State v. Dowell, ED 92846.

• Decision Date: 29 June 2010
• Docket Number: No. ED 92846.,ED 92846.
• Parties: STATE of Missouri, Plaintiff/Appellant, v. Michael DOWELL, Defendant/Respondent.
• Court: Missouri Court of Appeals

311 S.W.3d 832

STATE of Missouri, Plaintiff/Appellant, v. Michael DOWELL, Defendant/Respondent.

No. ED 92846.

Missouri Court of Appeals, Eastern District, Division Two.

March 23, 2010.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 2010.

Application for Transfer Denied June 29, 2010.

Shaun J. Mackelprang, John M. Reeves, Jefferson City, MO, for Plaintiff/Respondent.

Thomas E. Marshall, Columbia, MO, for Defendant/Appellant.

Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA COHEN, J.

SHERRI B. SULLIVAN, P.J.

Introduction

The State of Missouri (the State) appeals from the judgment of the trial court granting Michael Dowell's (Respondent) motion to dismiss with prejudice the State's charge against him of the aggravated forcible rape of Victim, Section 566.030,¹ based on collateral estoppel resulting from Respondent's acquittal by jury of first-degree murder and its lesser-included offenses in a prior trial involving the same victim and the same underlying events. We affirm.

Factual and Procedural Background

On January 5, 1991, Victim attended a wedding reception in Old Monroe, Missouri. After leaving the reception at approximately 11:30 p.m., Victim's car became stuck just off Route N on Big Box Road. Glen Corter (Corter), who had been driving behind Victim from the reception that he had also attended, stopped to assist Victim, but could not get her car out of the ditch. Corter testified he took Victim to pick up Sheila Weber's (Weber) baby from babysitter Melissa Young (Young) and drop the baby off at Weber's house and then looked for someone with a 4-wheel drive vehicle to pull Victim's car out of the ditch. Corter testified that he found a couple with a truck at a convenience store willing to help and so he took them to Victim's car. Corter stated that after Victim's car was successfully pulled out, Victim gave Corter a bottle of Schnapps and brandy and they went their separate ways. Dennis Noack (Noack), who worked at the Convenience Corner gas station, located at the intersection of Route 79 and Route 47, testified that he saw Victim at about 2:00 a.m., looking like she had a bad night. Noack testified that Victim bought a burrito, talked about the roads getting bad due to the winter weather, and said she "had to go down on Highway W," which is about eight miles west of the gas station on Route 47. Weber testified that Victim returned to Weber's house alone at 2:30 a.m. Weber said Victim seemed upset and declined an offer to spend the night. John Greco (Greco), who had also attended the reception, testified that he saw Victim parked at Charlie's Liquor store on Route 47, near the intersection of Route 47 and Highway W, at approximately 2:30 a.m.

On Sunday, January 6, 1991, Victim's car was seen in a driveway off Highway W, less than a quarter mile north of Route 47. The car had a blown tire that looked like it had been driven on for a while. Deputy Sheriff Michael Chidster (Chidster) testified that tire tracks in the snow indicated the car had pulled into the drive from the north, and that the vehicle had been driving on W from a northerly direction coming back toward Highway 47. North on Highway W was the opposite direction from Victim's home. The driver's seat was found pushed all the way back. Victim's mother testified that Victim was five feet five inches or five feet six inches tall and always drove with the seat pulled very close to the steering wheel.

On Monday, January 7, 1991, at approximately 2 or 3 p.m., Billy Collins (Collins), who lived nearby, found Victim's body in a ditch on Highway W several miles north of Route 47. Mark Sprock and Gilbert Rimel had actually seen the body from a distance, thought it might be a mannequin, went to Collins' house, and Collins agreed to go down and determine if the body was real. Collins touched Victim's body, found it was soft and that her feet were dirty, and called the Lincoln County Sheriff's Department.

Dr. Mary Case (Dr. Case) of the St. Louis County Medical Examiner's Office performed the autopsy of Victim. Dr. Case found seven lacerations on Victim's scalp. Dr. Case noted numerous bruises and abrasions on Victim's body, which she determined were caused by blunt trauma. Dr. Case concluded that the cause of Victim's death was closed head injury caused by blunt force trauma. She testified that all of Victim's injuries were consistent with having occurred at or around the same time. Dr. Case also made a finding of probable sexual assault, based upon the circumstances in which Victim was killed, to-wit: she was killed up-close, out of public view and her clothing was removed. Dr. Case opined that these circumstances suggested a sexual assault.

Dr. Case also found six "tiny, very superficial" lacerations, one to three millimeters or l/25th to 3/25ths of an inch in length, in the posterior fourchette, of the inferior margin of the vagina. Dr. Case noted the lacerations could have resulted from consensual sex, and did not use these tiny lacerations as the basis of her opinion of probable sexual assault.

Dr. Thomas Young (Dr. Young), former medical examiner for Jackson County, disagreed with Dr. Case's finding of probable sexual assault. Dr. Young opined that the "tiny lacerations" were "little, tiny, yellowish scrapes ... post-mortem scrapes that were made well after she died." Dr. Young's opinion was that because there was no evidence of blood on the scrapes or in the underpants,² it was doubtful the injuries occurred while she was alive. Dr. Young believed that the absence of blood on Victim's body, bra, and underpants indicated that Victim was physically assaulted while fully clothed.

Although there was a lack of blood, Grant found a semen stain on Victim's underpants. Grant was unable to detect semen in a vaginal wash sample taken from Victim's body but detected semen on a vaginal swab. The vaginal swab was analyzed using the most recent DNA detection method of the time, "RFLP," and a DNA profile was created. Grant found no sperm cells in the vaginal wash, vaginal smears, rectal smears, underpants or oral smears.

In April, 2000, Brian Hoey (Hoey) of the MSHPL, analyzed the evidence using the newer "PCR-STR" process to generate a DNA profile. Material from the vaginal swab had been used up in earlier analysis, and Hoey found no male DNA in either the vaginal wash or the smears from the vaginal wash. However, Hoey was able to extract DNA from the underpants in the form of semen. Hoey's analysis of the material from the underwear showed the absence of sperm and several peak height imbalances in the DNA alleles, both of which suggest degradation, in that the sample had possibly been there for several days. Hoey testified that semen and sperm samples can survive up to five days on the human body. He further testified that semen samples with no sperm in them are generally deemed over 72 hours old.

In December of 2006, Respondent gave a blood sample which was analyzed for DNA using the PCR-STR process. Profiles generated by PCR-STR cannot be compared to profiles generated by RFLP. Hoey compared a sample of Respondent's DNA, taken from a blood sample, to the DNA taken from the underwear and found them consistent. Hoey could not determine when the sample had been left, the circumstances surrounding when it was left, or whether the contact was consensual.

The State charged Respondent with first-degree murder, armed criminal action, rape, and in the alternative, rape with infliction of serious physical injury. After a change of venue, the Boone County circuit court dismissed the armed criminal action and the rape count as time-barred. Because the State sought the death penalty, the rape with the infliction of serious physical injury count was severed as required by Section 565.004.1.

Respondent filed a Motion to Present Evidence of Third Party Guilt as to Corter, which the trial court granted in part. At the wedding reception Corter had been drunk and grabbed Victim's arm, trying to dance with her. Victim had pushed him away. Corter also was with Victim the night she disappeared. Corter also confessed to four people after Victim's death that he had killed her, to-wit: Kimberly Faye Gott (Gott), who testified that she was attending a party at a friend's house when Corter cornered her downstairs, laughed, and said he killed Victim. Gott reported the incident to the police and filed a written statement. Weber testified that she and a friend were at a bar in Winfield when Corter approached them. They asked the bouncer to remove him from the bar, and Corter stated that if they kept it up, that they would "end up dead just like Victim." Christine Dubach (Dubach), the same witness who had seen Corter grab Victim at the reception, testified that in 1994, she was at the Flat Rock swimming hole with her three daughters and others when Corter stated "You remember Victim? Well, I killed her. I'm getting by with it." Christina Kirby (Kirby) testified that in the spring of 1994, Corter was at her apartment during a gathering and stated that he had beaten Victim with a crowbar. Dennis Anderson (Anderson) testified that several months before Victim's death, he had seen Corter and another man, not Respondent, trying to force Victim into a truck. Anderson testified he intervened.

On October 3, 2008, after trial, the jury found Respondent not guilty of first-degree murder, and the lesser included offenses of second-degree murder and involuntary manslaughter. Respondent moved to dismiss with prejudice the remaining rape with the infliction of serious physical injury count based on collateral estoppel. Over Respondent's objection the trial court granted the State's Motion to Dismiss without prejudice. The State then filed the same rape charge with the infliction of serious physical injury in Lincoln County circuit court. Respondent again moved to dismiss with prejudice based on collateral estoppel. After a hearing, the...