State v. Hayes

720 P.2d 1049, 239 Kan. 443, 1986 Kan. LEXIS 333
CourtSupreme Court of Kansas
DecidedJune 13, 1986
Docket58,661
StatusPublished
Cited by8 cases

This text of 720 P.2d 1049 (State v. Hayes) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hayes, 720 P.2d 1049, 239 Kan. 443, 1986 Kan. LEXIS 333 (kan 1986).

Opinions

The opinion of the court was delivered by

Holmes, J.:

Billy Jack Hayes appeals his convictions of one count of rape (K.S.A. 1985 Supp. 21-3502) and one count of aggravated criminal sodomy (K.S.A. 1985 Supp. 21-3506). The sole issue on appeal relates to the admission of certain rebuttal testimony presented by the State.

There is no issue as to the sufficiency of the evidence and as the defense was one of alibi the facts, for the most part, are not disputed. The victim, Ms. D., spent the evening hours of April 21, 1984, socializing with friends at Moby’s Dock, a Topeka tavern. During the evening she was introduced to the appellant, Billy Jack Hayes. At midnight, as the bar was closing, Ms. D. realized that the friend she had come with was no longer in the tavern. She then went to the Anchor Club, a private club adjoining the tavern, to look for her friend. After spending nearly one hour socializing in the club, she concluded that her friend must [444]*444have gone home and she decided to walk to his house. As she left the club, appellant offered to walk with her to her destination. Ms. D. testified that after walking several blocks appellant grabbed her from behind and dragged her into an alley, where he raped and sodomized her. The victim’s screams drew the attention of a passing pedestrian, Ogden New, whose intervention prompted the attacker to flee. The victim underwent a rape kit examination at Stormont-Vail Hospital in which the results of all tests were negative.

At trial the victim identified Billy Jack Hayes as her attacker, and New identified him as the man he had seen in the alley on the night of the attack. New testified that he viewed appellant engaging in intercourse and anal sodomy with the victim. The bartender and part owner of the tavern and club testified he was working the night of April 21,1984; that he knew appellant, who was a member of the club; and that appellant was in the tavern until closing time when he then went to the club and had at least one drink. The tavern closed at midnight.

Hayes’ defense was alibi. While he acknowledged being in Moby’s Dock on the night in question, he testified he departed for Manhattan around nine o’clock in the evening and spent the entire night in Manhattan, not arriving back in Topeka until early afternoon on April 22. His story was corroborated at trial by testimony from his brother, his girlfriend and her sister. The principal issues at trial were identification and whether the State met its burden in proving the crimes had actually occurred.

The State presented evidence from the emergency room nurse, Debra Heston, who had examined the victim and administered the rape kit process. Heston testified as to her findings on examining the victim and that, in the course of her emergency room experience, she had administered about twenty rape kit examinations. During cross-examination defense counsel elicited testimony regarding the absence of trauma to the vaginal and rectal walls of the victim. Defense counsel also elicited the professional opinion of Nurse Heston as to whether, during a forcible rape, abrasions to the vaginal or rectal area would normally occur.

During its case the defense called Dr. Frederick C. Baker, a pathologist. Dr. Baker testified as to his experience in the examination of women who allegedly had been sexually assaulted. [445]*445The doctor testified that, in his opinion, any time there is forcible rape or forcible anal sodomy, it will be accompanied by trauma, such as bruising, tearing or scratching to the vaginal or rectal area or walls of the victim.

To counter the testimony of Dr. Baker, the State presented rebuttal evidence from Dr. Richard Geis and Joan Hamilton. Hamilton, a former assistant district attorney in Shawnee County, Kansas, had previously served as a volunteer rape counselor. She testified that during her career as an assistant district attorney and rape counselor she was present in the emergency examination room when approximately 150 to 160 alleged rape victims were examined and that out of all those occasions she had personally observed visual evidence of external trauma to the vaginal or rectal area in only 6 cases. It is the testimony of Joan Hamilton that led to this appeal.

Appellant raises four issues on appeal, all dealing with Joan Hamilton’s testimony at trial. Hayes claims that, i) rebuttal testimony was improper under the circumstances, ii) Hamilton was not an expert on the subject of her testimony, iii) Hamilton’s testimony was irrelevant and, iv) Hamilton’s testimony did not comply with the requirements of K.S.A. 60-456(b)(l), (2).

The first issue is whether rebuttal testimony was proper in this case. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal x'ests in the sound discretion of the trial court and its ruling will not be reversed unless it appears its discretion has been abused. State v. Richard, 235 Kan. 355, Syl. ¶ 1, 681 P.2d 612 (1984).

At trial appellant, in cross-examination, sought and obtained the professional opinion of the examining nurse x'elating to the evidence of trauma in rape and/or sodomy cases. The State’s case in chief was limited to the specific circumstances and observations surrounding the alleged rape and sodomy of Ms. D. In his [446]*446case, the appellant then called Dr. Baker for his professional opinion as to the presence of trauma in forcible rape cases. Thus it was not improper to allow the State to present evidence in rebuttal to Dr. Baker, which it did through the testimony of its expert, Dr. Geis, and the testimony of Joan Hamilton. We find no abuse of discretion in allowing the State to present testimony in rebuttal to that of Dr. Baker, and the testimony of Dr. Geis was clearly admissible.

The remaining issues are directed specifically to the admission of the testimony of Joan Hamilton. Appellant asserts error in allowing Hamilton to testify as an expert witness. We agree. Although Hamilton has had extensive experience as a prosecuting attorney, a rape counselor, and, at the present time, as a member of the Kansas Adult Authority, none of that qualifies her as an expert in the medical field which would justify opinion evidence on medical matters. In State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981), this Court was faced with a similar set of circumstances. The defendant was charged and convicted of first-degree murder and rape. Dr. Baker, who testified in this case, testified for the defense as to his experience and opinion relating to the presence of trauma in rape cases.

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State v. Hayes
720 P.2d 1049 (Supreme Court of Kansas, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
720 P.2d 1049, 239 Kan. 443, 1986 Kan. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hayes-kan-1986.