State v. Moore

• Decision Date: 09 December 1968
• Docket Number: 52101,Nos. 48804,s. 48804
• Citation: 435 S.W.2d 8
• Parties: STATE of Missouri, Respondent, v. James Nathaniel MOORE, Appellant.
• Court: Missouri Supreme Court

Page 8

435 S.W.2d 8

STATE of Missouri, Respondent, v. James Nathaniel MOORE, Appellant.

Nos. 48804, 52101.

Supreme Court of Missouri, En Banc.

Dec. 9, 1968.

Norman H. Anderson, Atty. Gen., William L. Culver, Asst. Atty. Gen., Jefferson City, for respondent.

John A. Rava, St. Louis, for appellant; Lester F. Stephens, H. M. Stolar, Stolar, Heitzmann & Eder, St. Louis, of counsel.

STORCKMAN, Judge.

Two appeals by the defendant James Nathaniel Moore have been consolidated for hearing. One is a direct appeal from a judgment of conviction of the felony of forcible rape. Section 559.260, RSMo 1959, V.A.M.S. The other is an appeal from an order overruling the appellant's post-conviction motion to set aside the judgment and sentence which is a collateral attack limited as provided by S.Ct. Rule 27.26, V.A.M.R.

Judgment on the conviction of rape was rendered by the trial court on March 20, 1961. The defendant appealed to this court and the judgment was affirmed on February 12, 1962. State v. Moore, Mo., 353 S.W.2d 712. The defendant was represented by counsel at his trial; he was allowed to appeal as a poor person and was provided with a free transcript of the record on appeal. This court reviewed all specifications of error in his motion for new trial, as was the practice at that time if no brief was filed regardless of whether the appellant was represented by counsel on appeal. On March 18, 1963, the Supreme Court of the United States held that an indigent defendant in a criminal case was denied equal protection of law where the merits of the one appeal from his conviction which he had as a matter of right was decided without benefit of counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. On March 13, 1967, that court further held that the Missouri practice of deciding an indigent defendant's appeal in a criminal case without the appointment of counsel violated the defendant's constitutional rights as defined in Douglas. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33, affirming Bosler v. Swenson, 8 Cir., 363 F.2d 154. On August 8, 1967, the doctrine of Douglas was held to be applicable retrospectively to the appeal of an indigent Missouri defendant whose conviction was affirmed without his being represented by counsel. Swenson v. Donnell, 8 Cir., 382 F.2d 248. Pursuant to these decisions and on application of the defendant showing indigency, the judgment of this court rendered in No. 48,804 on February 12, 1962, affirming the defendant's conviction was set aside on January 8, 1968, and the cause was reinstated on the docket.

In the meantime the defendant appealed to this court an adverse ruling of a motion under S.Ct. Rule 27.26 filed pro se. This appeal, No. 50,895, was voluntarily dismissed and thereafter the defendant with the assistance of court-appointed counsel filed another 27.26 motion in the Circuit Court of the City of St. Louis. This motion was denied March 14, 1966, on the basis of the court files and records without an evidentiary hearing; a memorandum opinion was filed by the trial court. The defendant appealed this order and the judgment was affirmed in division. The cause was then transferred to the court en banc and on application of the defendant was consolidated with the direct appeal, No. 48,804. In the consolidated case now before the court, the defendant is represented by court-appointed counsel who have briefed and argued the case.

The defendant has presented and briefed twelve points. The first eight relate chiefly to errors alleged in connection with the direct appeal. The last four pertain to the post-conviction remedy; however, they overlap and are practically identical to four of the points urged in connection with the direct appeal. In general the alleged errors relate to the admission of evidence, alleged delay in appointing counsel, inadequate and ineffective representation by appointed counsel and attacks on the testimony of the prosecutrix.

The evidence tends to prove that the victim of the rape, aged 26, and the mother of five children, lived at 2029 Madison Street in the City of St. Louis. She left her home on the evening of November 26, 1960, at about 7:15 p.m. to go to a nearby store. As she was walking east on Madison, she observed a Negro man also walking east quite slowly ahead of her. When she had walked a short distance past him, she was grabbed around the neck from behind. She fainted and when she regained consciousness she was lying on the ground in the back yard of a house at 1919 Madison. Her attacker was on top of her, choking her and having sexual intercourse with her. When he finished the intercourse, the man kept one hand on her throat and with his other took her wallet from her coat pocket and ran back through the gangway by which he had entered the back yard. The victim ran for help to a nearby house and the police were called. She furnished the police with a description of her attacker and his wearing apparel. Later she identified the defendant from pictures at police headquarters and he was arrested about three days after the attack. She identified the defendant as her assailant after his arrest and at the trial. The defense was an alibi but the defendant did not testify. The testimony of several witnesses and other evidence were introduced tending to show that the defendant was elsewhere when the offense was committed.

During the trial, evidence was introduced out of the presence and hearing of the jury from which the trial court found that the defendant on September 28, 1954, pleaded guilty in the Circuit Court of the City of St. Louis to charges of rape and robbery in the first degree by means of a dangerous and deadly weapon. Judgments of conviction were rendered thereon and he was sentenced to two nine-year terms of imprisonment to run concurrently. He was discharged from the penitentiary on March 24, 1960. In the present case the jury returned a verdict of guilty and the court assessed the punishment and sentenced the defendant to imprisonment for forty-five years. Section 556.280, RSMo 1959, V.A.M.S. Additional evidence will be referred to in connection with the consideration of the questions presented.

On January 17, 1961, counsel for the defendant took the deposition of the victim which was filed and referred to at the trial. The defendant has filed a motion for permission to lodge a copy of the deposition in this court as an exhibit for consideration in connection with questions presented. The motion was ordered taken with the case. The original deposition is a part of the record in the circuit court. The state does not oppose the motion and it is sustained. The deposition is received as a part of the record on appeal and may be considered so far as it is relevant.

The defendant's first assignment of error in the direct appeal is that the court erred in admitting in evidence state's exhibits 5 and 6. These exhibits were identified by the prosecuting witness as the slip and panties she was wearing at the time she was raped. Ruth H. McKnight, an expert in the laboratory of the St. Louis Police Department, testified that she made chemical tests of the undergarments and the tests disclosed the presence of seminal fluid on both, that seminal fluid is ejaculated by the male during intercourse, and that there is no way of distinguishing the seminal fluid of one person from another or of determining when the fluid got on a garment.

The defendant asserts the state was permitted 'to parade' exhibits 5 and 6 before the jury and thereby inflame the minds of the members to defendant's prejudice. The record does not support the claim that the garments were exhibited unnecessarily or in a showy manner so as to constitute legal prejudice.

The defendant also alleges that the exhibits were not relevant evidence because it was unnecessary to corroborate the fact that the prosecutrix was raped. The defendant cites authorities as to what is relevant evidence. There is no question that evidence to be relevant must logically tend to support or establish a fact or issue between the parties. It must be remembered, however, that the defendant here entered a plea of not guilty which puts in issue all facts constituting the corpus delicti as well as the defendant's criminal agency. It must further be kept in mind that the state has the burden of proving its case, not merely a prima facie case or by a preponderance of the evidence, but beyond a reasonable doubt. There was no admission nor a concession by the defendant that a forcible rape had been committed. The cases of State v. Creed, 299 Mo. 307, 252 S.W. 678, and State v. Pearson, Mo., 270 S.W. 347, cited by the defendant, are not controlling or persuasive.

Edith Rich, a bacteriologist who participated in the examination of the prosecutrix at City Hospital, testified that she found evidence that someone had had sexual intercourse with the prosecuting witness but such evidence did not establish beyond contradiction that the intercourse was the result of forcible rape. The condition of the undergarments taken from the victim immediately after the commission of the offense charged tends to corroborate her testimony. The clothing of the victim is generally considered admissible in such cases and the trial court did not abuse its discretion in permitting exhibits 5 and 6 to be received in evidence. State v. Swinburne, Mo., 324 S.W.2d 746, 752(8), and cases referred to therein.

When the defendant was arrested and taken to the police station, his trousers and his underpants were taken from him and subjected to chemical examination. Stains of seminal fluid were found on his trousers, exhibit 8. The defendant asserts that this evidence 'was totally irrelevant and incompetent, and its introduction into evidence only served to inflame the jurors' to the prejudice of the defendant. The defendant relies on the authorities cited in his objection to exhibits 5 and 6, plus two Missouri...