State v. McGuire, s. 61945

• Decision Date: 14 February 1995
• Docket Number: 66090,Nos. 61945,s. 61945
• Citation: 892 S.W.2d 381
• Parties: STATE of Missouri, Respondent, v. Michael McGUIRE, Appellant. Michael McGUIRE, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 381

892 S.W.2d 381

STATE of Missouri, Respondent, v. Michael McGUIRE, Appellant.

Michael McGUIRE, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 61945, 66090.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 14, 1995.

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

A jury convicted Michael McGuire of attempted rape, a violation of § 566.030 RSMo 1986. Defendant appeals the conviction and denial of his Rule 29.15 motion without an evidentiary hearing. We affirm.

The evidence, which supports the verdict, is as follows. On December 22, 1990, defendant and his wife picked up their five-year-old niece, J.K., from her mother's home to spend two nights at their home. In the evening J.K. fell asleep in defendant's bed, positioned between defendant and his wife. While his wife was sleeping, defendant committed acts that constitute the offense charged.

The McGuires returned J.K. to her home in the morning of December 24, 1990. On January 2, 1991, J.K. told her mother that something was wrong. Her mother took J.K. to the emergency room where a doctor examined J.K. Two days later, the hospital called and told the mother to bring J.K. back to the emergency room. Hospital personnel told the mother that J.K. had been sexually molested and tested positive for gonorrhea.

While still at the hospital, J.K. and her mother spoke with Jeff Viehmeyer, a social service worker. Viehmeyer told J.K. that she would not be allowed to go home and would have to stay in the hospital if she did not tell him who had assaulted her. J.K. told Viehmeyer that her Uncle Mike had done it. She thus identified defendant.

Between January 21 and 28, 1991, Tish LaRock Mullen, a nurse with the Sexual Abuse Management Team and clinic at Cardinal Glennon, interviewed J.K. three times. J.K. explained what had happened. She said her Uncle Mike was the one involved.

Viehmeyer contacted Officer Gary Guinn of the sex crimes/child abuse section of the St. Louis City Police Department. Once Officer Guinn learned that J.K. had tested positive for gonorrhea, he told Viehmeyer to make arrangements for every adult who had been around the child to be tested for gonorrhea. Officer Guinn later learned that Viehmeyer had only arranged for males to be tested and that only defendant tested positive for the disease. On January 28, 1991, Officer Guinn interviewed J.K. at her home. J.K.'s statements about the incident on December 22, 1990, were consistent with the statements she gave to Mullen.

Dr. James Monteleone, Professor of Pediatrics and Director of Child Protection and Director of the Sexual Abuse Management Clinic at Cardinal Glennon, testified for the state. He had reviewed J.K.'s medical records, which reported she had been examined and had tested positive for gonorrhea. He testified that a gonorrhea infection "must be transmitted by direct mucosa to mucosa contact" and that the disease is only sexually transmitted. He explained that the gonorrhea bacteria is very sensitive and dies quickly. He also testified that if the bacteria was contracted in December, 1990, it would not be unusual to see symptoms in January, 1991. He stated that a gonorrhea infection seen in a child of five or six years of age indicates sexual abuse. He opined that J.K., who was five when the incident occurred and seven at the time of trial, was sexually abused.

On cross examination, Dr. Monteleone acknowledged certain medical authorities have left open the possibility of non-sexual transmission of the disease; however, he expressed his belief that non-sexual transmission of the disease was not possible in children.

After a guilty verdict and sentence, defendant timely filed a Rule 29.15 motion and a first-amended motion. The motion court denied defendant's 29.15 motion without an evidentiary hearing. Defendant presents five points on appeal.

Defendant's first point on direct appeal is a Batson claim involving equal protection as it relates to the government's exercise of peremptory challenges. Defendant contends the state purposely excluded two black venirepersons from the jury solely because of their race. Defendant argues the explanations given by the state were clearly pretextual in that the proffered explanations had no bearing or logical relevance to defendant's trial, and similarly situated white venirepersons were not struck.

Once a party has established a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the opposing party must give race-neutral reasons for the challenged peremptory strikes. State v. Parker, 836 S.W.2d 930, 934 (Mo. banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). To be sufficient the explanation need only be race-neutral, reasonably specific and clear, and related to the particular case to be tried. Id. If the state offers sufficient race-neutral explanations for the strikes, defendant must then show that the state's proffered reasons were merely pretextual and that the strikes were racially motivated. Id., 836 S.W.2d at 939.

Trial courts are vested with considerable discretion in determining whether the defendant established purposeful discrimination. Parker, 836 S.W.2d at 934. Much of their determination turns upon evaluation of intangibles such as credibility and demeanor. Id. A trial court's determination regarding purposeful discrimination is a finding of fact that will not be overturned on appeal unless clearly erroneous. Id. at 939.

Defendant argues the state struck venirepersons Gilliard and Davie solely because of their race. Regarding venireperson Gilliard, the prosecutor explained she struck Gilliard, who works for the federal government in a military record department, because of his familiarity with records and record keeping. The prosecutor planned on calling two custodians of records and anticipated some difficulties with the records from Cardinal Glennon being introduced. Defendant argues this explanation was pretextual because venireperson Boyd, a similarly situated white venireperson, was not struck. However, venireperson Boyd was not similarly situated. Boyd was a micro accountant, not a microfilm specialist as defendant asserted during the Batson hearing. Thus, the state's explanation for striking venireperson Gilliard was not pretextual.

Regarding venireperson Davie, the prosecutor explained she struck him because he was a HUD inspector responsible for enforcing provisions of Section VIII regarding low-income housing. The apparent relevance of Davie's occupation was that J.K.'s living arrangements were haphazard in that as many as seven people lived with her in row-type housing at one time, and her mother allowed her to spend time at defendant's home, where adults and children slept together in various beds, couches and on the floor. There is support for the prosecutor's belief that the nature of Davie's job may unduly influence and predetermine his perceptions of J.K. and her family. Thus, the state's explanation for striking Davie was not pretextual.

Defendant further argues that a second explanation the prosecutor offered for striking venireperson Davie was pretextual. Because the prosecutor's first explanation was sufficient, we need not review a second explanation. Point denied.

Defendant's second point on direct appeal is the trial court erred in prohibiting direct examination of defendant and his wife regarding the common usage of a towel or rag in lieu of toilet paper in the victim's household. Defendant argues this testimony was crucial to his defense that J.K. possibly contracted gonorrhea by non-sexual transmission from a female member of her household.

A trial court has wide latitude in determining whether to admit or exclude evidence adduced by the parties at trial. State v. Clark, 711 S.W.2d 928, 932 (Mo.App.1986). Absent clear abuse, we will not interfere with the trial court's ruling on the admission or exclusion of evidence. Id.

Defendant contends his defense was partially based on proving the possibility of non-sexual transmission of gonorrhea. He did not offer expert testimony addressing the possibility of non-sexual transmission of the disease. However, on cross examination, Dr. Monteleone, the state's expert, conceded that some in the medical field opined that gonorrhea could survive in towels for up to twenty-four hours. He did not agree with that view. In addition, on direct examination, defendant attempted to testify that the members of J.K.'s household shared a towel or rag in lieu of toilet paper and that J.K. possibly contracted gonorrhea from another member of the household. The trial court sustained the state's objection to this testimony. Defendant attempted to pursue a similar chain of questioning on direct examination of his wife. Again the court did not allow the testimony.

The trial court did not abuse its discretion in prohibiting testimony concerning the alleged hygiene of members of J.K.'s household. In the absence of supporting medical testimony, the questions posed by defense counsel would not have elicited information...