State v. Whitman
| Decision Date | 17 April 1990 |
| Docket Number | 56633,Nos. 54832,s. 54832 |
| Citation | 788 S.W.2d 328 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jeffrey A. WHITMAN, Defendant-Appellant. Jeffrey A. WHITMAN, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Steven Michael Dioneda, Clayton, for defendant-appellant.
William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
These proceedings are consolidated appeals by Jeffrey Arthur Whitman from his convictions for kidnapping, rape, sodomy and armed criminal action, and from an order denying his motion to vacate sentence filed pursuant to Rule 29.15. We affirm.
Appellant, Whitman was charged, tried, found guilty and sentenced on six counts--two counts of forcible rape, two counts of kidnapping, one count of sodomy and one count of armed criminal action for acts committed on June 11, 1987 against two women. Sections 566.030.2, 566.060.2, 565.110 and 571.015.1, R.S.Mo.1986. The appellant was tried in March, 1988 for the kidnapping and rape with the use of a gun, of N.B. and L.H.
These two women testified at trial. N.B. testified that at about 11:30 p.m. on the night of June 10, 1987, L.H., with whom she lived, came home from work and the two went to a pizza parlor some six blocks away where L. was to obtain some money from a friend. They then went to the Jack In The Box restaurant on South Jefferson, tried to open the door but the place was closed. They walked across the parking lot. As they did, a dark Ford Thunderbird pulled up alongside them. They stopped. A man inside the car said something about a "date." He had a small, silverish handgun in his hand and told the women to get in or "he'd kill us." They got in on the passenger side. L. sat between the man and N. sat in the front seat. The man then drove south on I-55. During the ride, the man said that he got the car from a man on Cherokee Street coming out of a bar. When L. asked about the whereabouts of the man, he said "he was in the trunk." N. was "scared to death." The man, later identified as the appellant, drove to Meramec Bottoms Road in St. Louis County, and on the way said he was going to have some "fun." They drove to an abandoned clubhouse on Meramec Bottoms and appellant backed the car into the garage. He told the women to take their "shirts off." He fondled L., "bit" her breast, and told L. to commit an act of sodomy on him. She refused, so he told N. to do so. She did. Then L. was told to get into the back seat where appellant had intercourse with her. He then told N. to get into the back seat and had intercourse with her. Testimony of these women indicated that there was never any discussion about money being exchanged for sex.
After the sexual activity, all got dressed, but N. "kicked" her underwear under the car. The three left the premises, returned to the highway and drove north toward the City. During the drive, appellant said his name was Jeff and that he worked in construction. He did not disclose his last name. The two women were let out of the car at Arsenal and Lemp at about 1:30 a.m., June 11, 1987. When they exited the car, they waved and screamed for a police car. Soon, Officer Michael Karl picked them up, and they were taken to a hospital and to the County police. In a few days an officer presented some photographs to N. and she picked out appellant as the assailant. She later identified him in a lineup.
L.H. corroborated N.'s testimony. Her testimony was similar to N.'s. During intercourse with L., she testified the gun was on the back by the back window of the car. She identified the appellant as the assailant from photographs and from a lineup.
During the examination in chief of L., the court called counsel to the bench and stated that it had been brought to its attention that juror No. 4 "keeps sleeping, closing her eyes and nodding her head." The court ordered counsel to instruct the sheriff to watch the juror.
Officer Karl testified that at approximately 1:30 a.m. on June 11, 1987, he observed the two women standing in the 3100 block of Lemp, just off I-55, "yelling and screaming" and waving for him to pull to the curb. They told him of the episode and gave a description of the car. The officer testified that the women were hysterical, crying and scared. On re-cross, the officer was asked by defense counsel whether he was familiar with "problems of prostitution" at the Jack In the Box area. Objection was made and sustained.
While the women were at the hospital they were examined and sexual assault kits were made up. Tests were made also of the blood and saliva of appellant. A forensic scientist testified that the tests on N. showed positive seminal fluid, and the tests on L. showed presence of sperm. Based on the scientist's experience, she testified that both had had intercourse. The blood and saliva tests of appellant showed that he could not be eliminated as a suspect.
A police officer testified that he went to the house on Meramec Bottoms Road, took pictures, and on the floor of the garage were a "pair of yellow panties"--those of N.
On June 17, 1987, appellant was arrested. The trial began March 7, 1988.
During the course of the voir dire, the circuit attorney asked the panel whether anyone, or any member of their family had been a victim of an offense of a sexual nature. One person, Z.H., answered at side bar that her niece had been raped by a parolee, but that that experience would not affect her ability to be fair and impartial.
Also during voir dire, in answer to the same question, juror No. 53 stated that she was a victim of child molestation by her stepfather when she was 10 years old. She was asked whether there was anything "about that experience that would cause [her] to be less than fair in this case." She replied, "no." The molestation was a continuing one for about five years. During the questioning, defense counsel stated that she noticed juror No. 53's eyes "getting a little watery." The venireperson replied, "I really don't think so." She stated that her past experience would not "in any way interfere with her ability to listen and decide." She also stated that she would not be inclined to "vote guilty because of what happened." When asked by the court: she replied, "Yes, I do." She also stated she would be able to judge the facts and apply the law as the court gives it. Defense counsel moved to strike juror No. 53 for cause because she believed her testimony was "equivocal" and that she noticed her eyes "got sort of watery." The court denied the motion stating that on the record there is no basis for striking her for cause.
Also during voir dire, the circuit attorney explained that it is the state's burden to prove the elements of the offenses, and if the jury found appellant guilty then "its your job to assess what the punishment is and we're going to talk about that." The circuit attorney explained the range of punishment for rape, sodomy, kidnapping and armed criminal action and asked whether the venirepersons could follow the court's instructions on the range of punishment. Defense counsel then questioned the venire. When asked whether anybody has "any problems they might have based on the charge," Z.H. indicated that "I can do the listening but the judgmental part at the end, I don't want no part of that." She said that it would be difficult, "for religious reasons." But she said, she "can do it" and follow the law. At side-bar, Z.H. was questioned about her ability to assess the facts and to assess punishment. She stated that because of her religious beliefs she did not want to sit in judgment and did not want to take part in sentencing someone. She also said did not "want to" assess punishment, not that she "could not" do so. The court questioned Z.H.
The Court: Part of your duty as a juror who hears the case will be that if there is a finding of guilt is to assess punishment.
Venireman H.: I know, that's what I don't want no part of it.
The Court: Is it a fact that you don't want to or you can't?
Venireman H.: I can but I don't want to.
Venireman H.: No doubt about it that I could.
[Defense Counsel]: Okay.
[Circuit Attorney]: And you understand that--Let's assume he's found guilty of something.
Venireman H.: Yes.
[Circuit Attorney]: All 12 of you will have to agree on what the punishment is, do you understand?
Venireman H.: That's what I'm talking about, I understand what you're saying. Do you understand me?
[Circuit Attorney]: Yes, ma'am.
[Defense Counsel]: You would be able to discuss it with the others?
Venireman H.: No doubt about it, I can do that.
[Defense Counsel]: That's all we ask.
The circuit attorney moved to strike Ms. H. for cause because of the equivocal nature of her answers and because she injected her religious beliefs as to punishment. Defense counsel stated that Ms. H. had the ability to assess the facts and reach a verdict and is "capable of assessing punishment." She just "doesn't want to" assess punishment. The court stated that this was a matter of discretion, and that "my judgment is that she should be excused for cause because I think she does equivocate and I think there are a number of people sitting back there ... who will be unimpaired." "This lady equivocates on assessment of punishment."
At the close of the voir dire, defense counsel made several oral motions in limine. One of the motions was that she believed that the victims will testify "something to the effect that the defendant had told them that he had stolen the car that they were in, and that there was a...
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