State v. Hope

• Decision Date: 24 September 1997
• Docket Number: Nos. 19850,21138,s. 19850
• Citation: 954 S.W.2d 537
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Scott Elliott HOPE, Defendant-Appellant. Scott Elliott HOPE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 537

954 S.W.2d 537

STATE of Missouri, Plaintiff-Respondent, v. Scott Elliott HOPE, Defendant-Appellant.

Scott Elliott HOPE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 19850, 21138.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 24, 1997.

Motion for Rehearing or Transfer

Denied Oct. 16, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Kent E. Gipson, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Joiner, Asst. Atty. Gen., Jefferson City, for respondent.

SHRUM, Judge.

A jury convicted Scott Hope (Defendant) of second-degree murder, § 565.021.1(2), and armed criminal action, § 571.015, for the fatal shooting of a gas station attendant during a robbery. ¹ Defendant was sentenced to life imprisonment on the charge of second-degree murder and a consecutive 200-year sentence on the armed criminal action charge. Defendant appeals these convictions in No. 19850.

Scott Hope (Movant) also filed a motion pursuant to Rule 29.15 claiming, among other things, ineffective assistance of counsel. A hearing was held on the motion. The motion court found that Movant's trial counsel was not ineffective and denied the motion. Movant appeals the decision of the motion court in No. 21138. ²

FACTS

Defendant does not challenge the sufficiency of the evidence.

On August 5, 1993, Defendant and Tim Crosby entered the Clark Super 100 gas station at 1122 West Sunshine in Springfield, Missouri, wearing bandanas to cover their faces. The station's security camera captured their entry on video tape. Defendant carried a .22 caliber pistol. Defendant and Crosby robbed the station. The attendant, Francis "Pat" Patrick, was compelled to lie face down in the back room of the station. After Crosby had taken Patrick's wallet, Defendant shot Patrick in the back at close range. Patrick died as a result of this gunshot wound.

Defendant was arrested at the home of Glenna Presley where he was living. The police searched Presley's house and automobile. During this search, the police recovered the murder weapon and ammunition. Defendant was then taken to the police station where he was questioned in a video-taped interrogation. After being informed of his Miranda rights and signing a waiver of those rights, Defendant told police that he was at home at the time of the robbery and murder. He also denied knowing Crosby.

A grand jury indicted Defendant on charges of second-degree murder and armed criminal action. At trial, Defendant's brother testified that he saw Defendant the day before the murder in possession of a pistol. He described that pistol as having a handle similar to that of the murder weapon. The State showed the jury the video taken by the station's security camera. Crosby took the stand against Defendant testifying that Defendant shot Patrick. The State's ballistics expert testified that the .22 caliber pistol seized from Presley's home (where Defendant had been living) was the murder weapon. The ballistics expert also matched the slug retrieved from Patrick's body with ammunition seized from Presley's automobile (which Defendant had been driving).

The defense cross-examined Defendant's brother regarding the tense relationship between Defendant and him. The defense also extensively cross-examined Crosby concentrating on his plea arrangement with the State. Defendant took the stand in his own defense. He claimed that at the time the robbery and murder took place, he was waiting in a parking lot for Crosby and Rick Rogers to return from making a drug deal.

The jury convicted Defendant of second-degree murder and armed criminal action. Defendant was found to be a prior and persistent offender. He was sentenced to consecutive sentences of life in prison and 200 years. Appeal No. 19850 followed.

Scott Hope (Movant) filed a 29.15 motion charging, among other things, ineffective assistance of trial counsel. At the hearing, the motion court heard Movant's testimony and the testimony of his girlfriend. The State presented the testimony of Movant's trial counsel, Elizabeth Bock, and investigator J.D. Herring. The motion court denied Movant's 29.15 motion. Appeal No. 21138 followed.

DIRECT APPEAL--No. 19850

Point I: Remarks Made By Trial Judge

Defendant's first point involves remarks made by the trial judge in the presence of the jury. Defendant admits in his brief that this point has not been preserved. Thus, we review for plain error.

Under plain error review a Defendant bears the burden of showing that the trial court's action was not only erroneous, but that the error so substantially affected his or her rights that a manifest injustice or miscarriage of justice will result if the error is not corrected. State v. Bransford, 920 S.W.2d 937, 942 (Mo.App.1996).

In this case, an alternate juror asked the trial court if juror note taking would be allowed. The trial judge's response included the following:

"We have considered the issue of note taking and I have decided in this case to take the more conservative approach and not allow note taking because I didn't want to insert an issue in the case that might be grounds for the Court of Appeals overturning the case for that reason alone."

Defendant argues that this remark tended to suggest that the trial judge believed Defendant was guilty. He contends that the remark was so prejudicial that it should be considered plain error. We disagree.

Defendant relies heavily on State v. Castino, 264 S.W.2d 372 (Mo.1954) and State v. Dixon, 463 S.W.2d 783 (Mo.1971) to support his argument that the trial judge's remarks rise to the level of plain error. We note that Castino is easily distinguished from this case because Castino does not involve plain error review. Dixon, however, does involve plain error review. Yet, Dixon can be distinguished from this case. The Dixon opinion says that "[i]dentification of appellant and his connection with the crime were in sharp dispute." 463 S.W.2d at 785. In addition, the court in Dixon notes that the defendant there had evidence of an alibi from "substantial citizens." Id. In addition, the nature of the remarks described in both Castino and Dixon are more prejudicial than the remarks here.

Defendant does not establish that the remarks of the trial judge rose to a level that prejudiced the minds of the jury so as to deprive him of a fair and impartial trial. State v. Fleer, 851 S.W.2d 582, 593 (Mo.App.1993). Furthermore, we do not find these remarks plain error in the face of very strong evidence indicating Defendant's guilt. See State v. Sumlin, 915 S.W.2d 366, 370 (Mo.App.1996). The jury heard evidence from a witness who was present when Defendant shot the victim. The murder weapon was found in the house where Defendant lived. A witness testified that Defendant had a pistol with characteristics matching the murder weapon the day before the murder. The slug taken from the victim's body matched ammunition found in an automobile Defendant had been driving.

Given the presence of this and other evidence of Defendant's guilt, there is not in this case a strong, clear demonstration of manifest injustice or miscarriage of justice stemming from the trial judge's remarks. See State v. Varvera, 897 S.W.2d 198, 201 (Mo.App.1995). Even if the trial judge's remarks were improper--an issue we need not decide--we are not persuaded that they so substantially affected Defendant's rights that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. Id. at 201. Point I is denied.

Point V: Remarks Made By Prosecutor

Defendant's fifth point contends that the trial court erred in overruling defense objections to remarks made by the prosecutor in the rebuttal portion of the State's closing argument. Defendant argues that these remarks improperly vouched for the credibility of State's witness Crosby, injecting the prosecutor's personal beliefs and credibility into the case. We recount the prosecutor's statements:

"I am responsible for that plea agreement with Tim Crosby. I put my name to it."

[Defense Counsel] "Objection...."

Defense counsel's timely objection to the argument was based on the grounds that the prosecutor injected his personal beliefs and "did something because he had knowledge outside the scope of this case." While arguing the objection, the prosecutor revealed the extent of the argument that he was going to make. The trial court overruled the objection. The prosecutor went on:

"You might not like that plea agreement. You might not like what we did. But, ladies and gentlemen, if you do not like it, you blame us. You blame us and you hold us responsible for that if you don't like it. And that's something that's going to happen."

"But what you do not do, what you do not do is you let a killer go because you don't like something we did. That's two different issues. The defense has tried to weave them around to the one, but it's two different issues. So, keep them separated. What you might not like about [it] is one thing, but you do not let that killer go because of it."

A trial court has broad discretion in its control of closing arguments allowing counsel wide latitude in making a summation. State v. Nolen, 872 S.W.2d 660, 662 (Mo.App.1994). Even if an abuse of discretion is shown, a defendant must prove that the abuse prejudiced his or her case, i.e., there was a reasonable probability that, absent the abuse, the verdict would have been different. State v. Barton, 936 S.W.2d 781, 786 (Mo.banc 1996).

Here, the prosecutor's remarks could have been seen as an injection of his personal beliefs based on facts not in the record. See State v. Whitfield, 837 S.W.2d 503, 511 (Mo.banc 1992); State v. Roberts, 838 S.W.2d 126, 129-30 (Mo.App.1992). However, this line of the prosecutor's summation occurred during the State's rebuttal. Defendant attacked Crosby's credibility in his closing argument. The State was entitled to a little more latitude to respond...