State v. Mitchell, 56908

• Decision Date: 12 March 1973
• Docket Number: No. 56908,56908
• Citation: 491 S.W.2d 292
• Parties: STATE of Missouri, Respondent, v. Albert Junior MITCHELL, Appellant.
• Court: Missouri Supreme Court

Page 292

491 S.W.2d 292

STATE of Missouri, Respondent, v. Albert Junior MITCHELL, Appellant.

No. 56908.

Supreme Court of Missouri, En Banc.

March 12, 1973.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

R. Howard Dillard, Everett S. Van Matre, Mexico, for appellant.

HIGGINS, Commissioner.

Albert Junior Mitchell, charged with forcible rape, was convicted by a jury which assessed his punishment at 75 years' imprisonment. Sentence and judgment were rendered accordingly. § 559.260, V.A.M.S. (Appeal taken prior to January 1, 1972.)

Appellant's statement presents his points on appeal and demonstrates the sufficiency of evidence to sustain his conviction as well:

'On the 3rd day of June, 1970, Lorene Simms, * * * 69 years of age, lived at 507 Central, Mexico, Missouri * * *. In late afternoon of that day a young colored man knocked at her apartment front door. He asked to use the phone to call a taxi. He told Mrs. Simms that he had just returned from Vietnam. She dialed the number for him. The man was dressed in a khaki outfit, the same as the defendant was wearing at trial. After talking to the cab company the man left Mrs. Simms' apartment. The time was about 4:20 or 4:25 p.m. The same man returned about 4:30 p.m. He asked to use the phone again to call a number he gave Mrs. Simms, which she dialed for him. The number was apparently out of order but instead of leaving he just sat and watched television * * *. Mrs, Simms tried the number again and got a busy signal. At this point the man made some vulgar remarks to Mrs. Simms then came over and started chocking her. Mrs. Simms pushed him away and ran toward the front door but was caught and struck by the man and her glasses were knocked off. She fainted and came to in the kitchen where she was lying on the floor and the man was tearing off her underclothes. There was penetration of her sexual organ by the sexual organ of the man. Mrs. Simms was trying to push the man away. The man got up when he had finished, and wiped himself off with Mrs. Simms' panties. Earlier the man had told Mrs. Simms that his name was Eddie Williams. She knew a Williams lived nearby. This man took Mrs. Simms' scissors, concealed them under his sleeve, and told Mrs, Simms not to make any noise or look around or he would stick her with them. They left Mrs. Simms' apartment and walked past two other housing units adjacent to Mrs. Simms' home and entered the third unit. * * * There she saw Walter Williams lying in the living room and some whiskey bottles on the floor. The man asked, 'Can I use your bed, I brought you something.' Then Mrs. Simms' was forced down on the bed in the bedroom and 'raped again.' Mrs. Simms wanted to leave and get some heart medicine. After some discussion the man agreed but said that if she wasn't back in five minutes that he would kill her. Mrs. Simms went home and called a neighbor, Alvin Bell. The Bells came over and the police were called. Two officers came, one into Mrs. Simms' apartment and the other outside. She told the police what happened. Later she stepped outside and Sergeant Griffin, one of the police officers, pointed out the defendant who was in the custody of Lieutenant Park in front of Walter Williams' home and said: 'We have the man in custody, there he is now.' She identified the defendant in court as the man who had attacked her. Mrs. Simms was taken from her home to the hospital where she was examined by Dr. Garcia. He found her to be highly nervous and excitable, with a contusion of the left cheek and eye and swelling of the throat, and abrasions of the vaginal inlet. An examination of a vaginal specimen revealed sperm in the vagina.

'Defendant was arrested by Lieutenant Park at the Williams' home. When the police arrived he was asleep in a chair between the living room and the hall. He was wearing khaki clothing and his trousers were undone. Walter Williams testified that the defendant and Mrs. Simms had come from her house earlier that evening, that 'Albert Mitchell brought her down there.'

'The defendant's clothes were submitted * * * for examination. Positive reaction for seminal fluids was found on the underwear shorts. Also, positive seminal fluid reaction was obtained on Mrs. Simms' panties and dried blood on her dress.

'Sheriff Harold Sulgrove, of Audrain County, * * * testified that the khaki clothes the defendant wore in court were the same clothes that he had been wearing ever since shortly after his arrest. Sheriff Orville Price, of Randolph County, who had had the defendant in his custody for several months prior to trial, testified that the Audrain County Sheriff had brought the clothes Mitchell wore in court to the Randolph County Jail the Saturday preceding the trial, which commenced Monday, March 29, 1971.

'Sheriff Price also testified, over objection, that he overheard the defendant making statements to some other prisoners as follows: 'From an old woman how good it was, that his cousin was just as guilty as he was, and that they were both half drunk when it happened.' The Sheriff had not reported the conversation which took place in January, 1971, to the Prosecuting Attorney until the night before he testified.

'In the opening argument to the jury the Prosecuting Attorney stated that the evidence had shown that the defendant raped Mrs. Simms at 507 East Central and then used these words: 'First he had ripped off her undergarments and then after he raped her he wiped himself off with her pants. Then he picked up a pair of scissors and forced her to go out the back door and that the defendant took Mrs. Simms down to a place a couple of doors down, 515, it is in the same area, we will have some pictures to show you, took her in there, there were persons in this other apartment, this is a project area in Mexico, and there on a bed raped her again.' The defendant objected to the statement of the Prosecuting Attorney and moved for a mistrial.'

By points 1 and 2 appellant charges the court with error in refusing his motions for mistrial going to the State's opening statement and the evidence that defendant committed a second rape at a later time and at a different place than the rape on trial. His argument is that the statement and proffered evidence were inflammatory, illegally prejudicial, and constituted proof of separate and distinct crimes.

State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, recognized the general rule that the proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial. That case also recognized that evidence of other crimes is competent to prove the specific crime when it tends to establish motive, intent, absence of mistake or accident, common scheme or plan, or identity of the person charged with the commission of the crime on trial.

In this case defendant made a trial issue of his identity and, as will be seen by his next point, he makes also an appellate point of his identification. In such posture, the evidence of the second rape, closely following the rape for which he was on trial, would have been competent to show the opportunity for, and the identification of, defendant as the rapist. ¹ As a consequence, defendant obtained trial favor to which he was not entitled when the court sustained his objections and instructed the jury to disregard references to the second rape.

By point 3, appellant complains of the refusal of the court to strike the in-court identification of defendant by the complaining witness. His argument is that the conduct of the police at the time of arrest was suggestive to the point of tainting the in-court identification. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

Appellant's argument and authorities are not applicable to this case. Mrs. Simms identified her assailant a short time after commission of the assault, virtually at the scene of the assault, and as the arrest occurred. Prior to those incidents she had seen her assailant-to-be when he knocked on her door, in his conversation about his return from Vietnam, as he used the telephone twice, as he watched her television, at the time of the assault, and at its completion. In addition, she noted his appearance and his clothing. Such circumstances gave defendant's victim an independent source and basis for her identification of defendant both at the time of arrest and at trial; and any taint by suggestion, if so, was effectively overcome by such independent basis. State v. Mentor, Mo., 433 S.W.2d 816, 818--820; United States v. Wade, supra, 388 U.S. l.c. 240, 87 S.Ct. 1926; State v. Balle, Mo., 442 S.W.2d 35, 38--39(1--3); Grant v. State, Mo., 446 S.W.2d 620.

Appellant's point 4 goes to the testimony of Sheriff Price with respect to the inculpatory statements made by defendant while in jail and the clothing given defendant to wear at trial. He asserts: (a) admission of the statement without showing a 'Miranda warning' was improper; (b) abuse of discretion in permitting the State to introduce the admission on cross-examination of the sheriff when he had testified directly only on the matter of where defendant's clothing was obtained; (c) tactics of the State in withholding the inculpatory statement until the sheriff was called as a defense witness on the clothing issue without prior warning that such testimony was available.

In argument, appellant admits 'that no case directly in point can be found to bolster defendant's claim(s) on point 4.'

In these circumstances, suffice to say:

With respect to (a), the statement was not a product of interrogation, but was a voluntary statement made by defendant to a fellow prisoner, overheard by and related by the sheriff. It was,...