State v. Wilkinson

Decision Date15 October 1980
Docket NumberNo. 61366.,61366.
Citation606 S.W.2d 632
PartiesSTATE of Missouri, Respondent, v. Mitchell WILKINSON, Appellant.
CourtMissouri Supreme Court

Thomas A. Ludwig and Albert C. Lowes, Jackson, for appellant.

John Ashcroft, Atty. Gen., Lisa M. Camel, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted of aiding and encouraging the crimes of rape (§ 559.260, RSMo Supp.1975) and burglary (§ 560.040, RSMo 1969), defendant was sentenced to concurrent terms of ten and five years on the respective charges. His challenge to the validity of § 491.015, RSMo Supp.1977, popularly known as the Missouri Rape Shield Law, brings the case here on appeal under Art. V, § 3, Mo.Const. However, the cause is reversed and remanded for reasons other than the constitutional contention.

Defendant's numerous assignments of error include: (1) insufficiency of the evidence on aiding and encouraging burglary and rape; (2) a multi-pronged attack on the validity of § 491.015, contending it is violative of the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, § 18a and § 10 and Art. III, § 40 of the Missouri Constitution; (3) that the trial court erred in (a) applying the invalid section, (b) admitting statements elicited from defendant in violation of the Fifth Amendment to the United States Constitution, § 544.170, RSMo 1969, and Rule 21.14, (c) failing to disqualify the prosecutor, (d) admitting hearsay evidence, (e) refusing requested instruction on circumstantial evidence, and (f) erroneously proscribing defense counsel's argument as to the insufficiency of the evidence.

The record reveals that what might have remained scurrilous talk between three young men, became a plan to attack a female victim, Marcella Green, carried to fruition by one of the three. According to defendant's testimony, during the late evening of November 26, 1978, he encountered Gene Ward and Bobby Collier outside a restaurant in Lutesville. He had known Ward for several years and had been acquainted with Collier for about three weeks. As the three were "riding around" in defendant's car discussing girls and beer, Collier stated he wanted a "date," and Wilkinson volunteered he knew a girl, naming the prosecutrix, whom Collier could date at anytime.1 Defendant also told Collier that he did not like the prosecutrix and that "he would like to see her raped." Collier replied that he would rape her.2

Two trips were made to the complaining witness' apartment during which Collier knocked on her door, inquiring if another girl was present. The trio then drove to "the Lanes," a place near Marble Hill frequented by local youths, and en route Wilkinson and Ward taunted Collier in the apparent belief he had not in fact knocked on the prosecutrix's door. Collier responded that he would return to the apartment and drag the prosecutrix to the window. He maintained at trial that the three discussed a plan by which he would gain entry to the victim's apartment, show her at the window, then Wilkinson and Ward would come upstairs. According to defendant, he only suggested binding the prosecutrix to frighten her, but he admitted telling Collier he would supply an alibi asking if Collier had a mask to cover his face. Ward mentioned that Collier had access to a rope. Further discussion included covering the victim with a sheet and the suggestion that Collier wear gloves. Finally, Wilkinson stated he told Ward and Collier to remove their shoes at the victim's apartment building to avoid identifiable footprints in the mud. Wilkinson stated this discussion was in a jocular vein, yet he drove his car to Collier's hotel knowing Collier was going to his room for the mask, gloves and rope. When Collier returned to the car with those items they drove to the victim's apartment and parked about a block away instead of in front as on the two previous occasions.

Wilkinson admitted he mentioned $5.00 either as a bet or payment for frightening the victim. As they left the car Collier put on the mask and gloves and placed the rope in his pocket. Collier claimed Wilkinson asked if he had a knife and suggested it be used to threaten the victim and cut her telephone lines. Wilkinson disclaimed any knowledge of Collier's possession of the knife used in the attack.

The three then walked to a point where the victim's window was clearly visible. Defendant stated he and Ward moved to that location so Collier would believe they were acting in accordance with their plan. Collier asked Wilkinson how he could gain entry and Wilkinson advised that he should imitate the voice of the victim's former husband and demonstrated the sound of his voice. Wilkinson also stated he told Collier not to hurt the victim but Collier's version was that Wilkinson cautioned him to leave no marks on the victim that might be evidence of the attack. Collier entered the rear of the building and broke in the door to the prosecutrix's apartment. Shortly thereafter defendant and Ward saw a light come on in the apartment and heard three screams. Collier testified that after he forced his way into the apartment, he displayed her at the window in accordance with the formulated plan and then raped her. Wilkinson and Ward ran back to the car, drove around the block and thence to Wilkinson's house. About one-half hour later Collier arrived at the Wilkinson home and related the details of the crime. Wilkinson testified that when Collier told of these events, Ward and he laughed in disbelief and gave Collier $5.00 as a loan "to help fix" his truck. Collier's version was that after he related the details, Wilkinson laughed and said he couldn't wait to see the victim so he could laugh at her.

I

The first contention we address is whether a submissible case was made that defendant aided and encouraged the burglary and rape. Viewing the evidence in the light most favorable to the State, affording the verdict the benefit of all reasonable inferences and disregarding contrary evidence, State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977), we reject defendant's claim of error. In cases such as this, there must be proof "that the accused `associate himself with the venture' in some fashion; that some form of affirmative participation be shown; participation in the crime as something that he wished to bring about; that he sought by his action to make it succeed; that he `consciously shared' in the criminal act." State v. Irby, 423 S.W.2d 800, 803 (Mo.1968) (citations omitted). Accord, State v. Bush, 547 S.W.2d 517 (Mo.App.1977).

The record is replete with testimony from which a jury could find that defendant affirmatively aided and encouraged Collier with the specific intent of producing the resulting burglary and rape. Defendant admitted at trial he told Collier he would like to see the victim raped. Such statement provided sufficient evidentiary basis for the jury to find defendant intentionally aided and encouraged the felony. See State v. Grebe, 461 S.W.2d 265, 268 (Mo. banc 1970). Moreover, the jury could reasonably find defendant's affirmative participation in the burglary from his transportation of Collier to the hotel room, where Collier procured the mask, gloves and rope used in the rape, and then to the victim's apartment. Wilkinson also admitted he told Collier he would wait for him and he advised Collier how to gain entry to the apartment. Defendant makes much of Collier's statement at trial that at the time of his entry into the apartment he did not intend to rape the victim. Hence, without intent to commit rape, neither the rape nor burglary charge were proved. Collier's testimony is not without inconsistencies and given the evidence discussed above it was for the jury to resolve the conflict in testimony. It is not our function to reweigh the evidence or substitute our judgment for that of the jury when the verdict is supported by substantial evidence. State v. Gregory, 339 Mo. 133, 143-144, 96 S.W.2d 47, 53 (Mo.1936). We hold a submissible case was made.

II

Concerning the constitutional challenge to § 491.015, RSMo 1978, this issue is not reached as the case is reversed and remanded on other grounds and the constitutional issue is unnecessary to the decision. City of St. Joseph v. Christgen, 513 S.W.2d 458, 459 (Mo.1974); United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d 444, 452 (Mo. banc 1964).3

III

Bobby Collier, the State's principal witness, deposed by defendant during pretrial discovery, responded to questions concerning events occurring prior to entering the victim's apartment. When the inquiry reached that point, Collier refused to answer further questions invoking his Fifth Amendment right against self-incrimination. After an extended series of detailed questions concerning the alleged burglary and rape which the witness declined to answer, the depositions were terminated by his general statement that he would answer no questions as to matters occurring after he arrived at the victim's apartment. Defense counsel promptly filed his "motion to compel answers to deposition questions" asserting that the prosecution witness' refused to disclose matters material to defendant's guilt or innocence required an appropriate order under Rule 25.45 (now Rule 25.16) to facilitate discovery. The motion was denied without hearing on February 13, 1979, and, by the trial court's admission, without examination of the record and perusal of the questions to which Collier claimed the privilege. On March 3, defendant filed a pretrial motion to exclude Collier's testimony because "defendant was denied his right of discovery," and this motion too was denied, apparently in the belief that absent some involvement by the State in Collier's claim of privilege, an order to compel Collier to answer or exclude Collier's testimony at trial would be improper. At trial, defense counsel's renewed motion to exclude...

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