State v. Hadley

• Decision Date: 27 August 1987
• Docket Number: No. 14817,14817
• Citation: 736 S.W.2d 580
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Russell HADLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 580

736 S.W.2d 580

STATE of Missouri, Plaintiff-Respondent, v. Russell HADLEY, Defendant-Appellant.

No. 14817.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 27, 1987.

Motion for Rehearing or to Transfer

Denied Sept. 16, 1987.

Application to Transfer Denied

Oct. 13, 1987.

Nancy A. McKerrow, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Jeffrey Philip Dix, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Judge.

A jury found defendant Russell Hadley guilty of sodomy, (§ 566.060), ¹ robbery in the first degree, (§ 569.020), and armed criminal action, (§ 571.015), and he was sentenced, as a prior offender, to a term of 30 years for each offense, the sentences to run consecutively. Defendant appeals.

Defendant's first point is that the trial court erred in overruling his motion for judgment of acquittal because the evidence is insufficient to support the verdict in that: (a) there was no substantial evidence that defendant was the perpetrator of the offenses due to "numerous inconsistencies" in the identification testimony of the victim and (b) with respect to the sodomy charge, the state failed to prove that deviate sexual intercourse occurred "because there was no evidence of contact between the genitals of defendant and the mouth, tongue, hand or anus of Hazel Smith, the victim."

In determining the validity of defendant's point, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217, 218 (Mo.1972). All evidence unfavorable to the state must be disregarded. State v. Summers, 506 S.W.2d 67, 69 (Mo.App.1974).

During the early morning hours of December 11, 1985, Hazel Smith, an 82-year-old widow, was alone and in bed asleep in her mobile home in Webb City. She felt someone stroking the side of her face. She heard the intruder say, "I've waited so long for this." She saw a man with a bread knife in his right hand "raised up above." The man was naked and lying "not completely on the bed." Mrs. Smith, a state's witness, testified that the man pulled off her pajama bottoms, ripped off her pajama top and made her stand up. "We stood there a few seconds and he set me down on the bed and reached over and got the top of my pajamas. ... Then he took the bigger part of the pajama top and put it over my head ... blindfolded me."

There was light in the room. Mrs. Smith testified that she recognized "the man that she saw in her trailer there that night up until the time he put the blindfold on me." She pointed to the defendant and identified him as the intruder. Mrs. Smith further testified that the defendant subjected her to a variety of sexual acts. The acts of sodomy will be described later.

Mrs. Smith also testified that the defendant took some money and several articles of her personal property which were in the trailer. Before leaving, defendant told Mrs. Smith, "It won't do the police any good if you call them because I'll get in my car and I'll leave and they won't even know where I went." Mrs. Smith testified that she "went to listen to see if I heard a car start because that was about 3:20 in the morning and I didn't hear anything." Among the articles stolen by the defendant was a key ring which included the key to the front door of the trailer. On December 12 Mrs. Smith had a chain lock installed on her front door in addition to the "button lock."

Mrs. Smith testified, without objection, that on the night of December 15, 1985, four days after the original intrusion, "somebody tried to get in my trailer again. It was in the night and I was asleep. I heard pounding on the front door and it woke me up. I managed to get to the phone. The door would open about this much with the chain on. I could see his head. He was down working on the chain making a lot of noise. I didn't get a good enough look at his face at that time to see his face." She said that both the chain lock and the button lock were locked by her before the attempted entry on December 15.

On cross-examination by defense counsel Mrs. Smith said that on the night of the original intrusion, "My front door was locked and they can unlock them with a card, you know that and he does too." Defense counsel attempted to impeach Mrs. Smith's identification of the defendant. She testified that she saw the outline of his face, his naked shoulder, his dark hair, and the side of his head. "I even saw the hair where it was cut.... I saw his eyes when he was standing up there just before he started to put the mask on me ... real shortly after I saw him and got this glimpse of his face he put this blindfold over my eyes."

She also testified that prior to the original intrusion defendant "came over and did my grass for me once. The people next door had him cut their grass and I was on the porch and he walked over from their place and asked me if I wanted my grass cut. I told him the boy next door cuts my grass but he doesn't do a bang-up job. I asked him how much he would charge to straighten it up and he said '$5.00' and I said 'okay.' He did it and came and I paid him."

She also testified that later in the day of December 11 the police showed her a group of photographs. In the last part of January 1986 she was shown a second group of photographs. She identified defendant as one of the men shown in the second group. "One thing I was looking for was how long the hair was. I naturally didn't point at the people with the long hair because I knew he had a close hair cut."

Chief Deputy Sheriff Larry Parrill testified that on December 11, 1985, he investigated the bedroom in Mrs. Smith's trailer and collected from the bed sheet what appeared to be pubic hair. He also collected pubic hair samples and saliva samples from defendant when the latter was placed in custody on January 27, 1986. He turned these items in to the crime laboratory. On cross-examination by defense counsel Parrill testified that on December 15 he went to Mrs. Smith's trailer after the second entry had been attempted. He looked at some footprints in the snow which led to the road.

Melvin Mosher, associate director of the crime laboratory, testified that defendant had type A blood and that semen stains on Hazel Smith's night shirt were deposited by a person who had type A blood. He said that 42 percent of the population have type A blood.

Phillip Whittle, director of the crime laboratory, testified that he had compared pubic hair samples from the sheet with pubic hair obtained from defendant. One of the hairs from the sheet "did not come from the victim." He compared that hair with defendant's hair and "the sum of these properties appear to be consistent or compatible with the control samples from defendant."

Webb City police officer Randy Breeden testified that he went to Hazel Smith's trailer at 5:43 a.m. on December 15, 1985. There had been a light snow and Breeden observed tracks of snow across Hazel Smith's trailer porch. Her front door "had noticeable damage. It was bowed and bent, kind of sprung out of shape." He followed the tracks in the snow. "As they left the porch, they kind of veered in a southeast direction away from the porch." The witness drew a diagram showing the location of Mrs. Smith's trailer and the trailer of defendant's mother which was located in the same general area.

Although the distance between the two trailers was not estimated by any witness, photographs taken from the inside of Mrs. Smith's trailer show the other trailer. From these photographs the jury could find that the trailer of defendant's mother was generally southeast of the Smith trailer and that the trailers were perhaps 300 feet apart.

Breeden testified that the tracks in the snow "left the Smith trailer, they went southeast.... The snow was gone on the driving lanes and the pavement but in the grass-covered yards and also in the grassy center median of the road there was snow."

On a diagram, Exhibit 35, Breeden marked four areas where he observed snow tracks. The first area was across the Smith porch and yard, the second area was across the median, the third was across an area farther southeast, and the fourth area was across the yard of the other trailer leading to its porch. "The size and shape of the prints coming off Mrs. Smith's trailer were very similar in size and general shape of the ones I saw in front of the Hadley trailer." The four sets of tracks were generally along the same interrupted line. Exhibit 35 was admitted without objection.

The defense was alibi. Gail Randolph testified that she was at a party with defendant at a nearby apartment complex and drove him to his mother's trailer between 12:30 and 1:00 a.m. Defendant's mother testified that defendant "arrived home about 1:15 or 1:20 a.m." and "we stayed up late." The witness stayed up until 4:00 a.m. and she sat up with defendant "until he went to sleep."

Testifying in his own behalf, defendant said, on direct examination, that he had "criminal convictions for burglary, stealing and grand larceny in Oklahoma ... also for public drunk and property destruction." He testified that he attended the party until Gail Randolph took him home at 1:00 a.m. "I spent the remainder of the night and the early morning hours at [his mother's] trailer." He denied going to Hazel Smith's trailer on December 11 or December 15. On cross-examination defendant admitted that on February 13, 1985, in Kansas City, he committed burglary and stealing.

"The issue of identification of the perpetrator of a crime is for the jury, and appellate courts do not delve into a determination of the weight of the evidence in such cases." State v. Timmons, 584 S.W.2d 129, 132 (Mo.App.1979). To similar effect see Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App.1975), and State...