DANNY GUY HAYES V. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 252001
TO BE PUBLISHED
DANNY GUY HAYES
V.
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
1999-CR-0295
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
Appellant, Danny Guy Hayes, was convicted in McCracken Circuit Court of firstdegree sodomy and second-degree persistent felony offender, was sentenced to twenty
years in prison, and appeals as a matter of right. On appeal, Hayes argues: (1) that the
trial court erred in ruling that the Commonwealth could enter proof of a prior conviction
for sexual assault in the third degree; (2) that prejudicial error occurred when the
potential jurors were told by the Commonwealth that Hayes admitted that sexual
contact occurred only after the laboratory results came back positive; and (3) that the
trial court erred in not directing a verdict of acquittal. We disagree and affirm the trial
court.
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FACTS
On the evening of December 22, 1999, Gayle Williams traveled from her home in
Hickman, Kentucky, to the Hilltop Bar in Paducah, Kentucky, to sing karaoke. Williams
saw Hayes, whom she knew casually, at the Hilltop Bar. Hayes invited Williams to the
parking lot to share some methamphetamine. Williams accepted the offer. The two
smoked the drug and then returned to the bar. After a few more songs, Williams left,
alone, and went to another bar called Ginger & Pickles where she hoped to enter a
karaoke contest. Williams arrived too late to enter the contest, but stayed at the bar to
listen and had a few cups of coffee. Around midnight, Hayes entered Ginger & Pickles
looking for Williams.
Hayes invited Williams to go with him to his friend’s home and Williams
accepted. She rode with Hayes in his truck to a house in Paducah owned by Mark
Speed who was there along with another man. The group listened to music and drank
coffee. At some point during their stay, Hayes and Williams shared the last of Hayes’s
methamphetamine.
Williams had been at Speed’s house for approximately two hours when she
became concerned about the hour and asked Hayes to drive her back to her car at
Ginger & Pickles. Hayes took a different route from the one they had taken earlier to
get to Speed’s house. When Williams asked where they were, Hayes told her he was
taking a short cut. Williams testified that she did not know where she was and was
scared. Hayes stopped the truck on an unlit, gravel road.
Hayes attacked Williams and pulled at her belt. Williams honked the horn and
asked Hayes to stop. Hayes slammed Williams’ head against the steering wheel and
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told her to shut up. He proceeded to perform oral sex on Williams, followed by vaginal
and anal intercourse. Following the attack, Hayes took Williams back to her car.
Williams immediately stopped at a police officer’s car that was parked in a lot on
the side of the road. She explained what had happened and the officer led her to
Western Baptist Hospital. There a rape test kit was performed and detectives were
sent to the hospital. Williams named Hayes as her attacker. The medical examination
revealed a small bruise on Williams’ arm and some swelling in her right knee, but the
examination revealed no tearing in the vaginal or rectal canals.
Hayes was indicted for first-degree rape, first-degree sodomy, and seconddegree persistent felony offender on January 21, 2000. A jury found Hayes guilty of
first-degree sodomy and second-degree persistent felony offender on June 27, 2000.
The charge of first-degree rape ended in a mistrial. Hayes was sentenced to ten years
for the sodomy charge, which was enhanced to twenty years under the PFO II charge.
PRIOR CONVICTION EVIDENCE
The Commonwealth provided notice in its Bill of Particulars that it planned to
introduce Hayes’s three-year-old misdemeanor conviction of sexual assault in the third
degree as part of its case in chief. The Commonwealth argued that, since lack of
consent is an element of a rape charge that the Commonwealth must prove, Hayes’s
prior conviction could come in as evidence of absence of mistake under KRE 404(b).
Hayes filed a motion in limine requesting that the prior conviction be excluded from
evidence. The trial judge ruled that if Hayes took the stand and testified that the sexual
intercourse was consensual, then the Commonwealth could use the evidence of the
prior conviction to impeach Hayes on rebuttal.
Hayes did not testify and the evidence of his prior conviction was never admitted
into evidence. Hayes now argues on appeal that the trial court’s ruling on the motion in
limine was incorrect, and that as a result of the error, he was effectively precluded from
testifying. However, the Commonwealth argues that the claim of error was not properly
preserved at trial. We agree with the Commonwealth.
In Lute v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984)
the U.S. Supreme Court dealt with a similar case. A criminal defendant, Lute, moved
the trial court for a ruling to preclude the government from using a prior state conviction
to impeach him if he testified. The District Court ruled that the conviction could be used
by the government to impeach Lute if he took the stand and denied any prior
involvement with drugs. The Sixth Circuit Court of Appeals refused to review the
District Court’s in limine ruling because the defendant did not testify. The U.S.
Supreme Court affirmed the Sixth Circuit ruling and held that, “to raise and preserve for
review the claim of improper impeachment with a prior conviction, a defendant must
testify.” Lute, 469 U.S. at 43, 105 S. Ct. at 465, 83 L. Ed. 2d. at 448; accord Mathews
v. Commonwealth, Ky., 997 S.W.2d 449, 451-52 (1999).
In order for Hayes to have properly preserved the alleged error of the trial court,
we believe that he should have taken the stand, testified -- as he now argues that he
would have -- that the intercourse was consensual, run the risk that the prior
misdemeanor conviction would have been admitted, and taken his chances on appeal if
convicted. To reach the merits on this issue without Hayes’s testimony would require a
reviewing court to speculate as to whether prejudicial harm had occurred and to
assume that the adverse ruling was the sole motivation for not testifying. We will not
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require a reviewing court to engage in making such tenuous assumptions and
speculations. Further, as the Court in Lute pointed out, allowing such appeals to
proceed on the merits would result in the “windfall of automatic reversal” where any
error is found because, “the appellate court could not logically term ‘harmless’ an error
that presumptively kept the defendant from testifying.” Lute, 469 U.S. at 42, 105 S. Ct.
at 464-65, 83 L. Ed. 2d at 448. As the Lute Court stated:
[rlequiring that a defendant testify in order to preserve . . . claims, will
enable the reviewing court to determine the impact any erroneous
impeachment may have had in light of the record as a whole; it will also
tend to discourage making such motions solely to “plant” reversible error
in the event of conviction.
Id. We believe this logic to be sound and hold that to raise and preserve for review the
claim of improper impeachment with a prior conviction, a defendant must testify.
Lastly, in Mathews, supra, a case involving a very similar preservation issue as
the case sub judice, we held that, had the appellant testified by avowal under RCr 9.52,
an appellate review on the merits would have been proper. Mathews, 997 S.W.2d at
452. However, upon a closer reading of RCr 9.52, it is apparent that an avowal is not
appropriate in such cases. RCr 9.52 provides that:
In an action tried by a jury, if an objection to a question propounded
to a witness is sustained by the court, upon request of the examining
attorney the witness may make a specific offer of his or her answer to the
question. The court shall require the offer to be made out of the hearing
of the jury. . . .
The facts of Mathews and the present case do not permit the application of RCr
9.52. In neither case did the trial court prevent the defendant from testifying. Rather,
the defendants in both Mathews and the present case were free to take the stand and
testify on their own behalf. While it is true that the consequences of such testimony
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could have led to evidence being presented that was detrimental to the defendants’
cases, this is not relevant to the application of RCr 9.52. Therefore, we hold that,
pursuant to RCr 9.52, avowal testimony is proper only where a witness has been
expresslv precluded from testifying, in some respect by the trial court. Conversely, an
alleged error of denial of the right to testify by implication cannot be preserved by use of
avowal testimony pursuant to RCr 9.52. We overrule Mathews, supra, to the extent that
it holds otherwise.
IMPROPER COMMENT BY THE PROSECUTOR
WHILE ADDRESSING THE VENIRE
During voir dire, the Commonwealth told the potential jurors that Hayes only
stipulated to having had sexual intercourse with Williams after blood samples and DNA
test results were returned that disclosed sexual contact. Hayes’s counsel objected. At
sidebar, defense counsel reiterated that, from the outset, Hayes admitted to the sexual
contact but claimed that it was consensual. Hayes’s counsel stated that she did not
want the implication made to the jury that her client had something to hide. Still at
sidebar, the trial judge inquired as to how the situation could be cured. Defense
counsel requested only that the Commonwealth not “finish the question.” The issue
was not brought up again by the Commonwealth, nor was the prosecutor’s comment
mentioned at any further stage of the trial. Hayes now argues that the comments of the
prosecutor during voir dire so prejudiced the jury pool that a fair trial was impossible.
We disagree.
At the time of the Commonwealth’s misstatement to the potential jurors, Hayes
could have requested that the judge admonish the jury to disregard the prosecutor’s
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statement. Because Hayes did not request an admonition or any other curative action
by the court, the Commonwealth argues that it was not incumbent upon the trial judge
to provide relief. We agree.
Hayes points out that lack of consent was the only issue in the case and that his
contention that the sexual intercourse was consensual was his only defense. Due to
these factors, Hayes argues that the Commonwealth’s statement, which implied that he
had initially denied sexual contact with Williams but then changed his story when the
laboratory results demonstrated that sexual intercourse had occurred, was so
prejudicial that no admonition of the trial court would have cured it. Hayes cites Mason
v. Stengell, Ky., 441 S.W.2d 412, 416 (1969), and Risen v. Pierce, Ky., 807 S.W.2d
945, 950 (1991) to support his position that a new trial is required regardless of his
failure to request an admonition or other forms of relief.
We first note that both Mason and Risen deal with statements made during
closing argument, not voir dire questions. Moreover, in each case an admonition was
requested. In Mason, our predecessor court held that, “as [a] general rule, if the
attention of the court is called to an improper argument and if the jury is admonished in
regard to it, a reversal will not be had unless it appears that the argument was so
prejudicial under the circumstances that the admonition of the trial court would not cure
it.” Mason, 441, S.W.2d at 416. In the case before us, the trial judge asked defense
counsel what relief she wanted. She received the relief requested and never asked for
an admonition. The trial court did not err by allowing the trial to proceed.
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DIRECTED VERDICT
Finally, Hayes argues that the Commonwealth did not present enough evidence
of forcible compulsion to warrant submission of the issue to the jury. “Forcible
compulsion” is defined in KRS 510.010(2) as:
physical force or threat of physical force, express or implied, which places
a person in fear of immediate death, physical injury to self or another
person, fear of the immediate kidnap of self or another person, or fear of
any offense under this chapter. Physical resistance on the part of the
victim shall not be necessary to meet this definition.
Williams’ undisputed testimony included the following: (1) Hayes drove her out
to an unlit, gravel road instead of taking her to her car as she had asked; (2) Hayes
attacked her and continued to attack her after she requested that he stop; (3) she
honked the horn of the truck to signal for help; and (4) Hayes slammed her head
against the steering wheel and told her to shut up. Obviously, the Commonwealth
presented enough evidence of forcible compulsion as it is defined by the statute to
support the trial court’s denial of Hayes’s motion for directed verdict on the issue. See
Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).
Therefore, for the reasons stated above, we affirm the judgment of the
McCracken Circuit Court.
Cooper, Graves, Keller, and Wintersheimer, JJ., concur. Lambert, C.J., concurs
in result only by separate opinion, with Stumbo, J., joining that separate opinion.
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COUNSEL FOR APPELLANT:
Emil Samson
Law Offices of Null, Thomas & Samson
2223 North 7’h Street
P. 0. Box 5040
Mayfield, KY 42066
COUNSEL FOR APPELLEE:
A. B. Chandler III
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: OCTOBER 252001
TO BE PUBLISHED
2000-SC-1099-MR
DANNY GUY HAYES
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
1999-CR-0295
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY CHIEF JUSTICE LAMBERT
Hayes did not testify by avowal in this case. Thus, the alleged error is not
preserved for review under Mathews v. Commonwealth, Ky., 997 S.W.2d 449 (1999).
For this reason, I concur with the result reached in the majority opinion. This should
end the matter, but the majority opinion goes further unnecessarily and overrules
Mathews, sua sponte. At the very least, we should let the opportunity present itself in
the form of the proper case before we consider striking sound precedent from the body
of law in the Commonwealth. To do so with neither argument nor invitation is both
unsound and unwarranted.
Stumbo, J., joins this concurring opinion.
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