Hailey v. State
| Decision Date | 17 April 2013 |
| Docket Number | No. 02–10–00247–CR.,02–10–00247–CR. |
| Citation | 413 S.W.3d 457 |
| Parties | Kimball Douglas HAILEY II, Appellant v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Lisa Mullen, Fort Worth, TX, for Appellant.
Joe Shannon, Jr., Criminal District Attorney; Charles M. Mallin, Assistant Criminal District Attorney, Chief of the Appellate Section, Andy Porter, Bill Vassar, and Kim D'Avignon, Assistant Criminal District Attorneys for Tarrant County, Fort Worth, TX, for State.
PANEL: GARDNER, McCOY, and GABRIEL, JJ.
Appellant Kimball Douglas Hailey II appeals his conviction for the capital murder of E.C., a child under six years old.1 In eight points, Appellant asserts that the trial court erred (1) by admitting the entirety of a witness's tape recorded pretrial interview under the rule of optional completeness; (2–3) by admitting Appellant's custodial statements to a girlfriend and a Child Protective Services (CPS) caseworker; (4) by admitting Appellant's non-custodial statements to an acquaintance; (5) by denying a challenge for cause and not allowing Appellant to individually question a “biased juror”; (6) by allowing the State to ask improper commitment questions; and (7–8) by denying three jury charge instructions. We affirm.
Because Appellant does not challenge the sufficiency of the evidence to support his conviction, we set out the relevant facts in each point. For background purposes, we provide Appellant's statement of facts as follows:
The instant trial involved the death of Appellant's girlfriend's two and a half year old son. Appellant, his girlfriend, the girlfriend's eight year old daughter and the victim lived together for a few months prior to the incident. Appellant also had another girlfriend who lived in a different area of town.
On [March 29, 2009], Appellant was home with the two children while the girlfriend, hereinafter mother, was gone to work. The mother then returned home, had an argument over money with Appellant and Appellant left. The mother also left leaving the two children home alone. Appellant then returned home a few hours later and the victim stopped breathing causing him to call 911 and have the daughter speak to the operator as he blew into the victim's mouth and then left the location. Appellant had a parole violation warrant and, to avoid arrest, left the scene but remained down the street until the ambulance arrived.
The victim had multiple bruises over his body, but the cause of death was a skull fracture from blunt force trauma. The State offered numerous statements Appellant made to various individuals admitting to harming the child.... Appellant waived his rights and provided recorded statements to the police wherein he maintained his innocence. Appellant testified at trial and denied any type of abuse of the victim. [Internal record citations omitted.]
A. Admissibility of Witness Interview under Rule of Optional Completeness
In his first point, Appellant asserts that the trial court abused its discretion by admitting and publishing the entire tape-recorded pretrial interview between Fort Worth Police Detective Amy McClellan and E.C.'s mother, Laquanta Williams. The State responds that the trial court properly admitted the interview pursuant to the rule of optional completeness because the isolated statements played for the jury left the false impression that Williams's trial testimony was inconsistent with her pretrial statements. SeeTex.R. Evid. 107. Appellant counters that the entire tape was not admissible because it exceeded the matters inquired into, interjected extraneous information, bolstered Williams's credibility, and was “highly prejudicial.” 2
Williams testified that she was the mother of two-and-a-half-year-old E.C. and eight-year-old daughter N.W. In November 2008, Appellant and Williams began dating, Appellant moved in with Williams and her two children, and Appellant began watching N.W. and E.C. while Williams went to work.3 Williams testified that Appellant did not have a job and that she paid for everything.
Williams testified that “hell broke loose” in the middle of March when Appellant began having mood swings.4 On March 29, 2009, Williams left for work around 6:00 a.m.; the children were asleep, and Appellant was at home. When Williams called to check on them at approximately 11:00 a.m., Appellant said he had been sleeping but that everything was okay. When Williams finished her shift around 2:00 p.m. and drove home, Appellant greeted her by “going off and cursing her and stuff” and pushing her, and Williams testified that she did not have a chance to see her children initially. Appellant told her that he needed money, that he was “sick of this shit,” and that he had to “knock out” E.C. Williams testified that Appellant continued berating her and then told her to take one of their computers to a pawnshop to get money for it. Williams left and returned home around 3:50 p.m., having been unable to sell the computer. Appellant was still at home but left to go to Dallas, telling Williams to get him money before he got back or he was going to beat her and her kids when he returned. Williams testified that when she checked on E.C., he was on his bed holding a towel against his forehead, and when she removed the towel, his eyes and forehead were swollen and his lip was busted. When she spoke to E.C., he sat up and did not appear to be in pain. She testified that she “didn't know what to do” but that she left E.C. and N.W. alone at home while she went to get money from friends and relatives to give to Appellant.
Around 8:00 that evening, Williams called her cell phone, which Appellant had been using. Appellant answered “in a panic mode,” told her to hurry and get home, and then hung up the phone. Once home, she saw the ambulance leaving and was told her son was being taken to the hospital. Inside, she found N.W., who told her that E.C. fell in the garage. She and N.W. then drove to the hospital.
Williams testified that she spoke to Appellant while she was at the hospital and that he asked her to lie for him. Williams testified that she decided initially to tell investigators that an individual named Chris had been at the house with the children but that “[t]his was before I was even aware of what happened to my child.” Williams testified that during her interview with Detective McClellan that night, she provided Appellant's name and other information “[a]fter [Detective McClellan] said what she said to me.”
Appellant emphasized through cross-examination that Williams had been alone with the children a portion of that day, that she had initially not checked on E.C. after Appellant told her that he had knocked him out, and that she had not taken E.C. to the hospital when she noticed his injuries. In response, Williams stated, The following dialogue then occurred:
[Defense Counsel]: Q. Yesterday, you told the ladies and gentlemen of the jury that you never spanked your son; is that correct?
[Williams]: A. Yes.
Q. You remember talking to Detective [McClellan]?
A. Yes.
....
Q. And while you were talking to her, you told her, did you not, that I barely even whip my son?
A. Okay.
Q. So you do occasionally whip your son; is that correct?
A. If it was necessary, but not really.
Q. Right.
A. If he's in danger or he's hurting someone, something like that. But I never really whip my children, period.
....
Q. You told [Detective McClellan] when [your children] were bad or they needed it, I spanked their butts. Do you remember telling her that?
A. I don't remember telling her that.
Appellant then asked to play a portion of Williams's taped interview with Detective McClellan to refresh her memory, stating that “if she denies them again after hearing them, then we would offer only those portions that are impeachment for this case.” 5 The State objected to “picking and choosing” statements on the tape to be played for the jury. The trial court ruled that if Appellant played a portion of the tape, the State would be allowed to play the entire tape.
On the first portion of the tape played by Appellant for the jury, Williams is heard telling Detective McClellan, “I barely even whoop my kids” and “if they do something wrong, you know, you let them know, you get on their butt; when I do whoop, I spank their butt[s]....” At trial, defense counsel asked, Williams responded,
Later, after Williams testified that Detective McClellan did not tell her that a woman named Winter Star Butler had come over to her house the day of the offense to sleep with Appellant, Appellant played a portion of the taped interview. Afterward, Williams agreed that Detective McClellan had told her that.
Appellant also played an additional portion of the taped interview after eliciting the following testimony:
[Defense Counsel]: Q. You remember when you were talking to Detective McClellan, she asked you if [Appellant] had ever intentionally hurt your children? Do you remember her asking you that?
[Williams]: A. No.
Q. [D]id you ever tell her, no, he never intentionally hurt your children?
A. No.
Q. He may have slapped the boy or something during potty training?
A. Slapping? I know he used to hit him. If he had a[n] accident, he did that.
....
(A portion of interview is played.)
[Defense Counsel]: Q. Did you hear the statement you made to Detective McClellan?
A. Yes, I did.
Q. And you told her that, no, he didn't ever—he wasn't ever intentionally mean to your son; is that correct?
A. At the time, yes.
Q. And that was a true statement?
A. No, not really. It wasn't.
Q....
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