State v. Scott
| Decision Date | 31 August 2011 |
| Docket Number | No. SD 30913.,SD 30913. |
| Citation | 348 S.W.3d 788 |
| Parties | STATE of Missouri, Plaintiff–Respondent,v.Kevin Dwain SCOTT, Defendant–Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Nancy A. McKerrow, Special Public Defender, Columbia, MO, for Appellant.Chris Koster, Attorney General, and Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.GARY W. LYNCH, Judge.
Kevin Dwain Scott (“Defendant”) appeals his convictions of two counts of statutory rape, section 566.032,1 and three counts of forcible sodomy, section 566.060, for which he was sentenced to serve five consecutive terms of life imprisonment. On appeal, Defendant claims that his right to a speedy trial was violated, that the trial court erred in giving an instruction based on MAI–CR 3d 312.10 (commonly referred to as the “hammer instruction”), and that the trial court erred in sentencing him to consecutive sentences. Finding no error as alleged, we affirm.
Factual and Procedural Background
In the summer of 1997, Defendant forced his way into a trailer home where four teenage girls were having a slumber party. Once inside, he threatened the girls with harm if they screamed or tried to get help. Defendant then had sexual intercourse with one of the victims twice and forced the other three girls to put their mouths on his penis. After several hours, Defendant passed out on top of one of the girls, and another girl was able to run for help. The girl who ran for help returned to the trailer home with Missy McClary and Danny Carberry. Carberry hit Defendant over the head with a small baseball bat, and Defendant ran from the home.
When the police arrived at the trailer home, they found a pair of men's jeans with Defendant's identification in the pocket. Later, they discovered Defendant in the woods not far from the trailer home and arrested him. When he was discovered, Defendant was wearing a pair of girls' size 4 Gap jeans.
Defendant was tried and convicted, and those convictions were affirmed on appeal. State v. Scott, 78 S.W.3d 806 (Mo.App.2002). Defendant timely sought Rule 29.15 2 post-conviction relief, and the motion court entered an order vacating Defendant's convictions and sentences on February 25, 2010.3 The State did not appeal that order, see Rule 29.15(a) and (k), and the criminal case was scheduled for retrial.
On April 2, 2010, Defendant filed a motion to dismiss the charges against him. The motion alleged that while Defendant's pro se motion for post-conviction relief had been timely filed on October 28, 2002, appointed counsel failed to file the amended motion for post-conviction relief until August 26, 2005. The motion also alleged that the original judgment granting relief was supposed to be issued on January 25, 2010, but that both that document and another issued on February 9, 2010, were “irregular.” The motion then argued that this delay violated post-conviction rules and that any attempt to retry him would result in a violation of his right to a speedy trial.
Defendant's trial began on August 31, 2010. The parties addressed the motion to dismiss on the record when they discussed other pre-trial matters. Defendant's attorney stated that Defendant had been prejudiced by the delay because two witnesses—Missy McClary and a nurse who had examined the girls after the attack—had died and were no longer available to testify. The trial judge asked whether their testimony had been preserved, and Defendant's attorney stated that there had been a deposition of the nurse and that McClary's version of the events was available in a recording made by an investigator. The trial court indicated that those recordings would be permitted in evidence and asked what further effect the delay had on Defendant's ability to defend against the charge. Defendant shook his head, and his attorney replied “None that I can think of at this time, Judge.” The trial court denied Defendant's motion to dismiss, finding that the delay was, in part, Defendant's fault because he could have sought a writ to compel more timely attention to his post-conviction case at an earlier time and that the defense was not prejudiced because of the alternatives available for the testimony of the unavailable witnesses.
During trial, each of the victims testified about the attack and identified Defendant as the attacker. Carberry also explained how he hit Defendant on the head and stayed to help police locate Defendant even though Carberry “was on the run from the law.”
Defendant's theory of the case involved two central contentions: that all of the girls were not being truthful as shown by their demeanor during the investigation, and that Defendant could not have committed the crimes because of a medical condition. In support of the first contention, Defendant adduced evidence that the girls giggled and laughed while they were at the hospital and during depositions. Then, the recorded statement Missy McClary had made during the investigation was played for the jury. In her statement, McClary corroborated Carberry's statement about going to rescue the girls. She also noted that when she and Carberry arrived at the trailer home, the place was very messy and “you could smell sex, intercourse, very strong in the house.” There was also evidence that one of the girls attended a gathering a day or two after the attack and she seemed to act normal.
In support of the second contention, Defendant adduced testimony from a doctor that Defendant had Raynad's Syndrome, a condition that reduced his ability to grip things with his hands. An investigator testified that he did not find any semen stains in the photographs of the scene. Testimony from the serologist who tested the physical evidence in the case showed that no traces of semen were found in the victims' rape kits and that the blood found at the scene was not tested because the investigators did not provide the necessary control samples for comparisons.
Defendant testified in his own defense. He said that on the night of the attack, he was merely waiting at the trailer home for the girls' mother to arrive and help him locate the girls' father so that Defendant could buy marijuana from him. While Defendant was waiting, he fell asleep. The next morning, he woke up to the sound of girls screaming, and Missy McClary hit him over the head with a full-size metal baseball bat. Defendant denied any inappropriate contact with the girls.
The jury retired to deliberate at 6:47 p.m. At 8:29 p.m., the jury asked for and was permitted to examine the photographs that had been admitted into evidence. At 9:45 p.m., the jury requested the transcript of the serologist's testimony. The trial court responded by instructing the jury to be guided by their collective memories of the evidence. At 11:37 p.m., the judge met with the parties and announced his intention to give an instruction patterned after MAI–CR3d 312.10, “based upon the time that has passed” which had caused the judge to believe that the jury was deadlocked. The judge then gave the parties an opportunity to make a record. The prosecutor agreed with the judge's plan and further requested that the jury be allowed to deliberate for another hour before the judge declared a mistrial. Defendant's attorney requested that a mistrial be declared or, in the alternative, that no hammer instruction be given. The judge had the jury brought back into the courtroom, and he read them the following instruction:
You should make every reasonable effort to reach a verdict, as it is desirable that there be a verdict in every case. Each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict. Do not be afraid to change your opinion if the discussion persuades you that you should. But a juror should not agree to a verdict that violates the instructions of the Court, nor should a juror agree to a verdict of guilty unless he is convinced of the defendant's guilt beyond a reasonable doubt.
The jury returned thirty-nine minutes later at 12:16 a.m. with guilty verdicts on all counts.
Upon the agreement of the parties and the jury, the sentencing phase of the trial was held immediately. The only evidence presented was a statement by one of the victims, who said she believed Defendant “should never be allowed to walk amongst society every [sic] again.” The jury recommended a life sentence on each count.
At sentencing three weeks later, the following exchange occurred:
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