Hightower v. State

• Citation: 901 P.2d 397
• Decision Date: 21 August 1995
• Docket Number: No. 94-151,94-151
• Parties: David HIGHTOWER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 397

901 P.2d 397

David HIGHTOWER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 94-151.

Supreme Court of Wyoming.

Aug. 21, 1995.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, and Deborah Cornia, Appellate Counsel; and Maynard D. Grant of Grant & Newcomb, for appellant.

Joseph B. Meyer, Attorney General; Sylvia Lee Hackl, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Mary Beth Wolff, Senior Assistant Attorney General, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

The major question to be resolved in this appeal is whether error occurred in permitting the Information to be amended prior to the preliminary examination. David Hightower (Hightower) appeals from his conviction for first degree murder and felony murder. He also contends the evidence is not sufficient to sustain his conviction of first degree murder on the theory of premeditated murder or the theory of felony murder, and the trial court erred in refusing to give requested instructions as to lesser included offenses of felony murder. Hightower's claims of error with respect to the sufficiency of the evidence to sustain the verdict of felony murder and the refusal to instruct on lesser included offenses of felony murder are resolved by our decision in Jansen v. State, 892 P.2d 1131 (Wyo.1995). We hold there was no error attributable to the amendment of the Information, and there was sufficient evidence to sustain the verdict of premeditated murder. Hightower's Judgment and Sentence is affirmed.

In the Brief of Appellant, Hightower states the following issues:

I. Whether the conviction for premeditated first degree murder was supported by sufficient evidence.

II. Whether the conviction for felony murder was supported by sufficient evidence.

III. Whether the trial court erred in refusing to instruct the jury on lesser included offenses to felony murder.

IV. Whether the trial court erred in allowing the State to amend the Information.

In its Brief of Appellee, the State of Wyoming sets forth only two issues:

I. Whether sufficient evidence existed to support Appellant's conviction for premeditated first degree murder and for felony murder?

II. Whether the trial court erred by declining to instruct the jury on the lesser offenses of aggravated robbery, robbery and larceny?

During March of 1992, Hightower became acquainted with Curtiss Jansen (Jansen) and Mark Thompson (Thompson) at the Blake Street Mission and the St. Francis Shelter in Denver, Colorado. About the middle of March, the three came to Casper, allegedly on their way to Seattle, Washington to obtain work on a fishing boat. Hightower and Thompson obtained food stamps in Casper, which they sold for cash (the going value was fifty percent of the face value of the food stamps), and they used the money to purchase liquor.

While he was detained in jail in Casper for public intoxication, Hightower became acquainted with the victim. Hightower and the victim were released from custody with the proviso they leave town within a specified time frame. The victim became acquainted with Thompson and Jansen when he went to their motel room in Casper to advise them Hightower was in jail. On the fatal day, March 26, 1992, these four spent most of the day drinking, eating, and sharing drugs at a point on the bank of the North Platte River known as Hobo Jungle. They not only drank extensively, but Thompson testified each of them injected vodka intravenously during the day. The victim, who was under treatment for psychotic illness, shared his prescription drugs with the others.

Jansen and Hightower left for a short time to check on Jansen's food stamps. While they were gone, the victim told Thompson that Hightower had told the victim to beat Thompson. At about this time, Hightower and Jansen returned, and the events leading to the victim's death commenced. When Hightower heard about the threats made by the victim to Thompson, Hightower kicked the victim in the face so hard he knocked him to the ground. Hightower then encouraged Thompson to kick the victim but, at the same time, he was encouraging the victim to kick Thompson. The victim was kicked several times in the head by both Hightower and Thompson. The assault was stopped when the victim apologized to Hightower and Thompson and asked them to stop kicking him. When the victim apologized to Hightower a second time, Hightower became enraged. Hightower and Thompson resumed kicking and stomping on the victim's head until he was unconscious.

After eight to ten kicks, Thompson stopped Hightower. Thompson then took the cigarette he was smoking and put it in the victim's pant pocket to give him a "hot seat." Thompson testified the victim became semiconscious after the hot seat was administered, and Hightower then ordered the victim to give him his Arizona State University jacket or Hightower would beat him some more. The victim removed the jacket and handed it to Hightower who, in turn, handed it to Jansen. Jansen then took the victim's backpack, emptied it of its contents, and put his own belongings in it. While Jansen was doing that, Hightower went through the victim's wallet.

The victim again lapsed into unconsciousness. Thompson testified Hightower, at that point, stuffed some of the papers removed from the backpack up the victim's pant leg, and one of them lit the papers on fire. Thompson and Jansen then dragged the victim by his legs over the rocks so they could throw him in the river. This doused the fire and revived the victim. As the victim was wading back to shore, Hightower threw a large rock, hitting the victim in the head. Thompson and Jansen then joined in throwing rocks at the victim while he still was trying to reach the shore.

Ultimately, the victim did reach the shore, and Hightower then hit him squarely in the back with a rock declaring, "we are going to kill you * * *." Thompson then placed a fifty-four and one-half pound solid steel, partial railroad car wheel around the victim's neck as he lay partially submerged with his head out of the water. The three then covered the victim with forty to fifty rocks which were estimated to weigh 400 pounds. They went back to their camp and continued to drink for about fifteen minutes. When they left, they could hear the "gargling" sound of the victim's breathing.

The following day, an employee of the Wyoming Game and Fish Department discovered the victim's body and notified authorities. Investigation determined the victim's identity, and that information then led the authorities to Jansen and Thompson. Hightower had left Casper, and he was arrested in Seattle, Washington on April 1, 1992.

Hightower initially was charged with first degree felony murder and with second degree murder. When he was presented to the county court at his initial appearance, on April 5, 1992, the district attorney amended the Information so that Hightower was charged with premeditated first degree murder and first degree felony murder. After a trial, he was convicted by the jury which found him guilty of first degree murder under both theories by separate verdicts. Hightower was sentenced to life imprisonment in the state penitentiary, and his appeal is from that Judgment and Sentence.

Because it is a foundational matter, we first address Hightower's complaint of error with respect to amendment of the Information. At the time Hightower was charged, WYO.R.CRIM.P. 3(d) provided:

Amendment of information or citation.--The court may permit an information or citation to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

The original Information, filed on April 1, 1992, charged Hightower with felony murder in the course of a robbery, in violation of WYO.STAT. § 6-2-101 (1988), and second degree murder, in violation of WYO.STAT. § 6-2-104 (1988). On April 5, 1992, an Amended Information was filed in which Hightower was charged in one count with violation of WYO.STAT. § 6-2-101 by committing premeditated first degree murder and also by committing felony murder. This amendment antedated the preliminary examination in the county court.

In an effort to distance himself from a position that was singularly unsuccessful in the trial court, Hightower contends the amendment of the Information in the county court was unlawful. Hightower confesses the trial counsel attacked the amendment in a "Motion to Elect," arguing the Amended Information was multiplicious although, clearly, counsel was urging that it was duplicitous. The trial court denied the motion to elect on the ground that, historically, first degree murder and felony murder could be charged together. The Brief of Appellant concedes this point:

Hightower acknowledges that the State may charge a defendant with committing both premeditated first degree murder and felony murder. Bouwkamp v. State, 833 P.2d 486 (Wyo.1992); Price v. State, 807 P.2d 909 (Wyo.1990 [sic] ); Cloman v. State, 574 P.2d 410 (Wyo.1978). It is his position, however, that under the rationale of McInturf [sic], the State may not bring both acts in a single count, lest it run counter to the prohibition against duplicitous charging.

In relying upon McInturff v. State, 808 P.2d 190 (Wyo.1991), Hightower contends the Amended Information charged an additional and different offense.

Hightower ignores some obvious distinctions articulated in McInturff. There, the court explained the challenged amendment came after McInturff's preliminary hearing and did charge different offenses in violation of WYO.R.CRIM.P. 9(c) (the predecessor of WYO.R.CRIM.P. 3(d)). The amendment to the Information charging Hightower simply charged alternative methods of committing the same crime. Further, the McInturff court pointed out the Amended Information combined...