Vaughan v. State, WD

• Decision Date: 02 March 1981
• Docket Number: No. WD,WD
• Citation: 614 S.W.2d 718
• Parties: James Earl VAUGHAN, Appellant, v. STATE of Missouri, Respondent. 31216.
• Court: Missouri Court of Appeals

Page 718

614 S.W.2d 718

James Earl VAUGHAN, Appellant, v. STATE of Missouri, Respondent.

No. WD 31216.

Missouri Court of Appeals, Western District.

March 2, 1981.

Opinion Modified On Court's Own Motion.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 30, 1981.

Alex Bartlett, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., and Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before PRITCHARD, P. J., and SWOFFORD and MURPHY, Senior Judges.

J. DONALD MURPHY, Senior Judge.

Appellant appeals from the denial, after an evidentiary hearing, of his Rule 27.26 motion to set aside judgment and sentences for rape and sodomy. We affirm.

On August 11, 1975, appellant pleaded guilty to three counts of a four-count indictment and on August 25, 1975, was sentenced to forty years for rape, ten years for sodomy and ten years for another rape, the three sentences to be served concurrently. The fourth count (sodomy) was dismissed. All counts specified the same victim and the same date. ¹

Appellant makes two allegations of error:

One, appellant was unconstitutionally subjected to double jeopardy because the two rape convictions arose out of the same incident involving the same victim and constituted only one offense.

Two, the sentences were unconstitutionally tainted by the personal interest of the prosecuting attorney by reason of his relationship with the prosecuting witness. ²

Initially we address respondent's contention that the trial court had no jurisdiction to entertain the 27.26 motion because there had been a prior 27.26 proceeding resulting in a ruling adverse to appellant. The record of that prior hearing has not been filed as a part of the record on this appeal and we do not know what issues were there raised. Generally the trial court will not entertain successive 27.26 motions. Endres v. State, 549 S.W.2d 582 (Mo.App.1977); Rule 27.26(d). There are exceptions, however: If there are new facts or new constitutional principles which could not have been known to the petitioner at the time of the first motion, the court will not foreclose a second motion based on these new grounds. Brown v. State, 581 S.W.2d 407 (Mo.App.1979); Steinlage v. State, 581 S.W.2d 849 (Mo.App.1979); Perry v. State, 579 S.W.2d 728 (Mo.App.1979). Here there was testimony by appellant that the alleged personal relationship between the prosecuting attorney and the prosecuting witness was not known to him at the time the plea was entered, and apparently the trial court felt this testimony satisfied the appellant's burden of showing that the evidence was newly discovered. Moreover, counsel stipulated at the second 27.26 hearing that the prior 27.26 motion would not be a bar to the second motion so far as it pertained to the claim of prosecutorial bias. The trial court elected to consider both issues on the merits the issue of double jeopardy evidently only as a matter of grace and we shall similarly review them here. Brown v. State, supra, 581 S.W.2d at 410.

The Issue of Double Jeopardy

Appellant's contentions require a detailed statement of the testimony adduced both on the plea of guilty on August 11, 1975, and at the 27.26 hearing on March 1, 1979.

Sometime before 2:24 a.m. on June 22, 1974, the appellant Vaughan entered through a window into the second-story apartment of the victim and awakened her by grabbing her around the neck. When she screamed he struck her with a "karate stick" consisting of two sticks joined together by a chain, and threatened to kill her. Appellant tied the arms of the victim behind her, attempted intercourse with her and then committed sodomy upon her. He then raped her. The act of rape occurred at approximately 3:00 a.m. Afterward, while she continued to lie on the bed with her arms tied behind her, he "moved over and sat on the bed" and talked to her. He told her that he would untie her if she would promise "not to try anything". She told him she would "rather stay tied." She pleaded with him to leave, saying that she was expecting her boyfriend. There was then some conversation about how he had gained entrance to the apartment and how he proposed to leave. The subsequent events and conversation between appellant and victim up until the time of the second act of intercourse were related by her in a deposition received in evidence, as follows:

"Q. Then, ... what happened next?

"A. OK, then, after I asked him to leave again, he asked me what my name was and I told him my name was Alice ... and he asked me where I was from, and I told him that I was from a farm in Northern Missouri. And he asked me several questions, and I don't remember everything that he asked me. Then, I asked him to leave again. I said that he just had to leave before my boyfriend got there and he asked what my boyfriend's name was and I told him that his name was Greg ... and I said that we were planning to be married and if he had found out that I had been raped, that he probably wouldn't marry me. Then, at that time, he said, 'Baby, you would be really wise not to tell anyone what has happened. He said, I have alot (sic) of friends who would come back and make you very sorry that you told.' At that time I said, if you would just leave, just leave me tied, then I wouldn't leave, I wouldn't tell anyone, until Greg gets here. I wouldn't leave. And he said I can't do that because then your boyfriend would know something was wrong if he came in and you were tied up. So, he said that he wasn't going to leave until he had f---- me again. Then, I started crying and shaking and he grabbed my arm and he told me to shut up. Then, he laid down beside me and started stroking my leg and whispering in my ear, and he said, 'You're (sic) body is really beautiful, baby, you're really beautiful. And at that time, he untied me and I asked him to please leave again and I cried during most of this time I know and he said, 'baby, everyone in this world has to give something and everyone has to take something and I'm not hurting you, am I?' And I said, 'I'm so nervous that I can hardly stand it. I just wish that you would leave.' And he said, 'Baby, we're going to ball again. And he asked me to turn over, on my stomache (sic), and I turned over on my stomache (sic) and he tried to enter me from behind without success. Then, he told me to get on my knees and I said, 'I'm too nervous to get on my knees. I can't get on my knees.' Then, he grabbed my arm and twisted it and he said, 'you'd better cooperate.' So I got on my knees and I started crying and shaking and he tried to enter me but he couldn't. So, he told me to lay back down and I laid back down on my back. He told me to lay on my back and I laid on my back. And he tried to enter me again and he couldn't. And he said, 'Baby, you're going to have to blow me again' ... and I ...

"Q. Between the time that the first intercourse had happened until this was building up to the second one, how long a period of time had elapsed? Do you recall, or can you guess, roughly?

"A. I would say probably 25 minutes."

Appellant then forced the victim to commit another act of oral copulation and immediately thereafter had forcible sexual intercourse with her for the second time. He was interrupted by the sound of the arrival of the boyfriend and fled through a window. The time was then 3:55 a.m., approximately 90 minutes after appellant's entrance into the apartment and 55 minutes after the first act of intercourse.

The trial court found the following facts relevant to the double jeopardy allegation:

"(A)fter grabbing the prosecuting witness by the throat, striking her with two sticks joined by a chain, and threatening to blow her brains out, (appellant) tied her hands behind her and forcibly raped her. Thereafter (appellant) perpetrated forcible sodomy on the victim ... threatened her with retaliation by his friends, stated that he intended to have her a second time, and forcibly raped her again ... Although the above events occurred during a span of approximately thirty-five to forty minutes, '... An intent formed to rape her again. The evidence of the second rape is entirely additional to that of the first. Additional orders were given to the captive female, an intent to have her again was formed and manifested, and the crime was committed. Certainly there was separate and additional fear, humiliation and danger to the victim ...', (quoting Lillard v. State, 528 S.W.2d 207 (Tenn.Crim.App.1975)) ... It therefore appears that (appellant) is not being punished twice for the same offense, but for separate offenses..."

We limit our review on this appeal to a determination of whether the findings and conclusions and the judgment of the trial court are clearly erroneous. Rule 27.26(j). "A finding is 'clearly erroneous' if, after reviewing all the evidence, the court is left with the definite and firm conviction that a mistake has been committed." Bennett v. State, 549 S.W.2d 585, 586 (1, 2) (Mo.App.1977); Renfro v. State, 606 S.W.2d 473 (Mo.App.1980).

The record relevant to the double jeopardy question was made by entering the deposition of the victim into the record. This testimony was not contradicted. The appellant, however, argues that even if the testimony is admitted to be true, the facts established thereby are not sufficient, as a matter of law, to demonstrate that two rape offenses were committed. Appellant argues that the testimony establishes only "one incident involving one person" and "an initial use of force and lack of consent which simply continued through the episode." We disagree.

This court has held that "(g)enerally rape is not a continuing offense, but each act of intercourse constitutes a distinct and separate offense." State v. Dennis, 537 S.W.2d 652 (Mo.App.1976). Whether multiple assaults resulting in rape constitute multiple crimes or a single crime are determined by the facts of each case, including the factors of time, place of commission...