State v. Jackson

• Decision Date: 29 October 2013
• Docket Number: No. WD 74431.,WD 74431.
• Citation: 410 S.W.3d 204
• Parties: STATE of Missouri, Respondent, v. Bernard JACKSON, Appellant.
• Court: Missouri Court of Appeals

410 S.W.3d 204

STATE of Missouri, Respondent,

v.Bernard JACKSON, Appellant.

No. WD 74431.

Missouri Court of Appeals, Western District.

June 11, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 30, 2013.

Application for Transfer Denied Oct. 29, 2013.

Richard A. Starnes, Jefferson City, MO, for respondent.

Rosemary E. Percival, Kansas City, MO, for appellant.

Before Division One: GARY D. WITT, Presiding Judge, THOMAS H. NEWTON, Judge and MARK D. PFEIFFER, Judge.

GARY D. WITT, Judge.

In 1983 and 1984, four single women, all living in the Waldo/Armour Hills area of Kansas City, were attacked in their homes in the late evening and early morning hours. All four were blind-folded, robbed, sodomized, and repeatedly raped. In each case, after the assailant fled and the attack ended, the victim went to a hospital and underwent a “rape kit” examination, which included the collection of samples for use in DNA analysis. In several cases additional DNA evidence, fingerprints and hair samples were recovered from the scene of the crimes. The crimes remained unsolved for more than twenty-five years. In 2010, a “cold case” squad again reviewed the files and ran the samples using more advanced DNA technology. The DNA analyses matched the biological samples of Bernard Jackson (“Jackson”) located in the Missouri State Highway Patrol DNA database.¹ In 2010, a grand jury indicted Jackson, and he was charged with four counts of robbery in the first degree, seven counts of forcible rape, and seven counts of sodomy, against the four victims. Following trial in the Circuit Court of Jackson County, a jury convicted Jackson of all counts. The trial court found Jackson to be a prior and persistent sexual felony offender and sentenced Jackson to a life term for each of the eighteen counts with each of the eighteen life terms to run consecutively. Jackson timely appeals.

On appeal, Jackson argues that the trial court erred in (1) overruling his motion for judgment of acquittal on various counts because the evidence was insufficient to support the jury's finding that Jackson displayed a deadly weapon or dangerous instrument during the commission of the crimes; (2) accepting the jury's verdicts and sentencing Jackson on six of the counts on the offenses against victims K.M. and J.B., because the charges represent multiple punishments for the same offense in that the separate multiple allegations as to each victim were part of the “continuing course” of one crime and not separate offenses, resulting in double jeopardy; (3) overruling Jackson's Batson²challenges to the State's use of peremptory strikes to remove three African–Americans from the venire panel; and (4) overruling Jackson's objections to testimony concerning the impact that the crimes had on the victims' lives offered during the guilt/innocence phase of the trial. For reasons explained below, we affirm.

Factual Background ³

In 1983 and 1984, Jackson lived and worked in Kansas City, residing at 1315 E. 59th Terrace. The residence was within 3.5 miles of the residences of four single women who were robbed and raped during that time frame. All of the women were in their late 20s or early 30s and lived in the Waldo/Armour Hills area of midtown Kansas City.

A. July 30, 1983 (Victim K.W.) ⁴

It was a hot day, so K.W., a 29–year–old woman who lived alone, went to bed with her windows open. Around 2:00 a.m., K.W. awoke to see a man crawling on her bedroom floor. She screamed and the man jumped on her and covered her mouth. He told her that he had a gun and could kill her. He then told her to turn over and not look at him. He tied her hands behind her back with pantyhose, blindfolded her with socks and put a sock in her mouth. He then rummaged through her room looking for things to steal. He next led K.W. to the kitchen, went outside, and then returned. He then led K.W. back to the bedroom where he pushed her onto the bed and raped her. He then went to the bathroom, went outside again then returned to the bedroom. There he fondled K.W.'s breasts, put his fingers in her vagina while she stood, then pushed her onto the bed and raped her again. The man then asked if she wanted him to leave and she replied “yes.” He took $35 and jewelry. K.W. called her best friend who called the police for her. K.W. went to the hospital and submitted to a rape examination. K.W. described her assailant as a black man, about six feet tall, with a medium build and about 25 to 35 years old.

B. October 30, 1983 (Victim K.M.)

Shortly after midnight on the evening of October 29, 1983, K.M. came home and went to bed. K.M. was 29 years old and lived alone. She awoke to see the silhouette of a man standing in her doorway. She initially thought it was her ex-boyfriend. After she spoke, within seconds, the man was at her bed holding an object to the back of her neck. It was round, metallic, and felt like a gun. The man said it was a gun and that he would kill her if she told anyone. The man blindfolded her, tied her hands together with scarves, and walked her through the house checking to see if anyone else was there.

He took $16 from her purse and rummaged through her drawers and jewelry. He then moved K.M. to the living room and pushed her onto the couch. He put his hand and then his mouth on her vagina. K.M. tried to deter him by talking to him and holding her legs together but he slapped her, called her a “bitch,” threatened to kill her, told her not to talk, and gagged her. He then partially penetrated her vagina with his penis. Because she was resisting, he moved her to the floor, placed a pillow under her hips and then penetrated her again, this time fully. The man then took her back to the bedroom and left her on the bed. After she was sure he was gone, K.M. called the police and went to the hospital where she submitted to a rape examination. K.M. described her attacker as about 5'10? to 6' tall and weighing about 170 lbs. She described him as black based on the feel of his hair, and as being in his 20s based on the sound of his voice.

C. December 26, 1983 (Victim J.B.)

J.B. was 31 years old and lived alone. On December 26, 1983, she came home around 10:30 p.m. She saw a light on in her bedroom and did not recall leaving it on. She unlocked her front door, went inside, and as she turned to close the door, a black man jumped out from behind the door. He turned J.B. around and told her not to look at him, warning her that he had a gun. J.B. felt something cold and circular on her cheek and assumed it was a gun. The man led her to the bedroom where he tied her hands with pantyhose and blindfolded her with socks. He then took off J.B.'s sweatshirt and fondled her. J.B. said she had asthma and needed her inhaler so he walked her to the bathroom to get it. At one point, as J.B.'s hands were turning blue, the man removed the restraints. He undressed J.B., sat her on the bed but then told her to get under the covers since the house was very cold. The man undressed partially and got in bed with her.

The man then touched J.B.'s vagina with his hand, then with his mouth. He asked J.B. what she liked to do in bed. He also asked about birth control and then told J.B. to insert her diaphragm. Several times he got out of bed and rummaged about. After getting upset that J.B. was not sexually responding to his sodomy acts, he asked for baby oil which he put on his hands and then touched J.B.'s vagina again. Next he applied the oil to his penis and then partially penetrated J.B. with his penis. He then left the bed and looked for Vaseline, found some, applied it to his penis but again was only able to partially penetrate J.B.'s vagina. On his third attempt, he again only partially penetrated her. Finally, he positioned a pillow under J.B.'s hips and tried to penetrate her for a fourth time, this time penetrating fully. After this, he told J.B. to remove her diaphragm which he took to the bathroom and she heard the toilet flush. He then tied her to the bedposts using shoelaces and asked about things of value that he could steal. He took a television, a phone, and a vacuum cleaner. After about twenty minutes, J.B. ceased hearing the man. She then chewed through the shoelaces that he had used to tie her. She called the police and went to the hospital where she underwent a rape examination. She reported to the police that the man had held a round, hard object against her cheek, saying he had a gun and would kill her if she moved. J.B. testified that she thought it was a gun. J.B. described the assailant as black, in his 20s, with short black hair and a slight build.

D. February 11, 1984 (Victim B.G.)

On February 10, 1984, B.G. came home around midnight. She was 32 years old and lived alone. As B.G. entered the house, she was grabbed from behind and her eyes were covered. A man said he had a gun and would hurt her unless she cooperated. He put something hard and pointed against her temple and B.G. assumed it was a gun. The man led B.G. to her bedroom where he used scarves to blindfold her, gag her and tie her hands behind her back. He then took her pants off, asked her what she liked sexually, and put his hand on her vagina. He then penetrated her with his penis. Afterwards, the man wandered around her house. After about twenty minutes, she did not hear any more sounds so she began trying to get her hands loose. When she finally freed herself, she called the police and her boyfriend. The man had taken her television, $3.00, and an insurance check. B.G. went to the hospital, where a rape examination was performed. B.G. described the man as black based on his voice.

E. April, 1984

In April 1984, a police officer stopped Jackson's car for expired plates. Jackson was a black male, weighing 145 pounds, age 26, with black hair and brown eyes. He lived at 1315 E. 59th Terrace in Kansas City which was 3.1 miles from K.W.'s house, 1.7 miles from K.M.'s house, 3.5 miles from J.B.'s house and 3 miles from B.G.'s...