State v. Platt

• Decision Date: 04 June 1973
• Docket Number: No. KCD,KCD
• Citation: 496 S.W.2d 878
• Parties: STATE of Missouri, Respondent, v. Preston PLATT, Appellant. 26497.
• Court: Missouri Court of Appeals

Page 878

496 S.W.2d 878

STATE of Missouri, Respondent, v. Preston PLATT, Appellant.

No. KCD 26497.

Missouri Court of Appeals, Kansas City District.

June 4, 1973.

Rehearing Denied June 26, 1973.

Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Vincent F. Igoe, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, P.J., and SHANGLER and SWOFFORD, JJ.

WASSERSTROM, Presiding Judge.

The amended information upon which this case went to trial alleged that defendant distributed to Deanna Sue Warren a quantity of Lysergic Acid Diethylamide (LSD). The act alleged constitutes a violation of § 195.020 RSMo 1969, V.A.M.S., and since Deanna Warren was a minor, the penalty range under § 195.200(4) was imprisonment for a term of from five years to life. Trial to a jury resulted in conviction and sentence of eighteen years.

The issues on this appeal are: (1) whether the evidence was sufficient to support the verdict; (2) whether a new trial should have been granted because of certain recanted testimony; and (3) whether the State's chemist was properly permitted to testify as to the effect of LSD on the human body.

I SUFFICIENCY OF THE EVIDENCE

The elements of the offense here are: (a) distribution of the pills by defendant to Deanna Warren; (b) proof that the items so transferred contained LSD; (c) evidence that LSD is a controlled substance listed in Schedules I or II issued by the Division of Health; and (d) proof that Deanna Warren was at the time of distribution under the age of 21 years. The evidence in this case is uncontradicted that Deanna Warren did have in her possession on January 14, 1972, four pills containing LSD, and LSD is a Schedule I drug, and that Deanna Warren was at that time a minor. That left only one element in dispute, namely, whether defendant did, in fact, give these pills to Deanna. As to this, the testimony was in direct conflict. Defendant denied that he did so. Deanna, on the other hand, testified explicitly and without wavering that these pills were given to her by defendant on the evening of January 13, 1972. On this direct conflict, the jury chose to believe Deanna. If that were all that was involved, the jury verdict would conclude this issue.

However, defendant claims that Deanna's testimony was destroyed by certain self-contradictions on her part, and that her testimony, which was at sharp variance to that of defendant and his witnesses, cannot constitute substantial evidence sufficient to support conviction. Defendant stresses evidence in the record tending to prove an emotional involvement by Deanna with defendant in the latter part of 1971, and a rather intense jealous reaction when defendant began dating Deanna's friend Retha Terranova in January, 1972. Defendant points to the reluctance of Deanna to admit any of this and considerable vacillation in her testimony concerning the extent of her contact with defendant, her feelings toward him, and especially her authorship of certain letters received by Retha pertaining to those subjects. Defendant proceeds to argue that this factor colors the case with overtones of adolescent passion to an extent that appellate review here should be the same as in cases of rape, incest and related sexual crimes. Defendant then goes on to cite a line of authority holding that in cases of that character, conviction will not be sustained upon the uncorroborated testimony of the prosecutrix if her testimony is so inconsistent and contradictory that the appellate court is left shrouded in doubt.

It is true that there are many early cases in this State setting forth and applying that rule of law. See for example, State v. Tevis, 234 Mo. 276, 136 S.W. 339 (1911); State v. Donnington, 246 Mo. 343, 151 S.W. 975 (1912); State v. Brown, 209 Mo. 413, 107 S.W. 1068 (1908); State v. Goodale, 210 Mo. 275, 109 S.W. 9 (1909). The basic reasoning in those opinions was that there are generally only two witnesses to this type of alleged sexual crime, that being the accuser and the accused, and the courts were inclined to heed the admonition of Lord Hale that 'It must be remembered that this is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent'. Those cases also make reference to the ease of blackmail in cases of that type and the frequent instances of such attempts.

The adoption of this exception to the general rules governing appellate review had its roots in special considerations applicable peculiarly to sexual crimes, and that exception should not be expanded to other types of cases. Indeed our courts have demonstrated a decided inclination to redece from this special rule even in the specific instances of rape and incest, where the exception found its origin. Although the cases relied upon by defendant continue to be cited in court opinions, they are generally quickly distinguished and passed over. On the other hand, sharp criticism of those cases are also to be found. Thus in a leading case, State v. Wade, 306 Mo. 457, 268 S.W. 52, l.c. 54--55 (1924), the previous cases were distinguished and narrowly interpreted, and the rule was stated to be that the prosecutrix's testimony would be disregarded only where the facts testified to by her 'were so unusual and so out of harmony with human experience that such testimony had no probative force'. See also State v. Thomas, 318 Mo. 843, 1 S.W.2d 157, l.c. 159--160 (Mo.1927); State v. Palmer, 306 S.W.2d 441, l.c. 443 (Mo.1957); State v. Sikes, Mo., 24 S.W.2d 989 (1930). And in State v. Barnes, 325 Mo. 545, 29 S.W.2d 156, 158, the court specifically disapproved the Goodale case and others to like effect, going on to hold:

'No sufficient reason appears why a rape case should stand on any different ground from any other case in respect to the sufficiency of the evidence to make a case for the jury. Where, as here, the prosecutrix tells a positive and unshaken story of sexual outrage, which in itself is entirely possible and not contrary to human experience, it is the exclusive province of the jury to pass upon the truth of her story. An appellate court should not usurp the proper functions of the trial court and jury and set the conviction aside merely becuase it may disagree with the jury as to the truthfulness of the story told by the prosecutrix, or think the trial court should have set the verdict aside as against the weight of the evidence.'

On the basis of the foregoing, there is substantial doubt whether there is any different approach to be followed in the appellate review of rape and incest cases as contrasted to the review of any other kind of case; and it is even more questionable whether any special rule applicable to the review of those sexual cases should be imported into cases involving different crimes, such as the one here. Nevertheless, even if the rule contended for by defendant be accepted and applied in this case, still it must be held that the testimony of Deanna Warren, as given by her before the jury, was sufficient for submission. The only element of the offense toward which any of her testimony was directly pertinent concerned the issue of whether she had received the four tablets of LSD from defendant. With respect to that fact, her testimony was unequivocal and remained unshaken. The inconsistencies which defendant points out have to do only with the length and nature of her association with the defendant, the nature of her original feelings toward the defendant and her present animus against him, and certain letters written by Deanna to her girl friend Retha Terranova, bearing on those matters. Deanna's testimony in these regards will be more fully discussed under Point II of this opinion. Suffice it to say here that although those inconsistencies and contradictions bore heavily upon the question of Deanna's credibility, nevertheless, in the final analysis credibility is for jury determination, and if the jury was willing to accept Deanna's testimony, even with the inconsistencies shown, her testimony so accepted was sufficient to sustain the verdict. So far as this phase of the case is concerned, it comes within the general rule that the testimony of a single witness, if deemed credible by the jury, may be considered sufficient for conviction, though that testimony is uncertain or inconsistent. 23 C.J.S. Criminal Law § 903, p. 540; State v. Dowe, 432 S.W.2d 272, l.c. 274--275 (Mo.1968).

II NEW TRIAL BECAUSE OF THE RECANTATION

During the course of the trial, defendant strove strenuously to impeach the credibility of Deanna Warren on the basis of her jealousy which arose from defendant's transfer of his attentions to Retha Terranova. Defendant's theory was that Deanna's testimony was an act of revenge on her part as 'a woman scorned'. In connection with this theory of defense, defense counsel first asked Deanna concerning her relationship with the defendant, and initially Deanna responded that defendant was virtually a stranger to her and that she had no particular feelings toward him one way or another. In order to break through these denials, defendant's counsel then confronted Deanna with a series of six letters and Deanna was asked whether she had written these letters to her friend Retha.

At first Deanna denied the authoriship of these letters. However, as the trial progressed and after certain defense testimony had been introduced including that of...