State v. Carey, 56949

• Decision Date: 12 March 1991
• Docket Number: 58223,No. 56949,56949
• Citation: 808 S.W.2d 861
• Parties: STATE of Missouri, Respondent, v. Landis CAREY, Appellant. Landis CAREY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 861

808 S.W.2d 861

STATE of Missouri, Respondent, v. Landis CAREY, Appellant.

Landis CAREY, Appellant, v. STATE of Missouri, Respondent.

No. 56949, 58223.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 12, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 16, 1991.

Application to Transfer Denied June 11, 1991.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

Kathleen G. Green, Asst. Public Defender, Jefferson City, for appellant.

SIMON, Judge.

Appellant Landis Carey was convicted after a jury trial of one count of first degree sexual abuse, Section 566.100, RSMo.1986, and sentenced as a prior and persistent offender to six years imprisonment. He also appeals the denial of his Rule 29.15 motion without an evidentiary hearing.

The facts adduced at trial, viewed in the light most favorable to respondent, revealed the following. The victim, L.B., was five years old on March 31 and April 1, 1988. She lived with her mother, B.D., and two of her brothers. B.D. and appellant were friends, and occasionally appellant would stay in B.D.'s home.

On the evening of March 31, 1988, appellant spent the night at B.D.'s home. B.D. slept on the sofa in the front room, while L.B. slept in her bed in another room. Appellant was to sleep on a mattress in the front room. B.D. woke up at some point, and heard L.B.'s bed squeaking. She got up to investigate, and saw appellant jump off of L.B., cover her up, and run. Appellant was zipping his pants up as he hurried to the bathroom. B.D. pulled the cover on L.B. back, and saw L.B.'s nightgown up to her navel and her panties down to her ankles.

B.D. caught up to appellant, who said he was checking to see if water was running. B.D. had L.B. dress and sent the child to go get a neighbor. The neighbor, Joseph Phillips, testified L.B. had come to get him. B.D. asked L.B. to tell Mr. Phillips what happened, and she said appellant had "messed with her." Appellant escaped before the police and emergency medical service personnel arrived. B.D. talked with the police, but decided to take L.B. to the hospital herself. B.D. needed money for the trip, so she took L.B. and went to her mother's (P.B.'s) place of employment.

After getting money from her mother, B.D. took L.B. to Cardinal Glennon Children's Hospital in St. Louis. Dr. Michael Shaw testified he examined L.B. and discovered redness in the cervical os, and a torn hymen. He stated that for the cervical os to have redness, it must have been traumatized. Dr. Shaw found no evidence of sperm. He concluded L.B. was a victim of a recent sexual attack.

Dr. John Brewer examined L.B. on May 24, 1988. He found several scars around L.B.'s hymen and cervix, which he stated were caused by an "expanding force," such as a finger or penis inserted into the area. Dr. Brewer testified that, in his opinion, L.B. had been sexually abused, although he could not say precisely when. At trial, appellant's defense was alibi, i.e., he did not sleep at victim's home on the evening of March 31, 1988. Appellant did not testify. Other facts will be adduced as necessary to address appellant's points.

Appellant presents four points on appeal: (1) The trial court abused its discretion in giving MAI-CR3d 312.10, the "hammer" instruction, and following it with the statement, "would you retire and decide this case," which he said in a threatening manner, as the instruction and his threatening comment had the effect of coercing the two dissenting jurors into agreeing with the majority and ignoring the "reasonable doubt" standard of proof; (2) the trial court erred in permitting a defense witness, Juan Wilborn, to plead the fifth amendment right to not incriminate oneself, and refuse to answer questions regarding whether the state's witness B.D., had told him she was lying in her accusation of appellant, and regarding his and B.D.'s involvement in a stealing from appellant in 1985 and regarding his viewing of a man who was not appellant committing sexual acts in front of L.B.; (3) the trial court erred in admitting the statements of B.D., P.B., Tish Larock and Anne Clifford, wherein they testified as to the out-of-court statements made to them by L.B., for the statements should not have been admissible under Section 491.075, RSMo.1986; and, (4) the motion court erred in denying appellant's 29.15 motion without an evidentiary hearing because appellant alleged facts which if true would warrant relief, the facts alleged raise matters which are not refuted by the record, and the matters complained of resulted in prejudice to appellant's defense, in that trial counsel failed to ensure that the "hammer" instruction and statements surrounding it were properly recorded, and that counsel failed to call an essential alibi witness to testify at trial.

Appellant first asserts the trial court abused its discretion in giving MAI-CR3d 312.10, the "hammer" instruction, followed with the statement, "[w]ould you retire and decide this case," because the jury was then forced to abandon the "reasonable doubt" standard of proof.

The trial court has broad discretion in deciding whether or not to give the hammer instruction. State v. Edwards, 712 S.W.2d 412, 414 (Mo.App.1986). Appellant must establish, based upon the record, that the jury was coerced into reaching its verdict. Id. The mere fact a verdict is returned shortly after the "hammer" instruction is given is not proof of jury coercion. State v. Hyzer, 729 S.W.2d 576, 578 (Mo.App.1987). The record reflects only the following occurrences. The jury began deliberations at 3:30 p.m. At 8:15 p.m. the jury returned to the courtroom, and the court read them MAI-CR3d 312.10. The court then stated, "Would you retire and decide this case." The jury returned its verdict at 9:50 p.m. Appellant argues in his brief that the court's statement, "[w]ould you retire and decide this case[,]" was said in a "loud and threatening tone," thus implying that the jury had to reach a verdict or the trial court would keep them there all night. Appellant further states as proof of coercion the fact that appellant was charged with sodomy, but the jury only convicted him of first degree sexual abuse, which was "obviously" a compromise. None of these arguments are supported by the record. As such, they are pure conjecture, which we cannot consider. See State v. Phillips, 596 S.W.2d 752, 755, n. 1 (Mo.App.1980).

We find no evidence of coercion on the jury's part. We note MAI-CR3d 312.10 contains the phrase, "... no juror should ever agree to a verdict that violates the instructions of the court, nor find as a fact that which under the evidence and his conscience he believes to be untrue." The instruction "... urges open and frank discussion, tolerance, and desirability of a unanimous verdict, but cautions against basing a verdict on evidence he does not believe is true." State v. Smith, 686 S.W.2d 43, 46 (Mo.App.1985). The fact that the jury deliberated one hour and thirty-five minutes after the court read MAI-CR3d 312.10 indicates careful review of the evidence, not a hurried compromise. Point I is denied.

In his second point appellant argues the trial court erred in permitting a defense witness to invoke his privilege against self-incrimination and refuse to answer questions concerning the victim's mother's involvement in stealing from appellant, her lying in her accusation of appellant, and the witness' seeing someone besides appellant commit sexual acts in the victim's presence.

A hearing on the matter was held without the jury's presence. At the hearing, trial counsel stated that at trial appellant intended to call Juan Wilborn to the stand. Appellant expected Mr. Wilborn to testify to three incidents. First, Mr. Wilborn was expected to testify that in April, 1988, the victim's mother, B.D., told him she lied about appellant's involvement in the crime for which he was tried, and that she was "putting a case" on appellant. He was also expected to testify that in 1985 B.D. stole money from appellant and offered Mr. Wilborn a share if he protected her from appellant. Lastly, appellant expected Mr. Wilborn to testify he saw B.D.'s brother perform a sexual act in front of the victim.

Mr. Wilborn's attorney was present at the hearing, and stated Mr. Wilborn wished to invoke his Fifth Amendment privilege against self-incrimination, as he had an identical charge pending against him, involving a young girl, but not the victim in this case. The court allowed Mr. Wilborn to confer privately with his attorney. The trial court then required Mr. Wilborn's counsel to make a statement on the record. Counsel stated that after talking with Mr. Wilborn she believed he had a legitimate reason not to want to testify in this case.

Shortly thereafter proceedings returned to open court. When asked if B.D. told him she was lying in her accusation of appellant, Mr. Wilborn asserted his Fifth Amendment privilege and was excused.

The privilege against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and Article I, section 19 of the Missouri Constitution. The privilege protects an individual from being an involuntary witness against himself in any proceeding, criminal or civil, formal or informal, where his answers might incriminate him in future criminal proceedings. State ex rel. Munn v. McKelvey, 733 S.W.2d 765, 768 (Mo. banc 1987). The privilege extends not only to answers that would completely reveal guilt of a crime, but also to questions whose answers might reveal facts which could be a link in a chain of evidence connecting him to a crime. Id.; State ex rel. Flynn v. Schroeder, 660 S.W.2d 435, 437 (Mo.App.1983). An individual asserting the privilege may refuse to answer incriminating questions, and may also refuse to explain how the answers might incriminate him. State v. Ruff, 729 S.W.2d 556, 560 (Mo.App.1987).

Once a witness...