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July 11, 1996



PER CURIAM. Steven Garrison (Defendant) appeals from his jury convictions on one count of forcible rape, § 566.030, RSMo Cum. Supp. 1992; one count of forcible sodomy, § 566.060, RSMo Cum. Supp. 1992; one count of first degree robbery, § 569.020, RSMo 1986; and one count of first degree burglary, § 569.160, RSMo 1986. Defendant was sentenced as a prior offender, a persistent offender and a Class X offender to thirty years on each of the rape, sodomy and robbery counts, to be served concurrently. He was sentenced to a term of ten years on the burglary charge, to be served consecutively to the other sentences.

Defendant raises two points on appeal. First, Defendant claims that the trial court erred in denying Defendant's two requests to proceed pro se at trial. Second, Defendant asserts that the trial court abused its discretion in denying Defendant's request for a continuance in order to obtain independent testing of a tape recorded confession which the Defendant believed had been altered.

The sufficiency of the evidence to support the conviction is not challenged. Thus when viewed in the light most favorable to the verdicts, the essential evidence adduced at trial established the following scenario.

In August of 1993, Defendant entered the apartment of S.W. *fn1 through an improperly functioning window. At the time, S.W. was a twenty year old college student living alone in the apartment. She awoke between 3:00 A.M. and 4:00 A.M. when she heard a sound as if someone was "messing with the window." Defendant told S.W. he had a gun and that he wanted to use the phone. S.W. grabbed the telephone, inadvertently ripping the phone cord out of the wall, and ran into the bathroom, locking the door behind her. After ten minutes in the bathroom she heard nothing and opened the door. Defendant was standing there.

After ordering her to turn off the lights, he took her into the bedroom and ordered her to remove her clothes. He removed all of his clothing except for his socks. Defendant ordered S.W. to lay on the bed against the wall and he laid down beside her, blocking any exit she may have had. Defendant proceeded to fondle S.W. for about an hour. At one point, he placed his hands around her neck as if he was going to strangle her. Defendant escorted S.W. into the kitchen to get a drink at which point he grabbed a knife with a five to six inch blade. He threatened to kill S.W. and then escorted her back to the bedroom with the knife behind her back.

After a trip to the bathroom, Defendant again began fondling S.W. He left bruises on her neck from biting and sucking. He forced S.W. to place her mouth and hands on his penis and eventually forced her to have intercourse. At one point, Defendant took the knife he had taken from the kitchen and threatened to put it into her vagina. Again, after a trip to the bathroom, Defendant began to fondle S.W. and forced her to have intercourse, this time both vaginally and anally. He then stuck his tongue in her anus and forced her to urinate in his mouth.

Defendant ordered S.W. to get up and told her to wipe off the door handle and the screen as he did not want to leave any fingerprints. He then asked S.W. if she had any money. She gave him $552.00 in cash, money that her parents had given her for rent and utilities. Defendant then told S.W. to take a shower and that he might or might not be there when she got out. S.W. took a fifteen to twenty minute shower and then left the apartment about 10:00 A.M.

At some point during Defendant's pre-trial incarceration at the Greene County jail his phone privileges were revoked. There had apparently been threats made by Defendant against Defendant's previous lawyer (who later withdrew from the case for reasons we do not know) and threats made against the victim by an acquaintance of Defendant. Defendant attempted on several occasions to have his phone privileges restored and was ultimately successful.

The jury was sworn on September 12, 1995. On September 13, 1995, the day the trial was to begin, defense counsel and his family received a threat by an unknown individual. The trial court once again revoked Defendant's telephone privileges.

Defendant made two different oral requests to proceed pro se both of which were denied by the trial court. His first request took place on September 13, 1995, as he was requesting a hearing on the revocation of his telephone privileges. The exchange that took place is as follows:

DEFENSE COUNSEL: It's been brought to my attention by Mr. Garrison that the telephone privileges that Mr. Garrison has [sic] restored to him after protracted litigation in this case pretrial have again been removed from him.

Mr. Garrison at this time formally requests some hearing to show what basis for the decision that that [sic] was made and he believes that as a matter of due process he should be informed as to why the telephone privileges were taken from him as to what the basis is, what the evidence is and have an ability to confront and cross-examine any accusers as to any kind of telephone misconduct.

THE COURT: Telephone use in the jail is a privilege and not a right. We've kicked this around back and forth and I think I was more than reasonable under the circumstances in restoring Mr. Garrison's telephone privileges.

In view of the events this morning, I understand that Mr. Garrison contends that he had no participation in what ...

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