State v. Ray, s. 38570

• Citation: 600 S.W.2d 70
• Decision Date: 01 April 1980
• Docket Number: Nos. 38570,38571,s. 38570
• Parties: STATE of Missouri, Respondent, v. Jerry Ronald RAY, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 70

600 S.W.2d 70

STATE of Missouri, Respondent, v. Jerry Ronald RAY, Appellant.

Nos. 38570, 38571.

Missouri Court of Appeals, Eastern District, Division Two.

April 1, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 19, 1980.

Application to Transfer Denied July 15, 1980.

Judith B. Sklar, Asst. Public Defender, Eleventh Judicial Circuit, St. Charles, for appellant.

John Ashcroft, Atty. Gen., Marjorie Wholey Haines, Asst. Atty. Gen., Jefferson City, for respondent.

STEPHAN, Presiding Judge.

Defendant-appellant Jerry Ray was convicted by a jury of the offenses of rape and first degree robbery by means of a dangerous and deadly weapon. He was sentenced to imprisonment for a term of fifteen years for the first offense and ten years for the second, the sentences to be served consecutively. We affirm.

The crimes occurred on September 21, 1975, in St. Charles, Missouri. The victim and her male companion were asleep in her apartment bedroom when they were awakened by an intruder wearing a green ski mask and flourishing a small handgun. The intruder tied them up, raped the victim twice and took a number of items including a television, a radio, stereo equipment and several rings from the apartment. The victim estimated that the incident lasted from approximately 1:00 a. m. until 5:00 a. m.

State's witness Jerry Messick lived in the apartment adjacent to that of the victim. Messick testified that he returned to his apartment from work on September 20 (the night before the incident) at 8:00 or 9:00 p. m., accompanied by his boss. They met defendant and Dennis Beardsley, both friends of Messick, at the apartment. A short time later, Messick, his boss and Beardsley went drinking at a number of St. Charles bars. Messick apparently did not see defendant that evening after that point. Messick testified that he passed out at approximately 2:30 a. m. and woke up the next morning shortly before 8:00 a. m. sitting with Beardsley in the latter's automobile, parked in front of Messick's apartment. The two entered the apartment and found defendant sitting in the living room. Shortly thereafter two officers from the St. Charles County Sheriff's Department came to the apartment and questioned defendant, Messick and Beardsley in a routine canvassing of the neighborhood in an investigation of the incident. Officers returned later that day at approximately 12:45 p. m., searched Messick's apartment with his approval and found, in a back bedroom, a number of items which were later identified as those taken from the victim's apartment. Messick testified that he had not been in the bedroom since he returned to the apartment that morning and had not seen the articles before that time. Upon frisking defendant, the officers found a green ski mask in his rear pocket. Defendant, Messick and Beardsley were all placed under arrest.

Defendant presented an alibi defense. He testified that he and Beardsley had been waiting for Messick in Messick's apartment on the evening of September 20; that Beardsley suggested that they break into the adjacent apartment, where the victim lived; that they did so shortly before 8:00 p. m.; and that they "just looked around" and left without taking anything (although defendant had touched a number of items). Defendant testified that when Messick and his boss went drinking that night, Beardsley drove him back to St. Louis to Dismas House (a halfway home for men recently released from prison), where defendant had been staying for a short time. Four witnesses testified that they saw defendant at Dismas House either late in the evening of September 20 or on the morning of September 21, as early as 6:15 a. m. and at various times throughout the morning. Dismas House records in the form of signature sheets which residents were required to sign whenever they entered or left the building indicated that defendant returned to the home at 8:50 p. m. on September 20 and did not leave thereafter until 11:25 a. m. the next morning. Defendant testified that at that time Beardsley picked him up and drove him back out to Messick's apartment in St. Charles; that he was shown the stolen property in Messick's bedroom and touched a number of articles; that the sheriff's officers arrived shortly thereafter, discovered the property and arrested the three. Defendant explained the presence of the ski mask in his pocket by stating that Messick had given it to him that morning as Messick and Beardsley were showing him the stolen property.

At trial, the victim could provide no facial identification of defendant as the intruder because the intruder had been masked. Defendant was linked to the crimes by voice, height and clothing identifications of defendant by the victim and/or her companion; defendant's possession of the ski mask; the presence of defendant's fingerprints in the victim's apartment and on the stolen articles in Messick's apartment; and a cigarette butt, of the brand smoked by defendant, found in the victim's apartment. Furthermore, the victim testified that the intruder did not have the smell of alcohol on his breath; Messick testified that he and Beardsley had been drinking heavily the evening of September 20, but that he had not seen defendant drink at all at that time. During closing argument, the prosecutor countered defendant's alibi defense by pointing out that, although Dismas House records indicated that defendant was signed in between 8:50 p. m. and 11:25 the following morning, no one reported seeing him there between the critical hours of 12:00 midnight and approximately 6:15 a. m. Implying that the sign-out system was not infallible, the prosecutor argued that defendant deliberately set up his alibi defense by making himself visible to a number of people at the house late on September 20 and early the next morning, and was able to sneak out of the house and return to St. Charles between the hours of 1:00 a. m. and 5:00 a. m. (Defendant estimated the travel time between the two locations to be thirty to forty-five minutes.)

In his first assignment of error, defendant contends that the trial court erred in denying his motion to disqualify the jury panel on the ground that, at the time of trial, the victim's sister worked in the office of the St. Charles County Sheriff and was in charge of contacting the prospective jurors for duty and delivering the venire list to the court. In that capacity, argues defendant, she was in a position to influence the panel. In examining the record of the trial proceedings, however, we have been unable to find such a motion. If such motion (or any objection to the jury panel) was made during voir dire, it is unavailable to us, for the court reporter was instructed by defense counsel not to transcribe that part of the proceedings. The issue was first raised in the record in defendant's motion for new trial, wherein he made the allegation concerning the employment of the victim's sister and her position of potential influence. No evidence was introduced, and such allegation, obviously, does not prove itself. "This court is precluded from consideration on review of any facts not set forth in the approved transcript or supplemental transcript. Section 512.110 RSMo 1969; Rule 81.12. To do so would involve the rankest kind of judicial speculation and conjecture." State v. Hatten, 561 S.W.2d 706, 713 (Mo.App.1978). See also State v. Simpson, 529 S.W.2d 19, 21 (Mo.App.1975). Inasmuch as the transcript provides no basis whatsoever upon which we can review the point, it is ruled against defendant.

In his second assignment of error defendant contends that certain portions of the prosecution's closing argument were prejudicial in that they were inflammatory and unduly personalized the issue of defendant's guilt or criminal proclivities to the jurors. During that argument, the prosecutor told the jury that:

"It is your decision if you want this type of man coming from crossing the bridge, coming to our county."

Defense counsel objected to the statement. The objection was overruled and the prosecutor continued "If you want this type of man crossing the bridge and coming into our county and raping women in St. Charles County and (sic) let him go free. You will have to make that decision. It is your decision. If you want this man out walking the streets, find him not guilty."

No objection was made at this point.

The prosecutor is to be given wide latitude in his argument to the jury, and the trial court is vested with broad discretion in determining whether he has exceeded the permissible scope of that argument. The trial court's ruling will be disturbed only when there has been a clear abuse of discretion. State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977). The prosecutor may argue to the jury, inter alia, the necessity of strong law enforcement as a deterrent to crime, the prevalence of crime in the community and the evils resulting to society from the jury's failure to suppress that crime. State v. Steward, 564 S.W.2d 95, 99 (Mo.App.1978); State v. Raspberry, 452 S.W.2d 169, 172-173 (Mo.1970). However, he may not seek, by inflammatory appeals, to arouse in the jurors a personal hostility toward or a personal fear of a defendant, State v. Steward, supra, State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977), nor demand punishment of a defendant to prevent that defendant's future criminal conduct. State v. Raspberry, supra.

In the light of the above, we find no abuse in the trial court's overruling of defendant's objection (on unspecified grounds) to the first statement. We further believe an extended discussion of the point to be unnecessary. In short, we find the remark free of the prosecutorial abuses proscribed in the cases, supra. Particularly when read in context, the comment is of mild effect in contrast to arguments which have been held to warrant reversal and a new trial. See, e. g., State v. Groves, 295 S.W.2d 169, 173-174 (Mo.1956) and State v....