Appeal from the Circuit Court of the County of St. Louis. Honorable Robert L. Campbell.
James A. Pudlowski, Judge, William H. Crandall, Jr., Presiding Judge, and Stanley A. Grimm, Judge, Concur.
The opinion of the court was delivered by: Pudlowski
In April of 1990, Appellant Daryl Davis was indicted on fourteen counts of rape, four counts of sodomy, thirteen counts of burglary, one count of attempted rape, one count of attempted burglary, three counts of armed criminal action, and two counts of stealing. On April 23, 1992, a St. Louis County Circuit Court jury convicted appellant on four counts of rape, two counts of forcible sodomy, four counts of burglary, one count of attempted burglary, one count of armed criminal action and acquitted him of the other twenty-seven charges. Appellant was sentenced as a class X offender to concurrent life imprisonment terms for the four rape convictions; two life imprisonment terms for the sodomy convictions, with those sentences to run concurrently with each other but consecutive to the rape charges; fifteen years imprisonment on the four burglary convictions and seven years for the attempted burglary conviction, with those sentences to run consecutively to the life imprisonment sentences; and fifty years imprisonment on the armed criminal action conviction, with that sentence to run concurrent with the burglary sentences.
Viewing the evidence in the light most favorable to the verdict, only the five incidents on which appellant was convicted will be detailed. On September 30, 1987, Roberta L. was living alone in an apartment in St. Ann, St. Louis County. During the early morning hours, Roberta was awakened by appellant who was laying on top of her saying "Wake up, lady, wake up, lady." Appellant put a knife to Roberta's throat, told her that they were going to have some fun and warned her that he would kill her if she tried to look at him. Appellant turned Roberta from her side onto her stomach and raped her. He then asked her if she had any money or jewelry in the house and took her gold chains and money. When Roberta was certain appellant had left she called her boyfriend and the police. The police determined that appellant had removed a screen from a kitchen window to enter the apartment.
On November 26, 1987, Michelle F. was living alone in an apartment in Richmond Heights, St. Louis County. Between 4:00 and 5:00 a.m., Michelle was awakened by appellant pressing against her body and holding a towel over her face. Appellant ordered Michelle to roll over onto her stomach and asked if she had any money. Appellant told Michelle that he had a knife and then proceeded to remove her underwear. After failed attempts to penetrate Michelle while she lay on her stomach and again after forcing her up on her knees, appellant ordered her onto her back. He then raped her, continually commanding her not to look at him. When Michelle was certain appellant had left, she called her parents who called the police. It was determined that appellant had removed a screen from the kitchen window to enter the apartment.
On September 2, 1988, Beth H. was living alone in an apartment in University City, St. Louis County. In the early morning, she was awakened by appellant holding a pillow over her head. Appellant told Beth that he had a knife and threatened to kill her if she screamed or did not cooperate. Appellant ordered Beth to roll onto her stomach and take off her underwear. When Beth did not remove her underwear, appellant removed them and inserted his fingers into her vagina. Appellant then raped her. While Beth was still lying on her stomach, appellant demanded money. As soon as Beth was certain appellant had left, she called the police. Beth and the police determined that appellant entered the apartment through the living room window where a screen had been removed. Beth later identified appellant in a voice lineup.
On September 26, 1988, Rose H. and her daughter N. were living in an apartment in University City, St. Louis County. During the early morning hours, Rose and her daughter were sleeping in Rose's bedroom when they were awakened by appellant kicking open the bedroom door. Appellant lurched across the bedroom and landed on Rose. Appellant threatened, "Don't scream, Rose. I will hurt N." Rose struggled and instructed her daughter to crawl under the covers to the foot of the bed. Rose stopped struggling with appellant when he began strangling her and threatened to hurt her daughter if she did not cooperate. Appellant ordered Rose to turn onto her stomach and raped her. After appellant left the apartment, Rose called the police. It was determined that appellant removed the screen from a living room window in order to enter the apartment. In 1990, Rose identified appellant in a lineup as the man who had entered her apartment and raped her.
On January 18, 1989, Kathleen D. was living alone in an apartment in University City, St. Louis County. Kathleen was awakened in the early morning hours by appellant jumping on top of her and grabbing her throat. Appellant warned Kathleen to be quiet and promised not to hurt her if she did not struggle, but still he placed a cold, hard object against her face. During a short struggle, appellant turned Kathleen on her stomach and pushed her face into a pillow. He asked her if she had any money. Appellant tied Kathleen's tee-shirt up over her head so that she could not see. After ordering Kathleen to "spread her ass," appellant unsuccessfully attempted to penetrate her. Appellant commanded Kathleen to flip over and then raped her. Appellant also attempted to suck Kathleen's breasts and touched her vagina with his fingers. Appellant warned Kathleen not to call the police because she would "embarrass" herself. Before appellant left, he stole several items from Kathleen's apartment. Kathleen called the police as soon as appellant left her apartment. It was determined that appellant entered the apartment after removing the screen to a window in the downstairs of the apartment.
A task force investigating the rape incidents developed a modus operandi (MO) on the suspect. The MO was that they all were early morning rapes, first floor of an apartment, entry through an open window or screen, victims were white women who lived alone or with small children, victims were lying asleep in their bed, and the sexual assault or an attempt occurred from behind. Appellant became a suspect after the evidence was reviewed and a print case made.
After appellant was arrested, he admitted to the police that the victims were all white women. He specifically recalled raping a woman who had a young girl in the same bed with her. Appellant drove around with the police and tried to recall where the rapes took place. A few of the places appeared familiar to appellant, however, he stated that his memory was not real clear because during that period of his life he had been heavily into drugs.
At trial, an expert witness for the state testified that DNA testing linked appellant to the crimes of all the victims except for Kathleen D. and Rose H. In those two instances there was insufficient seminal fluid to perform an adequate test. Appellant did not testify on his own behalf but did present two expert witnesses concerning DNA evidence. At the close of all the evidence, the jury acquitted appellant of twenty-seven counts and found him guilty on the other twelve, as detailed above. Appellant raises five points on appeal.
In his first point, appellant argues that the trial court erred in overruling appellant's motion to sever the thirty-nine counts against him. Appellant contends the trial court abused its discretion, and that he was prejudiced by the trial court's refusal to sever the counts.
An appellate court reviews a claim for severance of offenses on two levels. State v. Sims, 764 S.W.2d 692, 696 (Mo. App. E.D. 1988). First, the court must examine whether the offenses were properly joined in the indictment. If joinder is found to have been proper, then this court must inquire whether the trial court abused its ...