State v. Woods

705 S.W.2d 76, 1985 Mo. App. LEXIS 3815
CourtMissouri Court of Appeals
DecidedDecember 24, 1985
DocketNo. 49076
StatusPublished
Cited by6 cases

This text of 705 S.W.2d 76 (State v. Woods) 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. Woods, 705 S.W.2d 76, 1985 Mo. App. LEXIS 3815 (Mo. Ct. App. 1985).

Opinion

DOWD, Presiding Judge.

Anthony Woods appeals from a jury conviction of forcible rape, § 566.030 RSMo 1980, felonious restraint, § 565.120 RSMo 1978, and armed criminal action, § 571.015 RSMo 1978.1 The court sentenced him to twenty years imprisonment on the conviction of forcible rape, five years imprisonment for felonious restraint, and twenty years for armed criminal action. The sentences for forcible rape and felonious restraint are to run consecutively, the sentence for armed criminal action to run concurrently thereto.

On appeal defendant asserts: (1) that the court erred in seating an alternate juror; (2) erred in denying defendant’s motion to strike a juror for cause; and (3) erred in denying defendant’s motion for a mistrial after striking a portion of the state’s rebuttal testimony. The judgment is affirmed.

Since defendant does not challenge the sufficiency of the evidence in this appeal, we will briefly review the facts in the manner most favorable to the verdict. On the morning of October 10, 1983, shortly after 6:00 a.m., P.W., a fifteen year old girl, left her home to meet a friend with whom she planned to take the bus to school. The friend did not arrive so she headed to a home of another friend. It was still dark outside at the time. As she approached the home of her friend, she noticed a man standing on the corner across the street. When P.W. entered the back yard to the house, the man ran up to her, and grabbed her from behind. He put a knife against her neck and told her he would cut her head off if she screamed. He then ordered her to walk to the back of the house. When they reached the back of the house the defendant took off her “panties” and told her to lie down. P.W. saw the man’s face as he stood perched over her. He then removed his pants, wrapped P.W.’s leather jacket over her head, and had sexual intercourse with her. Before leaving he told her that he had been watching her and that he would, “get her again” if she told the police. He then removed the leather jacket that had covered her face and left.

The police were called at approximately 6:30 a.m. P.W. gave the police a description of her assailant and was taken to the hospital for tests. The test results dis[78]*78closed the presence of semen on her underwear and spermatozoa in the vaginal smear taken from her. Later, the police showed a photographic display to P.W., but she was not able to identify the defendant from his photograph due to the different hair style and lighter skin tone in the photograph.

That afternoon P.W. was sitting on the porch of her home with her grandmother and a cousin when the defendant walked by. When he stared at her, she recognized him as her assailant. She informed her cousin that the defendant was the man that had raped her. Shortly thereafter, the defendant was apprehended and held until the police arrived.

In his first point, defendant contends that the trial court erred in excusing a regular juror who had scheduled vacation plans and substituting an alternate juror. During the presentation of defendant’s evidence, the court became aware Juror Max, a 26 year old female, had set plans to leave on a vacation with her family the following morning. In camera, she stated that she hadn’t revealed her vacation plans during jury selection because she wasn’t then aware that the trial would last so long. The court excused Juror Max over defense counsel’s objection for the reason that he felt if she were forced to continue she might vent her anger against the court by retaliating against one side or the other.

Pursuant to § 494.0652 RSMo 1979, an alternate juror, a 26 year old male was impaneled. Defendant argues that the ex-cusal of Juror Max was improper for the reason that she was not unable or disqualified from performing her duties, but merely “inconvenienced.” Furthermore, he asserts that he was prejudiced by “the substitution of a white male juror for a white female juror for the reason that the charges were rape, felonious restraint, and armed criminal action.” Beyond this bald allegation, defendant does not offer nor does the record reflect any basis for finding or even assuming that the alternate juror was prejudiced against him.

We do not decide whether the court’s action excusing Juror Max was error under these circumstances because we find not a shred of evidence pointing to any prejudice to defendant. Relief cannot be granted where defendant has failed to demonstrate how he was prejudiced by the court’s action. State v. Reynolds, 422 S.W.2d 278, 284 (Mo. 1967); Williams v. State, 558 S.W.2d 671, 675 (Mo.App.1977); State v. Williams, 659 S.W.2d 298, 300 (Mo.App.1983). Nor do we agree with defendant’s contention that the excusal of Juror Max and the substitution of the alternate male juror resulted in the denial of the fair and impartial jury he had chosen. Section 494.065 requires that alternate jurors be selected in the same manner, have the same qualifications, and be subject to the same examination as principal jurors. State v. Fletcher, 619 S.W.2d 57, 60 (Mo. banc 1981). Thus, we find no error in the substitution of the juror in this case.

In his second point, defendant assigns as error the action of the trial court in overruling his challenge for cause to venire-woman Bolden, resulting in the use of one of his preemptory challenges to remove her from the jury list.

The record shows that Mrs. Bolden responded in the affirmative when state’s counsel asked whether any juror had personally experienced a crime.

State’s Counsel: Is there anything about the nature of that crime that is so strong in your mind that it would influence you in this case so you would not find as a matter of fact that which isn’t a fact. In otherwords, would it influence your ability to judge the people who testify here fairly?
Venirewoman Bolden: No, it wouldn’t
Defense Counsel: Have you ever had the occasion where you were out on the [79]*79street or you were somewhere and then you found out it wasn’t that person? Venireperson Bolden: Yes, I have run into a few cases like that.
Defense Counsel: Do you think that you would consider that in this case?
Venirewoman Bolden: It’s possible that it could be, but I doubt it, you know.
Defense Counsel: What do you doubt?
Venirewoman Bolden: O.K. I feel that if she was — like you say, she was fifteen years old, right, I feel that if someone came up on her that close that she should be able to give a description of that face if she doesn’t get anything else if somebody was blocked on that person. Do you see what I am saying?
Defense Counsel: Correct me if I am wrong. What you’re saying, you think in a rape situation because of the close physical contact, a person would be more than likely to make a correct identification than not?
Venirewoman Bolden: Yes.
Defense Counsel: For that reason you know at this time that you would be more inclined to believe the victim.

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Related

State v. Stewart
296 S.W.3d 5 (Missouri Court of Appeals, 2009)
State v. Kramer
809 S.W.2d 50 (Missouri Court of Appeals, 1991)
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745 S.W.2d 210 (Missouri Court of Appeals, 1987)
State v. Williams
721 S.W.2d 102 (Missouri Court of Appeals, 1986)

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Bluebook (online)
705 S.W.2d 76, 1985 Mo. App. LEXIS 3815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-woods-moctapp-1985.