State v. Hammer

• Decision Date: 30 April 2019
• Docket Number: WD 81233
• Citation: State v. Hammer, 572 S.W.3d 597 (Mo. App. 2019)
• Parties: STATE of Missouri, Respondent, v. Teddy Charles HAMMER, Appellant.
• Court: Missouri Court of Appeals

572 S.W.3d 597

STATE of Missouri, Respondent,

v.Teddy Charles HAMMER, Appellant.

WD 81233

Missouri Court of Appeals, Western District.

OPINION FILED: April 30, 2019

Shaun Mackelprang and Karen L. Kramer, Jefferson City, MO, for respondent.

Amy M. Bartholow, Columbia, MO, for appellant.

Before Special Division: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Appellant, Teddy Hammer ("Hammer"), was charged in Saline County with two counts of sexual misconduct involving a child less than 15 years of age. Prior to trial Hammer signed a deferred prosecution agreement under which the State would not prosecute Hammer but under which Hammer admitted his guilt to certain offenses and provided that, should Hammer fail to comply with the terms of the agreement, he waived his right to certain defenses at any future trial. Following the State's determination that Hammer was not compliant with the terms of the agreement, the State refiled the charges and the case proceeded to trial. A jury found Hammer guilty of one count of sexual misconduct involving a child by indecent exposure and one count of sexual misconduct in the second degree. The court sentenced Hammer as a prior and persistent offender to seven years in the Department of Corrections and six months in the county jail on the two charges respectively. In his sole point on appeal, Hammer alleges that the court erred in enforcing the deferred prosecution agreement and prohibiting him from offering evidence to support the defenses of mental disease or defect or diminished capacity at trial. We affirm.

Factual Background

On July 10, 2012, Hammer, a 52-year-old male, was living in an apartment complex in Slater, Missouri. All the alleged victims in this crime were other residents of the apartment complex. E.L.¹ testified that around 9:30 p.m. her entire family was in bed asleep, when E.L. believed she heard a knocking sound. Her three-year-old daughter, B.L., came to E.L. and said "Mom, Ted's knocking on my window." E.L. then heard a loud knock at the front door. They opened the front door and found Hammer standing at the door, nude. B.L. was standing next to her mother. Hammer was touching his genitals, shaking them toward B.L. but he was not masturbating. Hammer said nothing. C.L., E.L.'s husband, told Hammer, "I'm calling the police; you need to go home." Hammer ran off screaming and C.L. shut the door.

On that same night, A.R. was at her older sister's apartment with her younger brother. Also at approximately 9:30 p.m., Hammer opened the unlocked door of the apartment without knocking and stood in the doorway. Hammer was nude and they saw his genitals. He was not touching his genitals but "sort of thrust his hips out towards [them.]" A.R. threw a pillow at him and her sister yelled at him to get out. Hammer looked startled and shaken and started backing out of the doorway after about a minute. When he backed out, A.R.'s sister shut the door.

Between 9:30 p.m. and 10:00 p.m. on that same night, A.C. heard a knock on her apartment door and opened it to see Hammer standing at the door naked. He said he wanted to talk. He was not touching himself. A.C. slammed the door and called 911.

The State indicted Hammer with two counts of sexual misconduct involving a child less than 15 years of age. Hammer was appointed counsel ("Pre-Trial Counsel"). As will be discussed more fully below, Hammer has a seizure disorder and extremely low IQ which called into question his ability to understand his actions or that he was competent to stand trial. Hammer was evaluated and found to be incompetent to stand trial. By February of 2015, he was determined to have been restored to a sufficient level of competency to stand trial. Pre-Trial Counsel sought from the State a deferred prosecution agreement. The State drafted an agreement which Pre-Trial Counsel edited ("Agreement"). On May 10, 2016, Hammer was under the guardianship of his daughter, Whitney Fuller ("Fuller"), and residing at Northwest Psychiatric Rehabilitation Center. On this date, Pre-Trial Counsel presented the Agreement to both Hammer and Fuller.

The Agreement had several requirements including that Hammer must reside either at Northwest Psychiatric Rehabilitation Center or Lakeview Health Care and Rehabilitation Center in Boonville for the duration of the Agreement, which by its terms expired on December 31, 2019. Hammer was required to admit that the State's evidence established beyond a reasonable doubt that he committed the crimes charged, and that this admission could be used to prove his guilt at a criminal trial if he violated the terms of the Agreement. It also required that Hammer stipulate to the admission of the Agreement as "conclusive proof" that he committed the crimes listed, and that he understood that the statement alone may constitute all the evidence presented on behalf of the State at any future trial. Additionally, the Agreement stated that Hammer acknowledged that:

I intentionally, knowingly, willingly, and freely waive any defense based upon a mental disease or defect, diminished capacity, statute of limitations or any limitation of action or other defenses arising out of the dismissal of my pending case or that I may have to the re-filing of these charges during the term of this Agreement, or that I may have in the event this matter is tried after my failure to abide by the conditions set out herein....

The range of punishment for which Hammer might be imprisoned should he violate the Agreement, up to seven years on each count, was clearly stated. Additionally, the Agreement clearly indicated that Hammer was voluntarily entering into the Agreement and was not required to accept its terms. After the Agreement was executed the State dismissed the charges against Hammer.

On July 15, 2016, the State determined that Hammer had failed to conform to the Agreement's terms and the State refiled the charges. Hammer was appointed new counsel who filed a motion in limine seeking to prohibit the State from using the Agreement in Hammer's trial and seeking to admit evidence of a diminished capacity defense. The trial court heard evidence and argument on the motion in limine on April 13, 2017 ("Motion Hearing").

Hammer called Dr. Timothy Leonberger ("Dr. Leonberger") to testify at the Motion Hearing. He testified that Hammer had a "very well-documented" seizure disorder. He was diagnosed with major neurocognitive disorders, due to multiple conditions, those being his seizure disorder and a frontal lobe dysfunction. His seizure disorder results in cognitive impairment and postictal confusion that can last hours or days following a seizure, especially if the seizures are not well-controlled. In such a state, Hammer appears dazed and confused, unaware of his surroundings, may beat on his chest, and talk nonsense. According to Dr. Leonberger, Hammer was in a confused postictal state due to a recent seizure at the time of the events giving rise to the criminal charges.

In regard to the Agreement, Dr. Leonberger testified that Hammer had "a number of deficits in cognitive functioning." Hammer's verbal and language abilities were in the lower one percentile of functioning. Hammer's IQ is 67 which is in the extremely low range. His working memory index was also in the extremely low range. Ultimately, it was Dr. Leonberger's opinion that Hammer would not have been able to understand the Agreement because he lacked "the language skills, the concentration, or the memory to understand [the Agreement] even if it was explained to him in as simple terms as possible." It was Dr. Leonberger's position that Hammer was competent to stand trial but he was not competent to have understood and signed the Agreement.

However, on cross examination, Dr. Leonberger admitted that Hammer would have understood the majority of the key words in the Agreement. He also believed Hammer understood the doctor's testimony at the hearing, that Hammer understood the nature and purpose of the medical evaluation as well as the limits of confidentiality but would not be able to explain the medical concepts in the testimony using the same terms that Dr. Leonberger has used. He believed Hammer was restored to competency prior to signing the Agreement, he remained competent to stand trial at the time of the Motion Hearing, and that he would be able to assist his counsel with a diminished capacity defense. It was his opinion that Hammer would be competent to waive a jury trial at the time of the Motion Hearing and that Hammer would be capable of asserting his own will in the case if his attorney wanted him to do something in the case that Hammer did not want to do. Dr. Leonberger did not interview Fuller or Pre-Trial Counsel in reaching his opinions.

Pre-Trial Counsel testified at the Motion Hearing that she would not have had a client sign an agreement like the one signed by Hammer if she did not believe that her client understood and agreed to its terms. She spoke with Hammer and Hammer's guardian, Fuller, about the Agreement before each of them signed it. The exact nature of her discussions with Hammer or Fuller, however, were not disclosed because of attorney-client privilege. From the very beginning of her negotiations with the State, the Agreement was contingent upon waiver of any mental disease or defect or a diminished capacity defense and that was an integral term of the Agreement.

Fuller testified at the Hearing that she did not talk to Pre-Trial Counsel about the Agreement, nor did she have time to read it before she and Hammer signed it. She "figured it was just something to get him out of jail faster" and did not realize that he would be admitting guilt to the offenses. She testified that had she known the terms of the Agreement she would not have signed and would not have allowed Hammer to sign it. On cross-examination, however, Fuller was more equivocal saying that she "proofread" the Agreement, did ask...