State v. Mayes

Decision Date18 December 2001
Docket Number82743
Citation63 S.W.3d 615
PartiesState of Missouri, Respondent v. Bobby Joe Mayes, Appellant. SC82743 Supreme Court of Missouri
CourtMissouri Supreme Court

Appeal From: Circuit Court of Pulaski County, Hon. Douglas E. Long, Jr.

Counsel for Appellant: Gary E. Brotherton

Counsel for Respondent: Shaun J. Mackelprang and John M. Morris

Opinion Summary:

The day before Bobby Joe Mayes was scheduled to stand trial for previous sodomy charges, his wife and step-daughter were found murdered in their home in Houston, Missouri. Both were scheduled to testify on Mayes' behalf at his sodomy trial. Mayes was charged with two counts each of first-degree murder and armed criminal action. His wife, Sondra, was found in the master bedroom. She had been stabbed and had died from blood loss. Mayes' step-daughter, Amanda Perkins, was found partially clothed on the floor next to her bed. She had been subdued by a blow to the head, draped over the edge of her bed, strangled and stabbed in the back approximately 21 times. She died of blood loss and a lack of oxygen. After more than a week of trial, Mayes was convicted of all counts. He was sentenced to death for each of the murder counts and to life in prison for each of the armed criminal action counts. This is a direct appeal of his convictions and sentences.

Court en banc holds: (1) Although one juror's answer to a question during voir dire appears to be inconsistent with the answer she gave on a jury questionnaire, no manifest injustice occurred that would require a new trial. The questions were slightly different, and it is possible that both answers were true. Mayes' attorney had the questionnaire during voir dire, and he could have cross-checked her oral answers against her written answers and questioned her further, had he chosen to do so.

(2) The court did not abuse its discretion in admitting testimony that Mayes had asked about buying a gun in the days preceding the murders, where the prosecutor did not ask the witness why Mayes said he wanted the gun. He argues this may have implied he wanted a gun to kill his wife. The reason the prosecutor did not ask that question, however, was because Mayes successfully had moved to preclude such testimony. He cannot now complain of error in a ruling he requested.

(3) The court did not err in refusing to re-open voir dire once it ruled, after voir dire but prior to opening statements, that a prison informant could testify about the sexual nature of the charges that were pending against Mayes at the time of the murders. Mayes' attorney made a strategic choice during voir dire to refrain from asking jurors about their reaction to allegations of sexual misconduct and cannot, with the benefit of hindsight, go back and ask more questions.

(4) The court did not err in permitting evidence that Mayes' previous crimes were sexual in nature, while excluding evidence that the two prior victims were Mayes' children from a prior relationship. Here, evidence of the sexual nature of the charges previously pending against Mayes properly was admitted to help establish the motive for the murders, not to establish a propensity for Mayes to commit sexual assaults.

(5) The court properly limited Mayes' cross-examination of the prison informant regarding his motive to lie. The witness admitted during cross-examination that he hoped for some benefit to come to him for testifying against Mayes. The topics that were excluded from the cross-examination were, at best, only marginally relevant to the issue of credibility and would have added little to the substantial attacks on credibility that Mayes' attorney already had made.

(6) The jury was instructed adequately about the credibility of the prison informant, and counsel could argue credibility issues to the jury during closing arguments. It was not necessary for the court to go beyond normal Missouri practice by giving a special instruction about the special lack of reliability of prison informants.

(7) Mayes was not prejudiced by the court's admission of evidence that he sodomized his step-daughter Amanda, as its probative value outweighed any prejudice. It legally was relevant to providing the jury with a complete picture of the crime and it tended to show deliberation, motive and animus on Mayes' part.

(8) The court did not err in admitting three graphic photographs. The photographs showed the nature and extent of Amanda's wounds, enabled jurors to better understand the testimony of the pathologist who examined her, and helped support the state's argument that the wounds made required purposeful decision-making by the killer.

(9) The prosecutor's comments, during the guilt-phase closing arguments, that any verdict less than first-degree murder would be "an insult" to Sondra and Amanda did not warrant a mistrial. Mayes did not object to the comments at the time they were made, they were made in the context of the prosecutor's appropriate summation of whether Mayes' actions constituted first-degree murder, and they did not suggest to jurors that they would have to explain their verdict to family or friends.

(10) The court did not plainly err in admitting evidence that Mayes and Sondra had argued on several occasions prior to the murders and that his employer had "let him go." Mayes argues now that this constituted character evidence, but he did not object on those grounds at trial. The evidence is not character evidence, as it helped prove Mayes' motive, not that he was a violent or lazy person, and that he was under emotional pressures from financial and marital difficulties.

(11) The Sixth Amendment did not prevent police from conducting, outside the presence of counsel, a medical examination of the lacerations on Mayes' hands after his arrest at the crime scene. Mayes had invoked a right to counsel for the pending statutory sodomy charges, but he did not invoke his right to counsel for the murder charges.

(12) The state concedes the court erred in refusing, during the penalty phase of the trial, to instruct the jury that Mayes' continued choice not to testify could not be used against him in considering the appropriate punishment. Both this Court and the United States Supreme Court prohibit the jury from being told that it can consider a defendant's silence in deciding whether to impose the death penalty. Further, if a defendant such as Mayes requests a "no-adverse-inference" instruction, and it is supported by the evidence, then the court must give such an instruction. To do otherwise denigrates a defendant's basic and fundamental constitutional right against self-incrimination. The prejudice against a defendant who invokes the privilege is not purely speculative but rather is inescapably impressed on the jury's consciousness. Accordingly, the death sentence for each of the first-degree murder convictions is reversed, and the case remanded for a retrial of the penalty phase.

(13) This Court cannot review Mayes' claim that the prosecutor engaged in misconduct and misled the jury during the cross-examination of Mayes' only mitigating witness. Mayes failed to raise the issue below, the document on which he relies is not in the record, and the state does not concede that the document is accurate. The court below cannot be faulted for not excluding testimony for a reason not made known to it.

(14) As any error in the application of the standard for juror qualification is not likely to be repeated on remand for a new penalty phase trial, this Court need not determine whether the trial court erroneously applied the standard to one of the venirepersons.

(15) The court did not abuse its discretion when it admitted evidence of Mayes' prior convictions for first-degree sexual abuse and second-degree robbery that did not fall within the terms of a statutory aggravator under section 565.032, RSMo 1994. The determination of whether these prior offenses were "serious assaultive" convictions was a question of law for the court, not a question of fact for the jury.

(16) The "multiple homicide" statutory aggravator, section 565.032.2(2), RSMo 1994, is not unconstitutionally vague.

All concur.

Laura Denvir Stith, Judge

Defendant Bobby Joe Mayes appeals his conviction by a jury of two counts of first-degree murder and two counts of armed criminal action in the double homicide of his wife, Sondra Mayes, and Sondra's daughter, Amanda Perkins, for which he received two death sentences and two sentences of life imprisonment, respectively.

Mr. Mayes alleges eighteen points of error. Because this case involves the imposition of the death penalty, this Court has exclusive appellate jurisdiction. Mo. Const., art. V, sec. 3. For the reasons set out below, the Court affirms the judgment of guilt, but remands for a new trial on the issue of punishment because the trial court committed prejudicial error in refusing, over Defendant's objection, to instruct the jury that it could not draw an adverse inference as to punishment from Defendant's failure to testify.

I. Factual and Procedural Background
A. The Crimes

Considering the facts in the light most favorable to the verdict, State v. Thompson, 985 S.W.2d 779, 782-83 (Mo. banc 1999), the jury could have found that at the time of the murder on August 10, 1998, Defendant was married to Sondra, and lived with her and his 14-year-old stepdaughter, Amanda, in Houston, Missouri. Defendant was scheduled to go to trial the next day, August 11, for committing statutory sodomy on his two minor daughters from a previous relationship. He wanted Sondra and Amanda to testify for him, and they had been endorsed as defense witnesses.

Evidence was presented that the couple was having financial and marital difficulties. Sondra had told Defendant that she would not testify for him unless he signed a document that purported to waive his right to contest Sondra's ability to unilaterally convey the couple's marital real property. On August 6, 1998, just four days before the murder, Defendant talked briefly with an...

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