State v. Fitzpatrick

• Decision Date: 28 February 2006
• Docket Number: No. WD 64399.,WD 64399.
• Citation: 193 S.W.3d 280
• Parties: STATE of Missouri, Respondent, v. David FITZPATRICK, Appellant.
• Court: Missouri Court of Appeals

Page 280

193 S.W.3d 280

STATE of Missouri, Respondent, v. David FITZPATRICK, Appellant.

No. WD 64399.

Missouri Court of Appeals, Western District.

February 28, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2006.

Application for Transfer Denied June 30, 2006.

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Amy M. Bartholow, Columbia, MO, for appellant.

Heidi C. Doerhoff, Jefferson City, MO, for respondent.

Before LOWENSTEIN, P.J., ELLIS and NEWTON, JJ.

HAROLD L. LOWENSTEIN, Judge.

David Fitzpatrick (Appellant) was convicted of one count of conspiracy to commit murder and was sentenced to fourteen years imprisonment.¹ His wife, Rebecca, was also charged with conspiracy, but was acquitted.² Appellant claims the trial court erred when it (1) allowed the State to amend the information five days before trial, (2) admitted recordings of conversations between Appellant and a cellmate, John Penn, (3) restricted defense counsel's cross examination of John Penn, (4) failed to declare a mistrial during the State's closing argument, and (5) instructed the jury using a disjunctive verdict director. This court affirms.

FACTS

Appellant does not contest the sufficiency of the evidence. The facts viewed in a light most favorable to the guilty verdict are as follows: a confidential informant alerted a police detective that Appellant would be traveling to St. Joseph, Missouri, transporting drugs. After executing a search warrant of Appellant's hotel room, the Buchanan County Drug Strike Force discovered a large amount of marijuana. Appellant was arrested on December 7, 1999, and was charged with the class B felonies of possession of a controlled substance with intent to deliver and of delivery of a controlled substance. While Appellant awaited trial, he was jailed at Buchanan County jail where he met and befriended John Penn, who was awaiting trial for receiving stolen property. After Appellant and Penn began discussing Appellant's case, a plot emerged to murder two men who Appellant suspected were responsible for his drug arrest: Officer Terry Kelly,³ an Atchison, Kansas, police officer, and Todd Reno, a private citizen (who did, in fact, confidentially inform law enforcement of Appellant's transport of drugs).

Several days after Penn's conversation with Appellant, Penn informed jail officials and law enforcement of Appellant's plot. During the course of two months, Penn cooperated with an investigation and reported his conversations with Appellant to law enforcement. Some conversations were recorded. These conversations and Penn's testimony formed the basis of the State's case against Appellant and his wife, Rebecca Fitzpatrick, for conspiracy to commit murder. The jury convicted Appellant and acquitted Rebecca. This appeal follows. Additional facts will be discussed as necessary.

I. AMENDMENT OF INFORMATION

The State filed its information on January 23, 2003, charging Appellant with the class B felony of conspiracy to commit the first-degree murder of Officer Terry Kelly. The State first named Todd Reno as a target of the conspiracy in its second-amended information filed on April 14, 2004.⁴ A third-amended information also named Todd Reno as a victim, which was filed on April 22, 2004. Appellant filed a motion to quash the second-amended information or, alternatively, requested a preliminary hearing. The trial court overruled Appellant's motion to quash, denied his request for a preliminary hearing and allowed the State to amend the information to include Todd Reno as a victim on April 21, 2004. Appellant's trial began on April 26, 2004.

Appellant argues the trial court erred when it allowed the State to amend the information five days before trial began and when it denied Appellant's trial counsel's request for a continuance. Appellant specifically argues that by allowing such an amendment, the State alleged an alternative theory of prosecution, which constituted a new offense. Appellant claims he was prejudiced because he was denied an opportunity to depose or further depose additional witnesses, including Todd Reno, and explore other evidence in light of the amended information. Appellant further claims he was prejudiced because he was denied a preliminary hearing. Finally, Appellant claims prejudice because the State was precluded from adding Todd Reno as a potential victim because the statute of limitations to bring a conspiracy charge had expired.

A. STANDARD OF REVIEW

Allowing the State to amend an information or substitute an information in lieu of an indictment rests within the discretion of the trial court. State v. Boone Ret. Ctr., Inc., 26 S.W.3d 265, 268 (Mo. App.2000). This court reviews for an abuse of discretion. Id. at 269. An information may be amended at any time before a verdict if no additional or different offense is charged and a defendant's substantial rights are not prejudiced. Rule 23.08; State v. Messa, 914 S.W.2d 53, 54 (Mo.App.1996). The test of prejudice is whether the planned defense to the original charge would still be available after the amendment, and whether the defendant's evidence would be applicable before and after the amendment. Messa, 914 S.W.2d at 54.

B. ADDITIONAL OR DIFFERENT OFFENSE.

Appellant was originally charged with conspiracy to commit the first-degree murder of Officer Kelly under section 564.016. Todd Reno was later added as an alternate victim of the conspiracy in the second- and third-amended informations. Appellant was similarly charged in these instruments under section 546.016. Section 564.016 states that "[a] person is guilty of conspiracy with another person... to commit an offense if, with the purpose of promoting or facilitating its commission he agrees with such other person... that they or one or more of them will engage in conduct which constitutes such offense."⁵ The essence of the crime of conspiracy is the agreement. State v. Coulter, 904 S.W.2d 84, 86 (Mo.App.1995). Significantly, subsection three provides that "[i]f a person conspires to commit a number of offenses, he is guilty of only one conspiracy so long as such multiple offenses are the object of the same agreement." § 564.016.

Appellant likens this case to State ex rel. Buresh v. Adams, 468 S.W.2d 18 (Mo. banc 1971), to argue that the amended information alleged an additional or different offense. In Adams, the State filed a complaint alleging two counts against the relator/defendant. 468 S.W.2d at 20. Count I alleged that the relator, as general manager, embezzled approximately $870 from his employer between July 1966 and October 1968. Id. Count II alleged that the relator stole electricity from his employer. Id. A preliminary hearing was held in which the magistrate discharged the relator on Count II, but bound him on Count I. Id. The prosecutor filed an amended information, alleging that between the years 1959 and 1969 the relator submitted false claims for travel expenses, had merchandise delivered to his home while billing his employer, directed the use of the employer's labor and services for relator's home, and used his employer's electricity for the relator's home use. Id. at 19-20. No preliminary hearing was held on this charge. Id. at 19. In holding that the relator was not accorded a preliminary hearing, the court found that the allegations charged in the information (for which there was no preliminary hearing) constituted an additional and different offense from those charged in the complaint (for which there was a preliminary hearing). Id. at 22. Specifically, the court stated that the allegations in the information "constitute ... a substantial departure from the scope" of the allegations stated in the complaint. Id.

The State encourages this court to follow State v. Hutchinson, 740 S.W.2d 184, 186 (Mo.App.1987), which held that the substitution of a victim's name in the information charging the defendant with robbery did not constitute a new and different offense from that originally charged in the indictment. The State similarly likens the case at bar to Boone Retirement Center, 26 S.W.3d 265. In Boone, both charging instruments alleged a failure to supply two nursing home residents "services, items and supplies." Id. at 269. While the information did not contain such language, the original indictment modified those terms by the phrase "that were necessary to prevent and treat decubitus ulcers," which the appellant argued drastically broadened the scope of the charges and, thus, constituted a new offense. Id. This court rejected the appellants' argument and held that no new or different offense was charged. Id.

On the other hand, the Supreme Court held in State v. Thompson, 392 S.W.2d 617, 621 (Mo.1965), that amending the information to charge the offense of assault with malice constituted a different offense from the originally charged offense of attempted robbery. The Court noted that the offenses were ordered in entirely different classifications: robbery is classified as an "offense against property" while assault with malice is classified as an "offense against persons." Id. at 620.

This court holds that the second- and third-amended informations charged no additional or different offense from the original information. Adams is easily distinguishable. First, the scope of the allegations in Adams was vastly enhanced when the information increased the duration of the crime from two and a half years to almost ten years. Furthermore, the information charged one continuous scheme whereas the complaint did not. And, unlike Thompson in which the Supreme Court held the amendment introduced a new and distinct charge when two separate offenses defined in separate statutes were charged between the two charging instruments, this case involved only one charge under section 564.016. Additionally, Section 564.016.3 prevents this court from reaching a similar conclusion under the likes of Thompson and Adams.

This case bears more...