State v. Starkey, 35409
| Decision Date | 06 April 1976 |
| Docket Number | No. 35409,35409 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Troy William STARKEY, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Gilmore & Gilmore, William Gilmore, Sikeston, Legal Aid Society, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
Defendant appeals his conviction of forcible rape under § 559.260, RSMo.1969, V.A.M.S A.M.S., and the sentence of thirty years imprisonment. For reasons we shall discuss, the judgment is affirmed.
Appellant contends the court erred in: (1) permitting introduction of statements and photographs of appellant taken by the police without prior constitutional warnings; (2) admitting testimony concerning the mode of extrajudicial identification of appellant; (3) allowing in-court identification of appellant based on previous improper and suggestive extrajudicial identification procedures; (4) failing to grant a continuance on the day of trial or in the alternative to 'strike witnesses' whose names had been endorsed two weeks prior to trial; (5) erroneously admitting certain State's exhibits under the Uniform Business Records Act; (6) improperly instructing as to reasonable doubt and burden of proof; and (7) by overruling appellant's 'post-trial motion in arrest judgment or in the alternative for a new trial.' 1
From the evidence the jury could find that D_ _ Y_ _ 2 arrived by air at Lambert-St. Louis International Airport near midnight on the evening of May 10, 1971. At about 4 a.m. on the morning of May 11 while she waited in the passenger lounge area on the top level of the terminal for a flight to Springfield, Missouri, appellant took a seat next to her and touched her buttocks with his hand. Mrs. Y_ _ jumped up immediately, took the down escalator to the middle airport level and went to the ladies' rest room.
Jacquelyn Johnson, an employee of the Avis Rent A Car Agency who had seen her several times previously that morning, remembered watching Mrs. Y_ _ as she came from the upper level and went to the ladies' room at the west end of the building. Finding the west rest room closed for cleaning, Mrs. Y_ _ turned and walked the length of the building to the ladies' rest room at the east end. As Mrs. Y_ _ passed beyond her range of vision, Mrs. Johnson saw a man, whom she identified as appellant, came down the stairway from the upper level and proceed at a fast walk in the direction Mrs. Y_ _ had just taken. Mrs. Johnson's description of appellant substantially matched that given by Mrs. Y_ _ except she also noticed a pair of tan-colored gloves hanging from his right hip pocket.
Mrs. Y_ _ went to the ladies' rest room, entered a stall and when she opened the stall door a few minutes later, was confronted by appellant holding a knife. She could smell alcohol on his breath, his speech was slurred and his hair in disarray. As he came toward her, Mrs. Y_ _ began to scream, and as she did, he put the knife to her throat, rammed the gloved fingers of his other hand in her mouth and threatened to kill her unless she stopped. No one else was in the rest room as he pushed her back into the stall and locked it. Appellant, by threats and force, made the terrified Mrs. Y_ _ perform degrading acts and forcibly raped her. Prior to the rape, the prosecutrix unavailingly protested she was pregnant; and though in fact she was six months pregnant, appellant forced her to the floor of the stall there performing the crime for which he stood accused. Her lip and hand were cut during her effort to resist the rape; and appellant, when finished, expressed concern for her cut hand, also stating he was sorry if he had hurt her baby. Following this short-lived remorse, appellant warned against calling the police and stated she should not leave for half an hour.
Immediately Mrs. Y_ _ dressed, left the ladies' room and ran to the first person she saw, an airport maid, screaming she had been raped. The maid notified the authorities and later described the prosecutrix as having blood on the top of her blouse and that she was 'shaking and trembling all over, really upset.' Blood was found on the toilet seat, floor and walls of the area where the rape occurred and the medical testimony of Mrs. Y_ _'s condition was corroborative of the fact of rape. A description of the assailant was broadcast to airport officers.
At about 2:30 a.m. the same morning, officer Orson Howell of the airport police, while patrolling the parking area of the lowest level of the airport garage, observed a lime green pickup truck, bearing the name of a fencing company in Hazelwood, with an iron frame rack too tall to clear obstructions in the garage. The driver, later identified as appellant, alighted to pick up a wheelbarrow which had fallen from the truck and spoke to Howell, who noted he was wearing greenish pants and a long-sleeved striped shirt. Howell testified he was 'acting kind of funny, I don't know whether he was drinking or not' and helped appellant back his truck from the driveway. About five minutes later he saw the truck backing into the driveway from the other side of the building. Again he spoke to appellant, noticing then a discoloration around his left eye. Shortly afterward, about 2:45 to 3 o'clock a.m., Howell saw the truck for a third time parked at the top level of the airport garage. When he returned to that area about 5 a.m., after the broadcast of the rape report, the truck was gone.
Approximately six days later, officers assigned to investigate the crime, while canvassing the Hazelwood area, saw a truck matching the description given by officer Howell parked behind an apartment they later learned was appellant's residence. Their first efforts to investigate among residents of the building were unsuccessful but two days later appellant answered their knock and when advised they were police officers, invited them into his home. Explaining they were investigating a rape at Lambert Airport, officer Hollandsworth asked appellant if the truck parked outside was his. 3 Appellant admitted the ownership but denied having been at the airport on the date in question. When they stated his appearance matched the description of the rapist, even his discolored left eye, appellant denying involvement made several exculpatory statements. They asked if he would voluntarily come to the police headquarters and have his picture taken to which appellant consented, coming there in his own vehicle with his two minor children. The photographs were taken and appellant left. At no time was he under arrest and officer Hollandsworth testified that he and his partner had not gone to appellant's residence with the intention of placing him under arrest.
Appellant first contends his statements made during the first meeting with police officers at his home and photographs taken at the station later that day were erroneously admitted at trial because no prior Miranda 4 warnings were given. This contention is without merit. When officer Hollandsworth and his partner knocked on appellant's door on May 18, appellant answered, invited them in and the following transpired.
'Q (prosecutor): Did you explain to Mr. Starkey why you were there?
A (witness Hollandsworth) Yes, sir.
Q What did you tell him?
A Told him that an offense of rape occurred at the airport on the 11th of May and a truck similar to his was seen at that location about that time, and also that the subject matching his description was being sought.
Q Did one of you mention the truck parked out in the rear?
A We asked him if it was his truck?
Q What did he say?
A Yes, sir, it was.
Q That's when you told him about the alleged incident?
A True.
Q Did he respond to that?
A He said it couldn't have been him because he was not at the airport that day.
Q (by Mr. Westfall): What else did you say to him?
A We brought up the fact that he matches the description, everything, a discolored left eye or black eye and he said, well, I got that a couple of weeks ago in a fight.
Q Did he in fact have a discolored left eye?
A Yes, sir.
Q What was the next thing that you or he said?
A Well, we asked him if he would go to headquarters and have his photograph taken voluntarily.
Q What did he say?
A He said yes.
Q Did this happen?
A Yes, sir.
Q Did you meet him back at headquarters?
A Yes, sir.
Q What occurred when you arrived back there?
A His photograph was taken and then he left.
Q He was never that morning placed under arrest?
A No, he was not placed under arrest.
Q After the photograph he left?
A True.'
It is significant appellant by his testimony substantiated the officers' account in all details except he claimed he told them the black eye occurred two days earlier rather than two weeks. More important, neither the statements made nor the photographs taken involved 'custodial' interrogation or a situation requiring prior Miranda warnings. The Miranda court defined custodial interrogation as 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' 384 U.S. at 444, 86 S.Ct. at 1612. In the case at bar appellant was under no compulsion to meet, speak, or remain with police officers. He was not under arrest nor was his freedom of action restrained. As contrasted to Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) in which the officers improperly failed to warn the arrested accused who was not free to leave and questioned him in his bedroom in the early morning hours, the officers here entered appellant's home at his invitation, no threats, air of compulsion or suggestion of arrest...
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