State v. Evans, 48917

• Decision Date: 12 November 1985
• Docket Number: No. 48917,48917
• Citation: 701 S.W.2d 569
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ricky Alonzo EVANS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 569

701 S.W.2d 569

STATE of Missouri, Plaintiff-Respondent, v. Ricky Alonzo EVANS, Defendant-Appellant.

No. 48917.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Nov. 12, 1985.

Motion for Rehearing and/or

Transfer Denied Dec. 17, 1985.

Application to Transfer Denied

Jan. 15, 1986.

Michael Radosevich, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

DOWD, Presiding Judge.

Defendant Ricky Alonzo Evans appeals his jury conviction of sodomy, § 566.060 RSMo Cum.Supp.1984; burglary in the first degree, § 569.160 RSMo 1978; and armed criminal action, § 571.015.1, RSMo 1978. Defendant was charged as a persistent sexual offender and sentenced to terms of imprisonment of thirty (30) years on the sodomy conviction, ten (10) years on the burglary conviction, and three (3) years on the armed criminal action conviction, said sentences to run consecutively. This appeal followed.

At approximately 7:30 p.m. on November 26, 1983, the defendant entered R.L.'s (hereinafter victim) apartment through her front door. The victim, a 19 year old unmarried woman, testified that her door had been left ajar on this particular evening so that she could answer her friend's phone, who lived next door. Once the defendant was in the victim's apartment he held a knife to her throat and told her that he was going to rob her. The victim was instructed by the defendant to lock the apartment door and to turn off the lights, except for the Christmas tree lights.

At the defendant's instruction, the victim went to the bedroom and disrobed. The defendant held a knife to the victim's throat as the two proceeded back to the living room to sit on the couch. The victim tried unsuccessfully to pull an afghan over her body while on the couch. The defendant ordered the victim back to the bedroom to clothe herself. Instead of putting her clothes on, the victim put a robe on. The victim testified that she put a robe on instead of her clothes because she wanted to get out of the bedroom as soon as possible. The defendant tied the victim's hands behind her back with the belt from the robe. The defendant told the victim that he had to hurt her, as her boyfriend had hurt his sister. He asked the victim whether he should rape or kill her. The victim told the defendant she would rather be dead than raped. The defendant led the victim back to the living room with a knife held to her throat.

The defendant continued to hold a knife to her throat as the two sat on the couch in the living room. The defendant said, "Maybe I should just go ahead and kill you." The victim said, "No please don't." The defendant said, "Well maybe I should go ahead and rape you." The victim pleaded with the defendant that he not rape her. The defendant then gave the victim a choice, either to be raped or sodomized. The victim chose sodomy because she feared pregnancy. The defendant put the blade of the knife to the back of the victim's neck and forced the victim to sodomize him orally. The defendant released the victim, apologized several times, and then hugged the victim. The victim testified that she felt some kind of covering on the defendant's head when he hugged her, which could have been a sock cap or hood.

Other relevant evidence received as part of the state's case in chief, was as follows. Two witnesses, who live in the victim's apartment complex, testified that a black man of the defendant's build and stature knocked on their door, on the evening of November 26, 1983, between 6:55 p.m. and 7:15 p.m. One of the witnesses testified that the man held a sock cap in his hand. This witness had identified the defendant from a photo lineup shown to him by the police as the man who knocked on his door. The victim's boyfriend testified that he found a piece of paper on the couch shortly after the incident. The paper had the name of "Tim Johnston" and a phone number on it. Tim Johnston testified that the defendant had talked to him previously about purchasing a truck Johnston had for sale. Mr. Warren, an analytical chemist, testified that dog hairs similar to the hairs found on the victim's couch, were found on defendant's clothes.

Police searched the defendant's apartment after his arrest and found clothes fitting the description given by the victim. Additionally, the police found a knife, sock cap, and gloves in the defendant's apartment.

After defendant was arrested he made two statements to the attending officers regarding the incident. Prior to making either statement the police officer testified that the defendant had been read his Miranda rights, and had signed a form stating that he understood his rights. Defendant refused to sign a form waiving his rights but indicated a desire to talk. The attending officers stated that the defendant did not appear to be under the influence of alcohol or drugs. The officers indicated that the defendant did not request an attorney or indicate an unwillingness to talk. In his first statement, defendant told the officers: "I'm sorry, I'm so sorry ... I didn't mean to hurt her." Defendant's second statement was written and admitted most of the details of the crime.

Defendant raises numerous points on appeal. In four constitutional challenges to the composition of the jury, defendant asserts that the trial court erred in its denial of defendant's motion to strike for cause: (1) panelist Shepard because of her expertise regarding matters introduced into evidence by the state and because of her strong personal feelings about sexual assault; (2) panelist Welker because of her association with Timothy Johnston, the state's witness; (3) the entire jury panel because comments made by a panelist served to prejudice the entire panel; and (4) the entire panel because of its racial composition. Defendant also claims the trial court erred in: (5) denying defendant's motion to suppress inculpatory statements made by defendant to the police; (6) entering the judgment of conviction against the defendant because the information used to charge the defendant failed to charge the defendant with an offense; (7) refusing to allow defendant's counsel to ask questions concerning the burden of proof or the presumption of innocence during voir dire; and (8) denying defendant's motion of acquittal on the grounds that there was insufficient evidence to sustain the conviction of sodomy. For the reasons discussed below, we affirm.

Defendant raises several issues regarding the jury selection process. The law regarding juror selection is well established. A defendant in a criminal case is entitled to a full panel of qualified jurors before he is required to make his preemptory challenges. The trial court has wide discretion in determining the qualifications of veniremen and its ruling on a challenge for cause will not be disturbed in the absence of a clear abuse of discretion. The trial judge is in a far better position to make a determination as to the qualifications of a potential juror than the appellate court; as his determination necessarily involves a judgment of the demeanor of the venireman, as well as what he says. For this reason, any doubt as to the propriety of the trial judge's ruling should be resolved in his favor. State v. Daniels, 629 S.W.2d 627, 630 (Mo.App.1982). The trial court has a duty to evaluate closely, and at times independently examine the qualifications of potential jurors. Without such independent review by the trial court, a more searching review by the appellate court is justified. The trial court's determination, however, will be rejected only upon a clear showing of abuse of discretion by the trial court. State v. Draper, 675 S.W.2d 863, 865 (Mo. banc 1984).

Defendant's first challenge is the trial court's refusal to strike panelist Shepard for cause arguing that panelist Shepard's training in hair analysis and her strong personal feelings about sexual assault represented potential prejudice and bias against the defendant. As a result of the court's failure to strike panelist Shepard, defendant argues that his right to a full panel of qualified jurors prior to making peremptory challenges was violated. In judging the qualifications of an individual juror the trial court makes its determination based upon the whole examination of the juror. State v. Garrett, 627 S.W.2d 635, 642 (Mo. banc 1982), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). To show an abuse of discretion, the bare possibility of prejudice is not enough; instead, it must clearly appear from the evidence that the challenged venire person was in fact prejudiced. State v. Cheesebrew, 575 S.W.2d 218, 221 (Mo.App.1978).

During voir dire it was revealed that panelist Shepard had been instructed in hair and textile analysis in a home economics class. Panelist Shepard was asked whether her previous instruction in hair analysis would interfere with her ability to listen to Mr. Warren's testimony; Shepard responded, "No." Missouri courts have held that a jurors former affiliation with law enforcement was not sufficient grounds to challenge for cause. State v. Robinson, 595 S.W.2d 9, 11 (Mo.App.1979). In the case before us, panelist Shepard's single course in hair and textile analysis is insufficient to strike her for cause.

During voir dire panelist Shepard expressed her feelings about sexual assault. The following is from the voir dire examination of panelist Shepard:

MR. ROBBINS: Putting aside the situation regarding race for a minute, is there anybody that feels uncomfortable sitting in this case just because we have--Mr. Duckworth, Mrs. Proffer, I understand that--a sexual connotation case where we are going to be discussing something rather private or personal? Is there anybody that feels they could not sit here and be fair in this case, hearing evidence one way or the other regarding the issue of sodomy? Think hard. By your silence ...