U.S. v. Hayes

Decision Date14 February 1979
Docket NumberNo. 78-5149,78-5149
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frank HAYES, Dorothy Foley Hayes and Alice Baldwin, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Charles M. McDonald, Waco, Tex., Marvin Miller, San Antonio, Tex., for defendants-appellants.

Jamie C. Boyd, U. S. Atty., San Antonio, Tex., Daniel Rinzel, Drew S. Days, III, Asst. Atty. Gen., Criminal Section, Civil Rights Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before INGRAHAM, GEE and FAY, Circuit Judges.

FAY, Circuit Judge:

This case involves an outrageous episode in law enforcement. Taking the evidence in a light most favorable to the government, See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), this story unfolds as follows.

On September 14, 1975, at 10:30 p. m. Officer Donald McCall, of the Castroville, Texas Police Department was directed by appellant Frank Hayes, then Chief of Police of the Castroville Police Department, to serve misdemeanor arrest warrants on Richard A. Morales. McCall was also directed by Hayes to obtain the serial numbers from a stereo and television set at the Morales residence in order to determine whether these items had been stolen. Although Hayes suspected that these items had been stolen, they had been rented by Morales and his wife from a rental agency.

The misdemeanor arrest warrants had been obtained by Hayes several days earlier from Medina County Deputy Sheriff Alvin Santleben who had arrested Morales on the warrants a month earlier, but released him without processing. Morales had, in fact, satisfied the warrants by voluntarily appearing at a court hearing on September 12, 1975 in Medina County on charges of failure to deliver several cows he had sold.

Officer McCall proceeded to the Morales residence in his patrol car accompanied by a friend, Steven Worthy, who had been riding with him that day. McCall placed Morales under arrest, handcuffed him and searched him. He then obtained serial numbers from the television and stereo. At this time appellant Frank Hayes arrived at the Morales residence in his personal car accompanied by Dennis Dunford, his prospective son-in-law. Frank Hayes called Morales a "thieving son of a bitch," told him he was going to kill him numerous times and struck him in the stomach with his fist. All five persons then left the Morales residence; Officer McCall, Steven Worthy and Richard Morales in the patrol car, with Frank Hayes and Dennis Dunford in Hayes' personal car. The two cars proceeded several miles out of Castroville to a gravel road in a deserted area. Several stops were made along the way at which time Hayes instructed McCall to tell Morales that Hayes was going to kill Morales if Morales did not reveal the location of stolen merchandise. Hayes also told Dennis Dunford not to worry about any shots because they were just trying to scare Morales.

When the two cars reached the deserted gravel road, Hayes directed that all lights be extinguished, took possession of a double barreled 12 gauge shotgun and struck Morales in the stomach with the breach of the shotgun. Hayes then stated that he had killed one Mexican and was "fixing to kill" another one. Hayes directed McCall to remove the handcuffs from Morales, and told McCall and Worthy to leave the scene.

After McCall and Worthy left, Hayes questioned Morales further and pushed him with the butt and then the barrel of the shotgun. Morales pushed the barrel of the gun aside and stepped back. The shotgun discharged, killing Morales.

Defendant Frank Hayes then got back in his car and drove up the road several hundred yards to where McCall and Worthy had stopped in the patrol car. Hayes told McCall to inform the Sheriff's office that Morales had escaped. After McCall and Worthy left for the Sheriff's office, Hayes and Dunford returned to the scene of the shooting and loaded Morales' body into the rear seat floor boards of Hayes' car. Hayes asked Dunford if he knew of a place to bury the body, but Dunford said he did not. Hayes told Dunford that the shooting had been an accident, but no one would believe him.

Hayes then drove to his residence in Castroville where he dropped off Dennis Dunford and picked up his wife, Dorothy Foley Hayes. Mr. and Mrs. Hayes then departed in the car with the body in the rear seat and returned to the Hayes' residence approximately one hour later. Frank Hayes requested Dunford to accompany him and they drove to a location out of Castroville where they transferred the body from the rear seat to the trunk of the car and returned to the Hayes' residence.

Mrs. Hayes then left the Hayes' residence with her daughter Jeannie and drove the car with Morales' body in the trunk to San Antonio where she picked up her sister, defendant Alice Baldwin. They then proceeded to transport Morales' body to Panola County, Texas near the Louisiana border a distance of approximately 400 miles stopping en route to purchase shovels. Upon reaching Panola County, they proceeded to the property of Mrs. Hayes' brother and buried the body in a shallow grave in an isolated area. They then drove to Alice Baldwin's cottage in Llano County, Texas where Mrs. Baldwin and Mrs. Hayes were apprehended while in the process of disposing of bloody garbage bags and shovels from the trunk of the car.

After initially denying any knowledge of these events Mrs. Hayes eventually admitted to burying the body and directed law enforcement officials to its location. Similarly, appellant Alice Baldwin initially denied having been in Panola County, but subsequently confessed to taking part in the burial of the body of Richard Morales.

All three appellants testified. Defendant Frank Hayes, although displaying a detailed recollection of the events leading up to the shooting, claimed to be unable to remember the events which occurred after the shooting. He testified that the shooting was accidental. Appellant Dorothy Foley Hayes testified that she did not know Frank Hayes had committed any crime and buried the body to preserve it as evidence. Appellant Alice Baldwin denied taking part in the burial, but admitted to helping dispose of the burial implements.

In January, 1976, Frank Hayes was indicted for the offense of capital murder in Medina County, Texas. On change of venue, that case was transferred to Tom Green County, Texas, and was tried at the County Seat at San Angelo in the 51st Judicial District Court for the offense of murder. The jury found Frank Hayes guilty of the lesser included offense of aggravated assault and assessed his punishment at ten years confinement in the Texas Department of Corrections. Mrs. Hayes entered a plea of Nolo contendere to the charge of concealing physical evidence, a misdemeanor in the County Court of Medina County. She was sentenced to one year probation. Appellant Baldwin was not prosecuted in state court.

On February 23, 1977 a Federal Grand Jury returned a two-count indictment. Count I charged defendant Frank Hayes with violating 18 U.S.C. § 242 by depriving Richard A. Morales of the right to liberty without due process of law, resulting in the death of Richard A. Morales. Count II charged defendants Dorothy Foley Hayes and Alice Baldwin with being accessories after the fact in violation of 18 U.S.C. § 3.

After the filing of a motion on behalf of defendant Frank Hayes for a determination of mental competency and sanity, the district court ordered a psychiatric examination. A competency hearing was held at which time the report of the examining psychiatrist was received and testimony taken. At the conclusion of the hearing defendant Frank Hayes was found competent to stand trial.

The indictment was returned in the San Antonio Division of the Western District of Texas. Defendants' motion for a change of venue to the Division of their choice was granted and trial was held before a jury in the Waco Division on September 26 to 29, 1977. On September 29, 1977 the jury returned verdicts of guilty against all defendants.

Prior to sentencing, the district court committed defendant Frank Hayes to the custody of the Attorney General pursuant to 18 U.S.C. § 4205(c) for three months of study and observation. After the results of this study were made available to the Court, defendant Frank Hayes was sentenced to life imprisonment. Defendant Dorothy Foley Hayes was sentenced to three years imprisonment pursuant to 18 U.S.C. § 4205(b)(2), making her eligible for parole at any time. Defendant Alice Baldwin was sentenced to eighteen months imprisonment with twelve months suspended and five years supervised probation. Appellants urge several grounds for reversal of their convictions. For reasons

more fully developed below, we affirm. I. DOUBLE JEOPARDY,

PETITE POLICY, COLLATERAL ESTOPPEL, DISCRIMINATORY
PROSECUTION

Appellant's first group of arguments concern the validity of the federal prosecution in light of the previous state prosecution. First, appellant urges this court to abandon the well-established rule that there is no constitutional bar to successive state and federal prosecutions for the same criminal conduct. The leading cases in this area are Abbate v. United States,359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) and Bartkus v. Illinois,359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). In Abbate, the defendant had first been tried and convicted in an Illinois court for conspiring to damage another's property and had been sentenced to three months imprisonment. He was subsequently prosecuted by the federal government for conspiring to destroy communications facilities operated or controlled by the United States,18 U.S.C. § 1362 (1964). Bartkus involved a defendant who was convicted of armed robbery under Illinois law, after having been acquitted by a federal jury of robbing a federally insured savings...

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