Stark v. State

• Decision Date: 26 April 2022
• Docket Number: WD 84294
• Citation: 644 S.W.3d 583
• Parties: Andrew Keith STARK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

644 S.W.3d 583

Andrew Keith STARK, Appellant,

v.STATE of Missouri, Respondent.

WD 84294

Missouri Court of Appeals, Western District.

OPINION FILED: April 26, 2022

Keith Patrick O'Connor, Kansas City, MO, for appellant.

Gregory L. Barnes, Jefferson City, MO, for respondent.

Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Edward R. Ardini, Jr., Judge and Janet Sutton, Judge

Cynthia L. Martin, Judge

Andrew Keith Stark ("Stark") appeals from the motion court's denial of his Rule 29.15¹ post-conviction motion. Stark asserts that the motion court committed clear error in denying his motion for post-conviction relief because his appellate counsel was ineffective for failing to raise a claim on direct appeal that the trial court abused its discretion when it permitted the State to amend its information on the morning of trial, and because his trial counsel was ineffective for failing to adequately object that the amended information prejudiced Stark's substantial rights. Finding no error, we affirm.

Factual and Procedural History

On January 13, 2014 at 10:30 a.m., Officer Sean Allwood ("Officer Allwood"), a police officer for the city of Independence, Missouri, observed Stark driving erratically in a silver Saab in Independence, Missouri near the intersection of 23rd Street and Hall Road. Stark was traveling 75 miles per hour, though the posted speed limit was 40 miles per hour. Officer Allwood observed Stark's vehicle almost hit another car. When Officer Allwood first observed Stark's erratic driving, Stark was in Independence though close to, and traveling in the direction of, the city limits of Kansas City, Missouri.

Officer Allwood activated his emergency lights and sirens and began to pursue Stark. Officer Allwood momentarily lost sight of Stark's car, but continued the pursuit into Kansas City. Stark acted as if he intended to stop his vehicle at 23rd Street and Stark Avenue in Kansas City, Missouri. As a result, Officer Allwood deactivated his emergency sirens and began to pull over. At that point Stark accelerated and drove away. Officer Allwood reactivated his emergency sirens, and continued his pursuit of Stark, with both vehicles reaching speeds in excess of 100 miles per hour. Officer Allwood deactivated his lights and emergency sirens when he reached 23rd Street and Wheeling Avenue in Kansas City, because Stark was not slowing down and the chase was approaching heavier traffic areas. However, Officer Allwood continued driving westbound on 23rd Street, and shortly thereafter observed that Stark had crashed into another vehicle at the intersection of 23rd Street and Hardesty Avenue. Stark fled from his vehicle following the crash. The driver of the other vehicle ("Victim") was killed and two passengers in the Victim's vehicle suffered serious injuries.

Stark was charged by substitute information in lieu of indictment with six counts. In Count I, it was alleged that Stark "committed the Class A Felony of Murder in the Second Degree ... in that ... [Victim] was killed in a vehicular collision as a result of the perpetration of the class D felony of Resisting a Lawful Stop under Section 575.150." Stark was alternatively charged in Count I with first-degree involuntary manslaughter in violation of section 565.024.² The State also alleged that Stark committed the following: two counts of second-degree assault in violation of section 565.060; resisting a lawful stop by fleeing in violation of section 575.150 ("Count IV"); driving with a revoked license in violation of section 302.321; and leaving the scene of a motor vehicle accident in violation of section 577.060. Count IV was the predicate felony offense charged to support the felony murder charge in Count I.

Stark's case was tried to the court on February 3, 2016. On the morning of trial, the State requested leave to file an amended information ("Amended Information").³ The requested amendment, which only amended the felony murder charge in Count I of the information, and trial counsel's objection to the State's requested amendment, were as follows:

[The State]: It amends the language in Count I from -- I believe the original language was, [Victim] was killed in a vehicular collision as a result of the perpetration of the Class D felony of resisting a lawful stop. The State has added the perpetration and immediate flight therefrom of the Class D felony of resisting a lawful stop.

[Trial counsel]: And just out of an abundance of caution, the defendant would object to the additional language for the reason there is a requirement that the defendant in particular for a charge of felony murder be given proper and timely notice before trial of the predicate felony .

And we believe this nuance of a change , and I acknowledge it is, changes the predicate felony and our ability to prepare. I was literally handed this proposed amendment maybe 15, 20 minutes ago, and I can't identify a prejudice to me right now but that's because I really haven't had time to process it.

I think more appropriately and a more proper and conservative approach would be to require the State to stay with the original charging language of that predicate felony as opposed to the additional because the law requires notice and we're not given proper notice in this case.

And[,] it could affect -- because there is going to be a hotly contested issue of whether or not the officer involved made a lawful stop . The time of where that occurred is what the case is going to be all about for this Court's determination. So[,] for the record we make that objection.

[The State]: Your Honor, the State would respond that the predicate offense has not changed. The State still intends to prove the predicate offense of the Class D felony of resisting a lawful stop . This is a change made mostly to track the language of the statute in terms of what constitutes felony murder once a predicate felony has been proven. And[,] the State put [trial counsel] on notice of the predicate felony of resisting a lawful stop well in advance of today's date.

[Trial court]: Alright. I will allow the State to file the Amended Information. I think we all know that charging documents can be amended to conform to the evidence before submission. I understand both your points, but I'm going to allow the amendment and let the case go forward.

(Emphasis added.)

The parties stipulated at Stark's trial that the distance between 23rd Street and Wheeling Avenue (where Officer Allwood deactivated his lights and emergency sirens) and 23rd and Hardesty (the location of the collision) is approximately 2100 feet. The parties also stipulated that at the time of the crash, Stark was traveling at least 53 miles per hour in a 35 mile per hour zone.

Stark was convicted on all six counts. On Count I, Stark was convicted of felony murder based on the predicate felony of resisting a stop (Count IV), and was not convicted of the alternative charge of involuntary manslaughter. Stark's convictions were affirmed on direct appeal by this Court in a per curiam order. State v. Stark , 550 S.W.3d 134 (Mo. App. W.D. 2018).

On September 25, 2018, Stark filed a timely pro se Rule 29.15 motion. The motion court appointed counsel to represent Stark, and on January 9, 2019, appointed counsel filed a timely amended Rule 29.15 motion ("Amended Motion") which raised two claims: (1) that appellate counsel was ineffective for failing to raise on direct appeal that the "trial court clearly erred allowing the State to amend the [i]nformation against [Stark] on the day of trial" and (2) that trial counsel was ineffective for "failing to articulate prejudice[ ] during his objection or following the trial, when he objected to the State's motion for leave to file an Amended Information." The motion court held an evidentiary hearing where trial counsel, appellate counsel, and Stark testified.

On December 30, 2020, the motion court issued its Findings of Fact and Conclusions of Law ("Judgment") denying Stark's Amended Motion. With respect to the claim of ineffective assistance of appellate counsel, the motion court concluded that Stark failed to establish "that he would have prevailed on appeal had appellate counsel raised the issue" because "the trial court did not [ ] abuse its discretion in permitting the amendment of the charging document," Stark "was not prejudiced by the amendment," and appellate counsel "is not ineffective for failing to raise a nonmeritorious claim." The motion court explained that section 575.150 " ‘creates multiple ways of committing the same statutory offense’ and it specifically contemplates flight;" moreover, the motion court found that the inclusion of the language "immediate flight therefrom" did not preclude trial counsel from asserting the planned defense of an unlawful stop.

With respect to the claim of ineffective assistance of trial counsel, the motion court concluded that trial counsel adequately articulated "his perceived prejudice to the filing of the Amended Information. However, no actual prejudice did exist" because Stark's substantial rights were not prejudiced because the filing of the Amended Information "did not render his planned defense unavailable, nor did it render inapplicable the evidence supporting that defense." The motion court pointed out:

Trial counsel [ ] credibly testified at the evidentiary hearing in this case that the planned defense prior to the amendment of the charging document was that [ ] Stark did not commit the predicate felony of resisting arrest because Officer Allwood's pursuit of [ ] Stark was not in compliance with the law of fresh pursuit, and [it was] therefore unlawful . The trial record reflects that [trial counsel] presented this defense in his examination of Officer Allwood, in his post-trial brief to the court, and in his argument to the court. That defense was available prior to and following the amendment of the charging document.

(Emphasis added.)

Stark filed this timely appeal.

Standard of Review

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