P. v. Hayes 5/9/05 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171374

Case Date: 08/17/2005

Preview:Filed 5/9/05 P. v. Hayes CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. HENRY C. HAYES, Defendant and Appellant.

B171374 (Los Angeles County Super. Ct. No. BA 197149)

B171536 In re HENRY C. HAYES, on Habeas Corpus.

APPEAL from a judgment of the Superior Court of Los Angeles County. Lance A. Ito, Judge. Affirmed with modifications; petition denied. Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

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Henry C. Hayes is appealing his conviction for two counts of murder and a multiplemurder special circumstance. He contends that (1) there was prosecutorial misconduct in closing argument; (2) evidence of his financial condition was erroneously admitted; (3) review is necessary of the in camera Pitchess proceedings (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)); (4) there was insufficient evidence to support his conviction; (5) the trial court improperly modified a CALJIC instruction regarding the credibility of a child witness; (6) the cumulative effect of the individual errors resulted in prejudice; and (7) imposition of firearms use enhancements and a parole revocation fine were improper, when he was sentenced to life imprisonment without the possibility of parole. The above issues were raised in the opening brief which was filed by appellant's counsel. Prior to the filing of that brief, appellant filed a petition for writ of habeas corpus, No. B171536, in propria persona. We ordered that the petition be considered along with the direct appeal. The People filed an informal response to it, and appellant filed a reply in propria persona. We strike the firearms use enhancements and parole revocation fine, affirm the conviction, and deny the petition for writ of habeas corpus. PROCEDURAL HISTORY Appellant was charged with the murders of his wife and daughter (counts 1 and 2). Both counts included a multiple-murder special circumstance. Count 3 alleged assault on a child, causing death. All of the counts included an allegation that he caused death by personally discharging a firearm. At the guilt phase, the jury found appellant guilty as charged. A mistrial was declared at the penalty phase after the jury deadlocked. The prosecution did not proceed further with the penalty phase. Appellant was sentenced to two terms of life imprisonment without the possibility of parole, plus 50 years to life in prison. The court also imposed a $10,000 restitution fine and stayed a $10,000 parole revocation fine. This appeal followed.

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FACTS 1. Prosecution Testimony A. Appellant's Motives The prosecution presented strong evidence that appellant murdered his wife Vangela Hayes and seven-year-old daughter Teanna Hayes during the early morning hours of Friday, August 27, 1999, for a combination of motives: love affairs with other women, avoidance of a disclosure of infidelity which would spoil his chance to be pastor of a larger congregation, and financial difficulties that would be resolved by life insurance benefits. i. Extramarital Affairs When Vangela was killed in 1999, she and appellant had been married for eight or nine years. In 1990, appellant began paying a prostitute named Cassandra for sex. Around the second year of their relationship, he told her that he was married. After a couple of years, they continued to have sex, but he no longer paid her. At one point they broke off their relationship for about two years. They resumed it in 1997. After that, she considered herself to be appellant's girlfriend. She attended numerous events where he preached, but they kept their relationship a secret. He told her he was planning to divorce Vangela so that he could marry her. She became pregnant with his child in March or April 1999. He told her that it was her decision whether or not to have the baby. Francesca was another prostitute with whom appellant paid for sex, beginning in 1996. Before that relationship had gone on very long, Francesca went to jail. Appellant visited her there. He told her he was a salesman, and never told her that he was a minister. Lea met appellant when he was one of the ministers of Progress Baptist Church. When appellant started the Family of Christ Church, she became the church secretary there. Appellant made a "flirtatious" advance to her at a church retreat. She told Vangela about the incident, and left appellant's church soon afterwards. Talika was a schoolteacher in an adjacent county who appellant met in an Internet chat room. They exchanged numerous e-mails between July 1, 1999, and August 23, 1999. Appellant told Talika that he was an African-American college professor named "Henry 3

Mitchell" whose wife "Tamara" had died in a car crash.1 They met and had sex on the weekend of July 23-July 24 1999. In his subsequent e-mails, appellant told Talika that he wanted to marry her and act as the father to her young daughter. He never mentioned that he himself had a child. Appellant visited Talika five times, including the weekend of August 14 to August 16, 1999. She was in love with him. On August 16th, Vangela spoke with Talika on the telephone, after she found Talika's number on some telephone records. Talika told Vangela that she was having a sexual relationship with a man she knew as Henry Mitchell. After that conversation, Talika told appellant she had spoken with a woman named "Angela" who said she was currently married to him and lived with him and their child. Appellant told Talika that he had been married to Angela before he married Tamara, and she had never recovered from his marriage to Tamara. He later told Talika that he had talked to Angela, the conversation "went well for him," and Angela "wouldn't call again." In the days and months before her death, Vangela was on an emotional "roller coaster," and sometimes appeared disheveled and stressed. ii. Ambition Vangela's father, brother and sister belonged to the New Pilgrim Baptist Church. Sometime in the mid-1990's, appellant was the associate minister there. When the minister died, he applied for that position. He was disappointed when he was not selected, and left to found a new church, Family Community Church. Reverend Franklin Williams was the long-time pastor of a large church called New Mt. Olive Church. In 1998 or 1999, he was assigned to mentor appellant in setting up the new church. Appellant told Williams that he wanted to have a successful ministry with a sizeable congregation. He referred to himself as "Bishop Hayes," although Williams

The prosecutor later argued to the jury that appellant's talk about having a dead wife showed that he already was thinking about killing Vangela. The prosecutor also argued that appellant felt more strongly about Talika than he did about his other women, because Talika was an educated person. 4

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thought that appellant was not qualified for that title. Appellant did not complete his apprenticeship with Williams. In the summer of 1999, appellant's church, Family Community Church, had about 10 members. He was on the "short list" of ministers under consideration for the pastorship of St. Mark's Baptist Church, a medium-sized church whose pastor would earn $35,000 per year. Adultery would be grounds for immediate disqualification from the St. Mark's position. On July 4, 1999, appellant spoke to Vangela's brother Cornelius at a family gathering. He said his application at St. Mark's was "on hold" while the church investigated false rumors that he had an extramarital relationship. About a week before the murders, Vangela told a friend, Jacqueline Stewart, that her presence was required at an upcoming interview between appellant and the overseers of St. Mark's Church. Appellant had asked Vangela to lie about his infidelity. Vangela told Stewart that if she was asked, she planned to tell the truth. She also said she had known about appellant's other infidelities but was "overwhelmed with the last one because it had to do with a child." During the week of August 23, 1999, Vangela made unsuccessful efforts to contact her spiritual advisor, Reverend Larry Lloyd. iii. Financial Motivations In August 1999, appellant lived with Vangela and Teanna at 631 1/2 West Gage Street in Los Angeles. In addition to working as a minister, he was employed as a security guard at a Rite-Aid drug store. Vangela was a nurse at Centinela Hospital. She had a $160,000 life insurance policy through her job. If she died, Teanna would receive 60 percent of the proceeds and appellant 40 percent. If both Vangela and Teanna died, appellant would receive all of the proceeds. Sometime before the murders, appellant told Vangela's sister Gwendolyn that he and Vangela had $500,000 in life insurance. Back in 1989 or 1990, he had told Vangela's brother Cornelius that he and Vangela already had life insurance, even though at that time they were not yet married. 5

On June 1, 1999, appellant pawned a camera and Vangela pawned a ring. Gwendolyn, Vangela's sister, worked as a collection supervisor at a credit union. In August 1999, appellant's checking account there had been overdrawn over $400 for two months. Appellant had not been responding to Gwendolyn's efforts to reach him. Appellant and Vangela were two or three weeks behind with the August rent on their residence at the time of the murders. B. The Murders The home that appellant and Vangela rented was one of three houses on the same lot. Their house, 631 1/2 West Gage Street, was the closest to the street. Directly behind it was a house, 631 West Gage Street, which was occupied by an elderly woman with impaired hearing. Behind that house was the third house, 629 West Gage Street, which was the home of Larhunda Moore and her children. Another neighbor, Gary Beard, lived directly across the street from appellant's home. Around 5:00 p.m. on Thursday, August 26, 1999, appellant picked up Teanna from school. Moore spoke with Vangela between 9:00 and 10:00 p.m. that evening. Moore told Vangela that she planned to take her daughter to an emergency room at midnight, when it would not be crowded. Vangela moved her car out of the driveway briefly so that Moore could park her car on the street. Beard arrived home around 10:30 p.m. that night. He happened to notice that appellant's car was parked across the street, in front of his house. When Moore and her daughter left for the hospital around midnight, Vangela's car was parked in the driveway. Moore's 10-year-old son, Israel, remained at home. He awakened at some point, went into the living room, and watched television. To get some air, he opened the wooden front door, leaving the metal security door closed. From appellant's house at the front of the lot, Israel heard a "[t]errifying high-pitched scream" "[l]ike a horror movie scream." Israel thought the scream came from a woman. Ten minutes later, he heard "a car screeching off." He kept watching television until Moore and her daughter returned from the hospital around 6

4:30 a.m. When Moore drove up, she saw a light at the back of appellant's house, which seemed unusual. At 6:15 a.m. on August 27, 1999, Beard, the neighbor across the street, happened to look out his front window. Appellant's car was already gone, which was unusual. Vangela's car was still in the driveway. At 7:30 a.m., a different neighbor noticed as she watered her lawn that Vangela's car was still in the driveway. Vangela usually left for work before that time. When Vangela did not call or show up for work at the hospital, her coworkers became concerned, as she always telephoned if she was going to be absent or late. She did not answer their telephone calls, and Teanna had not shown up at school that morning. A coworker named Deborah Brown drove from the hospital to Vangela's house to check on her. Brown arrived at the house around 10:30 a.m. There was no response to her knocks on the front door and windows. She went behind the house and spoke with Moore. She then went back to Vangela's house and knocked on the metal security door which was on the side of the house. The metal security door came ajar. The wooden door inside of it was off of its hinges. She entered the house and walked through it to the bedroom. The room was very dark. The television set was on. Vangela was lying in the center of the bed, with her left arm extended. The pillow was under her head, and the blanket was up to her shoulder. Brown called Vangela's name, touched her shoulder, and shook her. There was no response, and her body was very cold. Brown left quickly and dialed 911 on her cell phone. The paramedics arrived. They discovered that Vangela had been shot. Then they found Teanna's body under a sleeping bag on a makeshift bed in the living room. According to the autopsy, Vangela died from a single, close-range shotgun wound to the back of her neck. Teanna was killed by a single shotgun wound to her left chest area. That shot was also fired from close proximity. It could not be determined which shot was fired first. The coroner determined the general time of death was between 6:00 p.m. on August 26 and 9:00 a.m. on August 27. 7

The police arrived, began their investigation, and talked to the neighbors. Israel told them about the scream and the car he had heard during the night. The coroner's investigator removed from Vangela's body her earrings, a chain, and two rings. However, she was not wearing the gold and diamond wedding ring which she habitually wore. At the open viewing at the funeral, appellant's sister Angela noticed that Vangela's ring was missing and the socket on her ring finger was in an odd position. She asked appellant about the ring. He suggested that the mortuary might have given it to Vangela's mother. C. Appellant's Conduct After the Murders On the day the bodies were discovered, Friday, August 27, appellant worked as a security guard from 7:57 a.m. to 3:30 p.m. Around 11:00 a.m. that morning, he telephoned his sister-in-law Gwendolyn, whose calls he had been avoiding. He said he had talked to Vangela and would start making weekly payments on the overdrawn checking account. There is no evidence that appellant tried to pick up Teanna from school when he finished work. He arrived home at 4:20 p.m. to find numerous police personnel and vehicles at the scene. The evidence then showed around 9:00 p.m. that night, appellant asked Vangela's brother Cornelius for a ride from the hospital. Cornelius refused. Appellant told Cornelius that he had last seen Vangela and Teanna before he left for work at 7:30 that morning. Appellant's sister Terri picked up him up from the hospital around 11:00 that night. He was wearing his security guard uniform and jacket. Terri drove him to his church because he said he needed to pick up a change of clothing there. He told Terri that the police had taken his keys, but he could obtain keys from Reverend Freeman, who lived next door to the church. Reverend Freeman answered the door around 1:00 a.m. He gave appellant the key to the church's door, but did not have a key to appellant's office inside the church. Appellant went into the church alone. When he came out again, he had a large gym bag on a strap

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over his shoulder.2 He told Freeman that he had broken into his office. He joined hands with the people who were present to make a prayer circle. The bag fell from his shoulder with a loud thump or bang, as if "somebody dropped the Yellow Pages." He quickly picked it up and put it back on his shoulder. Terri drove appellant to her apartment. He slept there on the living room floor, using the gym bag as a pillow. The next morning, he still wore the same clothes as the night before. He insisted that he had to go to a Laundromat to wash his clothes, even though there was a laundry room in the building. He told Terri that if he did not return in 30 minutes, she should go look for him. He then left the apartment with the gym bag. When appellant did not return, Terri drove off to look for him. She found him walking on the street. He told her some children on bicycles had stolen the gym bag while he was using the telephone booth at the Laundromat. Terri and appellant drove around briefly looking for the children. Terri told him she did not believe anybody stole the bag. He slouched down in the car seat. Appellant stayed at Terri's house for three days. He told her that on the morning of August 27, he left for work between 5:45 and 6:00 a.m., and Vangela was awake at that time. At a later point in time, after he was taken into custody, he tried to convince her that he was innocent. She told him that if he continued talking that way, she would stop visiting him. He answered, "Okay." While appellant stayed with her, Terri heard him say into the telephone, "You need to keep your mouth closed and tell your big ass sister to keep her mouth closed because it is only going to make me look guilty." On Monday, August 30, 1999, appellant telephoned the hospital's director of Human Resources regarding Vangela's death benefits. It was explained that in order for him to Terri testified that the bag was 18 inches wide and seven inches tall. Reverend Freeman described the bag's size as "two to two and a half feet." At the trial, a ballistics expert testified that many shotguns are designed so that the barrel can be removed. Once that is done, the overall length of the weapon is decreased to a size which would allow the pieces to fit into a bag. 9
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recover on the insurance policy, the director had to sign a claim form and submit it to the insurance company. After speaking with the police, she did not proceed with the claim process. On the night of the funerals for Vangela and Teanna, appellant resumed his relationship with his girlfriend Cassandra. Within two weeks, he moved in with her. He lived with Cassandra from mid-September 1999 until his arrest in January 2000. After the funeral, appellant made unsuccessful attempts to get copies of the death certificates from Vangela's parents. Appellant's girlfriend Talika found out about the shootings when she saw a family portrait of appellant, Vangela and Teanna on the television news. Appellant later told her that he spent the morning of the murders at the library, working on his doctoral dissertation. He tried to resume their affair. She declined. He told her that if the police contacted her, she should say they had "just a friendship." When appellant was arrested on January 11, 2000, he had a pawn slip which showed that he pawned Vangela's wedding ring on September 15, 1999. The ring was found at the pawn shop. 2. Defense Testimony Stella Black met appellant in 1996, when they were both students at Reverend Lloyd's seminary school. A few days before the murders, Black and Vangela were at a Monday night Bible study class. Vangela appeared happy. In a taped statement for a class assignment on improving spousal relationships, Vangela said: "My husband loves a challenge and I am very, very predictable, so that was one of the things the Holy Spirit dealt with me on [sic] stop being so predictable in my actions." Black was with appellant at the hospital before his sister Terri picked him up. He was trembling and pale, and cried on Black's shoulder while she prayed. When the police interviewed Israel on the day the bodies were found, he said he heard two screams at approximately 12:30 a.m. He did not mention hearing a car or that the screams came from a woman.

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Appellant and Vangela lived in the portion of Los Angeles which was covered by the 77th Division of the Los Angeles Police Department. That area traditionally led the city in violent crime. There were a large number of homicides, burglaries and robberies there in 1999. After the bodies were found, Officer Jeff Nolte went to several locations in an effort to locate appellant, who was identified as the next of kin. Around 4:00 p.m., he went to the Rite Aid store. Appellant was not there at that time, but the officer ascertained that he worked there, and wrote down his pager number. DISCUSSION 1. Prosecutorial Misconduct in Closing Argument A. The Prosecutor's Words Appellant's misconduct issue concerns the following dramatic language at the start of the argument: "Webster's says, `evil; wicked, to cause or threaten distress or harm. Evil; the source of suffering and wrongdoing.' `Change; to make different, to exchange for something else.' "Where evil meets change is where two innocents were slaughtered. The evil within. "Evil fueled Henry Hayes and his obsessive desire for change. Change from small time minister to big time bishop. Change from educational never was to lettered Ph.D. candidate. Change from a family he had outgrown to be another more befitting his outsized ego and arrogance. "The evil within Henry Hayes grew and grew from adultery to machinations, from cheating to deceit, from false prophecy to murder. You see, when you plant a seed of evil, a bed of weeds grows that chokes the life from all those around him. "Unfortunately for Teanna and Vangela, they had to live with this evil within whose branches reached out and took the lives, took their lives in tribute to its master's whim. "We now stand in awe of the evil that was wrought by this defendant. It pains me to have to spend even one minute breathing this man's name and by -"MS. POLEN [defense counsel]: Objection, Your Honor. "May we approach? 11

"MR. GRACE [the prosecutor]: By the time I finish this presentation, I will be disgusted. "MS. POLEN: May we approach? "Objection. "THE COURT: Counsel approach." Ms. Polen complained at bench that the argument was a totally improper appeal to passion and prejudice. She asked that Mr. Grace be cited for misconduct and that the jury be admonished. The judge pointed out that there was an evil component to malice aforethought. He did not think the argument was improper, but asked Mr. Grace to "tone it down." He did so immediately. Later in the argument, Mr. Grace made a reference to his opening words. He said that when he said he was so disgusted that he did not want to hear appellant's name, he was thinking about the evidence. The particular item of evidence he discussed at that point was an e-mail in which appellant told Talika that he would be "honored" to be the "Daddy" of her daughter. B. Analysis A prosecutor's statements to the jury constitute federal constitutional error if the trial was so infected with unfairness that a denial of due process occurred. Behavior that did not result in a fundamentally unfair trial can still constitute misconduct under state law if it involved the use of deceptive or reprehensible methods of persuasion. (People v. Cunningham (2001) 25 Cal.4th 926, 1000-1001.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) In essence, Mr. Grace referred to appellant as somebody who was so evil that he did not want to breathe his name. Our Supreme Court has permitted similar language in other cases. For example, People v. Pensinger (1991) 52 Cal.3d 1210, 1251, found that the prosecutor had not "exceeded the bounds of proper argument" by arguing that the defendant 12

was a "`perverted maniac,'" where the evidence showed that he beat, mutilated and killed a baby girl. As Pensinger observed: "A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury." (Ibid.) Citing People v. Pensinger, People v. Sanders (1995) 11 Cal.4th 475, 527, found no misconduct where the defendant robbed and killed employees of a Bob's Big Boy restaurant, and the prosecutor referred to him as "`the monster that is sitting before us.'" Also, assuming that the prosecutor's argument went too far, no prejudice was shown. (Ibid.) Similarly, in People v. McDermott (2002) 28 Cal.4th 946, 1002, the evidence showed that the defendant planned a particularly brutal stabbing murder. The prosecutor told the jury that she was not sure she should categorize the defendant as a human being, because nobody with a heart and soul could have behaved that way. The Supreme Court declared: "[W]e do not condone the use of opprobrious terms in argument, but such epithets are not necessarily misconduct when they are reasonably warranted by the evidence. [Citations.] Here, the prosecutor's remarks, which the trial court understood as referring to conduct by defendant that was inhumane, did not exceed the permissible scope of closing argument in view of the evidence presented . . . ." The evidence in this case established that appellant cold-bloodedly murdered his wife and child so that he could pursue extramarital affairs and obtain life insurance benefits. He stole his wife's wedding ring from her finger after he killed her. He wove an astonishing web of lies to further his nefarious purposes. To refer to him as evil or disgusting was basically to articulate facts which were obvious or readily inferable from the evidence. Appellant further complains that the prosecutor's comments were improper because they improperly injected his personal opinion of appellant into the argument. Indeed, the prosecutor's personal opinion was present in statements like "[i]t pains me" to have to say appellant's name, and "[b]y the time I finish this presentation, I will be disgusted." Still, the statements do not approach the level of People v. Kirkes (1952) 39 Cal.2d 719, 722, in

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which the prosecutor told the jurors that he had been prosecuting cases for 19 years, and would not have prosecuted the defendant unless he believed him to be guilty. The references to evil and the prosecutor's personal disgust occurred only at the beginning of a lengthy argument which was otherwise appropriate. The prosecutor changed his tone in response to the judge's request. The jurors were instructed that the statements of counsel are not evidence. The evidence against appellant, was strong. (See part 4, post.) Assuming that there was misconduct in the prosecutor's opening words, there is no reasonable likelihood that the jurors were misled by this isolated problem at the beginning of the argument. (People v. Cash (2002) 28 Cal.4th 703, 733.) Appellant's briefing stresses the fact the jury deliberated over 22 hours, over a span of five days. Given the seriousness of the charges, the length of the trial, and the amount of evidence the jury had to consider, we do not consider the length of the deliberations to be a sign that this was a close case. 2. Evidence of Appellant's Financial Condition Appellant contends that evidence that he had pawned items and was behind on the bills and rent was irrelevant or should have been excluded under Evidence Code section 352. The argument lacks merit. Wide latitude is permitted in admitting evidence of motive, as it tends to show an incentive for criminal behavior. (People v. Beyea (1974) 38 Cal.App.3d 176, 195.) While poverty alone is not a ground for suspicion, evidence of indebtedness is admissible to show a motive for murder. (People v. Edelbacher (1989) 47 Cal.3d 983, 1024; People v. Catlin (2001) 26 Cal.4th 81, 127.) There was nothing unduly inflammatory about the evidence of appellant's financial problems, and no abuse of discretion in admitting it. 3. The Pitchess Rulings At appellant's request, we have reviewed all of the sealed transcripts of the in camera proceedings which were held pursuant to his motion to discover police officer personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229; Brady v. Maryland (1963) 373 U.S. 83, 86-87.) The trial court conducted an extremely diligent check of the officers'

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personnel files before concluding that they contained no discoverable evidence. There was no error. 4. Sufficiency of the Evidence Appellant contends that there was insufficient evidence to prove that he was the killer, because he was not connected to the shotgun which killed Vangela and Teanna. We stated the applicable test in People v. Sales (2004) 116 Cal.App.4th 741, 746: "`In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . .' (People v. Kraft (2000) 23 Cal.4th 978, 1053, citations omitted; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal,

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