State v. Villanueva

• Decision Date: 12 July 2002
• Docket Number: No. 85,260.,85,260.
• Citation: 274 Kan. 20,49 P.3d 481
• Parties: STATE OF KANSAS, Appellee, v. JESSE JOSEPH VILLANUEVA, JR., Appellant.
• Court: Kansas Supreme Court

274 Kan. 20

49 P.3d 481

STATE OF KANSAS, Appellee, v. JESSE JOSEPH VILLANUEVA, JR., Appellant.

No. 85,260.

Supreme Court of Kansas.

Opinion filed July 12, 2002.

Peter T. Maharry, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.

James L. Spies, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

Following two trials in the Wyandotte County District Court, Jesse Joseph Villanueva, Jr., was convicted by a jury of raping his former girlfriend S.M. on November 15, 1998. Villanueva's first trial ended in a hung jury. After the second jury convicted Villanueva of one count of rape, the trial court sentenced Villanueva to 254 months in the custody of the Secretary of Corrections.

Villanueva appealed his conviction, asserting error in: (1) the admission of testimony of social worker Michele Paynter on symptoms of rape trauma syndrome; (2) failure to provide a unanimity instruction; (3) that prosecutorial misconduct resulted in a denial of a fair trial; and (4) that cumulative trial errors warranted reversal of his conviction. The Court of Appeals affirmed Villanueva's conviction on December 7, 2001, and found that the trial court erred in allowing Paynter's testimony and that the prosecutor's remarks were intemperate and explicitly appealed to the prejudices of jurors, but held that the errors were harmless and did not impair Villanueva's right to a fair trial. See State v. Villanueva, 29 Kan. App.2d 1056, 35 P.3d 936 (2001).

We granted Villanueva's petition for review of the Court of Appeals' decision. On review, Villanueva limits his claims of error to the admission of Paynter's testimony and prosecutorial misconduct during closing argument.

S.M. testified that she met Villanueva at a Kansas City bar in October 1997. They dated for approximately 1 year. S.M. said they had a sexual relationship during that time period and occasionally loaned each other money. At the time S.M. ended the relationship, she said she owed Villanueva $140, but according to Villanueva she owed him approximately $450. Both agreed that Villanueva went to S.M.'s house the morning of November 15, 1998; however, Villanueva and S.M. offered vastly different versions of the events following his arrival.

Villanueva testified that he went to S.M.'s house on November 15, 1998, to discuss the money S.M. owed him. According to Villanueva, he had approached S. M. about the money the night before at the bar, but S.M. told him she did not want to talk about it then. S.M. told him to contact her the next day. Villanueva stated that he drove his mother's car to S.M.'s house the next morning, knocked on the door, and S.M. opened the door and told him to come in. Villanueva testified that he said, "I got court Thursday and I figured if you had money to go out drinking, that maybe you could pay me some of the money you owe me." Villanueva said that made S.M. upset, and they began arguing. S.M. asked who he was dating and if he was sleeping with her. Villanueva responded, "[Y]es, and it's twice as good as it was with you. So what?" S.M. slapped him. After telling S.M. to settle down, the argument continued when Villanueva called her a freak. According to Villanueva, S.M. said, "I'll show you freak," and, "I can't believe you raped me." Villanueva went to the bathroom. When he came out, S.M. was not there, so he left. Later, Villanueva saw police cars at S.M.'s house as he drove by, and it dawned on him that she was accusing him of rape.

S.M. told a completely different story. S.M. testified that after they broke up in October, Villanueva repeatedly called her and came to her work and school to talk about their relationship. S.M. testified that the night before the incident, Villanueva approached the table at the bar where she was sitting, but she stood up and left without speaking to Villanueva. S.M.'s son was spending the night with his aunt but came by at 8:30 a.m. to gather some clothes. S.M. said that after her son left, she went back to bed. The doorbell rang again and S.M. opened the door, saw Villanueva, and asked him what he wanted. According to S.M., after she let Villanueva in, he approached her asking why she was so mean to him the night before and why she would not talk to him. S.M. testified that she told him to back off, but at that point he grabbed her and forced her to the floor. S.M. said as she struggled with Villanueva she screamed for him to stop, but he said she "owed him." S.M. stated she twined her legs together, but said Villanueva pulled them apart and raped her. S.M. said after he finished, Villanueva let her get up and she put her pants on. Villanueva stayed around as if nothing had happened, pleading with her about their friendship. According to S.M., she told him "friends don't rape each other," and he responded by stating, "I didn't rape you." When Villanueva went to the bathroom, S.M. said she ran for the door and went to her neighbor's house to call the police.

S.M. was taken by police to the University of Kansas Medical Center for treatment. Dr. Pamela McCoy and nurse Angela Zeeb performed a rape examination on S.M. McCoy noted multiple abrasions, bruises, and scratches on S.M.'s right cheek and left breast and bruises on the insides of both thighs in a fingerprint pattern consistent with someone forcing her legs open. McCoy testified the bruises were fresh. S.M. also had a scratch on her right labia and general redness around her vaginal area. McCoy stated that she noticed a yellow substance or exudate in S.M.'s vagina. On cross-examination, McCoy noted that the yellow exudate could be related to a bacterial infection or vaginal irritation and admitted it was possible that a woman with a vaginal irritation could scratch herself in her sleep and not even know it. KBI testing of the vaginal swabs taken during the rape examination of S.M. was negative for semen or seminal fluid.

Officers arrested Villanueva, chasing him down by foot after he attempted to escape by running from the officers. After he was in custody, Villanueva gave varying stories to Detective Michael York, but when Villanueva's behavior became increasingly strange, York ended the interview. The next day, the State charged Villanueva with one count of rape.

The first jury trial took place in October 1999. According to Villanueva, the State did not present evidence concerning rape trauma syndrome at the first trial. After deliberation, the jury returned to the court and advised the court it could not reach a unanimous decision and that further deliberation would not be of benefit. The foreman advised the court that the jurors' vote was 10 to 2, but following the court's instruction, did not indicate which way jurors had voted. The trial court declared a mistrial due to a hung jury.

Prior to Villanueva's second trial at a motion hearing in January 2000, the assistant district attorney advised the court that he intended to offer testimony of Paynter on rape trauma syndrome. Paynter was an unlicensed social worker who worked as a supervisor at the Metropolitan Organization to Counsel Sexual Assault (MOCSA) in Kansas City, Missouri. Defense counsel argued that because the witness had no personal knowledge or involvement in the therapy sessions, her testimony was inadmissible hearsay and prejudicial.

The assistant district attorney conceded that the witness was not qualified to make a diagnosis of rape trauma syndrome, but asserted she would qualify as an expert on rape trauma syndrome, its symptoms, and what S.M. disclosed during therapy sessions. The State advised the court that the therapist who treated S.M. was unavailable, but that as a supervisor Paynter was intimately knowledgeable about the facts of the case due to her follow-up with clients and review of records during the normal course of her duties. Judge J. Dexter Burdette, of the Wyandotte County District Court, ruled that under the business records exception to the hearsay rule, Paynter could "certainly testify what the victim disclosed to her therapist about this incident," but would not be allowed to testify about rape trauma syndrome. Ultimately, the trial court concluded:

"I don't know that there are gonna be any diagnoses testified to, but certainly what the victim told the therapist and this woman who was her supervisor who apparently aided in her treatment by supervising the—the therapist and was made privy apparently of these conversations through the normal course of her work and produced business records that reflected that participation, the information contained in those records is admissible and she may testify to them after the foundation has been established."

There is no indication that the trial court decided at that time that Paynter qualified as an expert. It seems the trial court simply ruled she could testify concerning the information contained in the MOCSA business records.

During the second trial, Villanueva's counsel again objected to Paynter's testimony, based on Paynter's lack of personal knowledge of the contents of the counseling records. The trial court again ruled that the information contained in the MOCSA records was admissible under the business records exception and allowed Paynter to testify.

As the State began its direct examination of Paynter, defense counsel objected to her qualifying as any type of expert witness on the basis that she did not have the requisite educational background. The State responded that Paynter would "not be mentioning a word [about] rape trauma syndrome" or discussing a diagnosis, but would "say these are common symptoms and these are the symptoms that [S.M.] displayed." The trial court indicated that the State needed more foundation as to Paynter's experience in...