State v. Owens

• Court: Missouri Court of Appeals
• Writing for the Court: GREENE; FLANIGAN
• Citation: State v. Owens, 582 S.W.2d 366 (Mo. App. 1979)
• Decision Date: 30 May 1979
• Docket Number: No. 10995,10995
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Glynn OWENS, Defendant-Appellant.

Page 366

582 S.W.2d 366

STATE of Missouri, Plaintiff-Respondent, v. Glynn OWENS, Defendant-Appellant.

No. 10995.

Missouri Court of Appeals, Southern District, Division Three.

May 30, 1979.

Motion for Rehearing or to Transfer to Supreme Court Denied

June 18, 1979.

Application to Transfer Denied July 17, 1979.

James A. DeReign, Caruthersville, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GREENE, Judge.

On November 30, 1977, defendant Glynn Owens was found guilty in the Circuit Court of New Madrid County of two counts of rape, after trial by jury. Defendant filed a motion for new trial on December 14, 1977, which motion was denied. On January 13, 1978, the trial judge sentenced defendant to life imprisonment, in accordance with the verdict of the jury, on the two counts of rape, said sentences to run concurrently. Defendant filed a notice of appeal in the supreme court, which court, by order of April 3, 1978, transferred the case to this court, in which jurisdiction is now vested.

Defendant concedes, by motion requesting us to consider his appeal under the plain error doctrine filed in this court on April 6, 1979, that his motion for new trial was not timely filed. This being so, we are precluded from considering any matters required to be preserved in such motion, State v. Parker, 310 S.W.2d 923, 924 (Mo.1958), unless we consider such objections that are raised in his motion for new trial and in his brief on appeal under Rule 27.20(c), ¹ to determine if manifest injustice or miscarriage of justice has resulted from alleged trial court error affecting the substantial rights of the defendant. We sustain the motion and review under the plain error doctrine, as the defendant was 15 years old at the time of the alleged crimes, and because of the severity of the sentence.

The facts in the case are as follows. On February 14, 1976, at about 8:25 p. m., Kate Smith, Deputy Juvenile Officer of the 34th Judicial Circuit of Missouri, received a call from a Caruthersville police officer, John Yerby, concerning the alleged rape and beating of a thirteen year old female. Officer Smith immediately investigated the incident. The girl in question, unnamed here because of her tender years and hereinafter referred to as the victim, told Officer Smith that earlier that evening she was walking to her grandmother's house from the Gem Theatre, when she heard someone running behind her. She turned around and saw a young male person who had a knife in his hand. He told her to come with him or he would kill her. He forced her to accompany him to an old shed where he forced her to the ground, hit her in the face to make her spread her legs, cut her hand with his knife during the struggle, and then raped her. Two other young males approached the scene, and the first rapist then asked them if they wanted some too. She was carried into the shed where she was beaten further, raped again by her first assailant, later identified as the defendant, and raped for a third time by one of the other young males. Juvenile Officer Smith observed that the victim had swollen eyes, with the right eye being discolored. Her mouth was cut and swollen. She had small cuts above and below her lips and on the index finger on her right hand. She told Officer Smith that she knew her assailant, but did not know his name, as they had attended the same school. She later identified the defendant in a lineup as the person who had beaten her, cut her with his knife and raped her twice on February 14, 1976. Officer Smith, after completing her investigation, filed a petition in the Juvenile Court of Pemiscot County, Case No. 362. The petition was a proceeding filed under § 211.091, ² seeking to bring the defendant under the jurisdiction of the juvenile court as he was 15 years old at the time of the alleged assault and multiple rapes.

Juvenile Officer Smith then filed a motion seeking to have the petition dismissed so that prosecution could be instituted against defendant under general law. A hearing was held before the juvenile judge of Pemiscot County on February 24, 1976, for the purpose of determining whether or not the motion should be sustained. After hearing, the juvenile judge entered an order dismissing the petition so that the defendant could be prosecuted under general law for the crime of rape. A felony complaint was then filed against defendant in the Magistrate Court of Pemiscot County, charging defendant with two counts of rape. A preliminary hearing was held before the magistrate on March 9, 1976, after which the magistrate court found that there was probable cause to believe that the defendant was guilty of the crimes charged, and bound him over to the circuit court for trial.

The prosecuting attorney then filed a two count information in the circuit court charging defendant in each count with rape. Defendant filed a motion to dismiss the information, alleging that the juvenile certification process had been defective, in that insufficient evidence had been presented at the juvenile hearing for the juvenile judge to make a determination that the defendant was not amenable to the juvenile process, and further that the reasons given by the judge in his certification order were not legally justifiable reasons and were so broad and vague that the order denied due process of law to the defendant. Defendant then applied for and received a change of venue, and a change of judge. The case was transferred to New Madrid County, where a successor trial judge overruled the motion to dismiss.

Defendant then filed a petition for writ of prohibition in this court in case No. 10615, seeking to prohibit the trial judge from proceeding, for the reason that the juvenile certification process was faulty in that the reasons given by the juvenile judge for dismissing the juvenile petition and permitting defendant to be tried as an adult were insufficient under the case law of this state. This court, on that basis, issued a permanent writ of prohibition against the trial judge. The case was then remanded to the Juvenile Court of Pemiscot County. An amended § 211.091 petition and an amended motion to dismiss the petition, so that defendant could be prosecuted under the general law, were filed by the juvenile officer. A second certification hearing was then held before a successor juvenile judge. A summarization of the testimony of the witnesses is as follows:

Gerald Corbin was a retired school teacher. He had taught Industrial Education in the Caruthersville school system and defendant had been one of his students. Defendant did not seem to want to apply himself. He would walk around in class, interrupt the class and would not work. When defendant violated a rule, and was so advised, he would argue with the teacher. On one occasion, defendant told Corbin he could have "got" Corbin when he had seen Corbin in defendant's neighborhood. The teacher found it necessary to place defendant in detention. Defendant then quit the class.

Joe Parkinson was the high school principal. He testified that defendant only came to school about half the time. He had talked to defendant's grandmother about the truancy and the grandmother said, "I can't take care of him". Defendant was living with her at the time. Defendant was called to the principal's office five or six times because of truancy. Parkinson dropped defendant from Mr. Corbin's class because defendant had threatened Corbin. Defendant's grades were average to a little below average, and his intelligence quotient was average to slightly below average.

Kate Smith, the Deputy Juvenile Officer, testified that before the rapes, defendant had been brought to the attention of the juvenile officer on complaints of vandalism, truancy and indecent exposure. She related the facts concerning her investigation of the rape and assault that we have previously referred to in this opinion. She did not believe that the Division of Youth Services could properly handle the defendant and that defendant would escape if he was put with the Division of Youth Services. She testified that status offenders, such as defendant, were hard to deal with and that the best interest of society would be served by certifying defendant to adult court. As to her reasons for this opinion, she testified that defendant had no adult guidance, that he would not stay in school, that he would not obey rules, and that his attack and rape of the thirteen year old victim had been a crime of vicious nature. It was also her opinion that defendant was incorrigible. She further stated that defendant showed no remorse because of the rape and assault.

The victim then testified, over the objection of the defendant. The grounds for the objection were that the allegations of the crime in the petition were sufficient and that the testimony of the victim was unnecessary. She was thirteen years old on February 14, 1976. On that evening she was walking from the Gem Theatre to her grandmother's house. Someone grabbed her from behind and said he would kill her if she did not keep still. The person who grabbed her was the defendant. He had a knife in his hand. He took her behind a shed and told her to take off her clothes. Defendant hit her in the face and threatened to kill her if she did not comply. In the struggle, he cut her on the hand with the knife. He forced her to the ground and forced his penis into her body. Two other young males approached and defendant asked them if they wanted some, and one said "Yes". They took her inside of the shed where defendant raped her again, and then she was raped by one of the other young males. Defendant told her, after the rapes, that if she said anything, he would get her again and kill her. She then went to her grandmother's who called her mother and from there she was taken to a doctor. The victim's bloodstained clothing was introduced into evidence,...