State v. Hollowell

• Decision Date: 26 April 2022
• Docket Number: SC 99332
• Citation: 643 S.W.3d 329
• Parties: STATE of Missouri, Respondent, v. Eric G. HOLLOWELL, Appellant.
• Court: Missouri Supreme Court

643 S.W.3d 329

STATE of Missouri, Respondent,

v.Eric G. HOLLOWELL, Appellant.

No. SC 99332

Supreme Court of Missouri, en banc.

Opinion issued April 26, 2022

Hollowell was represented by William J. Swift of the public defender's office in Columbia, (573) 777-9977.

The state was represented by Richard A. Starnes of the attorney general's office in Jefferson City, (573) 751-3321.

W. Brent Powell, Judge

Eric Hollowell appeals his judgment of conviction after a jury found him guilty of 15 counts of unlawful possession of a firearm. Because the circuit court committed reversible error by allowing the jury to hear a prejudicial, out-of-court statement made by a witness who never appeared or testified at trial, this Court vacates the circuit court's judgment and remands this case for a new trial.

Factual Background and Procedural History

Police officers arrested Hollowell after his wife, Beckey Hollowell, reported incidents of domestic violence.¹ After Hollowell's arrest, Beckey told Detective Ethan Haworth that Hollowell, a convicted felon, illegally possessed numerous firearms stored at their home. Beckey allowed law enforcement officers, including Detective Haworth, to enter the home to confiscate the guns. Using a key in her possession, Beckey unlocked a safe containing 15 firearms, which the officers seized.² The State charged Hollowell with 15 counts of unlawfully possessing a firearm – one count for every firearm found in the safe.³ Hollowell moved to dismiss counts two through 15, arguing double jeopardy precluded the State from prosecuting Hollowell separately for each gun recovered from the safe. The circuit court was not persuaded by Hollowell's double jeopardy argument and overruled the motion.

Hollowell's case proceeded to trial. During opening statements, the State indicated Beckey would testify. The State claimed Beckey would tell the jury she periodically purchased guns on Hollowell's behalf and Hollowell had keys to the gun safe, owned the guns in the safe, and frequently used the guns.

The State called two witnesses to testify at trial: Detective Haworth and a corrections officer.⁴ The first witness the State called to testify was Detective Haworth. During the State's direct examination, the following exchange took place:

Q: Okay. Let's go back to December 19th of 2018. Did you speak to Beckey Hollowell about an incident?

A: Yes, sir, I did.

Q: And during that conversation did she tell you that her husband –

HOLLOWELL'S COUNSEL: And, Judge, I'm going to object to hearsay in violation of my client's confrontation clause rights.

STATE'S COUNSEL: Your Honor, this would just go to show subsequent actions, not for the truth of the matter asserted.

THE COURT: Well, that could be, but you're going to have to limit it. He can't necessarily go into every single thing that she said, but only as it goes to the subsequent course of conduct.

HOLLOWELL'S COUNSEL: And, Judge, I'll stipulate that he went to the residence based on knowledge that there was [sic] firearms there.

THE COURT: Once again, I'm going to assume that she's going to be here to testify as to these facts, but at the same time – I'm making an assumption that may or may not be correct, but I'm assuming that. But at the same time, you can't just go into just unlimited hearsay as –

STATE'S COUNSEL: Sure.

THE COURT: – to what she said to him. So only as it is necessary to explain his subsequent course of conduct.

STATE'S COUNSEL: Right. Well, this particular question is: Did she tell you that her husband had several firearms at their home, and so that's – that's what – that's what prompted him to go out there, would be the –

HOLLOWELL'S COUNSEL: Same objection, Judge.

THE COURT: That will be overruled.

A: Yes, sir.

Q: (By State's Counsel) She did. Okay. And was her husband Eric Hollowell?

A: What's the question, sir?

Q: Was Beckey Hollowell's husband Eric Hollowell?

A: Yes, sir.

On cross-examination, Hollowell's counsel attempted to temper the evidence allowed on direct examination over Hollowell's objection by asking Detective Haworth:

Q: You ultimately went to Beckey Hollowell's residence because she's the one who provided you with information that there were firearms, correct?

A: Yes ma'am.

....

Q: And you ultimately took the guns that were submitted by the State into evidence because of the words that Beckey Hollowell told you, right?

A: Yes, ma'am.

Q: That [the firearms] had belonged to Eric [Hollowell], correct?

A: Yes, ma'am.

Hollowell's counsel's cross-examination established Detective Haworth relied solely on Beckey's statement to connect Hollowell to the guns recovered from the home. Hollowell's counsel also established during cross-examination that Detective Haworth did not know how many people lived in the home and did not investigate whether any other occupants of the home owned the guns.

Despite the State's representations during opening statements and the circuit court's assumptions regarding Beckey's appearance and testimony, Beckey never appeared or testified at trial. Because Beckey did not testify, the State asked the court before the close of the State's evidence whether Beckey's out-of-court statement elicited during Detective Haworth's cross-examination could be used as substantive evidence to establish and persuade the jury Hollowell possessed the guns recovered from the home. Hollowell's counsel argued Beckey's out-of-court statement was hearsay and could only be used for the limited purpose to explain Detective Haworth's subsequent conduct. The circuit court disagreed, concluding Beckey's statement introduced through cross-examination could be considered as substantive evidence and the court allowed the State to rely on this evidence to support its case against Hollowell. At the close of all the evidence, Hollowell moved for judgment of acquittal, claiming the State failed to present sufficient evidence to convict him of illegally possessing the 15 firearms seized by law enforcement. The circuit court overruled Hollowell's motion.

During closing arguments, the State argued to the jury:

Now, you heard that Beckey Hollowell, [Hollowell's] wife, told Detective Haworth that the guns belonged to Eric. That was her statement, that the guns belonged to Eric, not to her. So could that—could Eric exercise control over the guns? Absolutely.

The jury found Hollowell guilty of all 15 counts of unlawful possession of a firearm.

Following the jury's verdict, Hollowell filed a motion for new trial. In response to the motion, the trial judge noted her general displeasure of the events at trial, stating the case was "barely submissible" and "there were a lot of things about this trial, really and truly, that troubled [her]." The judge indicated she "never made it a secret that [she] was extremely unhappy over the fact that Beckey Hollowell did not show up for the trial." The judge also indicated had she known Beckey would not testify, she would have prevented the specific out-of-court statement elicited during Detective Haworth's direct examination. Lastly, the judge noted this testimony could have been restricted, limiting the statement to "Beckey Hollowell told me something .... Because of that I showed up at the residence." Ultimately, however, the circuit court overruled the motion, entered a judgment of conviction, and sentenced Hollowell to concurrent seven-year sentences on 14 counts and a four-year sentence for the remaining count to be served consecutively in the department of corrections. Hollowell appeals.⁵

Analysis

Hollowell argues the circuit court erred in overruling his objection to Detective Haworth's testimony as to Beckey's out-of-court statement, his motion for judgment of acquittal at the close of all the evidence due to insufficient evidence, and his motion to dismiss counts two through 15 on double jeopardy grounds. This Court finds sufficient evidence existed at trial to convict Hollowell of the 15 counts of illegal possession of a firearm and the separate firearm convictions for each of the 15 counts do not violate double jeopardy. This Court, however, finds the circuit court erred in allowing Detective Haworth to testify about Beckey's out-of-court statement over Hollowell's objection. Due to the circuit court's error, the judgment of conviction is vacated, and the case is remanded for a new trial.

I. Evidentiary Ruling

A. Hollowell Did Not Waive His Objection

Before analyzing whether the circuit court should have excluded Detective Haworth's testimony about Beckey's out-of-court statement during direct examination, this Court must determine whether Hollowell waived his objection by eliciting the same testimony from Detective Haworth on cross-examination. When a party objects to the introduction of evidence and the objection is overruled, the party does not waive the objection by eliciting that same evidence on cross-examination. Levin v. Hilliard , 266 S.W.2d 573, 577 (Mo. 1954). It would "be a strange doctrine, and a rule utterly destructive of the right and all the benefits of cross-examination, to hold a litigant to have waived his objection to improper testimony because, by further inquiry, he sought on cross-examination to break the force or demonstrate the untruthfulness of the evidence given in chief." Id. This Court has made clear eliciting cross-examination testimony that was previously objected to "would neither waive nor cure the error in the admission of that evidence." Chester v. Shockley , 304 S.W.2d 831, 835 (Mo. 1957).

Hollowell, therefore, did not waive his objection to the introduction of Beckey's out-of-court statement by cross-examining Detective Haworth about the same matter. On direct examination, Detective Haworth testified Beckey told him Hollowell owned the firearms in the safe. The circuit court, over Hollowell's objection and assuming Beckey would later testify to the same facts, admitted Beckey's out-of-court statement for the limited purpose of explaining Detective Haworth's subsequent conduct of going to the home and...