State v. Mitchell, WD55053

• Decision Date: 30 June 1999
• Docket Number: WD55053
• Citation: 999 S.W.2d 247
• Parties: State of Missouri, Respondent, v. Wendell Mitchell, Appellant. WD55053 Missouri Court of Appeals Western District 0
• Court: Missouri Court of Appeals

State of Missouri, Respondent v Wendell Mitchell, Appellant

WD55053

Missouri Court of Appeals Western District

06/30/99

Appeal From: Circuit Court of Jackson County, Hon. Thomas C. Clark

Counsel for Appellant: Gary Brotherton

Counsel for Respondent: John Morris

Opinion Summary: Defendant-AppellantWendell Mitchell appeals his conviction of eleven counts of forcible sodomy, two counts of attempted forcible sodomy, and five counts of second degree robbery pursuant to Sections 566.060,564.011, and569.030, RSMo 1994.After finding defendant to be a prior felony offender pursuant to Sections 558.016and557.036.4 ,RSMo 1994, the trial court judge sentenced him to 100 years in the Missouri Department of Corrections on each count of forcible sodomy, 75 years on each count of attempted forcible sodomy, and fifteen years on each count of second degree robbery, all sentences to run consecutively.Defendant alleges that the trial court plainly erred in failing to sua sponte declare a mistrial when the State elicited testimony from a detective which mentioned defendant's refusal to answer certain questions.He also asserts the court should have sua sponte declared a mistrial after the State presented evidence that defendant"systematically threatened and intimidated" one of the victims and his mother.Defendant argues that the testimony was irrelevant and unduly prejudicial as evidence of uncharged crimes.Defendant also claims that the trial court erred in failing to sever Counts I through VII from Counts VIII through XVIII, in overruling defendant's motion for acquittal, and in sentencing him as if he were convicted of two counts of common law attempted forcible sodomy, whereas he was convicted of the inchoate statutory offense of attempt.

AFFIRMED.

Division One holds: The trial court did not err in failing to sua sponte declare a mistrial based on the detective's comments that defendant had refused to give his height and weight and that he had not answered certain questions.These comments were made after defendant had been given his Miranda warnings and had begun answering questions about the alleged crimes.Therefore, the state was entitled to comment on what defendant said and did.The detective told the jury that defendant denied sodomizing anyone, and then responded to other questions only by making threatening and intimidating comments to the detective.These events were relevant and admissible.

The trial court did not err in denying the motion to sever as defendant failed to make a particularized showing of prejudice and the crimes were sufficiently simple and distinct that the jury would not have trouble distinguishing the evidence and law to apply to each offense.

The trial court did not err in sentencing defendant under Section 566.060.2, even though he was convicted of statutory sodomy under Section 564.011 rather than of common law sodomy under Section 566.060, because Section 564.011 specifically states that it sets out the punishment for statutory sodomy only "unless otherwise provided," and Section 566.060.2 specifically provides that the punishment for conviction of attempted sodomy shall be the same as that for a sodomy conviction under that statute.

The court did not improperly admit evidence of uncharged crimes against friends of one of the victims, as the evidence of defendant's threats and intimidating conduct toward them were not clearly evidence of another crime, and in any event were relevant to show intent and a common scheme or plan, and to establish how defendant came to be involved with the victim.

Laura Denver Stith, Judge

Defendant-AppellantWendell Mitchell appeals his conviction of eleven counts of forcible sodomy, two counts of attempted forcible sodomy and five counts of second degree robbery pursuant to Sections 566.060,564.011and569.030 RSMo 1994.After finding Defendant to be a prior felony offender pursuant to Sections 558.016and557.036.4 RSMo 1994, the trial court judge sentenced him to 100 years in the Missouri Department of Corrections on each count of forcible sodomy, 75 years in the Missouri Department of Corrections on each count of attempted forcible sodomy, and fifteen years in the Missouri Department of Corrections on each count of second degree robbery, all sentences to run consecutively.

Defendant alleges that the trial court plainly erred in failing to sua sponte declare a mistrial when the State elicited testimony from a detective which mentioned Defendant's refusal to answer certain questions.He also asserts the court should have sua sponte declared a mistrial after the State presented evidence that Defendant"systematically threatened and intimidated" one of the victims and his mother.Defendant argues that the testimony was irrelevant and unduly prejudicial as evidence of uncharged crimes.Defendant also claims that the trial court erred in failing to sever Counts I through VII from Counts VIII through XVIII, in overruling Defendant's motion for acquittal, and in sentencing him as if he were convicted of two counts of common law attempted forcible sodomy, whereas he was convicted of the inchoate statutory offense of attempt.Finding no merit to any of these claims of error, we affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in an eighteen-count indictment with five counts of robbery, eleven counts of forcible sodomy, and two counts of attempted forcible sodomy, all stemming from three separate incidents with three different young men -- Benjamin Arbuthnot, Shawn Brooks, and Christopher Dolasky.

Prior to trial, Defendant filed a motion to sever Counts I through VII, regarding Mr. Arbuthnot, from Counts VIII through XVIII, regarding the other two victims.He conceded that joinder was proper, but argued that the cumulative evidence as to the charges involving Shawn and Christopher would substantially prejudice his right to a fair trial with respect to the charges involving Benjamin, because his defense to the charges involving Benjamin was a defense of mistaken identity, whereas his defense with regard to the charges as to Shawn and Christopher was of a different nature.The trial court denied Defendant's motion to sever, finding that judicial economy outweighed any prejudicial effect the evidence might have on the jury on the facts of the case.

The case was tried to a jury beginning August 4, 1997.With regard to Benjamin Arbuthnot, the State put on evidence showing that Defendant, then known to Benjamin as "M.C. Lite," committed four counts of forcible sodomy and three counts of second degree robbery against Benjamin over the course of several hours on December 10, 1995.The evidence also showed that "M.C. Lite" was a much larger man than Benjamin, and that he repeatedly threatened to beat and kill Benjamin.The State also put on evidence that the day after the attack, Benjamin reported these events to the police and gave them a "Fearless" cap and a "White Sox" t-shirt that "M.C. Lite" had left in his car.After giving his statement to the police, Benjamin went to the hospital and was examined.The only physical evidence found by police were six black hairs found on the t-shirt left by M.C. Lite; they belonged to neither Benjamin nor Defendant.

The jury also heard evidence regarding the allegations made regarding Shawn Brooks.The State put on evidence that Shawn, then age 20, met an individual who introduced himself as "Buster."Shawn later identified Defendant as Buster.Buster was a very large, muscular man with a very intimidating physical appearance.The State produced evidence that, for several hours after Shawn invited Defendant into his apartment to view a "low-rider" bicycle, Defendant robbed and attempted to sodomize Shawn.During this time, Defendant told Shawn that his "Godfather" knew where Shawn's family and friends lived, and that Defendant had "friends" who could "take care" of them for him.When Defendant took Shawn to his friend "Bill's" apartment, Defendant had "Bill" show Shawn his gun in a threatening manner.

Defendant allowed Shawn to go to work, and Shawn informed his supervisor about the attack.She helped Shawn notify the police, and the police escorted Shawn back to his apartment, where they arrested Defendant.

Christopher Dolasky, the third victim, testified that he arrived at the house of a friend, Dylan Maxey, while Defendant was there, and that the two were arguing about whether Dylan would allow Defendant inside his house to use the phone.After Christopher arrived, Defendant said he wanted a ride to the Liberty Memorial, and threatened to have Dylan and his mother shot or cut up into pieces if they did not give him one.The two boys, Dylan and Christopher, gave Defendant a ride to the Scout at Liberty Memorial.When they arrived, their car was met by a Lexus, and Defendant forced Christopher and Dylan into the Lexus.Defendant let Dylan out of the car at a drug store, and during the next day and one half, Defendant sodomized Christopher, then approximately age 20.He also forced him to smoke crack cocaine, and helped him steal an exercise bike.Eventually Defendant drove Christopher back to the Liberty Memorial, where police were waiting for him.Defendant was arrested, and a search of the car turned up a crack pipe and a marijuana pipe.

The State introduced evidence that Dylan Maxey and Defendant were acquainted, and that Dylan knew Defendant as "Sueton."Dylan and his mother testified that Defendant had threatened and harassed them for approximately one week prior to the day Christopher arrived during their argument regarding whether Dylan would allow Defendant to enter the house and use the phone to page someone.

The evidence at trial also showed that Detective Richard Neumann was the detective working on Benjamin Arbuthnot's case.On May 4, 1996, Defendant was taken into custody as a result of allegations made by Christopher Dolasky.Detective Neumann heard that Defendan...