Opinion
No. 79453
November 25, 1997 Rehearing Denied December 23, 1997.
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY; HON. J. EDWARD SWEENEY, J.
AFFIRMED.
Mr. J. Christopher Spangler, 114 East Fifth Street, P.O. Box 815, Sedalia, Missouri 65302-0815, for appellant.
Honorable Jeremiah W. (Jay) Nixon, Atty. General, Ms. Karen King Mitchell, Assistant Atty. General, P.O. Box 899, Jefferson City, Missouri 65102, for respondent.
A jury convicted Brandon Hutchison of first degree murder and recommended the death sentence. The trial court entered judgment for the same. This Court has jurisdiction. Mo. Const. art. V. sec. 3. We affirm the judgment.
I. Facts
We review the facts in the light most favorable to the verdict. State v. Shurn , 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837 (1994).
On December 31, 1995, Freddie Lopez and his wife, Kerry Lopez, threw a small New Year's Eve party in the garage adjacent to their house. Ronald and Brian Yates arrived at the party shortly after midnight. They were looking for their brother, Tim Yates, who had already left. Freddie Lopez invited them to stay for a few beers.
During the party several of the guests became intoxicated, including appellant, Brandon Hutchison. Freddie Lopez and Ronald Yates shared a line of methamphetamine. Hutchison caused a minor disturbance when he punched another guest, Jeremy Andrews, for no apparent reason. Andrews also observed Hutchison make shooting motions with his hand towards the Yates brothers.
At about 4:00 a.m., Freddie and Kerry Lopez went into the house to continue an argument that they had started in the garage about how much alcohol Kerry was drinking. Several of the party-goers went home, leaving only Hutchison, Michael Salazar, and Ronald and Brian Yates in the garage.
About twenty minutes later, Hutchison ran into the house and pounded on the Lopez's bedroom door, saying that "something bad had happened in the shop." Salazar called for Freddie Lopez from the porch. When Lopez came out, Salazar was holding a .25 caliber revolver. He told Lopez that he had shot someone. Lopez entered the garage and saw both Yates brothers lying on the floor. Salazar told Lopez that one of the brothers had tried to stab him.
Autopsies of the brothers showed that they had been shot at point blank range with a .25 caliber gun. The bullet that hit Ronald Yates lodged in his spinal cord, paralyzing him from the waist down. Brian Yates sustained a relatively minor bullet wound to the chest and a more serious one to the stomach. Medical evidence established that both brothers were still alive, however, when Lopez found them on the garage floor. Lopez testified that he saw Ronald Yates gasp.
Hutchison insisted that nobody call an ambulance and that Ronald Yates was already dead. He then suggested that they remove Ronald and Brian Yates from the garage in Lopez's white Honda Accord. Hutchison and Salazar put Ronald Yates in the trunk first, then Hutchison put Brian Yates in the trunk on top of Ronald after dragging him by his shoulders, dropping him on the floor, and kicking him in the upper body. Meanwhile, Salazar went into the house to fetch a drug scale and a .22 caliber handgun, which he also put in the Honda. The three men took off in the car with Hutchison driving.
After driving ten to fifteen minutes, Hutchison pulled over on the side of a dirt road. He and Salazar got out and walked to the back of the car. Lopez testified that as Hutchison climbed out of the car, he held the .22 caliber pistol and said, "we got to kill them, we got to kill them." Lopez heard several gunshots and then Hutchison and Salazar got back into the car. Lopez testified that Hutchison was still clutching the gun when he returned to his seat.
They proceeded to a nearby creek bed where Lopez dropped bullet casings in the water and Hutchison buried both the .25 and the .22 caliber guns, which he had wrapped in his tee-shirt. Then they drove to the trailer home of a mutual friend, Troy Evans. Hutchison pounded on Evans' door until Evans let them inside. Evans' girlfriend, Frankie Young, noticed Lopez's white Honda parked in front of the trailer. Hutchison begged Evans for permission to take a shower because he had blood on one of his hands. Lopez and Salazar made several phone calls. One call was to a girlfriend of Salazar who lived in Yuma, Arizona.
The three men returned to the Lopez's house. Shortly thereafter, Kerry Lopez noticed a significant amount of blood on the Honda's back bumper. Hutchison and Salazar left in the Yates brothers' car and drove to a girlfriend's house. She gave them a ride to the Joplin bus station where they bought two tickets to Yuma, Arizona.
At around 8:00 a.m., Ronald and Brian Yates's dead bodies were found on the side of the road. Both had died of execution-style gunshot wounds to the head from .22 caliber bullets. Ronald Yates had sustained a shot in each eye and one to the back of the head, and Brian Yates had sustained one shot in the right eye and one in the right ear. The Yates brothers' hair and blood were found on a piece of carpet that was found with the bodies. Fiber analysis determined that the carpet came from the trunk of Lopez's car.
Hutchison and Salazar were apprehended several days later in California.
II. Issues on Appeal and Standard of Review
Hutchison alleges seven points on appeal. Three of these points were preserved at trial for review on appeal: 1) that the trial court erred by excluding as hearsay a statement made by Michael Salazar to the police because the statement was properly admissible as a statement against penal interest; 2) that the trial court erred by permitting testimony that Hutchison stopped answering questions during interrogation and shouted obscenities because such testimony violated Hutchison's right to not have his silence used against him and was irrelevant and prejudicial; and 3) that the trial court abused its discretion by endorsing penalty phase witness John Galvan on the first day of trial because the lateness of the endorsement did not leave Hutchison adequate time to investigate and formulate a rebuttal theory.
Three of Hutchison's points on appeal were not preserved at trial: 1) that the trial court erred by permitting testimony that Hutchison hit a party guest on the morning of the murders because the testimony was inadmissible prior bad act evidence; 2) that the trial court erred by not ordering sua sponte a mistrial because of improper and prejudicial arguments in the state's opening statement; and 3) that the trial court erred in submitting penalty phase instructions to the jury that improperly allowed the jury to set Hutchison's punishment on the basis of the conduct of co-defendant Michael Salazar. Finally, Hutchison claims that we should reduce his death sentence to life in prison without parole pursuant to section 565.035, RSMo, because the jury was prejudiced, the state's case hinges on the circumstantial evidence provided by the testimony of a co-defendant, and because Hutchison was only 21-years-old and had no history of significant criminal violations at the time of the murders.
With regard to trial court errors that have been preserved, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Tokar , 918 S.W.2d 753, 761 (Mo. banc 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 307 (1997); State v. Skillicorn , 944 S.W.2d 877, 884 (Mo. banc 1997). Issues that were not preserved may be considered only if the court finds that manifest injustice or miscarriage of justice has resulted therefrom. Rule 30.20; State v. Simmons , ___ S.W.2d ___ (Mo. banc 1997) (No. 77368, decided September 30, 1997); State v. Roberts , 948 S.W.2d 577, (Mo. banc 1997); State v. Clemons , 946 S.W.2d 206 (Mo. banc 1997), cert. denied, ___ U.S. ___, ___ S. Ct. ___, 66 U.S.L.W. 3204 (Nov. 10. 1997); State v. Brown , 902 S.W.2d 278 (Mo. banc 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 679 (1995).
III. Michael Salazar's Statement
In the first of his three preserved points on appeal, Hutchison alleges that the trial court should have permitted police investigator Mark Aleshire to read to the jury the portion of his police report in which he recorded Michael Salazar's confession to shooting the Yates brothers in the garage. Following his arrest, Salazar told Aleshire that he had shot Ronald Yates in the back and Brian Yates in the chest and stomach with the .25 caliber gun. He also told Aleshire that Hutchison shot the brothers in the head with the .22 caliber gun. Aleshire incorporated these statements, among others, in a police report he prepared. Counsel for Hutchison asked the trial court for permission to have Aleshire read Salazar's confession from the police report. The prosecutor objected on hearsay grounds. Alternatively, the prosecutor contended that if the court admitted Salazar's confession, then it should admit Salazar's entire statement, including Salazar's claim that Hutchison fired the gun that killed the brothers. The trial court ultimately determined that the proposed evidence was hearsay and could not come in under the "statements against penal interest" exception. Hutchison argues that the trial court should have overruled the state's hearsay objection to this evidence and admitted the disputed portions of Salazar's statement as statements against penal interest.
The exclusion of Salazar's confession was not error. Hearsay statements, or out-of-court statements used to prove the truth of the matter asserted, are generally inadmissible. State v. Sutherland , 939 S.W.2d 373, 376 (Mo. banc 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 186 (1997). Chambers v. Mississippi , 410 U.S. 284 (1973), found a constitutionally-based hearsay exception in the due process clause. This exception applies to out-of-court statements that both exonerate the accused and are "originally made and subsequently offered at trial under circumstances providing considerable assurance of their reliability." Id. at 300. The Supreme Court recognized three such circumstances of reliability: 1) each confession is "in a very real sense self-incriminatory and unquestionably against interest"; 2) each statement was "spontaneously made to a close acquaintance shortly after the murder occurred"; and 3) the statements are "corroborated by other evidence in the case". Id. at 300-1; State v. Blankenship , 830 S.W.2d 1, 7 (Mo. banc 1992). The hearsay statement here fails to meet either of the requirements for this hearsay exception. It neither exonerates Hutchison nor was made under circumstances that provide considerable assurance of its reliability.
First, Michael Salazar's confession to shooting the Yates brothers does not exonerate Hutchison. Although the statement certainly confirms that Salazar initially shot each of the victims and might have had a motive to make sure they died, the statement is not inconsistent with the possibility that Hutchison killed them. In fact, the entirety of the statement confirms Hutchison's role in the murders. A confession is not exonerating when it is consistent with a showing of guilt. State v. Turner , 623 S.W.2d 4, 9 (Mo. banc 1981), cert. denied, 456 U.S. 931 (1982).
Second, the statement was not made under circumstances that would establish its reliability. The confession was made to a police officer during interrogation several days after the murder, not "spontaneously . . . to a close acquaintance shortly after the murder occurred." See State v. Skillicorn , 944 S.W.2d 877, 885 (Mo. banc 1997). In addition, Salazar's confession was not "in a real sense self incriminatory and unquestionably against interest." While admitting that he first shot the Yates brothers, Salazar pointed to Hutchison as the person who killed them. As such, the statement was partially exonerating and in Salazar's interest.
Finally, even if the confession was admissible under the penal interest exception, the court's failure to admit it was not prejudicial. One of the state's own witnesses, Freddie Lopez, testified that Salazar told him that he shot the brothers in Lopez's garage. This evidence was uncontroverted. The statements Hutchison complains of are duplicative of those already in evidence. State v. Mahurin , 799 S.W.2d 840, 846 (Mo. banc 1990), cert. denied, 502 U.S. 825 (1991). Point denied.
IV. Testimony Describing Termination of Appellant's [26] Interrogation
Hutchison's second preserved point on appeal is that the trial court erred by permitting Bill Wegrzyn to testify that Hutchison stopped answering questions during interrogation and immediately thereafter shouted obscenities. Hutchinson claims that this testimony violated his state and federal constitutional right to not have his silence at interrogation be used against him at trial. See Doyle v. Ohio , 426 U.S. 610, 618 (1976). He also claims that the testimony regarding Hutchison's use of profanity was irrelevant and prejudicial.
The testimony Hutchison complains of is as follows:
Q: [By Prosecutor Selby] Now again, as an investigator on this case, did you interview Mr. Hutchison?
A: Yes, I did.
* * *
Q. Did, — And before talking to him, did you read him any sort of rights?
A. Yes. We went over the Miranda rights with him real carefully and real thoroughly.
Q. Did he indicate to you that he understood those rights?
A. Yes, he did.
Q. And after discussing those rights with him, did he indicate that he was willing to talk to you?
A. He said he wanted to talk to us. He said he wasn't going to sign anything, but he wanted to talk to us.
* * *
Q. Initially, what kind of information did you elicit from Mr. Hutchison?
A. His full name, his date of birth, his social security number, his address, a little bit of background information, and we told him what the interview was in reference to.
* * *
Q. Then you had mentioned that then you began asking some more questions about the actual events?
A. Yes, sir. I did.
Q. What did you ask him?
A. I asked him specifically what he did the evening hours of December 31st and the early morning hours of January 1st.
Q. And what was his response to that question or those questions?
A. He said that he and Michael Salazar had gone to a party at Freddie Lopez's house in Verona, and at that party, they met two girls from Branson. One was a Lisa and one was a Barbara and they left that party and they went to Springfield.
Q. And then did you ask him any further questions after he told you that?
A. At that point, I asked him some details in reference to who those people were, what type of vehicle they went to Springfield in, what time they left the party, and what time they arrived in Springfield, and where they stayed when they went to Springfield.
Q. You might speak up a little bit. And what was Mr. Hutchison's response to — to those questions?
A. He didn't answer any of those questions. It was at this point that he was curious and started asking me about the details in reference to the homicide in particular.
Q. What was the defendant's — what was your response to the defendant's questions?
A. He wanted to know how they had been shot and I explained to him that it was a very brutal execution style killing and that the guys, the brothers, had been — had been shot in the head, in the eyes specifically, and Mr. Hutchison's attitude changed. He shouted some obscenities and we ended the conversation.
The testimony of Investigator Wegrzyn did not violate Hutchison's right to not have his silence used against him. Hutchison had waived his right to silence when he began answering Wegrzyn's questions. State v. Schnick , 819 S.W.2d 330, 336 (Mo. banc 1991). The record does not show that Hutchison reinvoked this right at the end of the interview. Instead, Hutchison simply started shouting "obscenities and we ended the conversation." A defendant who voluntarily speaks after receiving Miranda warnings may be impeached not only with his own statements but also with his "selective silence." State v. Antwine , 743 S.W.2d 51, 70 (Mo. banc 1987). See, Antwine v. Delo , 54 F.3d 1357 (8th Cir. 1995).
Hutchison also claims that the testimony that he shouted obscenities at Wegrzyn after Wegrzyn told Hutchison how the Yates brothers were killed is irrelevant and prejudicial and should have been excluded. Trial courts retain broad discretion over issues of relevancy and admissibility of evidence, and we will not interfere with those decisions unless there is a clear showing of abuse of discretion. State v. Tokar , 918 S.W.2d 753, 770 (Mo. banc 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 307 (1996). Evidence is relevant if it "logically tends to prove or disprove a fact in issue." Id. It is not unreasonable to interpret a sudden change in a defendant's demeanor during a custodial interrogation