State v. Warters

• Decision Date: 14 September 1970
• Docket Number: No. 2,No. 54242,54242,2
• Parties: STATE of Missouri, Respondent, v. Nathaniel WARTERS, Appellant
• Court: Missouri Supreme Court

Page 808

457 S.W.2d 808

STATE of Missouri, Respondent, v. Nathaniel WARTERS, Appellant.

No. 54242.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1970.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Emanuel Williams, (Deceased) Joseph S. McDuffie, St. Louis, for appellant.

BARRETT, Commissioner.

Nathaniel Warters, age 29 in 1967, has been found guilty of rape and sentenced to fifty years' imprisonment. The indictment under which he was convicted charged that on July 14, 1966, Warters, Bradford Hull and Michael Taggert forcibly ravished Judith, age 20. Upon a severance and change of venue Taggert and Hull were found guilty and sentenced to fifty years' imprisonment and their convictions were affirmed in State v. Taggert, Mo., 443 S.W.2d 168. Not only is this a companion case many of the questions raised in that case are again raised here. In view of several points raised it is necessary to state at the outset that Warters, Hull and Taggert are all adult Negro males and that Judith is a white girl and prior to being ravished was a virgin.

In brief, the circumstances were that on July 13, 1966, Judith, her younger sister, Mrs. Richardson, and her friend Lisa went to the Municipal Opera. After the opera, about midnight, they all returned to Mrs. Richardson's in Crestwood where they remained until about on o'clock. Judith took her mother and sister home and after leaving the garage door open drove her friend Lisa to her home in Affton. She returned immediately and drove into the open garage adjoining the breezeway. She got out of the car, holding her purse and keys, and at the overhead door turned a light on and as she lowered the door 'saw this brown body humped over in between my two taillights of my car.' (Warters, Hull and Taggert were stripped to the waist and wore only pants and shoes). She attempted to reopen the door, 'and yelled, and I screamed and screamed' but the man 'jumped up right away and put his hand over my mouth and tried to hit me,' finally dragging her to a side door where 'the second man jumped me, and then he approached me from the back, and he, too, put his hand over me, and they were both fighting with me, and I was struggling to get away.' In front of the house 'the third one jumped me' and 'they tried to pick me up and I kept fighting them * * * and they dropped me several times and twice I hit my head on the concrete when they dropped me, and I kept fighting.' At Ferndale Park she tried to get away again 'and they kept punching me and holding my mouth' and when 'they took out a knife and put it at my throat right here' Judith became unconscious for a short time. She regained consciousness when she 'went in the back seat of the car.' She said that she was thrown to the floor of the car and 'right away the Number One guy that jumped me at the door got on top of me and pulled my dress up and ripped off my girdle and my panties and he tried to rape me.' The 'Number Two' man took her fist and 'undid it' and her St. Christopher medal fell to the floor 'and he took off my diamond ring and my watch, and he had trouble taking my watch off by the clasp, so he just ripped it off then.' The 'Number Two' man was the defendant Warters. She continued her struggle in the automobile in the back seat 'and Number One man and Number Two man kept pulling my head down and kept socking me in the head.' The car was driven up Harper Avenue alongside the Algonquin Country Club into a weeded area, two of the men pulled her from the car, put a rag over her face and laid her down and 'Number One man held my shoulders down and my hands and while Number Two man proceeded to rip my bra half way off, and my dress at the time was completely off, and my slip he ripped down, and Number Two man got on top of me and raped me.' And then in turn as one or more held her down the others raped Judith. Once, as she said, 'Let me go' one of them said, 'No, just shut up. We ought to just kill you.' And finally she said, 'they just didn't know what to do with me. They didn't know where to put me, or anything.' And 'then, Number One man put a rag over my face' and walked her over to a bush and commanded her to lie on her stomach. As she did so she begged 'Please give me a dime. I want to call my mother' but he had no dime 'and I saw him run off and join the others.' She made her way to the Boccias, the police and an ambulance were called and at the hospital a doctor confirmed the fact of her bruises, scratches, teeth marks and the fact that she had been raped. On February 3, 1967, Judith identified the appellant as the Number Two man who raped her and took her watch. The defendant testified that he had never seen Judith, he said that he did not rape her or take her watch, denied that he had signed the 'waiver of rights,' denied that he had made any statements to either the police or to Mr. McNary, the prosecuting attorney. In addition he testified that Chief Zinn had told him that if he would turn 'State's evidence, he would try to get me two years,' but 'I told him I didn't have anything to take advantage of the offer he made.' He said that the police asked him about and he denied any knowledge of five other 'attacks' in that area. He offered no other testimony even though his wife and sister talked to him in the Webster Broves police station where he voluntarily appeared when his mother informed him that the police were looking for him.

The noted testimony and these circumstances, needless to say, support the charge and the jury's verdict and punishment. RSMo 1959, § 559,260, V.A.M.S.; State v. Taylor, 118 Mo. 153, 22 S.W. 806; State v. Wilkins, Mo., 100 S.W.2d 889, 893; State v. Arrington, Mo., 375 S.W.2d 186; State v. Martin, Mo., 428 S.W.2d 489. In this background the appellant has briefed and argued fifteen points, some, as points X, XIII and XIV, without citation of authority and little or no argument and, of course, are not reviewable. 24A C.J.S. Criminal Law § 1813, p. 465; State v. McLachlan, Mo., 283 S.W.2d 487, 489. Point IX in which it is asserted that the trial judge deprived appellant of a fair trial in violation of due process and equal protection in 'unduly commenting' in the course of the trial favorably to the state is not only not briefed but refers to an 'Appendix' and there instead of an argument are thirty-five (35) references to the transcript--'p. 5, line 18,' for example, without explanation or demonstration. Not only does this point not comply with the rules of this court--it is all but meaningless, particularly as a claim of invasion of constitutional rights. State v. Crockett, Mo., 419 S.W.2d 22, 26--27. Some of the instances have been encountered in the course of reading the transcript and as to a few of these the state has pointed out that the court's inquiries were for clarification and in any event not an unpermitted comment on evidence, not prejudicial and certainly not an invasion of constitutional rights. State v. Lay, Mo., 427 S.W.2d 394. Throughout the trial his hired trial counsel (now deceased) and his present lawyer have insisted, often mistaking the appropriate constitutional provision, that every objection, every assignment of error and every point was an invasion of due process and equal protection under both state and federal constitutions and these have not been helpful. As the court said in Wood v. United States, 9 Cir., 405 F.2d 423, 426, 'there is not even the most tenuous basis in the record for the serious charges made against the district court.' Another point, II, is a claim of denial of constitutional rights in violation of the Sixth and Fourteenth Amendments in that appellant was denied a fair trial and the court erred in refusing his motion to dismiss the jury because of a systematic exclusion of Negroes from both the grand and petit jurors. Here, of course, the appellant invokes the Coleman cases, Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190, and Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22. There is, however, no record proof and support for this assertion, there was only the objection and statement of appellant's counsel which, of course, 'are not evidence of the facts stated in the objection.' State v. Roland, Mo., 79 S.W.2d 1050; Wood v. United States, 405 F.2d l.c. 426, 'No evidence was offered to prove that there were legal defects in the method of jury selection.' There was not formal challenge to the array and the burden was on the appellant to show purposeful discrimination. Mobley v. United States, 5 Cir., 379 F.2d 768. But her again 'The defendant offered no evidence of a systematic exclusion of Negroes from the jury in support of that allegation in his motion. There were Negroes on the panel, and the record so shows. The fact that none were selected to serve on this jury does not tend to prove that the court in summoning prospective jurors did so improperly.' State v. Selman, Mo., 433 S.W.2d 572, 577; State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949. Having thus delimited in a measure the issues, the points properly briefed and argued will be considered.

The jury was qualified with a view to the infliction of the death penalty (RSMo 1959, § 559.260) and another constitutional infringement is claimed in that jurors with conscientious or religious scruples were excused for cause. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Even though appellant cites the case his argument ignores the fact that the jury did not assess the death penalty: 'Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment.' Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797.

Relying on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, both instances of lineups held in the absence of and...