State v. Ivey
| Decision Date | 09 June 1969 |
| Docket Number | No. 53914,No. 1,53914,1 |
| Citation | 442 S.W.2d 506 |
| Parties | STATE of Missouri, Respondent, v. Jess Solomon IVEY, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Gene E. Voigts, Asst. Atty. Gen., Jefferson City, for respondent.
William J. Shaw, Clayton, for appellant.
HIGGINS, Commissioner.
Appeal from denial of Motion to Vacate Judgment and Sentence. Criminal Rule 27.26, V.A.M.R.
In December, 1955, Jess Solomon Ivey was convicted by a jury of the crime of statutory rape. § 559.260, V.A.M.S. His punishment was assessed at 35-years' imprisonment; he was sentenced accordingly and, upon appeal, his conviction was affirmed. State v. Ivey, Mo., 303 S.W.2d 585, cert. den. Ivey v. Nash, 362 U.S. 979, 80 S.Ct. 1065, 4 L.Ed.2d 1014.
Statement of facts in detail may be found in State v. Ivey, supra. The facts of this appeal will be developed as necessary to the discussion of appellant's points.
Appellant was interrupted in the commission of the rape by patrolling officers in the late afternoon March 21, 1955. The officers took the 15-year-old victim home in their patrol car, following appellant in his automobile. When they arrived at the victim's home, they discussed the matter with the victim's mother and, upon request for prosecution, the officers went next door and arrested appellant without a warrant. An indictment was obtained March 31, 1955, and arraignment took place on the first day of trial, October 17, 1955. At the hearing on his motion to vacate, appellant testified he was held incommunicado from his arrest to August 26, 1955, and that he did not see his attorney until trial time; however, appellant's trial attorney, Mr. Charles Shaw, was positive that he had conferred with appellant prior to trial and after, if not before, his appointment May 27, 1955. Appellant contends that these circumstances prove a violation of his right not to be held in excess of twenty hours without a warrant, Criminal Rule 21.14, V.A.M.R., Section 544.170, V.A.M.S., his rights to a speedy trial, not to be held incommunicado, and to effective legal assistance, U.S.Const., Amendments V, VI, XIV, Mo.Const., Art. I, Secs. X, XIV, XVIII(a).
The trial court obviously disbelieved appellant with respect to his being held incommunicado. He presented no evidence to show how failure to comply with Criminal Rule 21.14 prejudiced his right to a fair trial, and there is no demand for earlier trial or other evidence to show that the interval from March 21, 1955, to October 17, 1955, was a denial of a speedy trial. Detention for more than twenty hours without a warrant does not, of itself, invalidate a conviction and, if appellant wished to attack the validity of his arrest and detention, he should have done so prior to trial and not by collateral attack. State v. Worley, Mo., 383 S.W.2d 529, 533(7, 8); State v. Keeble, Mo., 399 S.W.2d 118, 121--122(13); State v. Gee, Mo., 408 S.W.2d 1, 2(1).
Referring to the same evidence and citing again the statutory and constitutional authorities of his first point, appellant contends he was denied his right to arraignment or preliminary hearing by the prosecuting attorney and that the prosecuting attorney failed to provide any valid evidence to the grand jury. Appellant was indicted by a grand jury March 31, 1955, and there is no requirement that a preliminary hearing be accorded on grand jury indictments. State v. Maloney, Mo., 434 S.W.2d 487, 496(11); State v. Turner, Mo., 353 S.W.2d 602, 604(4); State v. Green, Mo., 305 S.W.2d 863, 868--869(3, 4). There was an affirmative showing that five witnesses testified before the grand jury and that body is the judge of the sufficiency of evidence to support its indictment. State v. Selle, Mo., 367 S.W.2d 522, 526(2); State ex rel. Clagett v. James, Mo., 327 S.W.2d 278, 284(5). The record further shows affirmatively the arraignment of appellant October 17, 1955, at which time he waived reading of the indictment and went to trial on his plea of not guilty.
Appellant complains he was deprived of his constitutional rights to confront and cross-examine the prosecuting witness. It is not necessary to discuss the rights of confrontation and cross-examination of witnesses guaranteed by Amendment VI, U.S. Constitution, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, because the prosecuting witness did not testify. In that circumstance such rights never arise, State v. Eaton, Mo., 302 S.W.2d 866, 875(8), State v. Dixon, Mo., 190 S.W. 290, 294(7); and this record shows affirmatively that the prosecutrix, a 15-year-old retarded girl, did not testify on account of defendant's own motion to disqualify her on the ground 'she is not competent to testify in the case.'
Appellant testified at the hearing that there was evidence at St. Louis County Hospital showing he was impotent at the time of the alleged offense and that counsel, although requested to do so, refused to use such evidence at trial. He contends this is a violation of constitutional rights to fair trial, effective counsel, and due process. Mr. Shaw testified on this issue also. He had never had any evidence of appellant's impotence, and the record shows that hospital records, if any, to that effect had been destroyed due to lapse of the 10-year holding period. Obviously the trial court was not persuaded by appellant's conclusionary testimony and he thus failed to meet the burden enjoined on him by Criminal Rule 27.26 of proving his grounds for relief. Crosswhite v. State, Mo., 426 S.W.2d 67, 70(1).
Appellant charges he was prejudiced by failure of trial counsel to object and request a mistrial when Dr. Ernst Schroeder gave his expert opinion that 'the most likely cause for that ruptured hymen seems to be a penetration by a male organ by intercourse.' He argues the question and answer 'appear fatal' because the answer was speculative in violation of evidentiary rules governing hypothetical questions, and the question called for an opinion outside the medical field, a conclusion as easily within the knowledge of the jury as of the physician. Fields v. Luck, Mo., 44 S.W.2d 18; Stearns v. Prudential Ins. Co., 235 Mo.App. 135, 140 S.W.2d...
To continue reading
Request your trial
-
Collins v. State
...of Supreme Court Rule 21.14, V.A.M.R., likewise affords no basis for relief in this proceeding. State v. Worley, supra; State v. Ivey, Mo.Sup., 442 S.W.2d 506, 508(1). If, as suggested in State v. Donnell, Mo.Sup., 387 S.W.2d 508, 510--511(3, 4), relied upon by appellant, there may be a sit......
-
State v. Phillips
...no deprivation of this right by the denial of a pretrial disclosure of statements of the prosecution's witnesses. See State v. Ivey, 442 S.W.2d 506 (Mo.1969); cf. Winkle v. State, 488 S.W.2d 798 Assignment 3 In a pretrial petition based on Articles 739--40 of the Code of Criminal Procedure ......
-
State v. Triplett
...251(6) (Mo.App.1973). Because King never did testify at trial, the right to cross-examine and confront him never arose. State v. Ivey, 442 S.W.2d 506, 508(4) (Mo.1969). Defendant's allegations on this point are without In his last point, defendant contends that he was denied a fair trial be......
-
Shepherd v. State, 9895
...(Mo.1963)), and since Mr. Dickinson did not testify, movant's rights of confrontation and cross-examination never arose. State v. Ivey, 442 S.W.2d 506, 508(4) (Mo.1969); State v. Triplett, 520 S.W.2d 166, 171(15) Following the alleged robbery on January 24, 1971, Mr. Dickinson was described......