Haynes v. State

• Decision Date: 17 December 1996
• Docket Number: No. 78776,78776
• Citation: 937 S.W.2d 199
• Parties: Pheob HAYNES, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 199

937 S.W.2d 199

Pheob HAYNES, Appellant, v. STATE of Missouri, Respondent.

No. 78776.

Supreme Court of Missouri,

En Banc.

Dec. 17, 1996.

Rebecca L. Kurz, Asst. Public Defender, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Christine M. Blegen, Assistant Attorney General, Jefferson City, for Respondent.

HOLSTEIN, Chief Justice.

Pheob Leroy Haynes was charged by two indictments with a total of thirty-eight felony counts. As part of a plea bargain, Haynes pleaded guilty to sixteen of the counts. He was sentenced to ten consecutive fifteen-year sentences, for the crimes committed when he was sixteen years old, and five consecutive life terms and one consecutive fifteen-year term for the crimes committed two weeks later, when Haynes was seventeen years of age. He then sought post-conviction relief pursuant to Rule 24.035, simultaneously filing a motion for change of judge. Both the change of judge and post-conviction relief were denied. Following opinion by the Missouri Court of Appeals, Western District, this Court granted transfer. The judgment of the trial court denying relief is affirmed.

I.

The offenses involved here occurred on September 30 and October 14, 1993. On September 30, Haynes and Darrell Blair decided to rob residents of a dwelling in Kansas City, Missouri. While holding the residents at bay with a semi-automatic handgun, Haynes and Blair helped themselves to cash, a television, a stereo, audio tapes, a purse, jewelry, and a car belonging to one of the occupants. During the course of the robbery, Haynes and Blair raped, sodomized and placed their fingers in the vagina of one victim. That victim believed Haynes was going to kill her three-month-old son. After the assault, she was made to lay on the floor and suck blood from Haynes' fingers. Haynes placed the barrel of his pistol in the vagina of another victim. Yet another female victim was taken hostage in order to Just two weeks later, on October 14, 1993, Haynes went to another house again with the intent of robbing the residents by means of a handgun. This time, Haynes took a car, cash, three televisions, a VCR, and jewelry from the occupants of the house. During the robbery he again sexually assaulted a female victim, at one point inserting a wooden handle into the victim's vagina. He also pistol whipped and beat a male victim with a baseball bat. The assault and sexual attacks continued for more than an hour. All of this conduct led to the filing of two indictments totaling thirty-eight counts.

make good an escape by Haynes and Blair. While kidnapped, she became the victim of a sexual assault.

II.

On October 20, 1994, Haynes pleaded guilty to seven counts of first-degree robbery, three counts of armed criminal action, three counts of forcible sodomy, two counts of first-degree assault and one count of kidnapping. One first-degree assault charge and the kidnapping charge are class B felonies. All other offenses to which defendant pleaded guilty are class A felonies, carrying a possible life sentence. There was no agreement as to the length of any sentence. In exchange for his plea, the remaining counts were dismissed by the state.

On January 13, 1995, defendant appeared for sentencing before Judge K. Preston Dean. At the sentencing hearing, the trial judge reviewed a presentence investigation report (PSI) and in addition heard testimony from four of the victims. One testified that he had a scar visible on his head. Each time he looked in the mirror he was reminded of the horror of the crime. He testified he no longer felt safe in his own home. Another victim felt she was in an emotional prison since being robbed and sexually attacked. A male victim was unable to sleep. His female companion, a victim of a sexual attack, had also experienced sleeplessness and nightmares. The male victim characterized the one hour and fifteen minute ordeal as not just a robbery but as "terrorism, torture, abuse [and] violence." Another victim of a rape and sexual assault said, "[M]y life was uprooted, it was changed [by] the horror that I felt when I thought [Haynes] was going to kill my three-month-old son."

Judge Dean directed the following comments to movant:

If in the years that I have been reading PSIs I have read a more appalling PSI I cannot right at this moment remember it. Perhaps I have and have been allowed to forget it.

There are no guidelines, of course. There is no book that you can go to and look up what the right sentence might be. The thought is that sentencing involves several factors; one is a deterrent, perhaps to communicate to other members of the community that certain conduct will not be tolerated.

Another element of sentencing is punishment, just straight retribution. Society saying to someone, ["]You can't do that. If you do that, you're going to suffer for it.["]

Rehabilitation is an issue. If I believed that there were some way to ensure that Mr. Haynes could be taken somewhere and rehabilitated and we could be guaranteed that he would not harm another person, I would board that train in a minute. Our society is not interested in spending the kind of money that it takes to change someone. I do not trust the prison system to rehabilitate Mr. Haynes.

Punishment and protection. Punishing Mr. Haynes and protecting society from Mr. Haynes is what I am here for today. Perhaps Mr. Haynes is a nice guy. I doubt it. I believe that you are a monster, and if I could do to you what I want to do to you they would only take parts of you from this room. That's not, however, in the list of options that I have.

The charges in CR94-1226 relate to offenses that occurred on September 30th of 1993, when Mr. Haynes was 16. They are horrible [the offenses are then recited and a fifteen-year sentence is assessed for each] ... Mr. Haynes, make no doubt about it, what I've just said was fifteen years on each and every count in 1226 consecutive. They're horrible. You were 16, that's why I didn't give you life.

Now, that was September 30, 1993. October 14, 1993, fourteen days later, you've had a little time to think about it now and you go out and you committed the offenses in 4259 [the judge then recites the offenses and assesses life imprisonment for those offenses except one, for which a fifteen year sentence is imposed]. I don't want you ever to be outside of the custody of someone who can make every decision in your life. Mr. Haynes, you are a monster. I hope you die in prison....

Thereafter, Haynes filed a pro se Rule 24.035 motion, which was amended by appointed counsel in May of 1995. The amended motion alleged denial of due process because the above admonitions proved Judge Dean was not "fair and impartial" in sentencing Haynes. Concurrently with filing an amended Rule 24.035 motion, movant's counsel filed a motion for change of judge. That motion was overruled. In addition, post-conviction relief was denied without an evidentiary hearing. Haynes appealed.

III.

Movant argues that due process required that Judge Dean sustain the motion for change of judge in the post-conviction proceeding. It is argued that due process mandates recusal where an objective onlooker might reasonably question whether the judge was impartial absent any facts showing an extrajudicial source for the bias. Movant focuses entirely on two or three phrases out of the lengthy sentencing. He claims the statements by the trial judge that if he did what he wanted to, the movant would be "removed from the courtroom in pieces," and the judge's statement that movant was a monster who should die in prison establish a disqualifying bias.

In a post-conviction motion, the movant may disqualify a judge on the due process ground that the judge is biased and prejudiced against the movant. Thomas v. State, 808 S.W.2d 364, 366-67 (Mo. banc 1991). Our cases have held that a disqualifying bias or prejudice must be one emanating from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learns from participation in the case. State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992); cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 732; rehearing denied, 510 U.S. 929, 114 S.Ct. 339, 126 L.Ed.2d 283 (1993). Missouri courts have applied the extrajudicial source limitation when deciding whether a judge should have recused under the due process standard. State v. Wise, 879 S.W.2d 494, 523 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995).

The cases involving due process have held that in order for "justice to satisfy the appearance of justice" there must not only be an absence of actual bias but an absence of a probability of unfairness. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Thus, it was held that a "single judge" grand jury could not also preside at a contempt trial involving one who allegedly committed perjury in the grand jury proceeding. Id at 137, 75 S.Ct. at 625-26. The reason for the rule is that a grand jury proceeding is investigatory and ex parte in nature. The judge conducting the proceeding thus attains an adversarial "interest" and the "probability of actual bias" is too great. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975).

Various other situations have been identified in which the adjudicator was held to have a "probability of actual bias" so that due process required disqualification. Among these cases are those in which the adjudicator had a pecuniary interest in the outcome or where the judge had been the target of personal abuse or criticism from the party before the judge. Id. In addition, where the judge is a material witness to relevant facts in the case or makes statements on the record suggesting an ethnic or racial bias, fundamental fairness has been held to require recusal. State v. Smulls, 935 S.W.2d 9, 24 (Mo. banc 1996); see also Berger v. United States, 255 U.S....