State v. Bellah

745 S.W.2d 213, 1987 Mo. App. LEXIS 5113, 1987 WL 3224
CourtMissouri Court of Appeals
DecidedDecember 22, 1987
DocketNo. 51765
StatusPublished
Cited by4 cases

This text of 745 S.W.2d 213 (State v. Bellah) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bellah, 745 S.W.2d 213, 1987 Mo. App. LEXIS 5113, 1987 WL 3224 (Mo. Ct. App. 1987).

Opinion

SIMON, Presiding Judge.

Michael Wayne Bellah, appellant, appeals his conviction by a jury in the Circuit Court of St. Louis County for forcible rape in violation of § 566.030 RSMo (1986). On appeal, appellant contends that the trial court erred in: (1) allowing the state to cross-examine appellant concerning matters allegedly not raised in appellant’s direct examination; (2) admitting into evidence the results of lab tests when allegedly a proper foundation was not laid; and, (3) refusing to allow appellant to question the victim concerning possible alternative sources of semen after the state introduced evidence that the victim had sex with her boyfriend two days prior to the rape and the laboratory tests demonstrated that her boyfriend was not the source of the seminal constituents taken from the victim. We affirm.

Viewed in the light most favorable to the verdict, the evidence adduced at trial is as follows: Appellant and the victim had been married for seven years and were divorced June 24, 1985. Five children were born of their marriage, but only four are living. Upon their separation in March, 1984, the victim took the four children with her to her mother’s house. After some time, the victim and her children moved in with her grandmother because appellant would cause trouble at her mother’s house. Appellant learned of the victim’s move to her grandmother’s house and began to harass the victim at that location. In April, 1985, the victim moved to the Women’s Health Center. The children were placed with a foster care family temporarily.

On August 15,1985, appellant and one of his roommates went to the house of the mother of the victim. Appellant was under the erroneous impression that the children [215]*215were being put up for adoption. Appellant asked the victim’s mother why the victim was placing the children up for adoption and where the victim was living. When the mother refused to tell appellant anything he stated that he knew where he could find her and that he was going to hurt her.

On August 16, 1985, at approximately 4:00 a.m., the victim was working alone at a Majik Market store. Appellant entered the store, walked up behind the victim, grabbed her, and put a gun to her head. Thereafter, appellant raped the victim, kicked her in her side when he was finished, and walked out laughing.

Laboratory tests were performed on samples contained in a “rape-kit” from the victim and on saliva samples taken from the appellant, the victim, and the victim’s boyfriend. The tests were performed by two employees of the St. Louis County Crime Lab, both of whom were no longer employed at the lab and moved out of the area. The state called the supervisor of the St. Louis County Crime Lab to testify from their reports. The results indicated that traces of semen from a non-secretor had been collected from the victim. A se-cretor is an individual whose saliva and other body fluids contain a water-soluble form of the antigens of the ABO blood group found in his erythrocytes (red blood cells). The victim’s boyfriend is a secretor; appellant is a non-secretor.

In his first point, appellant contends that the state should not have been permitted to cross-examine appellant in regard to allegations of past physical abuse of his former wife and appellant’s alleged failure to provide child support to his former wife because the matters were not raised in appellant’s direct examination. Appellant argues the cross-examination went beyond the scope of appellant’s testimony on direct examination, in violation of § 546.260 RSMo (1986).

The state sets forth the proposition that appellant failed to preserve the point at trial. As such, the state urges this court to review the point for plain error. Indeed, appellant’s objections appear to be out of time. The transcript during appellant’s cross-examination is clear on this point:

Q. [By prosecuting attorney, Ms. Rosebaugh.] Is it true that the only reason that you went over there was to see your wife ... and not to see the children?
A. No.
Q. Is it true that every time you went there you went over there to physically abuse [your wife]?
A. No.
MR. HERMAN [defense counsel]: Objection.
THE COURT: Overruled.
Q. (By Ms. Rosebaugh) Did you provide any support for your children during that time?
A. I tried to give her money.
Q. Who?
A. My wife.
Q. When?
A. A couple of times. I got witnesses.
Q. Just answer the question, please. A couple of times?
A. Yes.
Q. You have four children and you tried to give her money a couple of times?
A. About four times.
MR. HERMAN: Objection, this is outside the scope—
A. She refused.
MR. HERMAN. I object to that.
MS. ROSEBAUGH: This is cross examination.
THE COURT: Overruled.

As can be gleaned from the transcript, appellant’s counsel made his objections after appellant answered the questions in both instances. Where a question indicates that the response to it will be incompetent or inadmissible, an objection thereto, in order to be available, must be made before the answer is given, since it is too late to object thereafter, unless the answer is given before there is opportunity to object. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742, 747 (1936). While it is [216]*216true that appellant makes a detailed objection to the line of questioning later on in appellant’s cross-examination, it is too late to preserve the matter for appellate review. Appellant must timely object at the first opportunity. Id. Having failed to preserve the matter for appellate review, we review for plain error.

Section 546.260.1 RSMo (1986), provides that a defendant who testifies in his own behalf “shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case.” The prosecution is not limited to a categorical review of the evidence given by defendant on direct examination but may examine him in detail as to matters generally referred to in his examination in chief. State v. Gish, 376 S.W.2d 618, 620 (Mo.App.1964). Thus, if in direct examination defendant refers in a general way to a subject, he may then be cross-examined in detail on that subject. State v. Dalton, 433 S.W.2d 562, 564 (Mo.1968). Permissible extent of cross-examination of defendant in a criminal case is largely a matter of discretion with the trial court. State v. Harris, 564 S.W.2d 561, 574 (Mo.App.1978).

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Bluebook (online)
745 S.W.2d 213, 1987 Mo. App. LEXIS 5113, 1987 WL 3224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bellah-moctapp-1987.