State v. Hutton, s. 58070

• Court: Missouri Court of Appeals
• Writing for the Court: SATZ; CARL R. GAERTNER
• Citation: State v. Hutton, 825 S.W.2d 883 (Mo. App. 1992)
• Decision Date: 28 January 1992
• Docket Number: 59149,Nos. 58070,s. 58070
• Parties: STATE of Missouri, Respondent, v. Robert HUTTON, Appellant. Robert HUTTON, Appellant, v. STATE of Missouri, Respondent.

Page 883

825 S.W.2d 883

STATE of Missouri, Respondent, v. Robert HUTTON, Appellant.

Robert HUTTON, Appellant, v. STATE of Missouri, Respondent.

Nos. 58070, 59149.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 28, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 3, 1992.

Application to Transfer Denied

April 21, 1992.

Melinda Kay Pendergraph, St. Louis, Beth A. Davis, Union, Raymond Legg, Columbia, for appellant.

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

SATZ, Judge.

A jury found defendant, Robert Hutton, guilty of assault, first degree, § 565.050 RSMo 1986, ¹ armed criminal action, § 571.015, and kidnapping, § 565.110. The court found defendant to be a prior, persistent and class X offender, §§ 558.016.2, 558.016.3, 558.019, and sentenced him to imprisonment for 30 years on the assault charge, 10 years on the armed criminal action charge and 10 years on the kidnapping charge. The sentences are to be served consecutively.

Defendant appeals from these sentences and also appeals from the denial of his Rule 29.15 motion. For the limited purposes we set out in our opinion, we reverse and remand the sentences and the denial of the motion.

The charges against defendant arose from a bizarre scenario lasting several days. The state charged defendant with committing an assault, first degree during that scenario by charging that he "attempted to kill or cause serious physical injury to C__ W__ by shooting her and in the course thereof inflicted serious physical injury on C__ W__." Defendant contends that "an essential element" of assault, first degree is the culpable mental state of "purposefully", and, because that element was not alleged, he contends, the charge is fatally defective. We disagree.

An attempt to commit a crime is an assault in the first degree if a person "attempts to kill ... or attempts to cause serious personal injury to another person." § 565.050. No useful purpose would be served in detailing here the reasoning defendant uses to read "purposefully" into this definition. Suffice it to say that Rule 23.01 sets out the essential requirements of an indictment or information, and a charge meets those requirements if it is "substantially consistent with the forms of indictments or informations which have been approved by [our Supreme] Court." Rule 23.01(e); e.g. State v. Bailey, 760 S.W.2d 122, 124 (Mo. banc 1988). The pertinent part of the approved form for the charge of assault, first degree reads:

[The accused] attempted to kill or cause serious physical injury to [name of victim] by [Insert means by which attempt was made such as shooting ...] and in the course thereof inflicted serious physical injury on [name of victim].

MACH--CR 19.02 [1987 Revision].

The charge against defendant follows this form to the letter and, therefore, is not defective.

Defendant next contends the trial court erred by admitting into evidence testimony of Detective Edward Magee in which he related statements C__ W__ had made to him about the incident. This testimony, defendant contends, was hearsay which impermissibly bolstered C__ W__'s testimony.

On direct examination, C__ W__ described in detail what occurred over the five to six day period leading up to the crimes in issue. Stripping her testimony to its essentials, she said she left her husband sometime in August 1987 and went to her cousin's house. On August 24 or 25, she went to defendant's house. Over the next three or four days, she, defendant, and defendant's friend Kenneth Clay visited a woman named Sharon. During this period of three or four days, C__ W__ drank wine and smoked marijuana while defendant and Clay injected cocaine. A man called "Fatman" also was with them on several occasions.

At one point, Sharon wrote a note to defendant accusing C__ W__ of stealing his cocaine. Defendant then gave a pistol to Clay and Clay fired the pistol into the floor next to C__ W__. Subsequently, after C__ W__ had called a friend, defendant asked her if she had called the police.

On the day the crimes occurred, C__ W__ was in the bedroom of defendant's house when her husband came to the house. She opened the bedroom door and saw defendant put a pistol in the trash. She then saw defendant, Clay, her husband and Fatman leave the house. She retrieved the pistol from the trash can and put it into her purse. She then called 911 because she thought something would happen to her. She also called her sister in Detroit and told her that if something happened to her, her husband and defendant did it.

Fatman returned to the house and told C__ W__ that defendant wanted to see her. As she and Fatman were leaving the house, the police arrived. She told the police that no one had called them. She and Fatman then went to Fatman's house. Fatman took her into the house. Defendant and Clay were there. Defendant asked her why she took his cocaine. She denied taking it and defendant hit her with a pistol. He accused her of taking his drugs and setting him up with the police, and he continued to beat her.

Defendant made a phone call, then told C__ W__ she was "going to die a horrible death." About two hours later, defendant, Clay and C__ W__ went to Sharon's house. Sharon and defendant "shot cocaine"; then, defendant told Sharon to hit C__ W__. Sharon complied, hitting C__ W__ with a gun. Defendant, while pointing a gun at C__ W__, asked her whether she would call the police if he let her go. She said she would not. Nevertheless, defendant shot her in the right shoulder.

Defendant told Clay to tie up C__ W__. Clay tied up her arms and legs and gagged her with plastic. Clay then took her outside to a car. Defendant opened the trunk of the car and Clay put her in it.

While the car was being driven, C__ W__ untied herself, found a pistol in the trunk, and fired three times into the front of the car. Three shots were fired back into the trunk. One shot grazed her head. The car stopped, and defendant and Clay opened the trunk. Clay hit her in the head, then she rolled into a ditch. After the car drove off, C__ W__ walked across the street and asked someone to call the police.

At 2:00 a.m., August 30, 1987, police officer Richard Winston arrived and found C__ W__. She was taken to Normandy Hospital and then to Regional Hospital. While she was at Regional Hospital, Detective Magee interviewed her.

On cross-examination, defense counsel attempted to impeach C__ W__ with inconsistencies between her trial testimony and statements she had made prior to trial. The impeachment focused on subjects collateral to the incidents constituting the crime charged such as: her and her husband's past experiences with drugs, how long she stayed at her cousin's house, whether she went to a motel or to defendant's house after visiting Sharon, who she talked with when she called Detroit, who gagged her with plastic, and her description of defendant's features. In responding to the prosecutor's objection to the extent of this cross-examination, the court itself noted the examination was not only extensive, it was focused on "collateral issues."

Later, during the direct examination of Detective Magee, he was allowed to relate the statements C__ W__ had made to him describing what had occurred. Over defense counsel's objections, he related C__ W__'s statements as a clear, concise, and coherent description of the scenario, focused primarily on the incidents constituting the crimes in issue and not on the collateral incidents upon which C__ W__ had been impeached.

On appeal, as at trial, defendant contends this testimony was an improper use of C__ W__'s prior consistent statement to bolster her trial testimony. We agree that the admission of this testimony of Detective Magee was error, but, on the present record, it was harmless.

A witness's prior consistent statements may be used to corroborate the witness's testimony only on those subjects on which the witness has been impeached. State v. Fleming, 354 Mo. 31, 188 S.W.2d 12, 16 (1945); State v. Clark, 711 S.W.2d 928, 933 (Mo.App.1986). Here, C__ W__ was not impeached on her testimony describing the incidents constituting the crimes charged and, thus, her prior consistent statements about those incidents were inadmissible. Fleming, supra; Clark, supra. The admission of her statements, however, was harmless error.

Our courts have used two factors to determine whether prejudice was worked by the improper admission of prior consistent statements: whether the declarant is available for cross-examination and whether the statements are simply cumulative evidence. E.g. State v. McMillin, 783 S.W.2d 82, 98-99 (Mo. banc 1990).

Why cross-examination lessens the prejudicial effect of erroneously admitted prior consistent statements has not been expressly stated by our courts. The rationale may be that cross-examination obviates the hearsay dangers of unreliability inherent in prior consistent statements. See, State v. Robinson, 484 S.W.2d 186, 189 (Mo.1972); State v. Long, 532 S.W.2d 814, 819 (Mo.App.1975). But see, State v. Seever, 733 S.W.2d 438 (Mo. banc 1987). Here, C__ W__ was available for cross-examination.

The second factor, whether the statements are cumulative evidence, has been applied in two ways by our courts. One way finds the prior consistent statement to be cumulative because it is identical to the declarant's trial testimony. See, State v. Morris, 639 S.W.2d 589, 592 (Mo. banc 1982); State v. Haggard, 619 S.W.2d 44, 48 (Mo. banc 1981); State v. Clark, 711 S.W.2d 928, 933 (Mo.App.1986). This method is questionable. Repeating the unimpeached trial testimony of a witness with identical prior statements is the very essence of bolstering.

The other way is to find the statements simply cumulative if the substance of the witness' trial testimony is proven by evidence other than the statements. See, McMillin, supra at 98-99; Broome v. Bi-State, 795...