State v. Hoover
| Decision Date | 20 March 2007 |
| Docket Number | No. ED 87068.,ED 87068. |
| Citation | 220 S.W.3d 395 |
| Parties | STATE of Missouri, Respondent, v. Ervell HOOVER, Appellant. |
| Court | Missouri Court of Appeals |
Michael A. Gross, St. Louis, MO, for appellant.
Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
Ervell Hoover (Defendant) appeals from the judgment entered by the Circuit Court of St. Louis County upon his conviction by a jury of second degree murder and armed criminal action. The trial court sentenced Defendant to concurrent terms of ten years' imprisonment for second degree murder and three years' imprisonment for armed criminal action. We reverse and remand.
Defendant does not challenge the sufficiency of the evidence to support his conviction. The facts in the light most favorable to the verdict are as follows: Defendant was the father-in-law of the victim, Jeffery Sexton. Defendant's daughter Lois Sexton was married to Mr. Sexton for twelve years. Mr. Sexton had a long history of physically and verbally abusing his wife and of drug abuse. On December 14, 2002, after a prolonged and brutal episode of physical abuse during which Mr. Sexton threatened to kill Ms. Sexton, she left Mr. Sexton. Robert Hoover, Ms. Sexton's brother, transported Ms. Sexton and her daughter to the airport and they flew to North Carolina, where two of Ms. Sexton's sisters, Lisa and Lorraine, were living. Dennis Irby is married to Lorraine.
Dennis Irby came to St. Louis and stayed with Defendant from December 19 until December 23, 2002. Mr. Irby asked Defendant for a rifle. Defendant gave Mr. Irby a .22 rifle, knowing that it was going to be used to kill Mr. Sexton. Defendant also moved Ms. Sexton's car to a parking lot, knowing that Mr. Irby intended to use Ms. Sexton's car to travel to Mr. Sexton's home to kill Mr. Sexton.
On December 31, 2002, Mr. Sexton's father went to Mr. Sexton's home and found him shot to death. Police arrested Dennis Irby, Robert Hoover and Defendant for the killing of Mr. Sexton.
On January 3, 2003, a grand jury charged Defendant, Robert Hoover, and Dennis Irby with first degree murder and armed criminal action in connection with Mr. Sexton's death. The indictment alleged that the three had acted together to kill Mr. Sexton.
On July 11, 2005, the first day of Defendant's trial, the State filed an information in lieu of the indictment that replaced the charge of first degree murder with second degree murder. The information repeated the allegation that Defendant had acted together with Robert Hoover and Dennis Irby to cause Mr. Sexton's death. On July 12, 2005, the State filed an amended information which substituted "acting with Robert Hoover and Dennis Irby" with "acting with others."
On July 18, 2005, a jury found Defendant guilty of second degree murder and armed criminal action. On September 29, 2005, the trial court sentenced Defendant to concurrent terms of ten years' imprisonment for second degree murder and three years' imprisonment for armed criminal action. Defendant appeals.
Defendant contends the trial court erred by granting the State leave to amend the information to charge Defendant with acting with "others" rather than acting specifically with Robert Hoover and Dennis Irby. More specifically, Defendant asserts the amended information eliminated a viable defense and deprived him of a fair opportunity to prepare for trial.
We review a trial court's order granting leave to file an amended information for abuse of discretion. State v. Folson, 197 S.W.3d 658, 661 (Mo.App. W.D. 2006). An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to indicate a lack of careful consideration. State v. Forrest, 183 S.W.3d 218, 223-24 (Mo. banc 2006).
An information may be amended at any time before a verdict if no additional or different offense is charged and a defendant's substantial rights are not prejudiced. Rule 23.08; State v. Fitzpatrick, 193 S.W.3d 280, 284 (Mo.App. W.D.2006). The test for prejudice is whether the planned defense to the original charge would still be available after the amendment, and whether the defendant's evidence would be applicable before and after the amendment. Id.
Here, Defendant does not claim the charge set forth in the amended information was inherently improper or prejudicial. Rather, Defendant claims he was prejudiced because of the timing of the amendment. That is, Defendant prepared for months to defend against the charge that he aided or encouraged Robert Hoover or Dennis Irby to shoot Mr. Sexton and then on the day of trial was forced to defend against the charge that he aided Dennis Irby or "anyone else" in the murder.
Changing the identity of those with whom Defendant was charged with acting did not constitute charging of a new or different offense. See State v. West, 484 S.W.2d 191, 195 (Mo.1972) () See also State v. Boone Ret. Ctr., Inc., 26 S.W.3d 265, 270 (Mo.App. W.D.2000). After the amendment, Defendant remained charged with second degree murder and armed criminal action in connection with Mr. Sexton's death. Regardless of the amendment, to obtain Defendant's conviction, the State had to prove beyond a reasonable doubt that Defendant was involved in the killing of Jeffrey Sexton. Defendant's defense was that he was not involved in the killing of Mr. Sexton, did not confess and did not know who killed Jeffrey Sexton. This defense was equally applicable to the charge whether Defendant was charged with acting with others or acting with Robert Hoover and Dennis Irby. Point denied.
In his second point, Defendant contends the trial court erred in denying Defendant's motion for a bill of particulars after the State was granted leave to file its first amended information. Defendant claims the amended charge altered the State's theory of the case and deprived Defendant of the opportunity to investigate and prepare a defense to the State's new theory.
The function of a bill of particulars is to clarify the charging document. State v. Larson, 941 S.W.2d 847, 851 (Mo. App. W.D.1997). The bill of particulars enables the accused to prepare for trial, prevents surprise, and restricts the state to matters set forth in the bill. State v. Cunningham, 863 S.W.2d 914, 919 (Mo. App. E.D.1993). We will not disturb a trial court's denial of a motion for a bill of particulars absent an abuse of discretion. State v. Larson, 941 S.W.2d 847, 851 (Mo. App. W.D.1997). To demonstrate an abuse of discretion, the defendant must show that lack of necessary factual details prevented an adequate preparation of a defense. Id. Even if the trial court abuses its discretion, the defendant also must establish he was prejudiced. State v. Sprinkle, 122 S.W.3d 652, 658 (Mo.App. W.D. 2003).
Here, Defendant filed a motion for a bill of particulars following the State's filing, on the first day of trial, of an information in lieu of indictment that reduced the charge of first degree murder to second degree murder. The trial court denied the motion. On the second day of trial, after the State filed the amended information substituting "acting with others" for "acting with Robert Hoover and Dennis Irby," Defendant stated to the court, "The bill of particulars needs to be answered." The court responded, "I'll deny your motion."
Assuming, arguendo, that counsel's statement to the trial court constitutes a renewal of his motion for a bill of particulars, we find the trial court did not abuse its discretion and Defendant was not prejudiced.
The State charged Defendant on March 5, 2003 with one count of first degree murder and one count of armed criminal action. Defendant did not seek clarification of the charging document until July 8, 2005, following the State's reduction of the first degree murder count to second degree murder. Defendant had over two years in which to file a motion for a bill of particulars and to conduct discovery to clarify the nature of his alleged involvement. It is a rare case, and we do not believe this is one, in which the discovery tools available are not sufficient to pinpoint the offense and prepare an adequate defense. See State v. Weiler, 801 S.W.2d 417, 420 (Mo.App. W.D.1990).
Additionally, as noted above, the amended information did not constitute the charging of a new or different offense and Defendant's defense was that he was not involved in the killing of Mr. Sexton, did not confess, and did not know who killed Jeffrey Sexton. Accordingly, we do not find Defendant was prejudiced. Point denied.
In his third point, Defendant contends the trial court erred in overruling his objections to the State's references to Robert Hoover's statements to the police during: (1) the State's opening statement, and (2) the testimony of Officers Carroll, Lowery, and Banta. Specifically, Defendant argues that any reference to the "fact and content" of Robert Hoover's statements was hearsay and prejudicial to Defendant. In addition, Defendant asserts that admission of Robert Hoover's statements incriminating Defendant violated Defendant's Sixth Amendment right to cross-examine and confront adverse witnesses. The State responds that it did not introduce Robert Hoover's confession, but merely offered evidence that the police officers told Defendant that Robert Hoover confessed to the crime and implicated Defendant. The State has not responded to the Defendant's contention that the introduction of Robert Hoover's statements to the police prejudiced Defendant. Nor does the State address the alleged violation of Defendant's Sixth Amendment rights.1
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