State v. Hitchcock
| Decision Date | 12 January 2011 |
| Docket Number | No. SD 30062.,SD 30062. |
| Citation | 329 S.W.3d 741 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James Earl HITCHCOCK, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Columbia, MO, for Appellant.
Chris Koster, Attorney General, and, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
A jury found James E. Hitchcock ("Defendant") guilty of second degree murder and armed criminal action for killing Wendell Hillhouse ("Victim") with a rifle and a baseball bat. See sections 565.021 and 571.015.1 After denying Defendant's motion for new trial, the trial court sentenced Defendant as a prior offender to twenty-five years on the murder charge and ten years on the armed criminal action count.2 Defendant now appeals his convictions, claiming the trial court erred by allowing the State to introduce improper "othercrimes and bad acts evidence" and refusing to allow defendant's expert witness to opine that Victim could not have been shot in the manner described by Defendant's ex-wife. Finding no such error, we affirm.
Viewed in the light most favorable to the verdict, State v. Ondo, 232 S.W.3d 622, 624 (Mo.App. S.D.2007), the facts are as follows. Defendant was married to June Hitchcock ("June") until they divorced in 1996.3 Defendant and June lived in a residence located on 120 acres owned by June's parents ("the Smiths"). Defendant also operated a salvage business on the Smiths' property. Defendant and June reconciled two years after their divorce and lived together from 1998 until 2007, when Defendant entered into a romantic relationship with Tammy Bartlett ("Bartlett").
June moved out of the house when Defendant began seeing Bartlett, and she eventually moved into a trailer home located on another portion of her parents' 120 acres. In July 2008, Bartlett moved in with Defendant. Soon after, June's father, Carl Smith, "[had] eviction papers served on [Defendant]." Defendant and Bartlett left the home and moved to a residence in Tecumseh.
Around August 2008, June began a romantic relationship with Victim and planned to marry him. Victim started moving his belongings into June's trailer home the same week Defendant was removing the rest of his belongings from the Smiths' land. On the morning of August 15, 2008, while cleaning out a garage at his salvage yard, Defendant discovered that June had removed several replacement parts for a vehicle Defendant had purchased from her. Defendant was angry about the missing parts and called June. After Defendant calmed down, June agreed that she and Victim would help Defendant move several vehicles from the Smiths' property to Defendant's Tecumseh residence.
When June and Victim arrived at the salvage yard, Defendant directed each of them to drive a vehicle and follow him to the Tecumseh residence using Monastery Road, a gravel road in a secluded section of Douglas County. As the trio proceeded along Monastery Road, Defendant was apparently having car trouble and pulled the Kia he was driving over to the side of the road. By the time June reached Defendant's vehicle, Victim and Defendant were looking at the small SUV's engine, which was steaming. June asked Defendant what was wrong with the vehicle. Instead of answering her, Defendant opened the driver's door of the Kia, pulled out a rifle, and shot Victim two times in rapid succession. When June began screaming, Defendant told her that she was going to die. Defendant retrieved another gun from the vehicle and managed to carry both guns with him while he dragged Victim by his feet toward some nearby woods. As Defendant dragged Victim into the woods, he told June not to run away.
After Defendant went into the woods, June attempted to flee, but she was apprehended by Defendant. Defendant then took June's purse, which contained her cell phone and a Derringer pistol and ammunition. Defendant loaded the Derringer and kept it. He broke June's phone into pieces and threw them across the road in the opposite direction from where he had taken Victim's body. Defendant escorted June at gunpoint to the Kia. He then went back into the woods, carrying a baseballbat. After returning from the woods, Defendant told June that he had hit Victim two times with the bat to make sure he was dead.
Defendant took June back to the salvage yard and told her that they would "spend some time in the woods and [she] had to watch [her] parents die." Over the course of that afternoon and into the early morning hours of the next day, Defendant took June from the scene of the crime to the salvage yard, to June's trailer, into the woods between June's trailer and her parents' residence, to the Tecumseh residence, back to the scene of the crime, back to the salvage yard, and, finally, back to June's trailer home, where they both fell asleep. While June and Defendant were at the Tecumseh residence, Defendant put a package of hotdogs in front of June and told her to eat her last meal.
The following morning, Defendant ordered June to go to the store and get him "a Pepsi and cigarettes." Before she left, June promised not to tell anyone what had happened. Instead of taking the opportunity to flee, June bought the items and returned. She said she did so because she feared for her daughter and grandchild who lived next door. When June returned from the store, Defendant told her to take him to the salvage yard. June again promised to tell no one what had happened. After she dropped Defendant off at the salvage yard, June went to her daughter and son-in-law's home and told them what had happened.
While June was at her daughter's home, Defendant called and ordered her to bring him his cell phone charger, which he had left in June's trailer home. June retrieved the charger and took it to Defendant at the salvage yard. As an excuse to get away, June told Defendant that she needed to go to Ava to replace her cell phone. June again told Defendant that she would not say anything about what had happened. Fearing that Defendant might follow her, June went to Wal-Mart and purchased a replacement cell phone. June then went to the Douglas County Sheriff's Office, where she reported that she "wanted to turn [herself] in and [her] ex-husband had killed [her] boyfriend." June led investigators to the general area where the killing had occurred, and the officers eventually found Victim's body. Additional facts will be set forth below as we analyze Defendant's points.
Defendant's first and third points are closely related, and we will address them together.
Point I challenges the trial court's decision to allow Mr. Smith to testify that Defendant "dominated and controlled [June] during their marriage, that June was scared of [Defendant], and that once, while June was driving, [Defendant] grabbed the wheel, forced June's car into a tree, dragged her out by her hair across a ditch and 'worked her over[.]' " Defendant contends Mr. Smith's testimony constituted inadmissible evidence of prior bad acts and bad character that was solicited to "divert the jury's attention and was designed to inflame the passions of the jury."
Point III contends the trial court: 1) plainly erred by allowing Mr. Smith to testify that Defendant had "nearly cut off Mr. Smith's grandson's ear with a beer bottle and left [the grandson] lying beside the road[;]" and 2) should have, sua sponte, declared a mistrial because the testimony constituted improper bad characterevidence "solely designed to inflame the passions of the jury."
Defendant concedes that we may review the testimony about Defendant's assault of Mr. Smith's grandson only for plain error as defense counsel did not object to the evidence at trial. Defendant did object at trial to the introduction of the evidence referenced in Defendant's first point, leading him to ask us to review that ruling for an abuse of discretion. But Defendant's trial objection was different from the claim he now asserts on appeal. When the prosecutor asked Mr. Smith at trial whether Defendant had been "abusive towards June[,]" the following exchange took place:
Defendant's complaint at trial was that the testimony concerned matters that were too remote in time and were based on second-hand knowledge. He did not object to the testimony on the ground that it constituted evidence of inadmissible "bad acts." Defendant asserts in his reply brief that his "prejudicial" objection was interrupted by the trial court before it could be completed, and the trial court went on to ask the prosecutor about the relevance of the question, thereby incorporating lack of relevance into Defendant's objection. Defendant also points out that his...
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