State v. Taylor, 55450

• Citation: 472 S.W.2d 395
• Decision Date: 11 October 1971
• Docket Number: No. 55450,No. 2,55450,2
• Parties: STATE of Missouri, Respondent, v. Tom TAYLOR, Appellant
• Court: United States State Supreme Court of Missouri

Page 395

472 S.W.2d 395

STATE of Missouri, Respondent, v. Tom TAYLOR, Appellant.

No. 55450.

Supreme Court of Missouri, Division No. 2.

Oct. 11, 1971.

Motion for Rehearing or for Transfer to Court En Banc Denied

Nov. 8, 1971.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Alan G. Kimbrell, St. Louis County Public Defender's Office, Clayton, for appellant.

HENRY I. EAGER, Special Commissioner.

Defendant was convicted of the forcible rape of a sixteen-year-old girl and, with proof of prior convictions, was sentenced to a term of 20 years. He was represented by counsel of his own choice. Motion for new trial was overruled; the notice of appeal was filed late, but this Court granted leave to file a late appeal. The case is here on a voluminous transcript furnished to him as a poor person.

The sufficiency of the evidence is not attacked, although counsel, throughout the brief, disparages the definiteness of the identification testimony. The name of the victim was necessarily disclosed at the trial; we prefer merely to call her Margaret. She lived in Crestwood, St. Louis County, and attended Lindbergh High School. On the evening of September 13, 1968, she had attended a water polo game at the school, and had then spent some time with two or three girl friends. She was on her way home and within about two blocks of it at approximately 12:30 a.m. on September 14, when a car containing two Negro men crowded her white Volkswagen to the curb; the men jumped out and one was wearing a cap which looked like a policeman's cap; they opened her door, one put his hand around her throat, they pulled her out of her car, slapped her across the mouth and pushed her into the back seat of their car. She screamed whenever the grip was loosened; she had marks on her throat for two months. Her screams were heard by a baby-sitter nearby, the police were notified, and an emergency call went out to all neighboring police. The man who was later identified as the defendant rode on the back seat and slapped the girl or 'beat me down' whenever she tried to do anything. The driver was a larger man, taller and fat. The man in the back gave all the driving directions and they drove to the location of a very large construction project where Interstate Highway I--44 was being built, with grading, bridges, overpasses, etc. This project was perhaps two miles long and included the area around Holmes and Big Bend. The car was driven into a secluded spot down a bulldozer trail running off of Holmes Street, and was stopped in a brushy and wooded area. We shall omit the grisly details of the rape; both men forcibly raped the girl on the back seat of the car after threatening to use a knife; the one on the back (identified later as the defendant) performed the act first. The evidence was fully sufficient to establish a completed act of forcible rape by both men. When these men attempted to leave, the car was found to be stuck in the mud. They worked to free it for approximately 45 minutes; during part of this time the smaller man was in the driver's seat and Margaret observed him there. The place was admittedly dark, but there were a 'few lights' in the background. Finally, at 2:06 a.m. the driver of a searching police car saw a glint from the bumper and drove into this track or pathway. Margaret ran to the car crying 'Help me please, I've been raped.' Other cars came almost immediately upon the report of the first car. The two men ran off into the brush and were not found, although an extensive search was made.

The car in which Margaret had been raped was a dark blue Buick Electra 1965, license number XG--6639; the right rear of the car was up on a jack when the police arrived; the trunk was open and the car keys in the trunk lock. Three envelopes and a letter were found in the trunk, all addressed to Mr. Tom Taylor, 4417 Garfield Street; also a carbon copy of an auto repair bill addressed to and supposedly signed by Tom Taylor, which also contained the above license number (except that one digit was not clear). An '8 point' blue cap was found in the car, similar to the one which one of the men was wearing. Photographs were taken of the car in its position. No identifiable fingerprints were found. The articles and papers taken from the car were identified, preserved, offered and received in evidence at the trial.

Margaret testified that she had never had intercourse before. Her family doctor testified that she had a recent tear or laceration of the hymen, a bruise in that area, and that she was still bleeding slightly when examined about noon of that day; also, that she had a bruise on her lower lip. The defendant, Tom Taylor, had worked on this particular construction project since April 1968, and at various places on it; he was generally familiar with the location. He had been released from the penitentiary in March 1968 (according to his own testimony), after serving parts of three seventeen-year concurrent sentences for robberies.

Police officers, including Sgt. O'Keefe, went to 4417 Garfield, were met by a woman and learned from her that Tom Taylor no longer lived there. They then went to 4822A Leduc (all in the City of St. Louis) and were admitted to the upstairs apartment by a woman who identified herself as Mattie Taylor, the wife of Tom Taylor. This was at 6:30--7:00 a.m. In rebuttal, and after Mattie Taylor testified, Sgt. O'Keefe testified that she told them on this occasion, referring to her husband: 'He's out, and he better not be with another woman,' that they had recently been married, that he left home about ten or eleven p.m. on the previous evening, and that she did not know where he was. The officers noted that a double bed in the next room appeared to have been slept in only on one side, i.e., covers were intact on One side and pulled down and disturbed on the other. This evidence was offered by way of impeachment. The officers returned at about 8:30 a.m., found defendant at home, and took him to the Kirkwood Police Station. There Sgt. O'Keefe, in the presence of Detective Bossler, had defendant read aloud the Miranda warnings from a card, and then read them aloud to him; O'Keefe asked defendant if he understood them and he said that he did. O'Keefe further testified: that defendant stated that he did not wish an 'attorney present at the time'; that he also said he did not wish to make a statement, but that he did relate various events of the previous evening as described in more detail later. Thereupon he was 'booked.' Early in the afternoon Margaret and her parents were called to the station to view a lineup in which defendant and two other Negroes (all in 'casual' clothes or work clothes) within a reasonable approximation of his size and height were displayed. Sgt. O'Keefe testified that just before the lineup he again told defendant that he was entitled to have an attorney present if he wanted one, but that defendant said he did not wish one. O'Keefe talked with Margaret and her parents before the lineup, but showed no photographs, gave her no names and merely explained the procedure to them. Margaret never saw a picture of this defendant until she saw one in the newspaper the next day. She testified that she recognized 'the smaller man from the back seat' and told Sgt. O'Keefe 'that that was the one.' In the lineup defendant seems to have been initially in the center; referring again to Margaret's testimony, she testified (in addition to those facts concerning her abduction, rape and occurrences immediately thereafter, as already related): that 'one man caught my eye right away, you know, and I thought that was the man who had been with me the night before * * *'; that, however, she looked at the others to see if she could also identify the driver; that she asked O'Keefe to have the men move and speak; that after a few minutes she told him that she recognized the man 'whom she had seen at first,' i.e., the 'first man that I had recognized,' and she told him which one. That man was the defendant. Margaret further testified on cross-examination that her eyes immediately centered on that man, and that her hesitation was in connection with a further identification of the driver. He was the 'smaller man from the back seat,' and he was this defendant. On cross-examination she also testified that she recognized one man right away, and then passed on to the others. When asked at the trial (seven months later), she not having seen defendant in the meantime, if she saw the defendant in Court, she said: 'I think so, behind the other attorney' and pointed to him saying: 'This man here, I guess.' When asked on cross-examination about the remark, 'I think so,' she said there was no question in her mind that the defendant present in Court was the man she had identified, and also that she was 'fairly confident.' Margaret was never shown a photograph of defendant. At some time before this, but long after the lineup, she picked out one photograph from a group which she thought 'could' have been the driver (the larger man), but it was not one 'Mimms' who will be referred to later.

Prior to trial a motion was filed to suppress the identification evidence. It was heard twice (why twice we do not know) by two different judges, with extensive evidence, and overruled. That question is not pursued as a point in the present brief, although counsel repeatedly refers to the subject. We do not refer to the evidence on the motion. The Court received evidence of two first degree robbery convictions of defendant and of his imprisonment therefor, and made a finding thereon. The superintended of the I--44 project testified that the only car he recalled seeing defendant drive to and from work was a 'dark blue Electra Buick.' The contractor had at least one guard on the project at night.

Defendant and his wife testified. She testified, in substance: that in September 1968, defendant was driving a...