State v. McFarland

• Decision Date: 15 October 1980
• Docket Number: No. WD31132.,WD31132.
• Citation: 604 S.W.2d 613
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James McFARLAND, Defendant-Appellant.
• Court: Missouri Court of Appeals

604 S.W.2d 613

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

No. WD31132.

Missouri Court of Appeals, Western District.

July 8, 1980.

Motion for Rehearing and/or Transfer Denied July 28, 1980.

Application to Transfer Denied October 15, 1980.

Clifford B. Mayberry, Kirksville, for defendant-appellant.

John Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before WASSERSTROM, C. J., Presiding, and PRITCHARD and KENNEDY, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 1980.

WASSERSTROM, Chief Judge.

Defendant appeals from his conviction by a jury of rape by criminally knowing a female under 16 years of age and the consequent sentence of six years in prison.

From the evidence the jury could reasonably have found the following facts. The prosecutrix at the time of the events in question was 15 years old. On the evening of August 17, 1978, Gail Bell, defendant and defendant's brother went to the home of prosecutrix in Kirksville, Missouri. Bell knocked at the front door, asked for prosecutrix and inquired whether she wanted to go out, but prosecutrix declined. While that short conversation occurred, defendant and his brother remained on the sidewalk.

The next evening prosecutrix was home alone. At about 12:15 in the early morning of August 19, defendant returned alone, forced his way into the house and committed forcible rape. Prosecutrix called her mother, who returned home, called the police and took prosecutrix to the hospital. At the hospital an examination was performed which disclosed male semen in prosecutrix's vagina and bruises on her body. Her clothes were torn and seminal stains were also found on her panties.

A complaint was filed February 20, 1979, followed by information and formal arraignment on April 2, 1979. Trial in the circuit court was held May 29 to 31, 1979, and resulted in the conviction from which this appeal is taken.

Defendant's points on appeal may be summarized as follows: (1) that the jury panel was improperly constituted; (2) that the court improperly limited defendant's cross-examination of certain witnesses; (3) that the court erred in overruling an objection to the in-court identification of defendant by prosecutrix; and (4) that the court erred in refusing to give a tendered cautionary instruction with reference to identification testimony.

I.

Preliminary to the trial, defendant filed a motion to quash the jury panel and offered evidence of the following facts. Adair County, in which the trial was held, has a total population of approximately 25,000. There are approximately an additional 6,500 students who attend two colleges within the city, those students being estimated to range in age between 20 to 25 years old. The sheriff of the county estimated that approximately 20% of the jurors during the year preceding trial were under 30 years of age, and he also gave as his opinion that the number of young people on juries was "substantially less" than the population distribution of the county.

Defendant's attorney took the witness stand to testify that during his term as prosecuting attorney, which had been for a period of eight years ending about two years before this trial, he had come to knowledge that the county clerk had discriminated against registering young people by asking them irrelevant questions and, according to some complainants, harassing them while they were trying to register. Jury panels have been selected in Adair County from voter registration lists, and the jury in the present case was so selected from a registry list compiled at a point of time some years previously but not precisely fixed by the evidence.

During voir dire, defense counsel inquired as to the age of the jurors, and none was under age thirty. No record count was made of those who answered to being over age sixty; but somewhat later, defense counsel stated that he had counted sixteen, while the prosecuting attorney stated that he had counted only eight to ten. Defendant in this case was twenty years of age at the time of trial.

Defendant contends that the above evidence shows that he was tried by a jury which failed to represent a fair cross section of the community. He claimed that this evidence meets all of the requirements of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979): that the excluded group constituted a distinctive group in the community; that the representation of this group in venires from which the jury was selected was not fair and reasonable; and that the underrepresentation was due to systematic exclusion. Defendant's argument fails on all three counts.

There is nothing to show that the persons falling within the age group 20 to 25 years have any distinctly different characteristics which would warrant treating them as a separate cognizable category. There is a long and impressive line of cases holding that young people do not constitute a separate cognizable group for purposes of jury representation. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Potter, 552 F.2d 901 (9th Cir. 1977); United States v. Test, 550 F.2d 577 (10th Cir. 1976); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975); United States v. Olson, 473 F.2d 686 (8th Cir. 1973); and cases cited in the foregoing opinions.

With respect to the second Duren test, that is concerning a disproportion of young people in jury venires, defendant has also failed in proof. He has not shown any specifics as to the age distribution of the persons whose names were in the jury wheel from which this jury venire was selected. While there is some (but unsatisfactory) evidence as to the make up of this particular venire, there is no evidence with respect to any others. Defendant's proof therefore is defective for the same reason pointed out in State v. Carter, 572 S.W.2d 430, 434 (Mo. banc 1978) where it was held:

"Defense counsel pointed out the composition of only a single jury panel and petit jury in support of the claim of discrimination. Nothing was offered showing repeated exclusion of an ostensibly neutral selection procedure, nor a procedure under which a subjective evaluation of potential jurors could hide discrimination. There was no proof as to racial composition or of the method of name selection for the `wheel' for the year or other representative period, nor are we told of the selection process or racial composition of the panel by months, weeks or days from which the array presented on the day of trial was selected. From this absence of proof it cannot be said a prima facie case of racial discrimination appears."

In addition it should be pointed out that the sheriff's generalized conclusion, that young people were underrepresented on juries, was at variance with his other estimates. Accepting his population figure of 25,000 and adding to that the student population of 6,500, Adair County has a total population of 31,500. The sheriff estimated that 20% of the jurors were between ages 21 and 30. Twenty per cent of the total population is 6,300, which is almost exactly the total number of students as estimated by the sheriff. These figures do not show a disproportion, but rather tend to the contrary.

Nor does the evidence show any systematic exclusion of young people from the voter registration lists. Defendant's evidence in this regard was confined to a single instance at some not clearly specified date in the past, and the same practice was not shown to have continued thereafter or to have remained in effect at the time the names were selected for the present jury wheel.

Defendant's first point is without merit.

II.

When the prosecutrix was taken to the hospital shortly following the assault, she was interviewed by a doctor who took a statement from her. In the course of that statement, she stated that she was nine days late in her menstrual period, that her menstrual cycle was approximately 24 days and that her last act of sexual intercourse had occurred in the second week of May. Defendant sought to cross-examine the doctor with respect to the statement taken by him and also requested permission to interrogate the prosecutrix with respect to the same matters, on the theory that the prosecutrix had a motive to falsely charge rape in order to cover up her feared pregnancy resulting from past consensual sexual intercourse. The trial court ruled that such cross-examination was barred by Section 491.015, RSMo 1978, and therefore would not be permitted. Defendant contends that ruling to be error.

The lateness of the menstrual period would be meaningless in and of itself, and could attain significance only by connection with a prior instance of sexual intercourse. This necessary connection brings the subject matter within the purpose and scope of Section 491.015 which provides that "evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible * * *." Defendant does not contest that proposition, but he nevertheless insists that the evidence here in question is admissible under a statutory exception, Sec. 491.015-1(3), which permits evidence of prior sexual conduct which constitutes "evidence of immediate surrounding circumstances of the alleged crime." Although there are numerous "rape shield" statutes in other states, the statutory language of exception just quoted seems to be unique to Missouri and has never as yet been subjected to appellate scrutiny in this state.

This language has however been discussed in an article by Amburg and Rechtin, Rape Evidence Reform in Missouri: A Remedy for the Adverse Impact of Evidentiary Rules on Rape Victims, 22 St. Louis U.L.J. 367 (1978). That article at page 376 quotes the sponsor of this legislation as having stated in an interview "that this exception...