State v. Williams, 10923

• Decision Date: 29 June 1979
• Docket Number: No. 10923,10923
• Citation: 584 S.W.2d 134
• Parties: STATE of Missouri, Respondent, v. Michael K. WILLIAMS, Appellant.
• Court: Missouri Court of Appeals

Page 134

584 S.W.2d 134

STATE of Missouri, Respondent, v. Michael K. WILLIAMS, Appellant.

No. 10923.

Missouri Court of Appeals, Southern District, Division One.

June 29, 1979.

Richard L. Parker, Vienna, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven S. Clark, Asst. Attys. Gen., Jefferson City, for respondent.

GEORGE HENRY, Special Judge.

Upon trial by jury, defendant was found guilty of forcible rape and sentenced to life imprisonment. He appeals. We affirm.

Defendant makes four complaints of error: First, that the court improperly admitted evidence of the independent crime of robbery; Second, that the court improperly admitted evidence of the independent crime of escape; Third, that the closing argument of the prosecution contained improper and prejudicial remarks; and Fourth, that he has been denied his right to a speedy trial.

This extended series of events began around 1:00 a. m. on October 8, 1974, when the victim of the rape and her husband were awakened by a knock on the door. Her husband answered the door where he was confronted by defendant and a co-defendant (separately tried) who requested use of the phone to call for help to an automobile accident. When the husband started to use the phone, defendant exhibited a pistol and demanded money. During the intruders' stay in the home, defendant twice raped the victim at knife point and then at defendant's suggestion, defendants' co-defendant also raped the victim. Preceding, between and following the acts of rape, defendant searched the home and on leaving, defendant and his co-defendant took with them from the house, guns, jewelry and credit cards. The stolen items were later recovered and admitted into evidence over defendant's objection.

Defendant complains that the items taken were improperly admitted in evidence as such proof went to proof of the independent crime of robbery and had no legitimate tendency to directly establish the defendant's guilt of the charge of forcible rape and that such evidence did not fall within the recognized exceptions which permit evidence of other crimes to establish motive, or intent, or absence of mistake or accident, or a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other or identity of the person charged. This is a correct statement of the well-recognized rule and its exceptions. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (Banc 1954).

" Another well-recognized rule relating to the admission of other crimes is that where the circumstances are such as to constitute one continuous transaction in the accomplishment of a common design and the crimes are concurrent so that the proof of one cannot be made without a showing of facts tending to establish the other, the entire facts may be admissible since they are regarded as part of the 'res gestae' and therefore all the facts may be admitted. In such circumstances the state is not required to nicely sift and separate the evidence and include the testimony tending to prove the crime for which the defendant is not on trial when it forms a part of the 'res gestae' of the crime charged." State v. Cox, 508 S.W.2d 716, 723 (Mo.App.1975); State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880 (1931); State v. Taylor, 508 S.W.2d 506, 510 (Mo.App.1974); State v. Parton, 487 S.W.2d 523, 527 (Mo.1972). The facts here were of a continuing ordeal and so intertwined as to be inseparable. Admission into evidence of the items taken was not error.

The second claim of error is that "The Court erred in allowing evidence of the independent crime of escape; specifically the court erred in allowing into evidence the picture of the Maries County jail with the hole cut into the wall through which defendant escaped." Prior to the start of the trial, defendant filed a motion in limine seeking to prevent the prosecution from inquiring into defendant's prior criminal record. The motion was overruled. Evidence produced in the trial shows that the criminal record referred to defendant's plea of guilty and two-year sentence for escape from the Maries County jail approximately two weeks following his arrest on the rape charge. The following questions to Officer Viessman, a sergeant with the Missouri State Highway Patrol assisting in the investigation of the escape, first called attention to the hole in the jail wall:

"Q. And when you went to the jail there, did you examine the jail?

A. Yes.

Q. When you examined the jail, tell the jury what you saw.

A. Well, in the bullpen area, off to the west side, there was a hole in the wall."

Defense counsel made no objection to these questions. Later a photograph of the hole in the jail wall was offered and received into evidence over defendant's objection that the same was very prejudicial. No further mention was made of the escape until defense counsel in cross-examination of Officer Viessman established that defendant pled guilty to the crime of escape and received a two-year sentence. Defendant took the stand in his own defense and testified to his plea of guilty and receipt of a two-year sentence on the escape charge. Defendant recognizes that evidence of the crime of escape is admissible as bearing on the issue of guilt even though it is evidence of a separate crime. State v. Holt, 465 S.W.2d 602, 607 (Mo.1971).

Point II fails to comply with the requirements of Rule 84.04(d) V.A.M.R. because it does not undertake to state "wherein and why" the introduction of the exhibit...