State v. Hawkins

• Decision Date: 03 April 2001
• Docket Number: ED76820
• Citation: 58 S.W.3d 12
• Parties: State of Missouri, Respondent, v. Nathan E. Hawkins, Appellant. ED76820 Missouri Court of Appeals Eastern District 0
• Court: Missouri Court of Appeals

State of Missouri, Respondent v Nathan E. Hawkins, Appellant

ED76820

Missouri Court of Appeals Eastern District

04/03/2001

Appeal From: Circuit Court of Monroe County, Hon. Glenn A. Norton

Counsel for Appellant: Nancy A. McKerrow

Counsel for Respondent: John Munson Morris III and Susan K. Glass

Opinion Summary: Nathan E. Hawkins appeals the trial court's judgment following a jury verdict convicting him of first degree murder and armed criminal action. The trial court sentenced him to consecutive terms of life imprisonment without parole and life imprisonment.

Northern Division holds: In light of counsel's closing arguments, the trial court did not plainly err in failing to put in the verdict directing instructions a cross-reference to the separate self-defense instruction. The trial court did not plainly err in including "sudden passion" language in the second degree murder verdict director in the absence of a voluntary manslaughter instruction, when the language did not prevent the jury from convicting Hawkins of second degree murder. The trial court did not err in overruling Hawkins' motions to suppress and trial objections regarding evidence and statements obtained pursuant to a search warrant. The trial court did not err in the admission of photographs and rap lyrics.

Mary Rhodes Russell, Judge

On the Court's own motion, the opinion in the above-styled case handed down on March 20, 2001, is withdrawn. New opinion to issue.

Nathan E. Hawkins ("Defendant") appeals from the judgment entered following a jury verdict convicting him of first degree murder in violation of section 565.020 RSMo 1994 and armed criminal action in violation of section 571.015 RSMo 1994. The trial court sentenced Defendant to consecutive terms of life imprisonment without parole and life imprisonment. We affirm.

The State charged Defendant with first degree murder and armed criminal action in the shooting death of Eric Cooper by a handgun on or about November 10, 1998. Defendant does not challenge the sufficiency of the evidence. In summary, Defendant fired one shot while Cooper was in the front passenger seat of a parked vehicle outside Defendant's home. Cooper died from a bullet wound to the head.

During trial, the State introduced an autopsy photograph of Cooper and five photographs of the inside of the vehicle after the shooting. The State also introduced at trial 9mm shell casings taken from Defendant's home during execution of a search warrant, rap lyrics that were taken off the refrigerator in Defendant's home during execution of the search warrant, and certain statements Defendant made after his arrest. The trial court gave verdict directing instructions for first degree murder, second degree murder, and armed criminal action with respect to both of those murder offenses, as well as a separate self-defense instruction. The jury convicted Defendant of first degree murder and armed criminal action, and recommended sentences of life imprisonment without parole and life imprisonment, respectively. The trial court subsequently overruled Defendant's motion for new trial and post-trial motion for judgment notwithstanding the verdict, and sentenced Defendant to consecutive terms of life without parole and life. This appeal followed.

In his first point on appeal, Defendant urges that the trial court erred in giving the verdict directing instructions for murder in the first degree and murder in the second degree. Specifically, Defendant points to (1) the failure of those instructions to cross-reference the self-defense instruction, and (2) the inclusion in the second degree murder verdict director of "sudden passion" language, specifically paragraph Third of Instruction No. 6, in the absence of a voluntary manslaughter instruction. As Defendant did not object to the instructions during trial or in his motion for new trial as required by Rule 28.03, he now seeks plain error review under Rule 30.20.

Rule 30.20 provides, in pertinent part, that "plain errors affecting substantial rights may be considered in the discretion of the trial court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." There has been some confusion, however, as to whether Rule 30.20 is trumped by Rule 28.03,¹ which provides:

Counsel shall make specific objections to instructions or verdict

forms considered erroneous. No party may assign as error the giving

or failure to give instructions or verdict forms unless the party objects

thereto before the jury retires to consider its verdict, stating distinctly

the matter objected to and the grounds of the objection. Counsel need

not repeat objections already made on the record prior to delivery

of the instructions and verdict forms. The objections must also be

raised in the motion for new trial in accordance with Rule 29.11.

This issue was recently addressed by the Supreme Court of Missouri, which held that claims of error not preserved under Rule 28.03 may still be reviewed for plain error if manifest injustice would otherwise occur. State v. Wurtzberger, No. SC82871, 2001 WL 220193, at *4 (Mo. banc March 6, 2001). Accordingly, we review Defendant's point for plain error.

Our discretion to reverse a conviction on the basis of plain error should be used sparingly. State v. Santillan, 1 S.W.3d 572, 578 (Mo.App. 1999). Instructional error seldom rises to the level of plain error. State v. Wright, 30 S.W.3d 906, 912 (Mo.App. 2000). A defendant must go beyond a mere demonstration of prejudice and establish that the instructional error affected the jury's verdict. Id.

In reviewing Defendant's claim that neither verdict director cross-referenced the self-defense instruction that was given, we look at the two verdict directors.

Instruction No. 5, the first degree murder verdict director, stated:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about November 10, 1998, in the County of Monroe, State of Missouri, the defendant caused the death of Eric Cooper by shooting him with a handgun, and

Second, that defendant knew that his conduct was practically certain to cause the death of Eric Cooper, and

Third, that defendant did so after deliberation, which means cool reflection

upon the matter for any length of time no matter how brief,

then you will find the defendant guilty under Count I of murder in the first degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the first degree.

If you do find the defendant guilty under Count I of murder in the first degree, you are to assess and declare the punishment at imprisonment for life without eligibility for probation or parole.

Instruction No. 6, the second degree murder verdict director, stated:

As to Count I, if you do not find the defendant guilty of murder in the first degree, you must consider whether he is guilty of murder in the second degree.

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about November 10, 1998, in the County of Monroe, State

of Missouri, the defendant caused the death of Eric Cooper by shooting

him with a handgun, and

Second, that defendant knew that his conduct was practically certain to

cause the death of Eric Cooper, and

Third, that defendant did not do so under the influence of sudden passion

arising from adequate cause,

then you will find the defendant guilty under Count I of murder in the second degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the second degree.

As used in this instruction, the term "sudden passion" means passion directly caused by and arising out of provocation by Eric Cooper which passion arose at the time of the offense and was not solely the result of former provocation. The term "adequate cause" means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self-control.

If you do find the defendant guilty under Count I of murder in the second degree, you will assess and declare one of the following punishments:

1. Life imprisonment

2. Imprisonment for a term of years fixed by you, but not less than ten years and not to exceed thirty years.

The failure to include in a verdict director a cross-reference to a separate defense instruction, as required by the MAI Notes on Use, may constitute reversible error when the error is properly preserved. State v. Foster, 631 S.W.2d 672, 675 (Mo.App. 1982) (reversing for failure to cross-reference a mistake of fact defense instruction in a verdict director for rape). The absence from a verdict director of an explicit cross-reference to a separate defense instruction, however, has not been viewed as plain error. State v. Dunlap, 706 S.W.2d 272, 277 (Mo.App. 1986); State v. Cooksey, 805 S.W.2d 709, 710-11 (Mo.App. 1991).

In Dunlap the defendant was found guilty, as charged, of each of two counts of assault. Dunlap, 706 S.W.2d at 273. The verdict directing instructions failed to include a cross-reference to the intoxication defense instruction. Id. at 277. We noted that the Notes on Use for the pattern intoxication defense instruction stated that if that defense instruction was given "'the verdict directing instruction must contain a paragraph cross-referencing to'" it. Id. (quoting MAI-CR2d 3.30.1, Notes on Use 6). After considering "the instructions as a whole"² and the closing argument of defense counsel, we concluded that no manifest injustice resulted from the omission of the required cross-reference. Id. Specifically, we concluded that defense counsel had made numerous references to "defendant's drugged condition," including a clear...