State v. Ealey

• Decision Date: 03 February 1975
• Docket Number: No. KCD,KCD
• Citation: 519 S.W.2d 314
• Parties: STATE of Missouri, Respondent, v. Joe Louis EALEY, Appellant. 26908.
• Court: Missouri Court of Appeals

Page 314

519 S.W.2d 314

STATE of Missouri, Respondent, v. Joe Louis EALEY, Appellant.

No. KCD 26908.

Missouri Court of Appeals, Kansas City District.

Feb. 3, 1975.

Willard B. Bunch, Public Defender, Kansas City, Clifford A. Cohen, Certified Law Intern, for appellant.

John C. Danforth, Atty. Gen., Donald R. Bird, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

Appellant, herein designated as defendant, was convicted by a jury of statutory rape of one J_ _ S_ _, aged 13 years. The jury was unable to agree upon a sentence and the trial court sentenced him to forty (40) years in the custody of the Missouri Department of Corrections. This is a direct and timely appeal from such judgment and sentence.

The defendant makes two points of error in his brief.

First, that the court erred in overruling his objection to the introduction of fingerprint evidence obtained in the course of a constitutionally impermissible search and seizure of the defendant's automobile, without a warrant, without his consent, and after his arrest. In his reply brief in answer to the state's brief, he asserts that the introduction of the fingerprint evidence illegally obtained was not harmless but is reversible error under Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Second, the defendant asserts that the court erred in overruling defendant's motion to suppress the victim's in-court identification of the defendant because such was tainted by suggestive influences of prior photographic identification and a lineup identification wherein dissimilar individuals were included with defendant.

A resolution of these points requires a somewhat detailed summary of the evidence.

On October 3, 1970, J_ _ S_ _ and J_ _ H_ _, her date, were walking from Southwest High School in Kansas City to J_ _ H_ _'s home, about two blocks from the school. They had attended a school dance that evening and were walking in a residential section shortly before midnight. On the way, a car stopped near the couple and a man got out and approached them with a gun in his hand, which he placed against the head of J_ _ H_ _ and ordered them to lie down on the ground behind some adjacent bushes. He threatened to kill them if they did not keep quiet. He then picked up J_ _ S_ _ by her hair and took her to the automobile where he forced her to lie down in the back seat. He told J_ _ H_ _ that if he did not remain there for five minutes, he would kill J_ _ S_ _. As J_ _ S_ _ and her abductor entered the automobile, J_ _ H_ _ crawled through the bushes and viewed the rear of the car as it proceeded down to the corner and turned. He was able to obtain the first three letters and numbers of the license number. He then ran to a neighbor's home and the police were called. They arrived within ten minutes and J_ _ H_ _ gave them a description of the man, the car and three letters and numbers of the license plate, one of which he recalled was the letter 'G'. Thereupon, J_ _ H_ _ and police officers engaged in a fruitless search for the car. He was with these officers when J_ _ S_ _ was found at Lee's Summit a few miles south of Kansas City later that morning. J_ _ H_ _ was unable to make any positive identification of the defendant from photographs or at the lineup.

J_ _ S_ _ testified that after she was forced into the back seat of the car, her abductor drove for about ten minutes, then pulled the car into a gravel driveway, stopped, got out of the car, opened a garage door and drove the car into a lighted garage. She was then taken from the car to an upper room in the vacant house and raped upon a mattress on the floor.

After the rape, J_ _ S_ _'s abductor took her back to the automobile in the garage and forced her to again lie down in the back seat. He then drove off and after only a minute or two, J_ _ S_ _ noticed a bright light shining into the interior of the car and her abductor sped away. During the chase that followed, J_ _ S_ _ heard a 'bang' every once in a while and at one point the car hit a dip at high speed and she was thrown up in the air from the rear seat and she looked out the rear window. Her abductor let her out at Lee's Summit, she flagged down a truck and the driver turned her over to the Lee's Summit police. She was taken to the Baptist Memorial Hospital where she remained three days. There is no dispute that she had been sexually violated.

The evidence disclosed that the house where the rape occurred was one which had been rented by the defendant and his wife, and only recently vacated. J_ _ S_ _ told the police that the garage had red painted walls and a bar-like arrangement at the rear, upon which she observed a bottle and a gun; that she was taken from the garage up a flight of stairs to a kitchen which had a brick-walled appearance with a wall telephone and a light switch on one side of the entrance; she was taken down a hallway to the room where the rape occurred and noticed a den and bath leading from the hallway. After her release from the hospital following the rape, she acompanied officers to the home, previously rented by defendant, and identified the gravel driveway, garage door, garage and the red walls and bar, the stairs, the telephone and light switch, kitchen, den, bathroom and the room and mattress where the rape occurred.

She also gave the police a description of her abductor and of the automobile he was operating, and later identified the defendant and the automobile as hereafter related.

Patrolman Floyd E. Foster, assigned to the Tactical Unit of the Kansas City, Missouri police department, testified that he was cruising the south part of Kansas City with his partner in an unmarked police car the night of October 3--4, 1970. They had received a broadcast over the radio giving a description of the car and driver involved. At approximately 1:00 A.M., October 4, 1970, they spotted a car at 69th Terrace and Olive fitting the description. This car passed in front of the police car at the intersection, and the police spotlight was turned on the driver. The witness was able to see the driver's face clearly and he recognized the driver but could not recall his name. Police turned on the red flashing lights and attempted to stop the car, but it sped away with the police in pursuit. Patrolman Foster said it appeared that a shot was fired from the car at the following police car, and he fired three shots at the fleeing vehicle. At that time, he thought the driver was the only occupant of the car, but when the car hit a dip at high speed, he saw the figure of a white female bounce up from the back of the car and he fired no further shots. The fleeing vehicle escaped at speeds up to 100 miles per hour.

The morning of October 5, 1970, at police headquarters where Foster had gone to review some police photographs to refresh his memory of the name of the driver whom he had recognized but could not name, he spoke to Detective King and he, King, mentioned the name of the defendant as a suspect. As soon as the name was mentioned, Foster placed the name with the face of the man operating the car which he and his partner had pursued on the morning of October 4, 1970.

On October 7, 1970, Foster and his partner established a surveillance on the defendant's residence at 3318 East Meyer Boulevard, Kansas City, Missouri, at about 9:30 P.M. At about 12:30 A.M. on October 8, 1970, the officers approached the garage on foot and looked into the garage and by the beam of a flashlight saw the automobile they had been chasing on the morning of October 4, 1970. The license number was GR/9766, which witness Micke of the Department of Revenue, Motor Vehicle Division of Missouri, testified had been issued to the defendant.

Foster went back to the police car and radioed for additional help to cordon off the residence. When this was done, he knocked on the door; the defendant's wife responded and told the officers she was alone (although they had seen a man's silhouette in a window during the surveillance); the officers told the defendant's wife that they were policemen and that they would force their way into the house if she did not open the door and that they wanted her husband for abduction and rape; the wife then opened the door and they found the defendant sitting on a bed. He was placed under arrest, and advised of the charge of abduction and rape, and given the Miranda warning. Foster had the Buick Riviera which was in the defendant's garage towed to the police garage where it was photographed and later that morning examined for fingerprints. It was necessary for the defendant's wife to move a Chevrolet automobile out of the driveway so that the Buick could be towed. Foster identified the photographs of the automobile, bearing license number GR/9766, issued to defendant, as the vehicle he had fruitlessly pursued and the car he had towed to the police garage. He also made a positive in-court identification of the defendant as the man who had been driving the car during the chase.

Detective John King of the Crimes Against Persons Unit of the Kansas City police department was assigned to this case on the morning of October 5, 1970. He received a description of the abductor-rapist and of the automobile involved from the other officers initially on the case as the same had been given to them by J_ _ S_ _ and J_ _ H_ _ and decided that a possible suspect was the defendant, about whom he had prior knowledge. The last known address of the defendant was 3118 East 63rd Street, Kansas City, Missouri, and he went to that address and found the house vacant. He secured a key from the realty company and went into the house to check its interior against the description previously given the police by J_ _ S_ _. The description related by J_ _ S_ _ checked in every detail with his observations. The real estate agent in charge of the property testified that...