State v. Hill, Nos. 56971

• Decision Date: 19 March 1991
• Docket Number: Nos. 56971,58339
• Citation: 808 S.W.2d 882
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James HILL, Defendant-Appellant. James HILL, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 882

808 S.W.2d 882

STATE of Missouri, Plaintiff-Respondent, v. James HILL, Defendant-Appellant.

James HILL, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 56971, 58339.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 19, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 16, 1991.

Application to Transfer Denied June 11, 1991.

Michael D. Burton, Ellen A. Blau, St. Louis, Craig A. Johnston, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

STEPHAN, Judge.

James Hill appeals from his convictions, after a five day jury trial, on two counts of rape, Section 566.030, RSMo 1986, two counts of sodomy, Section 566.060, RSMo 1986, one count of second degree robbery, Section 569.030, RSMo 1986, and one count of felonious restraint, Section 565.120, RSMo 1986. Additionally, James appeals the dismissal of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We have consolidated James' two appeals, pursuant to Rule 29.15(l ). We affirm.

The evidence adduced at trial in the light most favorable to the verdict is as follows. On October 8, 1988, victim traveled east on highway 44, looking for an exit to highway 55 south, which she intended to take home. Victim missed her exit, and became lost on highway 70. Victim exited the highway several times in an attempt to find a familiar area. While traveling in the inside lane, victim ran over something, which tore up the bottom of her car and caused a flat tire. After victim got out of the car and inspected it, she got back in her car and began crying. Since no one stopped to assist victim, victim got out of her car and started walking.

As victim crossed a ramp, she saw a car coming down the ramp. The car, driven by Gregory Hill with James Hill as his passenger, pulled up beside the victim. Victim told them that her car had broken down and that she needed to get to a phone. They told victim that they would take her to a phone. Victim got in the back seat of the car, still crying. She could not see very well, as mascara was in her eyes.

While riding down the highway, victim noticed that they passed an exit, but one of the Hill brothers informed her that there wasn't a telephone at the exit. When victim next looked up, she noticed that they were in a park. Realizing that there was not a phone nearby, and recognizing that something was wrong, victim jumped out of the car and took off.

The Hill brothers chased her. Gregory grabbed victim by her arm, and James demanded her purse. Victim gave the men her purse. Gregory subsequently knocked victim to the ground. Gregory then demanded victim's jewelry. Gregory grabbed the rings off her fingers and began yanking on her necklaces. Victim thereafter took off her necklaces and gave them to the two men. James returned to the car with victim's purse.

Gregory tried to get on top of victim, and began pulling off her panty hose. When victim screamed, he told her to shut up or he would kill her. James arrived back from the car. Victim pleaded with James to help her, but James refrained from so doing, and again returned to the car at Gregory's request.

After James left, Gregory raped victim, tore her dress, and fondled her breasts. Victim told Gregory she was sick, so he leaned up. Victim turned over, got up and ran. Gregory chased her, grabbed her and dragged her to a little grove of trees. Gregory raped her again.

Victim could hear someone blowing a horn. Shortly thereafter, James returned from the car. Gregory encouraged James to partake. As James raped victim, Gregory placed his penis in her mouth. The two men then switched places, and continued to rape and sodomize victim. Thereafter, the two men took victim back to the car; James drove the car, while Gregory sat with victim in the back seat.

While they were driving down a hill, victim saw police lights and jumped out of the car. Victim told Officer Acquilla Lagrone, a police officer with the City of St. Louis, that the two men in the car just raped her. Officer Lagrone ordered the Hills out of their car. Gregory thereafter told Officer Lagrone that victim was "his woman" and that they had come to the park to have some fun. James corroborated Gregory's story. Victim again told Officer Lagrone that they had raped her. Victim also told Officer Lagrone that they had her jewelry. Victim told the Hills that if they gave her back her belongings, she would not prosecute. James removed some jewelry and victim's purse from the car. The police subsequently transported both men to the police station, where more of victim's jewelry was found in Gregory's pocket.

The police took victim to the police station. Victim was then taken to Barnes Hospital for treatment. Dr. Joseph Crow, a serologist for the City of St. Louis, examined her body fluids. He found human seminal acid phosphatase and a human spermatoza head in victim's vaginal swabs.

James was charged by indictment on November 3, 1988. He did not testify at trial. At the close of the state's case, James moved for a judgment of acquittal. The court denied the motion. Again, at the close of all evidence, James moved for a judgment of acquittal. The court similarly denied this request. The jury returned verdicts, finding James guilty of all six counts. On June 30, 1986, the court sentenced James as a prior and persistent offender, to life imprisonment on one count of rape, twenty years on one count of sodomy, ten years on another count of rape, ten years on another count of sodomy, five years on second degree robbery, and five years on felonious restraint. All sentences are to run consecutively. The court additionally ordered James to pay $68.00 to the Victim's Crime Compensation Fund.

James filed a notice of appeal on July 10, 1989. On November 28, 1989, James filed a pro se motion for post-conviction relief, pursuant to Rule 29.15. James additionally filed a motion to disqualify the trial court judge. The trial court judge sustained this motion. A motion court judge was subsequently assigned to hear James' Rule 29.15 motion.

On January 17, 1990, the court appointed counsel to represent James. The motion court ordered counsel to file an amended Rule 29.15 motion and/or a request for an evidentiary hearing on or before February 19, 1990. On February 27, 1990, the motion court overruled James' motion to extend or in the alternative to set aside the original order appointing counsel and to reappoint other counsel. However, the motion court did grant leave for James to file an amended Rule 29.15 motion and or a request for an evidentiary hearing on or before March 21, 1990. On March 19, 1990, James filed his Rule 29.15 motion and his request for an evidentiary hearing. The motion court issued its findings of fact and conclusions of law, denying James' motion on April 11, 1990. James filed his notice of appeal on April 19, 1990. We have consolidated James' two appeals, pursuant to Rule 29.15(l ).

James' first point on appeal is that the trial court abused its discretion in overruling his objections and requests for mistrial regarding statements made by the assistant circuit attorney during the state's closing argument. Specifically, James contends that the assistant circuit attorney: (1) made three improper personal attacks on defense counsel; and (2) commented on matters outside the evidence.

At the outset, we note that broad discretion rests with the trial court in controlling closing argument, with wide latitude accorded counsel in their summation. State v. Schwer, 757 S.W.2d 258, 263 (Mo.App.1988). We will only reverse a ruling for abuse of discretion where the argument is plainly unwarranted. Id.

Granting a mistrial is a drastic remedy. State v. Shelton, 779 S.W.2d 614, 616 (Mo.App.1989). It should only be utilized where there is grievous error which cannot otherwise be remedied. Id. The granting of a mistrial rests largely in the discretion of the trial court because the trial court is in a better position to determine any prejudicial effects from the alleged error. Id. In order to hold that the failure to grant a mistrial was reversible error, we must conclude, after reviewing the entire record, that as a matter of law the error was so prejudicial that its effect was not removed by the trial court's action. Id.

We have reviewed each of the four remarks James finds objectionable. Each comment was made in response to a comment made by defense counsel. It is well-established that a prosecutor is permitted to exceed the normally recognized limits of closing argument in retaliation to defense counsel's argument. State v. Bryant, 741 S.W.2d 797, 799 (Mo.App.1987). James' first point is therefore denied.

James' second point on appeal is that the trial court plainly erred in failing to declare a mistrial, sua sponte, following the prosecutor's argument to the jury: (1) that he assumed the victim had never been raped before; (2) the crime would change him and the jury forever; (3) the men on the jury could not be raped in the same way the victim had been; and (4) he believed the victim. James contends that the prosecutor improperly vouched and personalized the case to the jury. James also contends that the prosecutor's statements constituted arguments based on facts not in evidence.

James failed to object at trial to the portions of the state's arguments which he now finds objectionable. Instead, James asserted this challenge for the first time in his motion for a new trial, which the trial court denied. It is well-established that complaints concerning the substance of closing argument call for immediate objection so that corrections may be made and appropriate cautionary instructions given. State v. Schneider, 736 S.W.2d 392, 398 (Mo. banc 1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988). An objection raised after the...