State v. Hodges

• Decision Date: 24 March 1992
• Docket Number: 69225,Nos. 54770,s. 54770
• Citation: 829 S.W.2d 604
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Marlow HODGES, Defendant/Appellant. Marlow HODGES, Movant/Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 604

829 S.W.2d 604

STATE of Missouri, Plaintiff/Respondent, v. Marlow HODGES, Defendant/Appellant.

Marlow HODGES, Movant/Appellant, v. STATE of Missouri, Respondent.

Nos. 54770, 69225.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 24, 1992.

Raymond L. Legg, Columbia, for defendant/appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent.

STEPHEN N. LIMBAUGH, Jr., Special Judge.

Appellant, Marlow Hodges, ¹ was convicted by a jury in the Circuit Court of St. Louis City of robbery in the first degree, § 569.020, ² unlawful use of a weapon (carrying a concealed weapon), § 571.030(1), three counts of felonious restraint, § 565.120, and four counts of armed criminal action, § 571.015. On April 22, 1988, the trial court sentenced Hodges to a total of 35 years imprisonment for the nine offenses. On November 11, 1988, Hodges filed for post-conviction relief under Rule 29.15. The convictions on direct appeal are affirmed. The Rule 29.15 motion is remanded to the trial court with instructions.

The convictions were based on the following evidence, adduced by the State at trial. On March 11, 1987, about 2:30 a.m., Elton Underwood, Byron Steward, and Barbara Lowery left the Ten Grand Flamingo Lounge in St. Louis and walked to Underwood's car, a short distance away. As they entered the car, Steward in the driver's seat and Underwood and Lowery in the rear seat, the appellant, Marlow Hodges, approached. Before the rear door could be closed, Hodges asked the trio if any of them did "blow" (the vernacular for cocaine). When they replied, "no," Hodges drew a .38 caliber revolver from his jacket, pointed it at Underwood's head, ordered him to scoot over in the back seat, and sat down beside him. Hodges then turned the gun on Steward and told him to pull out of the parking lot.

They traveled to Goodfellow Boulevard, where, at Hodges' command, Steward parked the car, turned off the lights, and left the engine engaged. Brandishing the revolver, Hodges demanded that Underwood and Lowery turn over all of their money and jewelry. Lowery said that she had none, but Underwood surrendered four rings, three necklaces, and two medallions. While this was occurring, two police officers in a patrol car drove alongside the

                Underwood car.  They noticed Lowery motioning to them with her hand.  Immediately, Hodges ordered Steward to drive away and the police gave chase.  Finally, Hodges ordered Steward to stop the car and said to him, "When I get out of the car you pull off as fast as you can."   When the car was stopped, Hodges tucked the gun in his waistband and under his jacket and walked toward the officers.  He told them, "I've been robbed;  these people in the car just robbed me."   The victims also exited the car and yelled hysterically that they had just been robbed.  At that point, Hodges tried to flee, but the officers subdued him.  They found the gun, the four rings, the three necklaces, and two medallions on his person
                

DIRECT APPEAL

Hodges first complains that Counts VI, VIII, and X of the indictment, all charging armed criminal action, are fatally defective because in each, the underlying felony offense, an essential element of the crime charged, was omitted. The pertinent part of the armed criminal action charge in Count VI follows:

The Grand Jurors of the City of St. Louis, State of Missouri, charge that the defendant, in violation of Section 571.015, RSMo, committed the Class A felony of armed criminal action, ... in that on the 12th day of March, 1987, in the City of St. Louis, State of Missouri, the defendant committed the felony of felonious restraint charged in Count V, all allegations of which are incorporated herein by reference, and the defendant committed the foregoing felony of robbery first degree by, with, and through the use, assistance and aid of a deadly weapon.

The armed criminal action charges in Counts VIII and X are identical except for their reference to a different number for each preceding count of felonious restraint. Requisite to a charge of armed criminal action is an allegation that defendant committed an underlying felony offense. Section 571.015.1. The underlying felony offenses to the armed criminal action charges in Counts VI, VIII, and X are the allegations of felonious restraint of Elton Underwood, Barbara Lowery, and Byron Steward, contained in Counts V, VII and IX, respectively.

At first glance, the "foregoing felony" is "felonious restraint," incorporated by reference from the preceding count. That the "foregoing felony" is then described as "robbery first degree" creates an obvious ambiguity. Hodges argues it is more than mere ambiguity. He contends that the descriptive phrase "of robbery first degree" after the words "foregoing felony" constitutes a failure to allege the underlying felony; i.e., the actual felony alleged to have been committed, "felonious restraint," must be inserted in place of "robbery first degree" in order for the trial court to have jurisdiction to proceed on the charge. We disagree.

"The purpose of an indictment or information is to inform the accused of charges against him so that he may prepare an adequate defense and to prevent retrial on the same charges in case of an acquittal." State v. O'Connell, 726 S.W.2d 742, 766 (Mo. banc 1987). "The test for sufficiency of an indictment is 'whether it contains all essential elements of the offense as set out in the statute [creating the offense] and clearly apprises defendant of facts constituting the offense.' " Id. (citing State v. Brown, 660 S.W.2d 694, 698 (Mo.banc 1983)). Reversal is required "only 'if the indictment or information is so defective that by no reasonable construction can it be read to charge the [defendant] with the offense for which he was convicted.' " State v. Westrich, 800 S.W.2d 78, 79 (Mo.App.1990) (citing Puckett v. State, 782 S.W.2d 454, 455 (Mo.App.1990)). Further, Rule 23.11 provides, "No indictment or information shall be invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, because of any defect therein which does not prejudice the substantial rights of the defendant."

Reasonably construed, the information charges Hodges with committing the felony of felonious restraint with a deadly weapon. While the information is ambiguous on its face, any question about the proper underlying felony may be resolved by considering the express and unequivocal declaration of Counts VI, VIII, and X that "the defendant committed the felony of felonious restraint charged in [Counts V, VII, and IX]." The only "foregoing felony" is the felony incorporated by reference, the felony of felonious restraint pleaded in Counts V, VII, and IX. There is no "foregoing felony" of robbery first degree.

Hodges argues that the language charging him with felonious restraint is surplusage; the State argues the phrase "of robbery first degree" is surplusage. As the name implies, surplusage is the inclusion of words or phrases which are unnecessary to charge the statutory elements of the offense. See e.g., Fults v. State, 779 S.W.2d 688, 689 (Mo.App.1989); State v. Henderson, 750 S.W.2d 507, 512-13 (Mo.App.1988). Hodges argues that after deleting the surplus charge of felonious restraint, Counts VI, VIII, and X fail to allege the felony of robbery in the first degree with requisite specificity to support the armed criminal action charge. However, we agree with the State and believe the only reasonable construction of the Counts is to treat the language charging robbery in the first degree as surplusage: thus, when reasonably construed, Counts VI, VIII, and X charge Hodges with "committing the foregoing felony (that being felonious restraint, incorporated by reference from Counts V, VII, and IX) by with and through the use ... of a deadly weapon."

When Counts VI, VIII, and X are read in their entirety and in conjunction with Counts V, VII, and IX, they fulfill their function "to place defendant on notice of the charges against him and to recite the essential facts supporting those charges," Westrich, 800 S.W.2d at 80. Hodges has suffered no prejudice.

The only other point of error on direct appeal is a challenge to the sufficiency of the evidence on Count VII, the felonious restraint of Barbara Lowery. A review of the transcript clearly indicates the State presented ample evidence to support the conviction. An extended opinion would have no precedential value. Point denied.

RULE 29.15

PROCEEDINGS

On November 1, 1988, Hodges filed a timely post-conviction relief motion under Rule 29.15. A supplemental pro se motion, filed on August 15, 1990, alleged, inter alia, that trial counsel was ineffective for failing to call an essential witness. This ground for relief was not raised in the original motion. It was not until January 8, 1991, that a lawyer was assigned to represent Hodges on these post-conviction relief matters. ³ Counsel submitted a memorandum to the court on February 19, 1991, in which she elected to stand on the pro se motion without amendment. Findings of fact and conclusions of law and an order overruling the motion without an evidentiary hearing were issued on April 12, 1991. Hodges claims that the trial court erred in this ruling.

Of the several reasons counsel lists in the memorandum to support her decision not to file an amended motion, none address the claim of ineffective assistance of counsel raised in the supplemental pro se motion. Although the exclusive means for perfecting a claim of ineffective assistance of counsel is through a Rule 29.15 motion, and such a claim will not lie on direct appeal, State v. Wheat, 775 S.W.2d 155 (Mo.banc 1989), motion counsel erroneously concluded "that Movant's claims would be best raised on direct appeal." Likewise, the motion court, in its findings of fact and conclusions of law, omitted any mention of the ineffective assistance of counsel...