State v. Yowell
| Citation | 513 S.W.2d 397 |
| Decision Date | 22 July 1974 |
| Docket Number | No. 58475,58475 |
| Parties | STATE of Missouri, Respondent, v. Ray Alvin YOWELL, Appellant. |
| Court | United States State Supreme Court of Missouri |
John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.
Charles A. Powell, Jr., Macon, for appellant.
Defendant, Ray Alvin Yowell was charged with the offense of forcible rape. See Section 559.260 1. He was also charged with a prior felony conviction. Section 556.280. The jury found the defendant guilty and the court fixed his punishment at imprisonment for a term of 10 years. The defendant first appealed to this court but we were of the view that jurisdiction was in the Missouri Court of Appeals, Kansas City District, and the case was accordingly transferred to that court. The court of appeals adopted an opinion which reversed the judgment and remanded the case for a new trial. Upon application of respondent we ordered the case transferred to this court. It will be determined here the same as on original appeal. We affirm.
Jackie (prosecutrix) testified that on February 24, 1971, she worked at Banquet Foods in Macon; that at first she had commuted from her home in Moberly but at the time in question shared a trailer home in Calleo with Darla; that on February 24, she and Darla worked from 3:45 p.m. until 11:45 p.m.; that after leaving work they went to Hedricks Laundromat to do their laundry; that while waiting for their clothes to wash they saw two young men (later identified as defendant and Randy Elam) enter the laundromat and go toward the soft drink machine; that shortly thereafter the defendant came at her with an empty pop bottle and hit her on the cheek bone and she fell to the floor; that she fainted and when she recovered consciousness defendant was on top of her beating her head against the floor; that he said 'You bitch, get up' and dragged her out the door to the car; that she was crying and asked him to let her go; that she saw Darla struggling with the other boy; that defendant threw her into the back seat of the car; that as she was trying to get out and was pushing on his face her thumb got into his mouth and he bit it, causing a deep gash and profuse bleeding. She further testified that Elam got Darla into the front seat of the car; that Darla was trying to get out, and defendant grabbed her by the hair and pulled her back over into the back seat; that after they started to drive away, defendant instructed Elam to drive back to the laundromat and get the pop bottle and anything else that might have fingerprints on it, which he did; that after the car was driven into the country for twenty or thirty minutes Elam parked, and defendant started to undress her; that she was scared to death because she had had a school friend who had been killed during a rape; that defendant said he had a rope in the back and 'if I didn't put out' he would tie her up; that she continued to resist as much as she could, but defendant got her partially undressed and was able to insert his private parts into her female parts; that while she fought and tried to push away she may have partially 'given up in fear.'
She further testified that after the intercourse was completed, she dressed and then defendant made her get into the front seat of the car; that Elam then pulled Darla over into the back seat; that Darla was crying and begging him not to hurt her and Elam told her that if she went along with him he wouldn't hurt her; that after a time, defendant pulled her back into the rear seat and Darla and Elam got back into the front seat, and they drove back to the laundromat and the boys then left; that they got their coats and Darla's purse which were still in the laundromat, and put their wet clothes in a basket, and immediately drove home; that after arriving home, they locked the door and called the highway patrol, who referred them to local officers; that they then called the sheriff who said he would be over in the morning to see them; that it was then about 4 a.m. Jackie further stated that when the sheriff came the next day, he immediately took them to see the prosecuting attorney and then to the highway patrol office where pictures were taken of their injuries; that they then went to the office of Doctor Collins. Jackie further testified that she had a bruise on her right arm, a black eye, a big scrape on one cheek, a cut near her ear, bruises on her legs and a scratched area on her left hip; that her blood type was A positive.
Darla testified that she thought she remembered Randy Elam from school days, although he was behind her in school, and that during the time they were together she heard Elam call the other boy 'Ray' and that she gave that information to the officers; that when Randy came at her in the laundromat he hit her on the head with a coke bottle and it broke; that a lot of her hair was pulled out when she was pulled to the back seat of the car. She identified an exhibit of hair taken from the car as being hers. She further stated that she was sexually assaulted by Randy in the back seat of the car. On all other matters, Darla's testimony was substantially the same as Jackie's and will not be repeated here.
Doctor Gretchen Collins testified that she saw Jackie and Darla on the afternoon of February 25; that both girls gave a history of having been assaulted and raped earlier that day; that Jackie was exceptionally disturbed and was in shock; that Jackie had abrasions all around the right eye, and sort of a knot between the eye and ear; that her thumb was lacerated and showed teeth marks and was red, swollen and infected; that she had a severe abrasion on her right elbow and scratches on her lower left leg and thigh; that she cleaned and bandaged Jackie's thumb and gave her medicine for the bruises and swelling, and also gave her a shot of penicillin. She further testified that Darla had a tremendous bump on the back of her head together with a number of other scratches and bruises.
Claude Nuhn, Sheriff of Macon County, testified that from the interview with the two girls he was able to determine the identity of the two men; that he took the girls to the prosecuting attorney's office and then obtained a warrant for the arrest of defendant and Elam; that he and his deputy saw the defendant's car at a sale-barn where he was employed but that defendant was not there; that they observed that there was blood on the back seat cover of defendant's cae; that they later arrested Elam at a Macon theater; that defendant was arrested at about 11:30 p.m. at a filling station in New Cambria where he lived.
Deputy sheriff Kenneth Cox testified that he was with the sheriff at the time they observed the defendant's car at the sale-barn; that it had an area on the plastic rear seat cover where blood had trickled down the front of the seat; that later that night they observed defendant's car at a filling station in New Cambria and arrested the defendant there; that as they were about to leave, defendant gave him the car keys and asked him to move the car around to the side of the building which he did; that he retained the keys after locking the car; that later that night he went back and picked up the car and drove it to the highway patrol station near Macon where it was parked and again locked; that later that day he went back and searched the car; that he found strands of hair under the front seat and a horse-hair type woven rope in the trunk; that he later took the seat cover from the rear seat and delivered it to Sergeant Burnett of the highway patrol.
Sergeant Burnett, an evidence technician and inverstigator for the highway patrol, testified concerning photographs which he took of the two girls. He further testified that he took the seat cover and put it in a bag and delivered it to the laboratory in Jefferson City.
Michael J. Brezzandine, a laboratory technician for the highway patrol in Jefferson City, testified that he tested the blood from the seat cover and it was type A. He further testified that he examined two samples of human hair delivered to him (that which had been found in the car and a piece cut from Darla's head); that from the number of scales and the size and shape he concluded that they had similar characteristics.
The defense presented Randy Elam and the defendant as witnesses. They testified that they were together on the night of February 24 and that they had been in Brookfield and in Marceline looking for girls, but without success; that they drove to Macon and decided to stop at the laundromat to get a coke; that upon entering the laundromat they visited with the two girls there and asked them if they would like to go for a ride while their clothes were washed; that they drove some distance from Macon and parked for a time and then decided to drive to where Randy's car was parked so that they could separate, with one couple in each car. Each of these witnesses testified that he had intercourse, defendant with Jackie and Randy with Darla, but that it was entirely voluntary on the part of each girl; that Randy and Darla returned to defendant's car and that they took the girls back to the laundromat. Defendant testified that they bought the girls a coke and that Jackie then said something about wanting five dollars and that he replied: 'I have had better for the price of a coke'; that Jackie then said: 'Damn you' and started to swing a bottle at him; that he grabbed her and they scuffled and fell to the floor; that Darla started to take part in the fight and he shoved her back; that in some way Jackie got her thumb in his mouth and he bit it.
It developed upon the cross-examination of Randy that after his arrest he was taken to the office of the prosecuting attorney and interviewed by him and several officers; that he made a statement or confession which was reduced to writing and signed by him; that in his confession he stated that the...
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...... JOHN W. OLIVER, Chief Judge. . I. . This State prisoner federal habeas corpus case separately presents a Sixth Amendment assistance of counsel question and a Miranda question. The State trial ... State v. Yowell, 513 S.W.2d 397, 402-3 (Mo. banc 1974)," 26 544 S.W.2d at 568. . It is obvious that the trial court was made aware of the ......
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