State v. Hester, No. 72859

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHOLSTEIN
Citation801 S.W.2d 695
PartiesSTATE of Missouri, Respondent, v. William T. HESTER, Appellant.
Decision Date09 January 1991
Docket NumberNo. 72859

Page 695

801 S.W.2d 695
STATE of Missouri, Respondent,
v.
William T. HESTER, Appellant.
No. 72859.
Supreme Court of Missouri,
En Banc.
Jan. 9, 1991.

David S. Durbin, Terri L. Backhus, Office of Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

HOLSTEIN, Judge.

Appellant, William T. Hester, was convicted by a jury in the circuit court of Jackson County of the class B felony of sodomy. § 566.060. 1 During the trial, out-of-court statements of the child-victim were admitted in evidence pursuant to § 491.075. Appellant claims the statute is facially unconstitutional and unconstitutional as applied in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Missouri Constitution, art. I, §§ 10 and 18(a). The cause was transferred to this Court to determine the constitutionality of the statute. Mo. Const. art. V, § 3. The judgment is affirmed.

I.

The dispositive facts supporting the verdict and necessary for consideration of this appeal follow.

On the night of February 12, 1989, appellant was asleep on the living room floor of a home belonging to relatives of his wife. On the floor next to him was a member of his family, a male child less than twelve years of age. Appellant woke up with an

Page 696

erection and with his pants unzipped. He placed his penis in the child's rectum.

The Kansas City police were dispatched to the home on the night of February 14 pursuant to a call from appellant. The police spoke with appellant, the victim, and the child's mother. Appellant was placed under arrest. The victim and the mother were taken to the hospital. Appellant subsequently signed a written confession.

Prior to trial, appellant filed a written objection to the state's intent to use the victim's out-of-court statement as provided by § 491.075. Among other complaints, appellant alleged the unconstitutionality of the statute. On August 22, 1989, a hearing was held out of the presence of the jury. Detective Rebecca Fleming, of the Kansas City Police Department, testified that she interviewed the victim on February 14 in the company of his mother, and the child described the act of sodomy. The trial court overruled the pre-trial objection to the use of the out-of-court statement.

Over defense counsel's objection that § 491.075 violated defendant's rights to "confrontation, of due process, [and] fair trial," the trial court admitted the testimony of Detective Fleming regarding statements made by the victim. The state called the child to the stand. He testified as to his name and his age, but when questioned further, he cried and covered his eyes with his fists. At that point, the court excused the witness without any further testimony. Defense counsel did not attempt to cross-examine the child.

II.

Appellant complains in the first two points of his brief that the trial court erred in admitting the testimony of Detective Fleming pursuant to § 491.075 because that statute violates his constitutional rights. The statute provides:

491.075. Statement of child under twelve admissible, when

1. A statement made by a child under the age of twelve relating to an offense under chapter 565, 566 or 568, RSMo, performed...

To continue reading

Request your trial
20 practice notes
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ..."to be confronted with the witnesses against him." U.S. Const. amend. 6; see also Mo. Const. art. I, § 18(a); State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). The right to confront is satisfied if defense counsel receives wide latitude at trial to cross-examine witnesses; it ......
  • State v. Taylor, No. 78086
    • United States
    • United States State Supreme Court of Missouri
    • April 29, 1997
    ..."to be confronted with the witnesses against him." U.S. Const. amend. VI; See Mo. Const. art. I, sec. 18(a); State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). The right to confront is satisfied if defense counsel has wide latitude at trial to cross-examine witnesses; it does n......
  • State v. Irwin, No. ED 107266
    • United States
    • Court of Appeal of Missouri (US)
    • November 19, 2019
    ...the other party, or (5) where due diligence to secure the witness’s attendance by compulsory process has failed." State v. Hester , 801 S.W.2d 695, 696 (Mo. banc 1991) (emphasis added) (citing Welp v. Bogy , 277 S.W. 600, 602 (Mo. App. 1925) ).Mathieson’s Subpoena for the 491 Hearing D......
  • Martin v. State, WD 79460.
    • United States
    • Court of Appeal of Missouri (US)
    • May 9, 2017
    ...of the Missouri Constitution protects the same rights as the Sixth Amendment of the United States Constitution." State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). Finally, though Martin does not cite Article I, section 19 of the Missouri Constitution, "Missouri courts analyze ......
  • Request a trial to view additional results
20 cases
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ..."to be confronted with the witnesses against him." U.S. Const. amend. 6; see also Mo. Const. art. I, § 18(a); State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). The right to confront is satisfied if defense counsel receives wide latitude at trial to cross-examine witnesses; it ......
  • State v. Taylor, No. 78086
    • United States
    • United States State Supreme Court of Missouri
    • April 29, 1997
    ..."to be confronted with the witnesses against him." U.S. Const. amend. VI; See Mo. Const. art. I, sec. 18(a); State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). The right to confront is satisfied if defense counsel has wide latitude at trial to cross-examine witnesses; it does n......
  • State v. Irwin, No. ED 107266
    • United States
    • Court of Appeal of Missouri (US)
    • November 19, 2019
    ...the other party, or (5) where due diligence to secure the witness’s attendance by compulsory process has failed." State v. Hester , 801 S.W.2d 695, 696 (Mo. banc 1991) (emphasis added) (citing Welp v. Bogy , 277 S.W. 600, 602 (Mo. App. 1925) ).Mathieson’s Subpoena for the 491 Hearing D......
  • Martin v. State, WD 79460.
    • United States
    • Court of Appeal of Missouri (US)
    • May 9, 2017
    ...of the Missouri Constitution protects the same rights as the Sixth Amendment of the United States Constitution." State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991). Finally, though Martin does not cite Article I, section 19 of the Missouri Constitution, "Missouri courts analyze ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT