State v. Rodgers, 63274
| Decision Date | 09 November 1982 |
| Docket Number | No. 63274,63274 |
| Citation | 641 S.W.2d 83 |
| Parties | STATE of Missouri, Respondent, v. Burt A. RODGERS, a/k/a James Craigs, Appellant. |
| Court | Missouri Supreme Court |
Lauren Weisfeld, Asst. Public Defender, Clayton, for appellant.
John Ashcroft, Atty. Gen., Rosalynn Van Heist, Asst. Atty. Gen., Jefferson City, for respondent.
Burt A. Rodgers was convicted of first degree burglary, section 569.160 RSMo 1978; rape, section 566.030 RSMo; false imprisonment, section 565.130 RSMo; and first degree robbery, section 569.020 RSMo. The jury fixed punishment at thirty years imprisonment for rape, thirty years for first degree robbery, fifteen years for first degree burglary, and one year, nine months, for false imprisonment. The court found defendant a dangerous offender pursuant to section 558.016 RSMo, and sentenced him to consecutive terms of life imprisonment for first degree robbery; life imprisonment for rape; thirty years for burglary; and one year, nine months, for false imprisonment. Judgment was rendered accordingly. Appellant offers no challenge to the robbery conviction or the extended punishments. He charges the trial court erred by failing to define specific terms in the verdict directing instructions on rape, false imprisonment and burglary as required by MAI-CR 2d; in overruling a motion for disclosure of grand jury data; by proceeding with trial when the jury had been unconstitutionally selected; by admitting improper evidence; and in refusing questions on voir dire designed to detect potential racial prejudice of veniremen. Affirmed in part and reversed and remanded in part.
In the early morning hours of June 18, 1980, defendant, Jerry Bell and three others were stealing gasoline from a car in Bellefontaine Neighbors. While siphoning the gas, Bell noticed the door of a nearby house was ajar and the lights were on. Defendant and Bell circled the house looking in windows and the door. They saw an older man, John Canavan, sitting in a chair in the living room. Both men returned to their car, got jack handles and instructed defendant's girl friend to drive down the street. Defendant and Bell returned to the Canavan house, pushed the door open and entered. Bell confronted John Canavan, pushed him onto a chair and demanded money. In response, Mr. Canavan led Bell to a back bedroom and gave him some money.
Mary Canavan, John's seventy-four year old sister, had been sleeping when defendant and Bell confronted her brother. She was awakened by the commotion and went to the living room. When she saw the two strangers she ran to the back bedroom to phone police. The defendant grabbed Mary, slapped her, and tore the phone out of the wall. He then took money from Mary's purse and left the room; Mary followed. Defendant turned, pushed Mary into a bedroom and threw her on the bed, breaking her wrist. He tore her nightgown off, threw her to the floor causing her to hit her head, and raped her. Mary had resisted the assault by trying to keep her legs together; defendant choked her until she submitted. After the attack, defendant took Mary to the living room where she and John were tied up with John's neckties. Defendant and Bell ransacked the house, tearing phones from the walls, and taking jewelry, televisions, and other valuables. They left in the Canavan's automobile.
Mary Canavan freed herself and called police after releasing her brother. The victims were taken to a hospital where Mary was treated for a broken wrist and rape.
Defendant and Bell were arrested some time later. Bell entered into a plea bargain and agreed to testify against defendant. Before trial, defendant moved unsuccessfully for discovery of names, addresses, and occupations of persons on the master grand jury list.
The problem in this case is the trial court's failure to define "forcible compulsion," "serious bodily injury" and "inhabitable structure" in the verdict directing instructions on false imprisonment, rape and burglary under MAI-CR 2d 19.24, 20.02.1 and 23.50. The applicable Note on Use in each instruction requires a separate instruction defining these terms if they are used in any instruction. The trial court failed to give these required instructions and thereby committed error. State v. Ogle, 627 S.W.2d 73, 74 (Mo.App.1981); Sup.Ct.R. 28.02(e). The prejudicial effect of this error must be judicially determined. Sup.Ct.R. 28.02(e).
The failure to define serious physical injury, forcible compulsion and inhabitable structure must be deemed prejudicial unless a contrary effect is shown. See State v. Lasly, 583 S.W.2d 511, 517 (Mo. banc 1979); Ogle, 627 S.W.2d at 76; State v. Johnson, 537 S.W.2d 816, 819 (Mo.App.1976). Verdict directing instructions must contain each element of the offense charged and require "a finding of all the constituent facts necessary to constitute an offense in order to support a conviction." State v. Newhart, 503 S.W.2d 62, 69 (Mo.App.1973). Whether the instructions include these necessary elements must be determined by the language used in the instruction. Ogle, 627 S.W.2d at 76. Failure to define words of common usage which would not confuse the jury does not constitute prejudice. See State v. Abram, 537 S.W.2d 408, 411 (Mo. banc 1976). Technical terms which may be misapplied by the jury must be " 'defined or explained in such a way as to give to the jury a correct idea of their meaning.' " State v. Jackson, 369 S.W.2d 199, 205 (Mo.1963). Prejudicial error will occur where the jury "may have been adversely influenced by an erroneous instruction or by the lack of an instruction required by the statute." State v. Aitkens, 352 Mo. 746, 762, 179 S.W.2d 84, 94 (1944).
The three terms appellant claims should have been defined encompass meanings which jurors would not readily comprehend as they apply in the context of these charges. Forcible compulsion is defined as either "(a) Physical force that overcomes reasonable resistance, or (b) A threat,...
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