State v. Easton

• Decision Date: 16 February 1979
• Docket Number: No. 10822,10822
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerry Paul EASTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 953

577 S.W.2d 953

STATE of Missouri, Plaintiff-Respondent, v. Jerry Paul EASTON, Defendant-Appellant.

No. 10822.

Missouri Court of Appeals, Southern District, Division Two.

Feb. 16, 1979.

Motion for Rehearing or Transfer to Supreme Court Denied

March 8, 1979.

Application to Transfer Denied April 10, 1979.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Kirby W. Patterson, Springfield, for defendant-appellant.

MAUS, Judge.

This sordid tale involves an armed robbery of, an act of sodomy on, and an attempt to murder the 70 year old proprietress of a motel in Springfield, Missouri. Two young men, defendant and one David Rezabek, set in motion the events which culminated in these degenerate acts. After consolidation, the defendant was tried upon an amended information charging him in separate counts with these three offenses. He testified in his own defense and admitted his participation in the robbery, but denied his involvement in the sodomy and attempted murder. The jury found the defendant guilty on all counts and fixed his punishment as follows: armed robbery 50 years; sodomy 25 years; attempted murder 10 years. He was sentenced in accordance with the verdicts, to run consecutively. The defendant asserts error in the consolidation for trial and joinder of the three offenses, the instructions and attacks the sufficiency of the evidence to support the instructions on sodomy and attempted murder. The latter requires a summary of the evidence, which in view of the verdicts will be reviewed most favorably to the state, with all reasonable inferences therefrom. State v. Sloan, 548 S.W.2d 633 (Mo.App.1977).

One of the principal factual disputes involves the identity of which of these two men personally committed the act of sodomy and attempted murder. They are remarkably similar in appearance, each about 5'9 tall, weighing 160 pounds, with light brown or blond hair. The witnesses agreed they looked alike. Pictures before this court also establish that to be true.

The victim testified that on May 14, 1977, at approximately 10:15 p. m. a young man with a cap entered the motel office and after a pretense of inquiring about a room stuck a gun in her side. (This person will be referred to as the attacker). The attacker took the lead throughout the affair. About this time, another man, appearing to be unarmed, entered. (This person will be referred to as the second man). The second man upon instructions from the attacker went outside to turn off the vacancy sign. They then took money from her business billfold. She was then escorted to her adjoining living room. Her hands were tied behind her back. The attacker told the second man to get more tape. The second man replied that was all they had. More money was taken from her personal billfold. She was then ordered to the bedroom and told to lie down. The attacker directed the second man to cut the phone cord. The second man did so and used it to tightly tie her legs at the ankles. She was then gagged with Kleenex from her dresser and tape. She did not know who did this. The attacker then tore off her clothes and manually sexually abused the victim. During this time the second man was going through the jewelry boxes on the dresser in the same room. The attacker asked if he got any and the second man replied "some". The attacker said the victim was not cooperating and directed the second man to "get the ether". She did not know if the second man left. The gag was removed and the attacker then forced the victim to commit an unsuccessful act of oral sodomy. When the victim got sick the attacker told her because she did not cooperate he would have to kill her. The attacker called for more Kleenex. Three wads of tissue were placed in her mouth and she was re-gagged. The attacker then smothered her with a cloth toilet seat cover until she lost consciousness. Two guns were introduced in evidence, a .22 and a 9mm. She identified the 9mm as looking more like the gun used by the attacker. On cross-examination, she admitted it was possible the companion left the room and came back with the Kleenex. It was established the total time involved was 20 to 30 minutes.

On identification: At the trial the victim stated she did not know which of the two men was the attacker. She did state the attacker was the one with the gun and with the cap. Defendant and Rezabek were apprehended in Collinsville, Illinois, on May 16, 1977. On May 17, 1977, officers took the victim to Collinsville where out of five pictures she identified pictures of defendant and Rezabek and made a definite statement that defendant was the attacker and Rezabek was there and assisted to some extent. However, at defendant's preliminary hearing held June 23, 1977, she stated defendant came in second, he went out to see about the sign, the other was the leader, and that defendant was not the one that assaulted her. Before the trial opened she picked the picture of Rezabek as the attacker. The victim was characterized as forgetful. She was nervous and upset at the preliminary hearing. At the trial she could not identify a picture of the defendant who was then seated in the courtroom.

When apprehended, defendant attempted to flee with the 9mm gun in a shaving kit. Rezabek attempted to flee with the .22 in his waistband. On May 17, 1977, defendant stated to the officers he participated in the robbery, was armed with the 9mm gun, planned the robbery and was the leader.

Defendant testified both guns were in his possession before the robbery. During the robbery Rezabek had the 9mm and used it. The .22 was in defendant's waistband and not used. He stated Rezabek was wearing a cap and went in first. He turned on the no vacancy sign. When they went into the living room, he tied her hands with tape and then went to the car for more which he did not find. On his return, per Rezabek's instructions, he cut the phone cord and tied her feet. He then went to the car and waited 4 or 5 minutes for Rezabek. He didn't go back because he was afraid of what he might find; Rezabek had been known to bust things up. He denied the sexual attack and smothering. He said Rezabek told him a few hours after the incident the victim had been "messed up a little", but didn't learn of the sexual attack until after he was arrested. He first denied that he gave the officers in Collinsville an alias, but on further cross-examination admitted he did. He first said he didn't know if he told the officers he had the 9mm gun at the time of the robbery because he was high on marijuana. Then he testified "what I said the day before I stuck to for fear of making things worse than the pot". He also testified he said he had the 9mm because he didn't know of the sexual attack.

The defendant does not question the power of the court to consolidate these offenses for trial. State v. Williams, 554 S.W.2d 524 (Mo.App.1977). Rule 24.04 reads as follows:

"All offenses which are based on the same act or on two or more acts which are a part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees." V.A.M.R. Crim. Rule 24.04.

The rule has been approved against constitutional attack. Severance before and during trial is within the discretion of the trial court. State v. Baker, 524 S.W.2d 122 (Mo. banc 1975); State v. Duren, 556 S.W.2d 11 (Mo. banc 1977).

The defendant, with due respect for the trial judge, fervently asserts the trial court abused its discretion in consolidating the offenses of armed robbery, sodomy and attempted murder. The basic thrust of his claim of error is that he received a greater punishment for the confessed offense of armed robbery than he would have received had not that offense been joined with what he terms the more heinous offenses of sodomy and attempted murder. As a secondary attack, he asserts he was found guilty of the disputed offense of sodomy and attempted murder on questionable evidence because those offenses were joined with the admitted offense of armed robbery.

His assertions are premised upon speculation concerning the inner thoughts of the jury and their inability to follow the instructions of the court. Defendant's assertions are easily countered by contrary speculations. Had the defendant been charged separately, in the absence of the imposition of a 50-year sentence for armed robbery, a jury could well have awarded a 50-year or greater sentence for sodomy. The same person committed the sodomy as committed the attempted murder. Any speculation that the 25-year sentence for sodomy resulted from doubt about the identity of the perpetrator is quickly dispelled by the maximum punishment of ten years given by the jury for attempted murder.

Defendant also claims an abuse of discretion in joinder because the trial of defendant for armed robbery would have been a simple trial requiring only his confession. He overlooks his plea of not guilty to this charge. His non-judicial admission of robbery could have been recanted, requiring two full blown trials. Had defendant really wanted a separate trial for sodomy and attempted murder, this would have resulted from a guilty plea to armed robbery. Because his strategy in the trial court was not satisfactory, he should not now be heard to complain.

The jury was instructed that each offense and the evidence and law applicable to it should be considered separately. We must consider that they followed their instructions. See State v. Minor, 556 S.W.2d 35 (Mo. banc 1977). Joinder of the following offenses has been approved: armed robbery and assault with intent to kill, State v. Neal, 514 S.W.2d 544 (Mo. banc 1974); murder and...