State v. Lee

• Decision Date: 24 November 1992
• Docket Number: No. 74592,74592
• Citation: 841 S.W.2d 648
• Parties: STATE of Missouri, Respondent, v. Joseph LEE, Jr., Appellant. Joseph LEE, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 648

841 S.W.2d 648

STATE of Missouri, Respondent, v. Joseph LEE, Jr., Appellant.

Joseph LEE, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 74592.

Supreme Court of Missouri,

En Banc.

Nov. 24, 1992.

Rehearing Overruled Dec. 18, 1992.

J. Bryan Allee, Susan L. Hogan, Kansas City, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Robert Alan Kelly, Asst. Attys. Gen., Jefferson City, for respondent.

COVINGTON, Judge.

The appellant, Joseph Lee, was tried by jury on charges of first degree murder, § 565.020, RSMo 1986, first degree robbery, § 569.020, RSMo 1986, and two counts of armed criminal action, § 571.015, RSMo 1986. The jury returned a verdict of guilty on the robbery charge and not guilty on the charges of murder and armed criminal action. The trial court sentenced appellant as a prior offender to thirty years. Appellant later sought postconviction relief in a Rule 29.15 motion, which the motion court denied without evidentiary hearing. The Missouri Court of Appeals, Western District, affirmed the appeal of both judgments. This Court granted transfer to determine the effect of giving a verdict-directing instruction that states a method for the commission of the crime different from the method alleged in the information. The judgments are affirmed.

Appellant does not challenge the sufficiency of the evidence. On May 16, 1988, appellant met Ernest Johnson, Reginald Hunter, and Steven Davis at Thompson's Cafe on Troost Street in Kansas City at approximately 10:00 p.m. The four got into Davis's car and went driving through the downtown and midtown areas looking for someone to rob. They saw Richard Henges leave a bar on Main Street in the midtown area. Appellant, Johnson and Hunter left the car and followed Henges to a side street. Johnson grabbed Henges, then he and appellant began beating Henges. Henges fought back and Johnson ran back to the car. Appellant wrestled Henges to the ground. A shot was fired hitting Henges in the head and causing his death. Appellant and his companions returned to the Davis car. Appellant told Hunter he wanted Henges' gold necklace, then ran back to retrieve it. When appellant returned to the car, he had Henges' wallet and the money from the wallet in his hands. Appellant did not testify and presented no evidence at trial. The jury convicted appellant on the first degree robbery charge and acquitted him of murder and the two charges of armed criminal action.

I.

Appellant asserts that the trial court erred in submitting an instruction to the jury that contained a method for the commission of the crime not charged in the information. Appellant did not object to the submission of the instruction; therefore, the variance between the information and instruction is reviewed under plain error. State v. Johnson, 606 S.W.2d 655, 656-57 (Mo.1980). This Court will reverse only if the error results in manifest injustice or a miscarriage of justice. Rule 29.12(b).

Section 569.020, RSMo 1986, provides that a person can commit robbery in the first degree by one of several different methods:

[W]hen he forcibly steals property and in the course thereof he, or another participant in the crime,

(1) Causes serious physical injury to any person; or

(2) Is armed with a deadly weapon....

Id.

Count III of the information charged appellant with robbery in the first degree in that he "forcibly stole a billfold and gold necklace in the possession of Richard Henges, and in the course thereof, defendant, Joseph Lee, was armed with a deadly weapon." Instruction No. 13, the verdict director corresponding to the robbery charge, submitted that the jury should find appellant guilty only if it found beyond a reasonable doubt:

First, that on or about May 16, 1988, in the County of Jackson, State of Missouri, the defendant took a billfold, which was property in the possession of Richard Henges, and

Second, that defendant did so for the purpose of withholding it from the owner permanently, and

Third, that defendant in doing so used physical force on or against Richard Henges for the purpose of overcoming resistance to the taking of the property, and

Fourth, that in the course of taking the property, the defendant caused serious physical injury to Richard Henges,

There is no doubt that a variance exists between the information and the instruction. The question is the effect of the variance.

In State v. White, 431 S.W.2d 182 (Mo.1968), this Court held that a person could not be "charged with one offense, or with one form of an offense, and convicted of another." Id. at 186. A variance between the information and instruction is "fatal" because it prevents the defendant from receiving adequate notice of the crime with which he is charged. Id. at 185-86; see also State v. Ballard, 394 S.W.2d 336, 341-42 (Mo.1965). White was followed by State v. Shepard, 442 S.W.2d 58 (Mo. banc 1969), and State v. Lusk, 452 S.W.2d 219 (Mo.1970), in which this Court held that "when a crime may be committed by any of several methods, ... the method or methods submitted in the verdict directing instruction must be among those alleged in the information." Shepard, 442 S.W.2d at 60; Lusk, 452 S.W.2d at 223. The reason for the rule found in White, Shepard, and Lusk is to foster and protect the primary purpose of the information, that of providing notice to the accused so that the accused may prepare an adequate defense against the charges brought. See State v. White, 431 S.W.2d at 185-86; see also State v. Ballard, 394 S.W.2d 336, 342 (Mo.1965). ¹

A variance alone is not conclusive to the question of whether there is reversible error. In State v. Crossman, 464 S.W.2d 36 (Mo.1971), this Court considered prejudice in answering the question of whether the variance between the information and the instruction was "fatal." Id. at 42. In Crossman the basic offense charged and submitted was the same. Crossman held that a variance, to justify reversal, should be material and prejudicial to the rights of the accused. Id.; Rules 23.11; 29.12; §§ 545.030 and 546.080, RSMo, 1986. In determining prejudice the Crossman Court enunciated a standard that "unless the defendant can be said to have been prejudiced in that he would have been better able to defend had the information contained the phrase ..., he should not be entitled to relief on account of the variance." Crossman, 464 S.W.2d at 42.

Because the variance in this case affects whether the appellant received adequate notice from the information, the variance is material. See State v. White, 431 S.W.2d at 186. The question then becomes whether a material variance is always prejudicial. The answer must be no. A variance is prejudicial only if it affects the appellant's ability adequately to defend against the charges presented in the information and given to the jury in the instructions. Crossman, 464 S.W.2d at 42; see also White, 431 S.W.2d at 185-86; Ballard, 394 S.W.2d at 342.

Appellant contends he was not able to prepare adequately to defend against the charge submitted to the jury. He expected to defend against the allegation that he robbed Richard Henges and was armed with a deadly weapon. He expected the evidence, he contends, to be adduced through statements of codefendants that he had a gun. To inject the issue of serious physical injury, he alleges, "involved medical testimony and other facts separate from the issue of whether appellant was armed with a deadly weapon."

Appellant's contention squarely frames the pivotal question on this point, but is self-defeating under the evidence in the case. Crucial to the resolution of the question is the evidence adduced. Appellant does not challenge the sufficiency of the evidence to support the conviction either as charged in the information or as submitted in the instruction. The evidence shows that Richard Henges was shot while appellant forcibly stole property from Henges. The evidence further showed that appellant carried the gun on the night of the robbery. There is absolutely no evidence of serious physical injury to Henges other than the gunshot wound to Henges' head. The gunshot wound is the sole evidence by which the jury could have convicted appellant.

The sole evidence of serious physical injury is the very evidence that appellant contends on appeal that he expected to meet through the statements of his codefendants. ² There is no prejudice here. Although appellant claims that "serious physical injury" involved medical testimony and other facts separate from the issue of whether appellant was armed with a deadly weapon, his claim is completely unfounded. The only medical testimony of serious physical injury is that of the gunshot wound. Although appellant also contends there were other facts separate from the issue of whether he was armed with a deadly weapon, he does not suggest what facts those might be. Appellant suffered no prejudice from the variance since his defense at trial, if believed by the jury, was adequate to disprove the method submitted in the information and the method submitted in the instruction. ³ Crossman, 464 S.W.2d at 42, see also State v. Martin, 633 S.W.2d 80, 82 (Mo.1982).

In sum, instructing upon one form of an offense after the information charges a different form of the offense does not require reversal in every case. It is necessary to determine whether the variance between the information and instruction was material and whether the variance "prejudiced the substantial rights of the defendant" to prepare an adequate defense of the charges against him. See Crossman, 464 S.W.2d at 42; Rule 23.11; Rule 29.12(a); see also Martin, 633 S.W.2d at 82. In the present case, the variance did not prejudice appellant's ability adequately to defend against the charges brought. See State v. Clark, 782 S.W.2d 105, 108 (Mo.App.1989). Appellant was prepared and presented an adequate defense for the method alleged in the information and the method presented in the...