State v. Wilson, WD

• Decision Date: 26 August 1986
• Docket Number: No. WD,WD
• Citation: 719 S.W.2d 28
• Parties: STATE of Missouri, Respondent, v. James WILSON, Appellant. 37542.
• Court: Missouri Court of Appeals

Page 28

719 S.W.2d 28

STATE of Missouri, Respondent, v. James WILSON, Appellant.

No. WD 37542.

Missouri Court of Appeals,

Western District.

Aug. 26, 1986.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Sept. 25, 1986.

As Modified Sept. 30, 1986.

Application to Transfer Denied Nov. 18, 1986.

Kathleen Murphy Markie, Columbia, for appellant.

Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and MANFORD and GAITAN, JJ.

GAITAN, Judge.

James Wilson, defendant-appellant, appeals from a conviction of forcible rape § 566.030 RSMo Cum.Supp.1984 and first degree assault § 565.050 RSMo 1978. This is a jury-waived trial. Appellant alleges the trial court erred by: (1) failing to sustain the appellant's motion to suppress his confession because it was obtained in violation of appellant's rights guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution, (2) failing to sustain appellant's motion to suppress items seized which were inadmissible as "fruits of the poisonous tree", (3) failing to grant appellant's motion for judgment of acquittal at the close of the evidence because the state failed to establish the elements of the offense of forcible rape, (4) permitting hearsay testimony regarding the victim's statements concerning the alleged rape, and (5) by permitting a conviction and sentencing for both forcible rape and first degree assault thereby subjecting the appellant to double jeopardy in violation of the Fifth and Fourteenth Amendments of the United States Constitution. The judgment of the trial court is affirmed.

Appellant was charged by information on June 18, 1984, with first-degree assault and forcible rape. The state filed an amended information on December 19, 1984, alleging that appellant was a persistent sexual offender. The evidence presented during the trial of the events leading up to, during, and after the crimes, was provided by witnesses other than the victim, Robin Osborne as she did not testify.

On March 24, 1984, Ms. Osborne and James D. Murray, students at the Central Missouri State University, visited a Dairy Queen on Highway 13 in Warrensburg after watching a ballgame. Around 6:00 p.m., they left, and Ms. Osborne walked alone towards the campus gymnasium. Appellant, a boxer, was jogging on the campus and asked her where McGuire Street was located. When she pointed the direction, appellant reached down, grabbed her arm and waist, and dragged her into the bushes. Appellant pulled down her jeans and panties and hit her three or four times in the face with his fist. Appellant then sexually assaulted Ms. Osborne and penetrated her multiple times. He then ran away.

When the police arrived at approximately 8:30, they found Ms. Osborne lying between some double doors with no clothing on her body from the waist down. Her face was bloody, she was very disoriented, and in a great deal of physical distress. As a policeman was reporting on the radio that Ms. Osborne was assaulted, she stated, "Assault! I've been raped". The examining physician stated that she had two fractures on the left side of her jaw and swelling on her left cheek. Her neck and spine area were bruised, and there was dirt and grime in her vaginal area. Also, there was separation or tearing of the skin in her vaginal opening. It was the opinion of the examining physician that there was forcible entry through penetration. She was in a state of traumatic shock. The face and head injuries were very serious and were the result of repeated impact force, resulting in multiple blood trauma. Ms. Osborne was hospitalized for ten days and had her jaw wired for seven weeks.

On March 29, 1984, Warrensburg Police Officer Steve Woodson, acting on a lead, went to appellant's house. The officer had information that appellant had previously been charged with fifteen separate rapes, and appellant's method of attack was similar to that used in the attack on the victim. When Woodson visited appellant, he denied knowledge of the attack.

Thereafter, Woodson contacted another police officer, Kevin Hughes to follow up his initial investigation. Woodson took the action because he observed that appellant was wearing the type of sweatpants and shoes believed to have been worn by the assailant involved in the rape. Also, appellant's right hand was swollen and he appeared nervous. Hughes went to appellant's house, and appellant voluntarily went to the police station in order to be interviewed. After appellant was given his Miranda rights, appellant initially denied involvement in the crime. Appellant later indicated that he had lied about his involvement in the offense. He indicated that he would tell the officers the truth after he fought in a certain boxing tournament. Appellant had planned to fight in the Golden Gloves Boxing Tournament in St. Louis in April. Hughes continued to ask appellant what happened and, finally, stated that he would not present the case to the prosecuting attorney until after the fight if he would tell the truth about what happened first. Appellant agreed and confessed to the rape and assault. After appellant confessed and made a written statement, he voluntarily agreed to provide the police with his shoes, pants, pubic hair samples and a saliva sample. He also agreed to have the police take his photograph.

On April 4, the police contacted appellant because his parole officer indicated that appellant claimed he had confessed only in order to be released. When the police confronted him with this, appellant stated that he had indeed told the truth when he confessed. Appellant participated in the boxing tournament and was then arrested on April 24. On that date, appellant again made a statement indicating that he had been truthful in his confession. When the police took appellant to the crime scene, he stated he would have to take his punishment as it came and that he should only get five or ten years.

At the close of all the evidence and arguments of counsel, the court found appellant guilty as charged. Appellant appeals his conviction and sentence.

Since the outcome of this appeal could depend on the confession of the appellant, the propriety of the confession will be considered first. Appellant asserts his confession was induced by an improper promise by Officer Hughes not to present the case to the prosecuting attorney until after appellant attended a boxing match.

In State v. Simpson, 606 S.W.2d 514 (Mo.App., 1980), this court reviewed the standards concerning the admission of confessions.

When a defendant in a criminal case raises the issue of admissibility of a confession procured by custodial interrogation and contends that the statement was coerced, the burden is on the state to show that the statement was voluntarily made. State v. Higgins, 592 S.W.2d 151, 158 (Mo. banc 1979). Whether a statement is voluntary depends on the 'totality of the circumstances and requires an examination on a case by case basis to ascertain if the defendant by physical or psychological means, has been effectively deprived of a freedom of choice. State v. Flowers, 592 S.W.2d 167 (Mo. banc 1979); State v. Higgins, supra ... The burden on the state is to prove by a preponderance of the evidence that the custodial statement was voluntary. State v. Olds, 569 S.W.2d 745 (Mo. banc 1978). If the decision as to voluntariness turns on resolution of conflicting evidence or assessment of credibilty, such issues are for the trial court to judge. State v. Frazier, 587 S.W.2d 368 (Mo.App.1979)."

Id. at 516; see also, State v. Brown, 698 S.W.2d 9, 11 (Mo.App.1985); State v. Cutts, 694 S.W.2d 804, 808 (Mo.App.1985); State v. Diercks, 674 S.W.2d 72, 78 (Mo.App.1984).

The totality of circumstances in the present case indicate that appellant's confession was voluntary and not the result of an improper promise by the police. The relevant facts are as follows.

After appellant was given his Miranda rights, he initially denied involvement in the crime. However, appellant later indicated that he had lied about his involvement in the offense, but wanted to fight before he confessed.

There was a suppression hearing out of the presence of the jury where evidence was presented on the issue of the voluntariness of appellant's confession. There was no evidence of coercion, nor was there evidence that the interviews were conducted in uncomfortable quarters after physical deprivation or in an atmosphere of hostility or intimidation. Further there is evidence that the deal originated with appellant. State v. Hunter, 456 S.W.2d 314, 320 (Mo. banc 1970); but see State v. Olds, 569 S.W.2d 745 (Mo. banc 1978).

When there is an alleged promise made by the state, the court must consider the definiteness of the promise, who initiated the deal, the time lapse between the promise and confession, and whether the officer making the promise believed the promise would influence the giving of the confession. See State v. Hunter, 456 S.W.2d 314. Finally, a confession is not admissible if given to obtain the particular agreed-upon result and that result is aborted. State v. Chatman, 682 S.W.2d 82, 86 (Mo.App.1984) quoting State v. Hoopes, 534 S.W.2d 26 (Mo. banc 1976). See also, State v. Sanders, 714 S.W.2d 578 (Mo.App.1986).

This case is similar to State v. Hutson, 537 S.W.2d 809, 810 (Mo.App.1976), in which the court found a confession to be voluntary where the appellant offered to relate the facts of a homicide and initiated an inquiry concerning plea bargaining. As a result of the appellant's inquiries, the prosecuting attorney told him that if he elected to plead guilty to a charge of murder and to testify in another case, the prosecutor would recommend that the appellant be sentenced to a term of twenty years. The court noted that neither the prosecuting attorney nor the police officer asked the appellant to make the statement, but instead, the appellant volunteered to do so. Id. at...