and not to offer her alcoholic drink any more.

Thereafter, on the evening of January 28, 1979, Dighera and Fry encountered S.D. in the lobby of the apartment building. They requested her to accompany them, and after she fetched her coat from her apartment, Dighera drove them to the Fry residence and then to the Dighera apartment. Sexual activity among the three ensued at the Fry premises and, thereafter, S.D. slept together with Dighera on the floor of his apartment. The defendant Dighera gave S.D. a drink of bourbon whiskey, which she consumed without pause, and thereafter drank some ten beers. The defendant admitted the sexual intercourse, but contended the activity was consensual and not compelled. S.D. testified she was drunk at the time and was otherwise coerced to the acts. The next morning, Dighera put S.D. in a taxicab from the Fry residence for delivery to her home. The cab driver recalled that Dighera escorted S.D. over the snow and ice to the cab as he held her hand which she was reluctant to release. In the interim, both boyfriend Ryan and counsellor Eiltz became apprehensive when S.D. did not return to the apartment the night of January 28th, and reported her as missing to the police department. Thus, it happened that Ryan, Eiltz and a police officer were present at the apartment when S.D. returned at nine o'clock the next morning. She appeared distraught and exhausted, but not dishevelled, and after some communication with the officer through Ryan, S.D. was taken to a hospital for examination. Her body bore some bruises.

In the course of investigation, Dighera was taken in arrest on charges of rape and sodomy. At first he represented himself to the officer as Ken Reed, but then admitted his true identity. He admitted sexual relations with the prosecutrix at two different locations on the evening of January 28th, and also that he had given her alcoholic drink. He denied the use of force, and explained the bruises on her body as the result of a brush up against an object or, perhaps, from too tight a hold on her as he escorted her from place to place. He acknowledged that they had performed sexually before. S.D., herself, admitted prior sexual encounters with Dighera. She stated also that on that January night, no actual physical force was brought to bear on her. She could not explain the bruises on her body.

The defendant contends that the testimony of the prosecutrix, taken in full context, presents such a contradictory and self-destructive narrative as to deny it probative effect for an inference of coerced rape. That account describes these events:

Q. Did you leave with him (Dighera)...