State v. McClunie
| Decision Date | 10 March 1969 |
| Docket Number | No. 2,No. 53746,53746,2 |
| Citation | 438 S.W.2d 267 |
| Parties | STATE of Missouri, Respondent, v. Curtis McCLUNIE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Robert H. Jones, Sp. Asst. Atty. Gen., Kennett, for respondent.
J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
Appellant, Curtis McClunie, and four other men were charged by indictment with the commission of the detestable and abominable crime against nature under § 563.230, RSMo 1959, V.A.M.S. Appellant and three other men were jointly tried, and were convicted by a jury in the Circuit Court of Jackson County, Missouri. Appellant's punishment was assessed at imprisonment in the custody of the Missouri Department of Corrections for a period of two years. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court.
Appellant contends the trial court erred in overruling his motion for a directed verdict of acquittal at the close of the evidence because the evidence is not sufficient to sustain the conviction.
This contention was not assigned as error in appellant's motion for new trial, and, therefore, the issue is not properly preserved for appellate review. State v. Nolan, Mo.Sup., 423 S.W.2d 815. However, if the evidence is not sufficient to sustain the conviction, plain error affecting a substantial right is involved from which manifest injustice must have resulted. S.Ct. Rule 27.20(c), V.A.M.R. Therefore, we will consider appellant's contention.
Appellant concedes that a conviction may be had in a sodomy case upon the uncorroborated evidence of the victim, but asserts that 'when the evidence of such * * * (victim) is of a contradictory nature, or when applied to the admitted facts in the case * * * (his) testimony is not convincing but leaves the mind of the court clouded with doubts, * * * (he) must be corroborated, or the judgment cannot be sustained.' State v. Tevis, 234 Mo. 276, 284, 136 S.W. 339, 341.
According to testimony elicited from Joe Louis Murphy, he was confined in 'E' Tank of the Jackson County jail on October 11, 1967. At or about 8:00 o'clock that evening, as he was watching television in the bullpen, appellant, and four other men, 'took a towel and put it around my mouth, drug me out of the bull pen, and were forming a headlock around my neck, put me in 2 Cell.'
Murphy testified positively, and with particularity, as to the commission of the acts of sodomy upon him in Number 2 Cell, the details of which need not be recited. He identified appellant, and his co-defendants, at the trial, as four of the men who forced him into Number 2 Cell. He testified that he was 'able to see each and every one' of them as they committed the acts of sodomy upon him. He testified without contradiction that the acts were committed upon him against his will.
We have reviewed the testimony of Joe Louis Murphy, and find nothing of a contradictory nature. The question then becomes whether his testimony 'is not convincing but leaves the mind of the court clouded with doubts.'
Appellant first asserts that Murphy's testimony is not convincing because, although law enforcement officials were near the scene, Murphy failed to enlist 'their assistance in thwarting his assailants.'
Murphy testified on direct examination as follows:
'Q And did they make any threats to you? A Yes, sir.
Q What did they tell you?
A They threatened to stab me if I told.
Q Did you believe them? A No, sir.
Q And did they stay close to you that evening or what happened after they all finished?
A They stayed pretty close that morning, at breakfast.
Q And did they keep making threats to you? A Yes, sir.
Q What did they threaten to do? A I can't remember them all.
Q Well, some of them, whatever you remember.
A They said they'd get me in the penitentiary or some way over there.
Q They'd get you in the penitentiary? A Yes; or on the streets.
Q On the streets? A Yes.
Q If you told about it? A Yes.
Q And did you subsequently tell anybody about this?
Q Yes; I told the guard as I was coming up from court.
Q Now, you stated you went to breakfast and these five men stayed close to you and were making threats. A Yes.
Q Now, when were you able to get away from these five men?
A When I went to court the following morning.
Q And you told the deputy about it? A Yes.
Q And after you told the deputy, what happened?
A The deputy told Mr. Brice.
Q And what occurred then? A I told Mr. Brice what happened.
Q And did he have you identify the five persons that committed this crime against you? A Yes, sir.
Q And are four of those five seated here in the courtroom today and defendants in this case? A Yes, sir.'
Murphy testified on cross-examination as follows:
'Q You were in Number 1 cell. What cell did you stay in that night? A 1 cell.
Q Now, what happens--well, maybe you can tell me, do they lock each eight-man cell up every night? A Yes.
Q What time do they close this--A (Interrupting) I think 11 o'clock.
Q Eleven o'clock. What did you do from the time of 8:30 to 11 o'clock? A What did I do?
Q Yes. A I was trying to get out of my cell, I couldn't leave my cell or kick on the wall for the guard, I couldn't.
'THE COURT: A little louder, please.
Q (By Mr. Krebbs) You did what?
A I said I tried to get out of my cell after they ordered me to go into my cell and I tried to get out into the bull pen to kick on the wall for the guard.
Q Who was in Number 1 cell after 11 o'clock when they locked all the eight-man cells up, who was in your cell?
A All the guys that slept in 1 cell.
Q Were any of the defendants in your cell that night? A No.
Q Therefore you were not threatened all night long, were you?
A No.
Q When you came back from court it was at that time you told the guard what had happened the night before? A Yes.'
We do not agree that Murphy's testimony is rendered unconvincing because he failed to enlist the aid of law enforcement officials. He explained why he was unable to enlist their aid until the morning after the incident. Appellant's point is without merit.
Appellant next contends that Murphy's testimony is not convincing because there was not sufficient light in Number 2 cell to enable Murphy to identify appellant as one of his assailants.
Murphy testified on cross-examination as follows:
'Q How many lights were on in the bull pen at this time?
A Just outside light.
Q What is the outside light? A Rail.
Q What do you mean, the rail light?
A Where the guard and trustee (sic) walks.
Q It's not in the bull pen, is it? A No.
Q Is this an open area with just bars? A Yes.
Q * * * How many lights are out there in this area? A Three.
Q What type of lights are they? Are they lights like up here?
A Yes, but they're long.
Q They're long? A Yes.
Q Thin lights? A (Nods affirmatively.)
Q Now, were all three of these lights on?
Q Just the one out front.
Q There was only one light on at that time, there's three...
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State v. Dayton
...a conviction which does not rest on substantial evidence denies a defendant fundamental fairness and is a manifest injustice. State v. McClunie, 438 S.W.2d 267, 268(1, 2) (Mo.1969); Thompson v. City of Louisville, 362 U.S. 199, 206(1, 11), 80 S.Ct. 624, 4 L.Ed.2d 654 Count III of the inform......
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State v. Wilkerson
...if the evidence was not sufficient to support the judgment of conviction, plain error has been committed. State v. McClunie, 438 S.W.2d 267, 268[1,2] (Mo.1969); State v. Gardner, 737 S.W.2d 519, 520 (Mo.App.1987). We shall consider the Count I of the information upon which the defendant was......
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State v. Webb
...the conviction, plain error affecting a substantial right is involved from which manifest injustice must have resulted.' State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969), citing Rule 27.20(c). See also: State v. Potter, 530 S.W.2d 268, 269 (Mo.App.1975); and State v. White, 439 S.W.2d 752, ......
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State v. Rivers, 38205
...a substantial right is involved from which manifest injustice must have resulted. S.Ct. Rule 27.20(e), V.A.M.R." State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969); State v. White, supra, 439 S.W.2d at We realize that in determining the sufficiency of the evidence to support a verdict of guil......