State v. Wright

• Decision Date: 10 October 2000
• Parties: (Mo.App. E.D. 2000) State of Missouri, Plaintiff/Respondent, v. John Wright, Defendant/Respondent. ED76692
• Court: Missouri Court of Appeals

30 S.W.3d 906 (Mo.App. E.D. 2000)

State of Missouri, Plaintiff/Respondent, v. John Wright, Defendant/Respondent.

ED76692

Missouri Court of Appeals Eastern District

10/10/2000

Appeal From: Circuit Court of City of St. Louis, Hon. Booker T. Shaw, Judge

Counsel for Appellant: Gwenda R. Robinson

Counsel for Respondent: John Munson Morris, III and Catherine Chatman

Opinion Summary: Defendant John Wright appeals from the judgment entered on a jury verdict finding him guilty of one count of forcible rape, two counts of forcible sodomy, one count of first-degree burglary, and one count of first-degree trespassing.

Division Five holds: (1) Substantial evidence of exigent circumstances supported the trial court's denial of defendant's motion to suppress photographs taken of items in plain view in defendant's apartment. (2) Defendant did not object to or raise in his motion for new trial that sodomy instructions omitted the element "knowingly" and thus did not preserve any error for review. The omission was not plain error because there was substantial evidence that defendant acted knowingly and this element was not controverted. (3) The trial court did not err in admitting evidence of defendant's prior abuse and harassment of victims because it was relevant to motive. (4) The trial court's failure to grant severance, in absence of a written request pursuant to Rule 24.07, is not error, plain or otherwise. (5) The trial court did not plainly err in failing to sua sponte strike jurors for cause.

Kathianne Knaup Crane, Judge

Defendant, John Wright, appeals from the judgment entered on a jury verdict finding him guilty of one count of forcible rape, in violation of Section 566.030 RSMo (Cum. Supp. 1998); two counts of forcible sodomy, in violation of Section 566.060 RSMo (Cum. Supp. 1998); one count of kidnapping, in violation of Section 565.110 RSMo (1994); one count of burglary in the first degree, in violation of Section 569.160 RSMo (1994); and one count of trespassing in the first degree, in violation of Section 569.140 RSMo (1994). The trial court sentenced him to fifteen years imprisonment on each of the forcible rape and sodomy counts, to be served concurrently; five years on the kidnapping and burglary counts, to be served concurrently with each other and consecutively to the fifteen-year terms; and thirty days confinement for trespass.

The sufficiency of the evidence is not in dispute. During the night of September 3, 1998, defendant entered the apartment of the sister (sister) of his former girlfriend (victim), where victim was sleeping. When victim awoke defendant held his hand over her mouth and threatened to harm her if she would not come back to him.

Victim thereafter obtained a restraining order, which was served on defendant on September 11, 1998 at about 3:30 p.m. At about 4:00 a.m. the next morning, defendant, who was wearing rubber gloves, broke into sister's apartment where victim was sleeping, and put his hand over her mouth. They struggled, and defendant wrapped duct tape around victim's mouth and bound victim's hands and feet with duct tape. He showed victim that he was wearing rubber gloves so that he would not leave fingerprints. He took her car keys, transported her in her car to his apartment, and threw her down on the bed. Defendant untaped victim's hands and feet, but he told her not to run or he would break her neck. He said that he would untape her mouth if she would not scream, but he did not do so right away. Victim struggled as defendant began to try to arouse her, and defendant kept telling her he would break her neck. He said he learned how to do so in the special forces.

Defendant then removed the tape from victim's mouth and tried to put his penis into her mouth. Victim kept turning her head, but defendant succeeded in forcing the tip of his penis into her mouth. Defendant put baby oil on victim's anus and alternately put his penis into her anus and into her vagina until he ejaculated. Defendant said, "Now you have a case against me because my sperm's inside of you." Victim passed out. When she awoke it was daylight, and defendant was not in the room. She grabbed her keys, left the apartment, and returned to sister's apartment at approximately 8:30 a.m. where she collapsed. Sister and her son called 911 at 8:52 a.m.

Police officers responded to sister's home and interviewed victim about the abduction, rape, and sodomy, including the use of duct tape. Other officers also arrived and, after obtaining this information at approximately 10:00 a.m., went to defendant's apartment to arrest him.¹ They knocked on the door. While they waited for an answer, they heard a commotion, which led them to believe defendant was still inside. The landlady then appeared and let the officers into defendant's apartment with her key. They entered because they believed defendant was possibly destroying evidence and feared he would escape if they left the apartment building. They did not find defendant, but they saw used duct tape in the kitchen trash can, a roll of duct tape in a milk crate in the middle of the bedroom floor, a copy of the restraining order in the bedroom, and rubber gloves on an end table. All these objects were in plain view. The officers photographed the roll of duct tape, the used duct tape, the rubber gloves, and the copy of the restraining order. Defendant was thereafter indicted for the rape, sodomy, and kidnapping of victim and the September 3, 1998 trespass of and September 12, 1998 burglary of sister's apartment.

On appeal defendant contends that the trial court 1) erred in overruling his motion to suppress the photographs; 2) plainly erred in not instructing on mental state on the forcible sodomy counts; 3) erred in admitting evidence of defendant's prior bad acts and harassment against the victims; 4) erred in refusing to sever the trespass count from the remaining counts; and 5) plainly erred in failing sua sponte to excuse certain jurors for cause.

I. Motion to Suppress

For his first point, defendant contends that the trial court erred in denying his motion to suppress the photographs taken during the police officers' warrantless entry into his apartment. He argues that the police officers did not reasonably believe the landlady had authority to consent to the search² and no exigent circumstances justified the warrantless entry.

We will not reverse a trial court's decision on a motion to suppress unless it is clearly erroneous. State v. Blackman, 875 S.W.2d 122, 135 (Mo. App. 1994). We review the trial court's factual findings only to determine if they are supported by substantial evidence. Id. In making this determination, we view the facts and any reasonable inferences arising therefrom in the light most favorable to the trial court's ruling and disregard all contrary evidence and inferences. Id.

When we consider whether a warrantless search and seizure is reasonable under the fourth amendment, we begin our analysis by inquiring if the police are lawfully in the place from which they seized the evidence. State v. Johnston, 975 S.W.2d 734, 742 (Mo. banc 1997). Police may enter private homes without a warrant when exigent circumstances compel them to do so. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). Exigent circumstances exist if the time required to obtain a warrant "would endanger life, allow a suspect to escape, or risk the destruction of evidence because of an imminent police presence." State v. Hicks, 853 S.W.2d 955, 956 (Mo. App. 1993) (quoting State v. Peters, 695 S.W.2d 140, 147 (Mo.App. 1985)). "[A]n important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made." Welsh v. Wisconsin, 466 U.S. 740, 753 104, S.Ct. 2091, 2099, 80 L.Ed. 2d 732 (1983).

In this case, the crimes were extremely grave. Hicks, 853 S.W.2d at 957. The police had more than minimal probable cause to believe the defendant committed the crimes because he was known to the victim, who was hysterical and bore the marks from the duct tape. The officers had reason to believe defendant was in the apartment because he lived there, the crime had occurred there just hours before, the victim had escaped from the apartment just over an hour before, and police thought they heard a commotion in it. If they left the apartment to get a warrant, rather than enter it, there was a likelihood defendant would destroy the evidence of the crimes or escape.

If the officers are lawfully on the premises, they can seize an item in plain view if they have probable cause to believe that the object is connected to the crime. Johnston, 957 S.W.2d at 742. The items seized and photographed were in plain view and were connected to the reported crimes.

Substantial evidence supported the trial court's denial of the motion to suppress. Point one is denied.

II. Verdict-Directing Instructions - Sodomy

In his second point defendant asserts that the trial court plainly erred in submitting jury instructions 6 and 7, the verdict directing instructions on forcible sodomy, because they omitted element four, that defendant acted "knowingly."

During the instruction conference the state offered the following Instruction 6 on Count II:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about September 12, 1998, in the City of St. Louis, State of Missouri, the defendant placed his penis in the anus of Virginia Williams, and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that defendant did so by the use of forcible compulsion,

then you will find the defendant guilty under Count II of forcible sodomy.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

As used in this instruction, the...