State v. Hayes

• Decision Date: 31 August 2005
• Docket Number: No. 26604.,26604.
• Citation: 169 S.W.3d 613
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald Lee HAYES, Defendant-Appellant.
• Court: Missouri Supreme Court

169 S.W.3d 613

STATE of Missouri, Plaintiff-Respondent, v. Donald Lee HAYES, Defendant-Appellant.

No. 26604.

Missouri Court of Appeals, Southern District, Division One.

August 31, 2005.

COPYRIGHT MATERIAL OMITTED

Nancy A. McKerrow, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JOHN E. PARRISH, Judge.

Donald Lee Hayes (defendant) was convicted, following a jury trial, of statutory rape in the first degree (Count I), § 566.032, and statutory sodomy (Count II), § 566.062.¹ This court affirms.

Defendant's arguments on appeal include that the evidence was not sufficient to prove the offenses of which he was found guilty.

On review, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1980). In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Kelly, 539 S.W.2d 106, 109 (Mo.banc 1976); State v. Chunn, 701 S.W.2d 578, 580 (Mo.App.1985).

State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). See also State v. Xia, 60 S.W.3d 28, 30 (Mo.App.2001).

At the time of trial S.H. was 14 years old. She was in the eighth grade. She lived with a foster family. Before being placed with a foster family, she had lived with her father after her mother left the home. Defendant is S.H.'s uncle. When S.H. was in the second and third grades, defendant lived with S.H.'s grandmother at Steelville.

S.H. described to the court and jury acts committed by defendant when she was at her grandmother's residence. S.H. used the words "china" and "hot dog," respectively, to describe a female vagina and a male penis. In a videotaped statement, S.H. told of being with defendant in defendant's bedroom at her grandmother's residence. She said defendant had her unbutton her pants, take them off, and lie on the bed; that he had sexual intercourse with her. S.H. said it hurt.

On another visit, defendant and S.H. were in the kitchen. Defendant told S.H. to touch his "hot dog" with her mouth. Defendant told her to suck his penis. She did what defendant told her to do. S.H. told of other incidents when he would touch her vagina and have her touch his penis.

S.H. told her foster mother that she had been molested. Her foster mother reported what she had been told to a social worker who referred S.H. to the Child Advocacy Center. S.H. was interviewed by a Child Advocacy Center worker. The videotaped statement was the interview at the Child Advocacy Center. It was admitted in evidence and shown to the jury.

Defendant raises six points on appeal. Point I is directed to the venire from which the jury was selected. Points II, III and IV are directed to evidence issues. Point V is directed to the closing argument by the state. Point VI challenges the sufficiency of the state's evidence.

Point I—Venire

Trial of this case took place July 23, 2004. On July 21, voir dire was conducted in another Dent County case. After a jury was selected for the case that was to be tried that date, the panel members who were not selected for that case and who had not been stricken for cause or hardship were directed to return the next day. On July 22, voir dire was conducted for a case set for trial that day. The defendant in it was Robert Hayes, brother of this defendant. The prosecuting attorney stated that the case involved a girl about 13 years old named S.H.; that when she was about 11 years old, she had contact with her uncle, Robert Hayes, the defendant in the case that was for trial that day. The panel was told, "The evidence is going to be that the time when she was alone with him, on more than one occasion, he had sexual intercourse with her and he had deviate sexual intercourse with her." The panel was asked if any panel member knew those persons or had heard anything about that case. One member of the panel responded that she knew S.H. At the close of voir dire, strikes were made for cause. During the time for making peremptory strikes, the defendant in that case, Robert Hayes, pleaded guilty to the charges for which he was scheduled to stand trial. The guilty plea hearing was conducted outside the presence of the prospective jurors.

After the panel members returned to the courtroom, the trial court advised them that there had been "a resolution in [the] case." The panel members were told there would be another case the following day; that those who were not excused would be needed the following morning. The names of those panel members who were excused and who would not be required to return were read. The others were told to return the following day.

Following the discharge of the venire panel, the case that is the subject of this appeal was called for the purpose of addressing "particular objections" defense counsel wished to raise. The attorney who was representing this defendant also represented the defendant in the case that had been resolved. He told the trial court:

The defense objects to the use of this panel as it presently is constituted because we believe that the case against [defendant] is contaminated by the voir dire of the case involving his brother, Robert Hayes. The alleged victims in each case were similar. The alleged transgressions in each case were similar. [The prosecuting attorney], in briefing the voir dire with regard to subject matter of this case, obviously indicated who the alleged victim was, and that was certainly proper. But the problem from the defense standpoint is, now that the information with regard to our previous trial has taken place and suddenly the defendant has disappeared, has the potential to contaminate the jury with regard to the brother. It is true that the Court did not declare to the jury what the resolution was, but I think the implication is certainly there and strong that it was resolved by some kind of resolution with regard to being unfavorable to the defendant. In any case, we believe that this panel is prejudiced. We've offered the Court to select another panel from either another jurisdiction to bring them in, or pass til [sic] — request a continuance until after this panel — or at least, actually defense originally hoped to pass it til [sic] the new panel convenes the first of October. If that's not possible, we believe that it would certainly be appropriate to continue it, say, thirty days to allow these people to, frankly, forget what the subject matter of this particular case was and who the name of the particular defendant was. We believe that trying this case with almost the same names and two separate people so close, that that certainly contaminates the defense's ability to have a fair trial without some implication from the previous case.

Following remarks by the prosecuting attorney, the trial judge stated, for purposes of subsequent appellate review, the process that had been followed.

We commenced having a trial on July 21st with another unrelated manner [sic], and a jury was picked and a jury trial was conducted on that particular matter, and the balance of the pool from that that was not chosen, and we did strike off all those that were struck for cause in that particular case and by agreement none of them were allowed to return, in addition, some who had some hardship, they were not allowed to return at all. The balance of that panel from the first trial was then summonsed back for today's date for a trial in State v. Robert Hayes, and that cause, after we got through the process of making your preemptory [sic] strikes was resolved. The next trial, and the process that the Court anticipated that the record will show, all those that were struck for cause in the voir dire in State v Robert Hayes and those excused because of hardship were not allowed to [sic] back tomorrow's date on the 23rd. What will remain will be the balance of the pool and that is the process this Court has taken up because it has such a large volume of jury trials that are taking place of late, and as a consequence, we try several in a row. It is the Court's view that the objection that [defense counsel] makes might have some validity. However, the only way that that can be proven up is in a voir dire examination tomorrow. If the Court feels that as a consequence of some examination that either counsel does that [sic] the pool is tainted in some way, the Court would then again entertain the request to strike the entire venire panel.

The next morning, prior to commencement of trial in this case, defendant's attorney made the following request.

Your Honor, first I would like to renew our objection to the use of this venire panel on the basis of the fact that the discussions yesterday with respect to the case, the victim in the case, as well as the names of the — name and recognition of the defendant at that time, we believe prejudices the likelihood of a fair trial with regard to this defendant since now all of a sudden that case was resolved.

The trial court denied defendant's request noting, "[T]he only way we're going to know if yesterday's proceedings had any impact on the remaining panel will be to cover that issue in voir dire. So your request is denied." Trial commenced with voir dire.

Point I argues that the trial court erred; that it abused its discretion in denying defendant's request to quash the venire panel. Defendant contends he was denied trial by a fair and impartial jury because the "same venire panel had gone through voir dire the day before in State v. Robert Hayes and were informed that [defendant's] brother [,] Robert, was on trial for statutory rape and statutory sodomy of his niece, [S.H.], the same charges against...