State v. Gibson

• Decision Date: 02 March 1982
• Docket Number: No. 40621,40621
• Citation: 633 S.W.2d 101
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Lee GIBSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 101

633 S.W.2d 101

STATE of Missouri, Plaintiff-Respondent, v. John Lee GIBSON, Defendant-Appellant.

No. 40621.

Missouri Court of Appeals, Eastern District, Division Four.

March 2, 1982.

Motion for Rehearing and/or Transfer Denied April 16, 1982.

Application to Transfer Denied June 14, 1982.

Timothy A. Braun, Circuit Public Defender, St. Charles, Melvin G. Franke, Sp. Asst. Public Defender, Jackson, for defendant-appellant.

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

SATZ, Presiding Judge.

Defendant appeals from his convictions of kidnapping, assault and rape of Carol G______ and from his convictions of kidnapping, rape and sodomy of Mary Jo B______. For his offenses against Carol G______, defendant was sentenced to concurrent sentences of two, ten and twenty years, respectively and, for his offenses against Mary Jo B______, defendant was sentenced to concurrent sentences of two, twenty and twenty years respectively. The two sets of concurrent sentences were to be served consecutively. We affirm.

Defendant raises five points on appeal. Defendant contends the trial court erred (1) in permitting a police officer to testify that Carol and Mary Jo each made a positive identification of defendant; (2) in omitting from the verdict directing instructions the time the crimes were alleged to have occurred; (3) in permitting defendant to be convicted of both an assault and rape of Carol, which subjected defendant to double jeopardy; (4) in failing to grant a mistrial on the prosecutor's closing argument; and (5) in failing to grant a mistrial after certain jurors saw defendant in handcuffs.

The pertinent facts are briefly stated. On the night of October 11, 1977, Carol G______ and Mary Jo B______ were hitchhiking along Woodson Road in St. Louis County, Missouri. Sometime after 7:00 p. m., just after dark, a young man stopped his car and offered the two girls a ride. The young man was later identified as the defendant. The girls got into the car, both sitting in the front seat, with Carol next to defendant. They told defendant where they wanted to go. Shortly thereafter, defendant pulled out a wrench and ordered both girls onto the floor of the car. Mary Jo opened the car door in an apparent attempt to escape. Defendant said "Go ahead. Jump. I'll get the last one good." Fearing for Carol's safety, Mary Jo closed the door. Defendant then locked the car doors and again ordered the girls onto the floor. Defendant raised the wrench, Carol grabbed it and they began to wrestle. During the scuffle, defendant hit Carol and Mary Jo with the wrench. He repeated his order to the girls to get down on the floor. Mary Jo complied but Carol argued that both of them would not fit. Defendant then told Carol to put her head in his lap. She initially refused but then complied when he hit her again with the wrench. When Carol's head was on his lap, defendant said: "You know what to do." She replied: "No way" and sat up. When he asked her why, Carol said she would get sick. Defendant then ordered Mary Jo onto the seat and Carol onto the floor. He ordered Mary Jo to commit fellatio, and, because she feared defendant, she agreed. Mary Jo continued the fellatio until defendant stopped the car. After he stopped the car, defendant told Carol to get undressed. She protested and defendant began to hit her again with the wrench. During the struggle, defendant again told Carol to get undressed "or there (would) be blood." However, defendant's blows had already caused Carol to bleed. Defendant then ordered Carol into the back seat. She complied. They had sexual intercourse. Mary Jo did not leave because she was afraid Carol would be hurt. After his sexual intercourse with Carol, defendant moved to the front seat of the car and had sexual intercourse with Mary Jo. Defendant offered Carol and Mary Jo some marijuana which they accepted because they "didn't know what (defendant) was going to do." Defendant then drove Carol and Mary Jo to the street where Mary Jo's sister lived and let them out of the car. Shortly thereafter, the girls went to the hospital, arriving at about 11:00 p. m. The following day, both Mary Jo and Carol identified defendant from a photographic lineup. Subsequently, they identified defendant's car as the car in which the attacks occurred.

Defendant first contends the trial court erred in permitting a police officer, Ken Brockel, to testify that Mary Jo and Carol had identified defendant's photograph from a group of photographs. Defendant asserts this testimony is inadmissible hearsay and, citing State v. Degraffenreid, 477 S.W.2d 57 (Mo.banc 1972), argues the admission of this testimony was cumulative and prejudicial. We disagree.

Officer Brockel testified he showed the group of photographs to each girl separately. "There were five photos in all," he stated. "Mary Jo was sitting by the secretary's desk. I walked over and started lying (sic) (the photographs) down one at a time, when I reached No. 3, Mary Jo said that's him." Brockel then stated he showed the photographs to Carol in the same order he had shown them to Mary Jo. When Brockel was asked whether Carol had also selected the third photograph, he replied that she did. ¹

Brockel's testimony that the girls identified the defendant from a photographic lineup is inadmissible hearsay. State v. Degraffenreid, 477 S.W.2d 57, 62-63 (Mo.banc 1972). ² In Degraffenreid, the admission of similar corroborating testimony was found to be prejudicial because:

"... the practical effect on a jury of the third person's hearsay corroboration of the identifying witness's testimony concerning extrajudicial identification is to lend substantial credence to the identifying witness's testimony, and such credence is principally derived from the stature and character of the third person rather than the substantive basis for his testimony." Id. at 64.

However, in Degraffenreid, the sole identification witness was a 78 year old man who viewed the defendant for somewhat "longer than a minute" from a distance of 78-80 feet. Under those circumstances, the officer's corroborating testimony "confirm(ed) the believability of the (witness') testimony and thereby tip(ped) the scales against defendant." State v. Degraffenreid, supra at 64. The facts in the present case are markedly different. In the present case, there were two separate identifications of the defendant rather than a single identification. The two young girls viewed the defendant from very close range for approximately one hour, under circumstances which would sensitize their memory. Unfortunately, these types of crimes give the victim an unparalleled opportunity to view her assailant. Moreover, both girls picked defendant as their assailant from the photographic lineup without hesitation, and their in-court identification of him was unequivocal. Furthermore, each girl was able to identify defendant's car as the car in which the offenses occurred. Unquestionably, the identifying evidence here was strong and heavily weighted against the defendant. Thus, we cannot say, as the Court said in Degraffenreid, that Brockel's hearsay testimony "tip(ped) the scales against defendant." See State v. Montgomery, 596 S.W.2d 735, 738 (Mo.App.1980); State v. Starkey, 536 S.W.2d 858, 864 (Mo.App.1976).

Defendant next contends the trial court erred in failing to submit the time of day the various offenses occurred in the respective verdict directing instructions. ³ The instruction on rape tracked MAI-CR 6.40. The instruction on sodomy tracked MAI-CR 12.50 and the instruction on kidnapping tracked MAI-CR 6.30. The instruction on alibi tracked MAI-CR 3.22. ⁴ The time the offenses occurred was referred to in the state's verdict directing instructions as "on or about October 11, 1977." Defendant contends his assertion of an alibi defense required the trial court to define the time the offenses allegedly occurred with greater specificity. We disagree.

The Notes on Use appended to MAI-CR 6.40 (rape) state that "if the defendant has an alibi for the particular rape charged, the instruction should submit the date and, if important to the defense, the time of day, e.g., 'between the hours of ______ and ______' ...." MAI-CR 6.40, Notes on Use, Para. 2. Similarly, the Notes on Use appended to MAI-CR 12.40 state that "(t)ime may be of the essence and may even require the submission of the time of day." MAI-CR 12.50, Notes on Use, Para. 2. ⁵ Since defendant relied on an alibi defense, the failure to include the time of day the offenses occurred in the instructions is presumptively prejudicial State v. Clifton, 549 S.W.2d 891, 895 (Mo.App.1977) and, thus, would be prejudicial unless the presumption is rebutted. State v. Billingsley, 534 S.W.2d 484, 485 (Mo.App.1975). The present facts do rebut the presumed prejudice.

Carol testified defendant picked her and Mary Jo up sometime between 8:00 p. m. and 9:00 p. m. Carol stated that she and Mary Jo were with defendant for "at least an hour." Mary Jo estimated that she and Carol were in the car with defendant from about 8:00 p. m. to 10:00 p. m. Thus, the state's evidence established the offenses occurred between 8:00 p. m. and 10:00 p. m.

Defendant's evidence established his presence elsewhere between 8:00 p. m. and 10:00 p. m. on the night in question. Defendant testified that, on the night in question, he arrived at Jay Barry's house at 7:30 p. m. to repair equipment belonging to the Jay Barry Band. He left Barry's house with a member of the band to go to a liquor store. He returned shortly thereafter and remained at Barry's house until 9:30 p. m. or 10:00 p. m. He then went home. Other members of the band corroborated his alibi. Jay Barry testified defendant was at Barry's house from 7:00 p. m. or 7:30 p. m. until 9:30 p. m. or 10:00 p. m. David Lewis testified that he went to the liquor store at the same time defendant did but in another...