Hook v. State

611 S.W.3d 842

Robert L. HOOK, Respondent,

v.STATE of Missouri, Appellant.

WD 82639

Missouri Court of Appeals, Western District.

Opinion filed: September 15, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied October 27, 2020

Application for Transfer Denied December 22, 2020

Tyler P. Coyle, for Respondent.

Gregory L. Barnes, Jefferson City, for Appellant.

Division Three: Anthony Rex Gabbert, Presiding Judge, Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge

W. DOUGLAS THOMSON, JUDGE

The State of Missouri ("State") appeals from the motion court's judgment sustaining Robert L. Hook's ("Hook") Rule 29.15¹ motion for post-conviction relief following his convictions for first-degree child molestation, first-degree statutory sodomy, first-degree statutory rape, and incest. On appeal, the State claims the motion court clearly erred in granting relief on Hook's claims that trial counsel was ineffective for failing to: (1) object to the admission of testimony from several witnesses concerning R. H.’s ("Victim") out-of-court statements because Victim failed to sufficiently testify pursuant to section 491² thereby rendering Victim unavailable and the out-of-court statements inadmissible; (2) investigate and present an expert witness to impeach the forensic interviewer's techniques used with Victim; (3) investigate and present certified copies of medical records from the first examination of Victim after disclosure of abuse which reported no physical injury; (4) object to the admission of the State's DNA report; and (5) object to a handwritten statement written by Victim during direct examination. We reverse.

Factual and Procedural History³

In July 2013, Victim was five years old and resided with her mother and father, Hook. Mother was incarcerated from July 8 through July 15, 2013. On July 11, 2013, Victim was staying with maternal grandmother, Mary Gibson ("Grandmother"). While in the shower, Victim asked Grandmother why she doesn't take a shower with her like Hook does. Grandmother did not respond and Victim did not say anything further about it that evening. The following morning, on July 12, 2013, Grandmother tried to talk to Victim about showering with Hook but Victim did not want to talk about it, said nothing happened, and went off to play. A couple hours later, Victim came to Grandmother and told her that she was ready to talk. Victim then told Grandmother, "daddy put his pee-pee in my pee-pee, and my butt, too." Victim told Grandmother that she was sure about what happened and that she was not lying. Later that same day, Grandmother took Victim to Boone Convenient Care ("BCC") in Moberly where Victim was examined by Dr. Andrea Eden ("Dr. Eden"). Grandmother was present for the exam and Victim repeated her allegations to the doctor. Dr. Eden reported a possible sexual abuse to Child Protective Services ("CPS"). Afterwards, Victim and Grandmother returned to Grandmother's house. Later that day, Hook unexpectedly came to Grandmother's house and told Grandmother that the police wanted to talk to him. Victim then told Hook that she was sorry, that she told about "your pee-pee and my pee-pee," and gestured to his genital area and then to her own. The record is devoid of Hook's reaction to this statement by Victim.

Later that evening, Victim was placed in foster care with foster parents ("Foster Mother" and "Foster Father," respectively). The next morning, on July 13, 2013, Victim told Foster Mother and Foster Father that Victim was living with them because, while pointing to her vaginal area "her daddy down there (indicating) with his pee-pee." A few days later, Victim repeated this disclosure to Foster Mother and added "in her butt." Victim stated that Hook had told her not to tell but that she told Grandmother and Foster Mother.

Forensic interviewer at the Child Advocacy Center Ashton Eibel ("Eibel") interviewed Victim on two occasions and both were recorded by video. Videos of both interviews were played for the jury. Eibel testified that she was trained not to lead children to answer in a particular way by asking open-ended questions and inviting narrative responses so children can tell what happened in their own language. In the video of the first interview on July 15, 2013, Victim stated that her mother was in jail and she wants her back because "[Hook] is so crazy that he does this (pointing to her genital area) in there my pee-pee ... it's crazy." Victim stated her "pee-pee" has an "owie." Victim stated her "pee-pee" hurts because it has a "boo-boo" from jumping and falling on her "pee-pee" and "it went blood red." Victim stated that Hook put "his pee-pee ... in [her] pee-pee" and her butt when she had an "owie" and was bleeding and she said, "no, no, no." She stated that he put his "pee-pee" in her "pee-pee" more than one time. Victim stated this happened at home while her mother was in jail. She stated she was on the couch where she was watching movies with people putting "pee-pee in your mouth" and "putting pee-pee in adult pee-pee." She stated that when Hook put his "pee-pee" in her "pee-pee" it felt bad and hurt. She stated that she told Grandmother what Hook did, she stated, "I told on daddy" and Grandmother was upset. She stated that Hook put his "pee-pee" in her butt one time at home when she was five.

Eibel interviewed Victim again on February 24, 2014, after being notified either by Children's Division or law enforcement that Victim had made an additional disclosure. Eibel stated that additional disclosures are common with child sexual assault victims. In that interview, Victim made the additional allegation that Hook made her "suck his pee-pee." In the video Victim came in and without prompting drew a picture of Hook and herself and said "he did both of the things," "he did two times," his "pee-pee" in her "pee-pee and butt." She explained that the picture is of herself walking away from Hook and telling him to leave her alone but that he didn't leave her alone; that he "did it" two times which she clarified to mean "put his pee-pee in my pee-pee and butt" and "he's in jail for that." She stated that she is telling the truth. She stated that she asked Hook to watch cartoons with her but he put on an adult show which was not good. She stated it was about a girl who put the boy's "pee-pee" in her mouth and sucked it. Victim stated that Hook did that to her; that he asked her to and she said she didn't want to; and that he made her do it to him. She stated that he made her "suck his pee" and she thought pee was going in her mouth. She thinks she got sick from that—a hard cough. She said it was horrible and nasty. She said afterwards they put their clothes on and came out of the bedroom to get a drink. And then Hook got some things "that go in the pee" that looked like soap which he put on her "pee-pee" and his "pee-pee." Victim stated that they stopped because someone knocked on the door so they put on their clothes. She says she told her mother. She repeated that Hook put his "pee-pee" in her "pee-pee" and butt.

Based on statements Victim gave during the July 15, 2013 forensic interview, Detective Tracey Whearty ("Det. Whearty") applied for a search warrant looking for pornographic material and bodily fluids around the couch and in the living room of Hook's residence. The search warrant was executed on July 26, 2013. A videotape was found in the VCR in the living room which was hooked to the TV. When played, the videotape depicted "footage of a female performing oral sex on a male. And then the footage showed close up, zoomed in on the female performing oral sex on the male. And then it showed the male inserting his penis in the female's vagina." Two sections of the couch cushion that appeared to have stains were cut and secured in evidence and sent to a lab for DNA testing to compare with DNA samples previously taken from Victim and Hook.

Stacey Bolinger ("Bolinger"), the supervisor of the DNA case work section of the Missouri State Highway Patrol crime laboratory testified that the DNA test performed on a stain from Hook's couch was done by criminalist Melina Jimenez ("Jimenez"), an employee that Bolinger supervised. Jimenez is no longer employed by the Missouri State Highway Patrol. Bolinger testified that results of the DNA testing of the stain were consistent with Hook's DNA profile. The DNA lab report was admitted as State's exhibit 43. Bolinger stated that the stain had a non-sperm fraction and a sperm fraction. Bolinger testified that the DNA profile of non-sperm fraction is consistent with being a mixture of two people and displayed female gender attributes but both Victim and Hook were eliminated as a source of the major contributing profile of that fraction. The source of the major contributor of the non-sperm fraction was undetermined.

Staci Walters ("Walters") testified that she performed a SAFE (Sexual Assault Forensic Exam) exam of Victim on July 15, 2013, in the emergency room. Walters testified that when she asked Victim why she was there Victim replied, "that she had a hurt pee-pee, and she had a red owie ... she pointed to her rectum with her finger and said, this is where I hurt." She stated during her attempt at a vaginal exam Victim said that it hurt and it was tender to the touch so Walters was not able to view the hymen as well as she wanted. With regard to Victim's rectal area, Walters found Victim to have poor rectal tone, redness in the anal folds, and an area that was linear whitish silver which might have indicated previous scarring. Walters testified that these injuries could have come from injury, hygiene or sexual abuse. Walters stated that in child sexual assault cases it is common not to have injuries. She testified that her findings were inconclusive for abuse.

Dr. Holly Monroe ("Dr. Monroe") performed a SAFE exam on Victim on September 12, 2013, a recheck requested two months prior by Walters. This exam rendered normal results. Dr. Monroe testified ...