State v. Foster

• Decision Date: 16 January 1973
• Docket Number: No. 34847,34847
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Daniel Webster FOSTER, Jr., Defendant-Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 662

490 S.W.2d 662

STATE of Missouri, Plaintiff-Respondent, v. Daniel Webster FOSTER, Jr., Defendant-Appellant.

No. 34847.

Missouri Court of Appeals, St. Louis District.

Jan. 16, 1973.

Motion for Rehearing or Transfer to Supreme Court Denied

Feb. 13, 1973.

Shaw & Howlett, Terry J. Flanagan, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Gene McNary, Pros. Atty., and Thomas E. Dittmeier, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

McMILLIAN, Judge.

In August, 1971, a substituted information in lieu of an indictment charged Daniel Webster Foster, defendant, with rape and prior convictions of felonies pursuant to 556.280, RSMo 1959, V.A.M.S. The jury found him guilty of rape and thereafter the court entered its judgment of conviction on the verdict, and sentenced the defendant to twenty (20) years in the custody of the Department of Corrections. After an unavailing motion for a new trial, defendant appealed. For reasons stated below, we affirm. Since there is no issue as to the sufficiency of the evidence, we shall recount only the details of the incident necessary to explain our ruling.

Defendant claims that the trial court erred in three respects: (1) overruling objection to question, 'Did you hear anything about a gun?'; (2) admission into evidence defendant's underpants; and (3) permitting victim's mother to testify as to her daughter's physical condition and what she did to relieve discomfort.

The prosecutrix, age 17, was assaulted by three youths, including the defendant, between 11:00 P.M., August 4, 1971, and the early morning of August 5, 1971, in a park in Webster Groves, Missouri. Each assailant, whom she knew from school and the neighborhood, had intercourse with her at least twice. She testified that while she was being subjected to this nightmare, she heard one of the assailants make a statement about a gun. The defendant objected to this testimony as being hearsay, and the objection was sustained. Earlier when making his opening statement the prosecution represented that his evidence would show that at the time of the rape she heard somebody say that, 'I lost my gun.' On voir dire the court ruled neither whether the remarks were relevant nor whether they were hearsay. Since the court did not rule, we shall treat the objection as overruled. No further relief was requested. Relying on State v. Wright, 319 Mo. 46, 4 S.W.2d 456, defendant how claims that these two incidents were highly prejudicial and inflammatory. The Wright case is authority against defendant's contention. It states that declarations of persons not parties to the suit are hearsay and always inadmissible unless res gestae. Suffice it to say that the utterances offered by the prosecutors came forth at the same time the nefarious acts were taking place. The spontaneity of the statements speak for their trustworthiness; thus qualifying the statements as an exception to the hearsay rule. Sander v. Callahan, Mo., 351 S.W.2d 691; Monical v. Armour and Co., Mo., 307 S.W.2d 389; McKenzie Transport Leasing Co. v. St. Louis Public Service Co., Mo.App., 349 S.W.2d 370. Therefore, the error was in defendant's favor and against the State. So defendant cannot be heard to complain, and the first point is ruled against defendant.

Next, defendant claims that State's Exhibit F, defendant's underpants, was immaterial irrelevant, and highly prejudicial. Defendant also said at the time the underpants were admitted that 'the testimony of the expert witness stated this cannot be traced and it can be two years old.' While it is questionable as to whether defendant saved anything by this general objection, we interpret the latter statement to refer to the finding of seminal stains. Officer Robert W. Wunderlich states that at 12:45 A.M., August 5, 1971, the victim reported the rape to him. Officer Paul Walton states on August 5, 1971, at 4:00 A.M., he took defendant into custody at his home. Defendant admits arriving at the park in question between 12:00 to 12:30 A.M., on August 5, 1971, and that he went home about 3:30 A.M. that morning. At the station Officer John Aldrich took defendant's underpants. The laboratory examination by Criminologist Thomas Marren indicated a positive test for seminal stains on defendant's underwear. Candidly, Mr. Marren said that his test could in no way establish the length of time the seminal stains were present. Nor could his tests in anyway relate the stain on State's Exhibit F to the seminal stains on the victim's garments. Seizing upon these two deficiencies, defendant shouts foul. In State v. Stevens, Mo., 467 S.W.2d 10, cert. den., 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546, our Supreme Court held that in a crime of violence evidence of bloodstains on the person or his clothing is relevant to the issue of guilty. Granted blood can be identified by type and semen cannot, yet an analogy can be drawn between the two insofar as the relevancy of the evidence is concerned. Here we do not say that simply...