State v. Gunter, 14537
| Decision Date | 03 September 1986 |
| Docket Number | No. 14537,14537 |
| Citation | 715 S.W.2d 576 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Sam GUNTER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Kathleen Murphy Markie, Columbia, for defendant-appellant.
Defendant, Sam Gunter, was jury-convicted of the class B felony of rape, § 566.030.3, .4, 1 and thereafter sentenced to eight years' imprisonment in accordance with the jury's recommendation.
On appeal, Gunter questions the admission of certain evidence over his objection, and claims instructional error. We affirm.
The information filed charged that on or about May 18, 1984, in McDonald County, Missouri, Gunter had sexual intercourse with W.B., who was then less than 14 years of age, and to whom he was not married. This language parallels that used in the statute in question, and the charge is commonly referred to as statutory rape.
The sufficiency of the evidence to sustain the verdict is not questioned on appeal. It suffices to say that there was sufficient evidence presented in the state's case in chief from which the jury could find, beyond a reasonable doubt, that on the night of May 18, 1984, Gunter had sexual intercourse with his 12 year old niece to whom he was not married. The sordid details of the depravity of the encounter need not be repeated here.
Gunter first alleges that the trial court erred in allowing into evidence, as a part of the state's case in chief, a tape of Dottie Gunter's preliminary hearing testimony. This testimony was that about May 18, 1984, she was not married to Gunter, but was living with him in a "trailer house" belonging to Gunter's father. Dottie said Gunter told her to go in to the room where W.B. and a girl friend were sleeping and tell W.B. that Gunter wanted to have sex with her. Dottie said she did talk to the child, but also told her not to come in the bedroom where Gunter was. Dottie also said that she saw Gunter have sexual intercourse with W.B., and that this occurred "about a day" after Gunter asked her to ask the child to have sexual intercourse with him.
Eight days before the circuit court trial, Dottie remarried Gunter "because I love him." Gunter and Dottie had both been advised that if they remarried the state could not use her as a witness. After the jury was sworn, and immediately before the state began to present its case in chief, Gunter's attorney stated that his client "has asked for the spousal privilege to be invoked to prohibit the testimony of Dottie Gunter from being introduced at this trial," and that the same privilege existed with "respect to preliminary hearing testimony that's already been given." The prosecutor did not dispute the assertion that he could not call Dottie as a witness at trial by reason of spousal immunity, but contended that since she was unavailable to him as a witness, by reason of spousal immunity, he should be permitted to use her preliminary hearing testimony in his case in chief, because at the time of the crime, and at the time of the preliminary hearing, Gunter was not married to Dottie, and, therefore, no spousal immunity doctrine could be invoked to preclude such testimony. The trial judge agreed with that reasoning, and permitted the tape of Dottie's preliminary hearing testimony, including her cross-examination by Gunter's attorney to be played to the jury.
At trial, Dottie voluntarily testified as a witness for Gunter, and said that her prior statements as to what she had seen and heard on the night in question were lies, and that she had been prompted to lie through threats from the investigators and prosecuting attorney.
In his first point relied on, Gunter contends that the trial court erred by admitting into evidence, over objection, the preliminary hearing testimony of Dottie Gunter for the reason that "such testimony violated appellant's right to prevent his spouse from testifying against him," and that such testimony "contained evidence of a separate crime with which appellant was not charged."
We turn first to the spousal immunity argument. Gunter argues that the competency of Dottie to testify was determined by whether they were married at time of trial and, if so, an invoked privilege related back to cover prior statements made when they were not married. Gunter's brief does not cite any case in point to back up his theory, and even if he had, such reasoning would have no application under the facts here.
In 1985, the Missouri legislature amended the spousal immunity statute, § 546.260, to provide that in any criminal prosecution under Chapter 565, 566, or 568, RSMo, involving an alleged victim under the age of 18, a spouse shall be a competent witness against a defendant-spouse, and that no spousal privilege exists in such circumstances. The amendment was effective July 19, 1985, which was before the date of trial. The prosecution in this case was for a Chapter 566 crime, and the alleged victim was less than 18 years old. Since there was no spousal privilege to be invoked, it was error to admit the preliminary hearing testimony, as Dottie Gunter was available as a witness, over Gunter's objection. However, no one objected to the use in evidence of the preliminary hearing testimony for the reason that the statutory amendment made Dottie Gunter an available witness, and there was no assignment of...
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