State v. Gray, KCD26362
| Decision Date | 19 June 1973 |
| Docket Number | No. KCD26362,KCD26362 |
| Citation | 497 S.W.2d 545 |
| Parties | STATE of Missouri, Respondent, v. Radford Napoleon GRAY, Appellant. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Kansas City, of Counsel.
John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, C.J., PRITCHARD, J., and LAURENCE R. SMITH, Special Judge.
A jury found defendant guilty of the forcible rape of the prosecutrix, who was 17 at the time of occurrence, and fixed his punishment at 10 years imprisonment. Defendant appeals from the 10-year sentence subsequently imposed.
Defendant's sole claim of error on this appeal is that the State's evidence was insufficient in that there was no evidence that defendant put the prosecutrix in fear or that defendant forced her to have intercourse with him. The trial court overruled defendant's motions for acquittal made at the close of the State's evidence and again at the close of all the evidence.
Defendant relied on an alibi defense. Details as to the rather bizarre happenings are somewhat incomplete. The prosecutrix was the only one who testified as to the occurrence and the events leading up to same. She testified that at 10:00 p.m. on the night of April 21, 1971 she was watching TV at her home at 3524 Flora, in Kansas City, Missouri, when a boy named Lawrence came to the house to get the prosecutrix's girl friend. The prosecutrix walked her girl friend down to the car. A man called 'Fats' (a brother of defendant) had a gun in the back seat of the car. He ordered prosecutrix to get in the car, and she did. Fats asked her where her sister was and said that she had a thousand dollars of his. When the prosecutrix said she didn't know where her sister was, he said that she had better find out because he wanted his money now. He said, 'If you don't get my money together, I'll blow your brains out.'
The prosecutrix was taken in the car by Fats and two other (unidentified) males to an apartment at 32nd and Highland. She was blindfolded and taken by Fats in another car to another (unidentified) location. Later, Fats, while accompanied by the prosecutrix, hailed a taxicab someplace on Linwood Boulevard. The prosecutrix was not blindfolded at this time. She knew he had the gun in his pocket. The prosecutrix testified that Fats was using his weapon to keep her in custody. She said she was afraid to tell the cab driver what was happening. She accompanied Fats in the cab to a two-story house at 2615 Chestnut, arriving there about 12:00 midnight. The prosecutrix was not assisted out of the cab. Fats told her to go up to the house. He was right behind her. Facts knocked on the door, and defendant Radford Gray, dressed only in underclothing, came to the door. Defendant said nothing and appeared to have arisen from sleep. Defendant let in Fats and the prosecutrix. Another man, then in the house, was seen to go upstairs. There was a bed and a couch in the room at the entrance. A living room was to the right.
Fats ordered the prosecutrix to take off her clothes. The prosecutrix testified that he did not point a gun but that she knew he had a gun. She did not protest about taking off her clothes. She said she 'was scared . . . to try anything.' She took off her clothes in the living room. Fats put a pillow on the floor. He called someone on the phone (which was in the living room) and told the prosecutrix to sit on the pillow and suck his penis. She sat on the pillow but refused to suck his penis. Defendant came into the living room, and without saying anything, started pinching the prosecutrix about her breasts and legs. The prosecutrix said that she cried. The prosecutrix kept telling him to stop and knocked his hands away, but defendant just kept on with the pinching until Fats got off the phone. Defendant told Fats that he wanted to have sexual intercourse with the prosecutrix, and Fats said, 'just go on and have it.'
The prosecutrix testified that defendant inserted his penis into her vagina and had intercourse with her on the bed, which was near the entrance to the house. The prosecutrix said she was not tied down, that no gun was pointed at her; that she did not scream; but that she was scared. She testified that she engaged in the intercourse against her will. Fats never did display the gun to the defendant. After the intercourse, Fats told the prosecutrix to go upstairs and take a bath, which she did. She was upstairs about fifteen minutes. She did not shout or attempt to escape. When she came down, defendant told her he 'wanted to have' her again. She said she didn't want to. She was not threatened because of her refusal. In defendant's presence Fats then blindfolded the prosecutrix and Facts took her away in a car. Some unidentified person was also in the car. Defendant stayed at the house. The prosecutrix was let out of the car at 27th and Prospect. She flagged a cab and went home, arriving there about 3:00 a.m. She told her mother and stepfather that she had been raped. Her stepfather took her to General Hospital, where she was examined and treated. Then she went to the police station that same night (early morning of April 22). She was shown photographs of persons. She said she identified 'them' (apparently referring to defendant and Fats) but that she told the police it wasn't 'them', because she had been threatened. She testified at the trial that 'they threatened to kill me if I told anyone.' When asked specifically, at the trial, about defendant, she stated that he had made this threat.
The prosecutrix testified that she was 'really afraid' the entire evening in question. She had gone as far as the 11th grade in school. She said she had never been to a party, dance or cocktail party in her whole life, but had been to family reunions. She had never seen defendant at any time prior to her arriving at 2615 Chestnut on the night in question. She had not known Fats personally but had seen him riding in a car prior to this particular night.
When the prosecutrix went back to the police station a day later (on April 23rd) she identified both defendant and Fats from photographs. She also identified defendant at a line-up on April 23rd.
John King, a Kansas City, Missouri policeman, talked with the prosecutrix both at the hospital and at the police station in the early morning of April 22nd. He stated:
Medical records from General Hospital, received into evidence, showed that the prosecutrix was at the hospital at 4:30 a.m. on April 22nd. Physical examination showed no acute distress and no abrasions or lacerations, but sperm was found in her vagina.
Garman Johnston, an officer of the Kansas City, Missouri Police, in the polygraph section, testified as to the results of a polygraph examination he administered to defendant. The State and defendant had stipulated that the examination could be made and the results and the examiner's opinion introduced into evidence. During the examination defendant made negative responses to questions as to whether he raped the prosecutrix or knew who had raped her. The officer testified that in his opinion defendant's answers were not truthful.
Testimony of defendant, and other witnesses on his behalf, related to the good reputation of defendant and as to his being elsewhere on...
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