State v. Hayes, Sr.

• Court: Missouri Court of Appeals
• Writing for the Court: Victor C. Howard
• Citation: State v. Hayes, Sr., 23 S.W.3d 783 (Mo. App. 2000)
• Decision Date: 13 June 2000
• Parties: (Mo.App. W.D. 2000) State of Missouri, Respondent, v. James Robert Hayes, Sr., Appellant. WD55772 0

23 S.W.3d 783 (Mo.App. W.D. 2000)

State of Missouri, Respondent, v. James Robert Hayes, Sr., Appellant.

WD55772

Missouri Court of Appeals Western District

06/13/2000

Appeal From: Circuit Court of Buchanan County, Hon. Patrick K. Robb

Counsel for Appellant: Theodore Kranitz and Hugh Kranitz

Counsel for Respondent: Philip Koppe

Opinion Summary: James Robert Hayes, Sr., appeals from his convictions of involuntary manslaughter and armed criminal action.

REVERSED AND REMANDED.

Division Three holds:

Hayes' seventh point on appeal is dispositive. Pursuant to State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000), the trial court plainly erred in submitting the second degree murder and involuntary manslaughter instructions to the jury without including in the manslaughter instruction the direction that if the jury determined Hayes was not guilty of second degree murder because he acted in self-defense, the jury was required to acquit him of involuntary manslaughter.

However, while the court in Beeler found that reversal and discharge of the defendant was the appropriate remedy, this Court finds that retrial on involuntary manslaughter is the appropriate remedy in this case. In the present case, it is not as clear as it was in Beeler that self-defense was the basis for acquittal. The jury could reasonably have found that Hayes was not guilty of second degree murder because he did not act with the "purpose to cause serious physical injury or to cause the death of" the victim, but that he acted with a conscious disregard of a substantial and unjustifiable risk of death to the victim and that the force used was a gross deviation from that force reasonably necessary to protect himself.

Victor C. Howard, Judge

James Robert Hayes, Sr., appeals from his convictions of involuntary manslaughter and armed criminal action. Hayes raises the following thirteen points on appeal: 1) there was no substantial evidence to support the guilty verdict; 2) the jury instruction and verdict on involuntary manslaughter concerned an uncharged crime; 3) the State improperly commented on his refusal to testify against or incriminate himself; 4) the court improperly prevented him from calling a witness to explain the circumstances of his supposed refusal to testify against or incriminate himself; 5) the court improperly refused to let him view Tony Coone's juvenile record; 6) the jury instruction on self-defense erroneously allowed the jury to consider whether he was the initial aggressor; 7) the jury instruction on involuntary manslaughter should have included a cross-reference to the self-defense instruction; 8) the court erroneously admitted testimony about a conversation he had with a witness concerning trouble he was having with a neighbor; 9) the court erroneously admitted expert testimony concerning his wounds; 10) the court erroneously allowed rebuttal testimony on a subject not broached in cross-examination; 11) the court erroneously allowed the State to comment on its own witnesses' lack of credibility in closing argument; 12) the court erroneously admitted testimony from Coone's girlfriend concerning a conversation she had with Coone at the hospital; and 13) the court erroneously allowed the State to argue, in its closing argument, that he and other defense witnesses had lied in their testimony, and to remark about what would happen if the jury acquitted him.

We reverse and remand.

Facts

On June 3, 1997, James Robert Hayes, Sr., and Tony Coone were living in the same neighborhood. Hayes and Coone did not get along, and they had had several previous confrontations. That afternoon, Coone was lying in the street outside his house rotating the tires on his Chevy Blazer. Hayes' truck was parked on the other side of the street. Hayes pulled out of his parking spot and drove his truck alongside where Coone was working on his vehicle.

What happened next is disputed. Hayes testified at trial that as he pulled even with Coone's Blazer, the window and the door of his truck were struck. Hayes testified that he slammed on the brake and inadvertently killed the engine of his truck. He said that when he turned around, Coone grabbed his left arm or his shoulder and swung a hammer through the window. Hayes said he got a hold of the hammer and leaned over in the seat to pull away from Coone. Hayes said that the hammer caught in his shirt momentarily, or he heard the shirt rip. He said that he kept holding on to the hammer and he jerked up in the seat and his left shoulder and head struck the top part of the truck. He said he still had a hold of the hammer and Coone was holding the hammer with his right hand. Coone said, "I'm going to kill you, you son of a bitch. I'm going to kill you." Hayes said that next he tried to push the hammer forward. Coone was jabbing him in the face with the hammer. Hayes testified that he was up "kind of in the corner of the truck." Hayes said that he managed to push the hammer forward and it lodged somewhere momentarily. He then reached into the pocket on the side of the truck's door and pulled out his revolver, laid it on the seat, unsnapped it, slid it out, and stuck it over his shoulder and pulled the trigger. He claims he did not look in Coone's direction, and that he was just trying to get Coone off him.

Hayes testified that he remembers nothing after the shooting other than being near the tailgate of the truck and seeing his wife coming toward him from a distance of about ten or fifteen feet away. He told her that he was all right and that someone else should pick up their granddaughter from school.

Jill Voltmer, a detective with the St. Joseph police department, testified that when she questioned Hayes at the hospital, "[o]ne of the first things he said to us was: I did not run his legs over." Voltmer said that Hayes told her "that Coone was all over him and he just lost it." Voltmer testified that Hayes complained of pain to his left arm when she first spoke to him at the hospital, but he later complained of pain to his right arm.

Hayes made a statement to the police on June 4, 1997. In that statement, Hayes said that as he pulled beside Coone's truck, he heard a metallic sound on his left door glass, which sounded like the glass broke. Hayes said he put on the brake. He said that at the same time he heard the noise, Coone grabbed him by his shirt and left shoulder by the sleeve. Then Coone started hitting him in the head with a claw hammer. Coone had a hold of Hayes' sleeve with his left hand, and he had the hammer in his right hand, hitting him. Hayes said he was so far over to the right, he could not reach the clutch. He said Coone yelled several times, "I am going to kill you, you son of a bitch." Hayes said he was able to reach his gun that was in the left door pocket of his truck. While still trying to fight Coone off, he got the gun out of the holster and turned away from Coone, protecting himself with his arms. Hayes said he fired the gun in Coone's direction and Coone fell backward.

According to Coone, Hayes drove so closely to where he was lying that he almost ran over his legs. Coone stood up and began arguing with Hayes. Coone later told police that he took a couple of steps toward Hayes' truck, reached in through the driver's side window, and slapped him. At that point, Coone said, Hayes shot him in the neck and he fell to the ground. Coone said he did not have anything in his hands when he hit Hayes. He said there was a claw hammer on the ground, which he had been using to work on his truck. Coone told investigators that Hayes got out of the truck, picked up the hammer and took it with him back to the truck.

Pauline Hayes, Hayes' wife, testified that a few seconds after her husband left the house, she went to the front door to be certain it was locked. She observed what was happening and went outside on her front walk. She testified that Coone was standing up against the truck with his arms inside the cab and there was a confrontation going on. She stopped at the steps and heard a gun go off. She saw Coone fall over and Hayes come out of the truck. She testified that Hayes' face was covered with blood when he exited the truck.

Georgette Henley Hoyt, Coone's fiancee at the time, testified that she heard a "boom" and then flew out the front door and saw Coone laying on the ground with Hayes standing over him. She asked Hayes what he had done, but Hayes did not respond. She testified that she saw Hayes' face clearly right after the shooting and there was no injury to or blood on his face. She then ran to a neighbor's house to call 911.

James Connors, a St. Joseph police officer, arrived on the scene shortly after 12:20 p.m. Hayes told Connors that "he had shot the man after he hit him."

Dennis Dornhoffer, a St. Joseph fire captain, attended to Coone at the scene of the shooting. Coone told Dornhoffer, "That son of a bitch shot me and he tried to run over me." Dornhoffer then asked, "Then what?" and Coone said, "Well, then I tried to hit him." Dornhoffer said, "Then what?" and Coone responded, "That mother-fucker shot me." Hayes told Dornhoffer that Coone "hit him with a hammer or hit him and, you know, he shot him."

Hayes told Timothy Puett, another fireman at the scene, that "he was hit with a hammer" and that he was sitting in his truck when he was hit.

Patti Byrne, an emergency room nurse, testified that when Coone arrived at the emergency room, he was paralyzed, having respiratory problems, and was frightened and "worried if he was going to live or not." Byrne testified that Coone said "he had been working on his car and that someone in a truck came by and had tried to hit him with a truck, so he had something in his hand that he swung at the truck. And then he got up to go speak to him and this person shot him and he was very surprised by that."

The bullet that struck Coone passed through his neck, injuring his spinal cord and causing paralysis. Coone survived for sixteen...