State v. Stamps, 37172

• Decision Date: 13 June 1978
• Docket Number: No. 37172,37172
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Willie STAMPS, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 762

569 S.W.2d 762

STATE of Missouri, Plaintiff-Respondent, v. Willie STAMPS, Defendant-Appellant.

No. 37172.

Missouri Court of Appeals, St. Louis District, Division Three.

June 13, 1978.

Motion for Rehearing and/or Transfer Denied July 17, 1978.

Application to Transfer Denied Sept. 12, 1978.

Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Presiding Judge.

Defendant was convicted of forcible rape and sentenced by the trial court under the Second Offender Act to life imprisonment. On appeal, defendant raises the following points of alleged trial court error: (1) admitting the testimony of a state's witness regarding an unrelated incident near the scene of the crime before it occurred; (2) overruling defendant's motion for acquittal at the close of the State's case; (3) denying a request for mistrial on the basis of the prosecutor's reference to defendant's race; (4) denying a request for mistrial on the basis of the prosecutor's reference to defendant's religion; (5) permitting the prosecutor in closing argument to argue circumstantial evidence as a factor in the case; (6) permitting the prosecutor to make reference to items of defendant's clothing not in evidence.

Defendant's assertions are wholly without merit, and we affirm the conviction.

The facts of this crime are particularly facinorous. The victim of defendant's attack was a fifty-eight year old patient at a hospital located in St. Louis County. In the early morning on the day of the assault, the victim had undergone serious abdominal surgery for a colostomy closure. Later in the day she had been taken from the surgical recovery room to her own room on the sixth floor of the hospital. She was under sedation with an intravenous tube attached to her arm and a nasal gastric suction tube through her nose and extending down her throat. About 5:00 in the afternoon, she was awakened by the movement of a man at the side of her bed. The intruder positively identified as defendant leaped on the victim's bed, pushed on her throat and threatened to kill her with a knife if she made a noise. The defendant then raped the victim causing her intense pain. A nurse entered the room, interrupting defendant's evil assault. Defendant jumped from the bed, fumbled with his trousers, picked up a brown paper bag on the dresser and hurried out of the victim's room. The victim informed the nurse that she had been raped, and the nurse pursued the defendant into the hallway where she saw him moving toward an emergency exit. The nurse called to a passing physician Dr. Hoff that her patient had been raped by the defendant who was trying to leave the floor. Dr. Hoff caught hold of the defendant and was leading him by the arm to the nurses' station when he broke away and ran down a stairwell with Dr. Hoff in close pursuit. Dr. Hoff did not lose sight of the defendant as he chased him down three flights of stairs into the arms of two security guards who had been summoned and were going up the stairs. When caught, defendant possessed the brown paper bag he was seen carrying from the victim's room. His belt was unbuckled and his trousers' fly was open. The victim positively identified defendant as her assailant, and the nurse, Dr. Hoff and the security guard who caught him were also unequivocal in their identification of defendant.

Defendant maintains that he was at the hospital to visit his common law wife, Therester Blackman, who was a patient, and that he was apprehended in a case of mistaken identity. The only testimony in his behalf came from Ms. Blackman who stated that she did not see defendant on the day of the rape. In his opening argument, however, counsel for the defendant stated the evidence would show that when defendant entered the hospital to visit Ms. Blackman it was the height of visiting hours. He explained that defendant waited for an elevator, but they were so overcrowded he decided to walk up the stairs to Ms. Blackman's room on the fifth floor. He maintains while in the stairwell defendant was mistakenly apprehended as the rapist.

Defendant's first point of error relates to the testimony of Julie Flynn, an employee of the hospital on duty the day of the rape. Ms. Flynn testified that at 4:00-4:15 P.M., she took an elevator from the ground to the seventh floor. On the first floor, a male, later identified as defendant, entered the elevator and accompanied Ms. Flynn to the seventh floor. A few minutes later when she got back onto the elevator, defendant entered with her. There was no objection to any of the foregoing evidence. Defendant did, however, object when Ms. Flynn, in response to a question whether she noticed anything unusual about the man, stated that he smelled of alcohol.

On appeal defendant asserts that all of Ms. Flynn's testimony, which until the above stated question was answered had been received without objection, was irrelevant and immaterial. Initially we note that defendant failed to make a proper and timely objection, i. e., one made on legitimate grounds and at the earliest opportunity once the objectionable character of the testimony became apparent. Therefore, no error in admitting Ms. Flynn's testimony was preserved for appeal. State v. Simmons, 500 S.W.2d 325 (Mo.App.1973); State v. Jackson, 500 S.W.2d 306 (Mo.App.1973). Moreover, we believe that the evidence in question was both relevant and material to facts in issue. Ms. Flynn's testimony rebuts defendant's theory of the case as asserted in his counsel's opening statement. It establishes that defendant, contrary to his counsel's assertions, was at the hospital on an uncrowded elevator forty-five minutes to one hour before he was apprehended. Her testimony meets the test of relevancy, in that it tends to prove or disprove facts in issue. State v. Proctor, 546 S.W.2d 544 (Mo.App.1977); State v. Walden, 490 S.W.2d 391 (Mo.App.1973). It meets the test of materiality, in that it is relevant and has bearing on substantial matters in dispute. See, State v. Roberson, 543 S.W.2d 817 (Mo.App.1976). Its admission was proper in the exercise of the trial court's discretion. State v. Martin, 530 S.W.2d 447 (Mo.App.1975). Any remoteness in time between the incident in the elevator and the rape affects the weight rather than the admissibility of the testimony. State v. Woods, 508 S.W.2d 297 (Mo.App.1974); State v. Taylor, 506 S.W.2d 94 (Mo.App.1974). ¹

Next, defendant argues that the trial court erred in failing to sustain his motion for judgment of acquittal at the close of all the evidence because the state failed to make a submissible case on each of the elements of rape. ² In light of the overwhelming evidence of defendant's guilt this point is chimerical. In the argument portion of his brief defendant contends that the eyewitness identifications were so inadequate that they could not support the conviction; that there was no evidence of "utmost resistance" by the prosecutrix and that there was no clear evidence of penetration an absurd argument here.

In determining if a submissible case was made we must view the evidence and inferences fairly derivable therefrom in the light most favorable to the verdict. All evidence to the contrary is disregarded. We do not substitute our judgment for that of the jury but only determine if there was substantial evidence to support its verdict. State v. Longmeyer, 566 S.W.2d 496 (1978); State v. Johnson, 566 S.W.2d 510 (1978); State v. Gamache, 519 S.W.2d 34 (Mo.App.1975).

Defendant argues that the initial descriptions given by the eyewitnesses were contradictory and confusing in that not all remembered the assailant as having a mustache and rough pockmarked skin. His argument ignores the substantial agreement in descriptions given by the witnesses both immediately after the rape and at trial. Each witness positively identified defendant at trial as the rapist. Further, their description of defendant's physical attributes and dress were almost identical to one another. From the time the nurse interrupted the assault until the assailant ran into the arms of the hospital security guards either she or Dr. Hoff kept the man within their line of sight. Any minor discrepancies in the descriptions given shortly after the crime affect only the weight and credibility to be accorded the identification testimony by the jury. State v. Radford, 559 S.W.2d 751 (Mo.App.1977); State v. Barnes, 536 S.W.2d 932 (Mo.App.1976). Clearly in this instance the jury's verdict was influenced by the positive agreement among the witnesses that defendant was the rapist. ³

Furthermore, the state met is burden of proving each of the elements of rape by substantial evidence. It was required to prove penetration (however slight) of the victim's sex organs, against her will by force or threat thereof. State v. Barnes, supra ; State v. Ruhr, 533 S.W.2d 656 (Mo.App.1976). The prosecutrix testified directly and convincingly that she was accosted by defendant, that her life was threatened and that he achieved penetration against her will. Defendant has the temerity to suggest that the victim did not use her utmost efforts to resist the attack upon her. Under the circumstances in which this crime occurred, defendant's argument that there was no showing of "utmost resistance" is fatuous. The victim only a few hours earlier had undergone serious abdominal surgery. At the time of the rape, though lucid, she was incapacitated in her hospital bed. She had an I.V. in her arm and a suction tube down her throat. Defendant told her he had a knife and would kill her if she did not cooperate. Where, as here, a victim is put in such fear of physical violence that her will is overcome the utmost resistance doctrine is inapplicable. State v. Gallup, 520 S.W.2d 619 (Mo.App.1975).

Defendant's next point alleges that comments made by the prosecutor in his closing...