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07/19/83 STATE MISSOURI v. DERRICK TABOR

July 19, 1983

STATE OF MISSOURI, PLAINTIFF-RESPONDENT
v.
DERRICK TABOR, DEFENDANT-APPELLANT



From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge James J. Gallagher.

Motion for Rehearing Overruled, Transfer Denied September 1, 1983. Application Denied October 18, 1983.

Before Snyder, P.j., Dowd, Gaertner, JJ.

The opinion of the court was delivered by: Snyder

A jury found appellant guilty of forcible rape with a deadly weapon, § 566.030 RSMo. 1978, and first degree robbery, § 569.020 RSMo. 1978. He appeals from the trial court's judgment of conviction and consecutive sentences of life imprisonment for the forcible rape and fifteen years for the robbery. The judgment is affirmed.

Appellant has briefed five points relied on. He maintains the trial court erred in: (1) failing to excuse a venirewoman who objected to appellant's being able to see the addresses of the members of the jury panel; (2) denying his motion to substitute an alternate juror for a juror who dozed off during the taking of testimony; (3) admitting evidence of medical records which the state offered in rebuttal; (4) overruling appellant's objection to the prosecutor's alleged attempt during closing argument to define reasonable doubt; and (5) failing to use the court's authority to curb the prosecutor in closing argument.

The evidence favorable to the verdict disclosed that at approximately 5:00 a.m. on January 16, 1981, appellant approached the victim at a bus stop and engaged her in conversation. When the victim told appellant her children were aged four and one, appellant replied that if she wanted them to live to be five and two, "Don't holler." He then pulled out a gun and forced the victim to take him to her house. When they reached her house he changed his mind about going in and led her to a vacant house on another street.

Appellant then forced the victim to disrobe at gunpoint and raped her twice. Between the two rapes, appellant forcibly removed the victim's engagement ring from her mouth where she had hidden it while she was disrobing.

After the rapes appellant told the victim that they were returning to her house so that he could rape her mother and sister. When they reached her house, appellant abandoned his announced intention to rape the other women and fled.

From the time he accosted her until he left the victim at her house and ran away, appellant continually threatned her with the gun by saying, "If you holler, I'll shoot you," and by threatening to shoot her in the head. It was 6:00 a.m. or a little after when they returned to the victim's house.

The victim positively identified appellant at a lineup and in court, but he relied on the defense of alibi. He took the stand and testified that he was asleep with his girl friend at the house of his girl friend's sister at the time of the offense. Both the girl friend and the sister testified that he was at the sister's house the entire morning of the day when the rapes occurred.

The jury found him guilty of both the forcible rape with a deadly weapon and the robbery charges and he was sentenced accordingly.

In appellant's first point relied on he insists that the trial court abused its discretion by denying his challenge for cause of venirewoman Wagner because she allegedly confessed the existence of bias against appellant when she objected to his being able to see the addresses of the jurors. The point has no merit.

During the voir dire examination venirewoman Wagner expressed concern to the Judge that appellant was taking notes on the addresses of potential jurors. Appellant, believing that venirewoman Wagner was prejudging his guilt, moved to strike her for cause. The motion was never ruled upon or renewed, but in ...


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