State v. Scott, Nos. WD
| Citation | 858 S.W.2d 282 |
| Decision Date | 27 July 1993 |
| Docket Number | Nos. WD |
| Parties | STATE of Missouri, Respondent, v. Kevin SCOTT, Appellant. Kevin SCOTT, Appellant, v. STATE of Missouri, Respondent. 45577, WD 46818. |
| Court | Court of Appeal of Missouri (US) |
Raymond L. Legg, Office of the State Public Defender, Columbia, for appellant.
Philip M. Koppe, Atty. Gen., Kansas City, for respondent.
Before BERREY, P.J. and BRECKENRIDGE and HANNA, JJ.
The defendant, Kevin Scott, was charged and found guilty in the Circuit Court of Boone County, Missouri with Burglary First Degree (§ 569.160, RSMo 1986), Assault First Degree (§ 565.050, RSMo 1986) and Forcible Rape (§ 566.030, RSMo 1986). The defendant was charged and sentenced as a prior and persistent offender pursuant to § 558.016, RSMo Supp.1991. He was sentenced to concurrent sentences of fifteen and thirty years imprisonment for Burglary First Degree and Assault First Degree and a consecutive fifty-year sentence for Forcible Rape. The defendant appeals.
T.B. worked the evening shift at "The Columbia Tribune" in Columbia, Missouri. She left work the morning of February 2, 1991, at approximately 12:30 a.m. and went to Shakespeares Pizza with co-workers where she visited and had one beer. She drove back to "The Tribune" to pick up an item she had forgotten and then to her apartment on Third Avenue in Columbia. She fell asleep and was awakened by a noise in the back part of the apartment. She called out to the person who replied he was there looking for "Mary." T.B. responded by telling the intruder that there was no one by the name of Mary and that he was in the wrong house. She then heard the person enter her other bedroom. When she saw the intruder, she told him he was in the wrong house and tried to give him directions to a house where a person named Mary might live. When he was told to leave, the defendant asked, "Do you live here alone?" T.B. answered, "I live here alone with my daughter." 1
T.B. turned her back and the defendant struck her in the back of the head with a cider jug. As she turned to face the defendant, he struck her again with the jug across the face, breaking her nose. The defendant pushed her into the living room and said, "Get down on the floor, I'm going to rape you," which he did. She complained, "You're hurting me," and began to cry. At this point, the defendant got up and acted as if he was going to leave. He asked, Because she was afraid that he would kill her, T.B. answered that she had not seen his face. He struck her again on the back of the head causing her to fall forward. She slumped forward, feigning unconsciousness and heard the defendant walk in the direction of the kitchen. She heard what sounded like the defendant rummaging through a box she kept in her kitchen containing large kitchen implements, including her knives. She believed "that he was getting a knife to kill [her] because [she] had seen him." T.B. struggled to her feet, ran out the door to her neighbors house where she broke a window to gain entry and found the telephone. She dialed 9-1-1.
T.B. was taken to the emergency room of the Boone Hospital Center in Columbia shortly after the attack. The emergency room physician noted a number of large lacerations, contusions, and abrasions mostly to her face, and some on her shoulders and back. A pelvic examination revealed some external irritation in the genital area. The physician expressed his opinion following his examination that T.B.s condition was consistent with a sexual assault.
Later that morning, another doctor closed a severe laceration across T.B.s nasal ridge and set her broken nose bone. The physician described the injuries as a "protracted loss of some of th[e] function" of her nose.
When T.B. returned home the next morning after being released from the hospital, she entered her kitchen and noticed a large butcher knife that she seldom used, laying on the table. She later realized she had not used that knife in a long time.
The defendant was arrested two weeks later in Woodson Terrace, Missouri, a suburb of St. Louis. Other than a two-weeks growth of facial hair, the defendant matched the description of the attacker that T.B. had given to the police. T.B.s wallet was found in the backyard where the defendant was then living.
During the drive from St. Louis to Columbia, the defendant was advised of his Miranda 2 rights and was questioned by the officers of the Columbia Police Department. He denied any involvement in the crimes, but later told the officers that when he had been in Columbia, he smoked crack cocaine every day. He said he "ganked" people. The term "gank" meant taking money from an individual who wished to buy cocaine, but not delivering the cocaine. He later told the police officers he ganked some women who claimed he had raped them to get even.
One police officer suggested they drive through the area and perhaps the defendant might recognize the residence of one of the women he had ganked and who might now be claiming he had raped her. They drove past T.B.s apartment where two people were standing out front. The defendant looked at them. Later that evening, the police officer asked him, "Did you mean to hurt the girl?" to which the defendant responded, He then admitted that when T.B. came out of her bedroom, he rushed her, pushed her down and took her wallet. He admitted she might have hit her head when she fell.
When the officer asked the defendant where the burglary occurred, the defendant explained that the burglary occurred to a house real close to "where those dudes were standing out front." The officer explained that the house where there were two people standing in front was the victims. Later, the defendant admitted breaking into T.B.s place to steal money to buy drugs and that he was surprised by a woman who he pushed down. He continued to deny that he raped her.
He told the police officers that on the night of the burglary he was wearing a brown jacket, a pair of white top Pony tennis shoes and faded blue jeans. T.B. had earlier told the police that the intruder was a light-skinned black, between 5'6"' and 5'8"' in height, weighing 160-170 pounds, clean-shave, clean-cut, and young looking, perhaps in his early 20s and wearing a short jacket of some kind, maybe jeans, and sneakers. She also told the police that her wallet and car keys, which had been in her purse in the bedroom, were stolen.
The defendant filed a pro se motion under Rule 29.15 claiming his trial counsel failed to interview or call alibi witnesses. At the evidentiary hearing, the defendant testified that he asked his attorneys to call several of his friends to testify as alibi witnesses. The defendants claim of ineffective assistance of counsel centers on one Ray Cheatum, whom the defendant claims would provide him an alibi defense.
Trial counsel, Ms. Kay Evans, and her investigator, Rollin Thompson, interviewed Cheatum. As a result of the initial interview, Ms. Evans concluded that she would call him as an alibi witness for the defense. However, during two subsequent interviews with Mr. Thompson, Cheatum was unable to pinpoint the dates and times he had been with the defendant. Cheatum told investigator Thompson that he and the defendant would frequently spend an entire weekend smoking crack cocaine but that he could not identify any particular weekend when this occurred. Moreover, he indicated that sometimes during the weekend, the defendant would leave, but he couldn't recall one weekend or the other. Ultimately, trial counsel decided not to use Cheatum as an alibi witness because his testimony would not be sufficient to provide an alibi defense.
During investigator Thompsons second interview, Cheatum told Thompson that his attorney, Andrew Hernandez, "had told him there's a chance he could get a year or two out of it and leave it alone." Mr. Hernandez was the public defender in Boone County and the supervisor of trial counsel, Kay Evans.
Following the Rule 29.15 motion, the motion court entered its order denying relief to defendant and specifically, rejected the defendants claim that his trial attorney was ineffective in failing to call Cheatum as an alibi witness. The motion court found the credible evidence to be that Cheatum could not provide an alibi when interviewed prior to trial and denied the Rule 29.15 motion. The defendant appeals this order, as well as the underlying conviction. The appeals have been consolidated.
The defendant raises two points of error from the underlying criminal trial, in both instances requesting plain error review. The first point deals with the admission into evidence of the butcher knife and the second, with the submission of instruction MAI-CR3d 302.04 defining reasonable doubt. The Rule 29.15 appeal raises two issues regarding the effectiveness of trial counsel.
A large butcher knife, seldom used by T.B., was found laying on her kitchen table the morning after the crimes were committed. The defendant acknowledges that the knife was neither objected to nor was the issue raised in his motion for new trial. The defendant requests plain error review pursuant to Rule 29.12(b). The standard for plain error review is whether the error resulted in manifest injustice or a miscarriage of justice. Rule 29.12(b); State v. Johnson, 829 S.W.2d 630, 633 (Mo.App.1992).
Weapons are admissible in evidence even though they are not directly connected to defendant, or even if they were not used in the crime, State v. Lockheart, 757 S.W.2d 221, 223 (Mo.App.1988), so long as they "bear on the crime with which he is charged." State v. Friend, 822 S.W.2d 938, 944 (Mo.App.1991).
The victim testified that the defendant walked to the kitchen and that it sounded as though the defendant was going through a box where she kept several knives. She described...
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