State v. Hayes
| Decision Date | 27 August 2002 |
| Docket Number | No. WD 59964.,WD 59964. |
| Parties | STATE of Missouri, Respondent, v. James Robert HAYES, Sr., Appellant. |
| Court | Missouri Court of Appeals |
Theodore M. Kranitz, St. Joseph, MO, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Philip M. Koppe, Assistant Attorney General, Kansas City, MO, for respondent.
Before LISA WHITE HARDWICK, Presiding Judge, JOSEPH M. ELLIS, Judge and RONALD R. HOLLIGER, Judge.
Appellant James Robert Hayes, Sr., appeals from his conviction of one count of involuntary manslaughter, § 565.024.1,1 and one count of armed criminal action, § 571.015.1. Appellant was sentenced to consecutive terms of two years imprisonment on the involuntary manslaughter count and four years on the armed criminal action count. The evidence viewed in the light most favorable to the verdict reflects the following.
In June 1997, Appellant was living with his wife at 1919 Beattie in St. Joseph, Missouri. Tony Coone was a neighbor of Appellant and was living with his fiancé, Georette Hoyt, at 1912 Beattie. Appellant and Mr. Coone had previously had a series of problems, disagreements, and confrontations2
In April 1997, Appellant and Mr. Coone got into an argument on Mr. Coone's property. During the course of that encounter, Appellant said he was going to "blow away" Mr. Coone. Mr. Coone responded, "You better pull the trigger the first time."
On the afternoon of June 3, 1997, Mr. Coone was in the street in front of his house rotating the tires on his Chevy Blazer. Appellant's pickup truck was parked across the street. At about 12:20 p.m., while Mr. Coone was rotating his tires, Appellant got into his truck and started to drive down the street toward Mr. Coone. As Appellant approached Mr. Coone, he swerved toward where Mr. Coone was lying in the street and almost ran over his legs. Mr. Coone stood up and started to verbally confront Appellant. Appellant stopped the truck and turned off the engine. Mr. Coone walked up to the pickup truck and slapped Appellant through the driver's side window with his open hand.
After Mr. Coone slapped Appellant, Appellant pulled out a pistol and fired. The bullet struck Mr. Coone in the neck, and he fell to the ground. The bullet passed through Mr. Coone's neck, injuring the spinal cord and causing paralysis. On June 19, 1997, Mr. Coone died as a result of the gunshot wound.
Subsequently, Appellant was charged in the Circuit Court of Buchanan County with murder in the second degree, armed criminal action by reason of murder in the second degree, voluntary manslaughter, armed criminal action by reason of voluntary manslaughter, and involuntary manslaughter. At the commencement of trial, the State dismissed the counts of voluntary manslaughter, armed criminal action by reason of voluntary manslaughter, and involuntary manslaughter, but asked the trial court to permit it to reserve instructions on those counts if applicable at the close of evidence. Following jury trial, Appellant was found guilty of involuntary manslaughter and armed criminal action. He was sentenced to consecutive terms of seven years imprisonment.
Appellant appealed his convictions. On June 13, 2000, this Court reversed Appellant's convictions and remanded the cause for a new trial for involuntary manslaughter because the trial court had plainly erred in failing to include self-defense language in the instruction for involuntary manslaughter. State v. Hayes, 23 S.W.3d 783, 792 (Mo.App. W.D.2000).
Appellant was tried again, and on March 15, 2001, he was found guilty of involuntary manslaughter and armed criminal action. On May 3, 2001, he was sentenced to consecutive terms of two years imprisonment for involuntary manslaughter and four years for armed criminal action. Appellant brings eight points on appeal from that judgment.
In his first point, Appellant claims the trial court erred in overruling his motion to quash the proceedings. Appellant contends that his motion should have been granted because there was no charging instrument to support a trial for involuntary manslaughter or armed criminal action in connection with involuntary manslaughter. In his fourth point, Appellant claims that, even if a charging instrument existed warranting a trial for involuntary manslaughter, he was never charged by indictment or information with armed criminal action in connection with involuntary manslaughter and that his armed criminal action conviction should, therefore, be reversed.
"Due process requires that a defendant may not be convicted of an offense not charged in the information or indictment." State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999). "The test for the sufficiency of an indictment is whether it contains all essential elements of the offense set out in the statute and clearly apprises defendant of the facts constituting the offense." State v. Gheen, 41 S.W.3d 598, 602 (Mo.App. W.D.2001).
"Rule 23.11 provides, in pertinent part, that no information shall be invalid because of any defect therein which does not prejudice the substantial rights of the defendant." State v. Patino, 12 S.W.3d 733, 738 (Mo.App. S.D.1999). "A court should reverse a conviction based upon a defective indictment only in instances where the indictment is so defective that by no reasonable construction can it be read to charge the defendant with the offense for which he was convicted." Gheen, 41 S.W.3d at 602.
Appellant was originally charged by information with second degree murder and armed criminal action in connection with that offense.3 In his first trial, Appellant was found guilty of involuntary manslaughter, a lesser-included offense of second degree murder, and armed criminal action in connection with that offense. Because the trial court in the first trial failed to include self-defense language in the instruction for involuntary manslaughter, this court reversed the judgment and remanded the cause for a new trial. Hayes, 23 S.W.3d at 793.
Appellant did not challenge the sufficiency of the charging documents in his first trial or on appeal therefrom, and those documents were clearly sufficient to have supported his convictions on both involuntary manslaughter and armed criminal action. A defendant may be convicted of any lesser offense necessarily included in an indictment or information. Hibler, 5 S.W.3d at 150. Accordingly, since involuntary manslaughter is a lesser included offense of second degree murder, State v. Smith, 737 S.W.2d 731, 734 (Mo.App. W.D. 1987), the information charging Appellant with second degree murder was sufficient to support trying him for involuntary manslaughter.
Likewise, the original information charging Appellant with armed criminal action in connection with the murder in the second degree charge was sufficient to support Appellant's conviction of armed criminal action in connection with the lesser-included offense of involuntary manslaughter. "This court has specifically held that a defendant charged with Armed Criminal Action in the commission of a felony may be convicted of Armed Criminal Action in the commission of a lesser included felony." Id.; See also State v. Adams, 741 S.W.2d 781, 786 (Mo.App E.D.1987); State v. Taylor, 724 S.W.2d 531, 536 (Mo.App. W.D.1986).
Now, on appeal from his convictions following retrial, Appellant contends that, because he was acquitted of murder in the second degree and armed criminal action in connection with murder in the second degree in his first trial and could not be retried on those charges on remand, the previous informations were no longer effective and were not sufficient to support his trial for involuntary manslaughter and armed criminal action in connection with involuntary manslaughter. Appellant cites to no authority for this proposition.
On appeal from the first trial, Appellant argued that remand for retrial would be improper because he had not been charged with involuntary manslaughter. In addressing that argument, this court specifically held that he could be properly retried on lesser-included offenses to those charged in the original information. Hayes, 23 S.W.3d at 792-93.
Moreover, "the `primary purpose of an information is to give defendant sufficient notice of the charge to allow adequate preparation of a defense and avoid retrial on the same charges in case of acquittal.'" Patino, 12 S.W.3d at 738 (quoting Taylor, 929 S.W.2d at 218). Where an indictment or information is sufficient to support a defendant's original trial and conviction of a lesser-included
offense, this court's remand for retrial on the defendant's conviction of the lesserincluded offense does not render the original charging document or documents any less sufficient. In such a case, no substantial right of the defendant is prejudiced. The defendant is clearly on notice of the charges against him,4 and the nature of the charges are sufficiently set forth in the applicable legal documents to avoid retrial on the same charges. Points denied.
In Point II, Appellant contends the trial court erred in refusing to set aside the verdict and enter a judgment of acquittal because the verdict was not supported by substantial evidence. Appellant argues that "all of the uncontroverted evidence established that [Appellant] was under attack from the decedent, was in reasonable fear for his own life, and acted in his own defense."
When considering the sufficiency of the evidence to support a criminal conviction, "[t]his Court must determine whether the state introduced evidence sufficient to allow a reasonable trier of fact to find each element of the charged offense beyond a reasonable doubt." State v. Dowdy, 60 S.W.3d 639, 641-42 (Mo.App. W.D.20...
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