Hayes v. Commonwealth

58 S.W.3d 879, 2001 Ky. LEXIS 178, 2001 WL 1298225
CourtKentucky Supreme Court
DecidedOctober 25, 2001
Docket2000-SC-1099-MR
StatusPublished
Cited by12 cases

This text of 58 S.W.3d 879 (Hayes v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayes v. Commonwealth, 58 S.W.3d 879, 2001 Ky. LEXIS 178, 2001 WL 1298225 (Ky. 2001).

Opinions

JOHNSTONE, Justice.

Appellant, Danny Guy Hayes, was convicted in McCracken Circuit Court of first-degree 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.

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 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 [881]*881Williams’ 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 second-degree 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 Luce 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, Luce, 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 Luce 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.” Luce, 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 require a reviewing court to engage in making such tenuous assumptions and speculations. Further, as the Court in Luce 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.” Luce, 469 U.S. at 42, 105 [882]*882S.Ct. at 464-65, 83 L.Ed.2d at 448. As the Luce Court stated:

[requiring 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.

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Hayes v. Commonwealth
58 S.W.3d 879 (Kentucky Supreme Court, 2001)

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Bluebook (online)
58 S.W.3d 879, 2001 Ky. LEXIS 178, 2001 WL 1298225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-commonwealth-ky-2001.