State v. McCullum

• Citation: 63 S.W.3d 242
• Decision Date: 31 October 2001
• Docket Number: SD23920
• Parties: State of Missouri, Plaintiff/Respondent v. Leo A. McCullum, Defendant/Appellant. SD23920 Missouri Court of Appeals Southern District
• Court: Court of Appeal of Missouri (US)

State of Missouri, Plaintiff/Respondent v Leo A. McCullum, Defendant/Appellant

SD23920

Missouri Court of Appeals Southern District

10/31/2001

Appeal From: Circuit Court of Greene County, Hon. J. Miles Sweeney

Counsel for Appellant: James R. Wyrsch and J. Justin Johnson

Counsel for Respondent: Breck K. Burgess

Opinion Summary: None

Montgomery, J., and Barney, C.J., concur.

Kenneth W. Shrum, Presiding Judge

A jury convicted Leo A. McCullum ("Defendant") of first-degree assault in violation of section 565.050.¹ Defendant was sentenced to thirty years' imprisonment per the jury's recommendation. Defendant's brief on appeal contains six points relied on. This court affirms the judgment of conviction and sentence.

FACTS

The State charged in its information that on August 22, 1999, Defendant "attempted to kill or cause serious physical injury to Piper O'Neal ("Victim") by setting her on fire, and in the course thereof inflicted serious physical injury on [Victim]."

The evidence adduced at Defendant's trial included the following. Victim lived in Springfield, Missouri, with Defendant and his three children. On August 22, 1999, Defendant and Victim argued intermittently during the day about various topics.

After returning from shopping at approximately 9:30 p.m., Defendant and Victim quarreled again, this time in the garage. This argument escalated into a physical fight, during which Defendant hit Victim with a beer bottle. In one version of several statements Defendant made to police after his arrest, he said the bottle broke and cut Victim above the right eye. The fight continued in the garage, with Victim screaming and yelling at Defendant. After the combatants ended up on the garage floor, Defendant picked up a five-gallon can of lacquer thinner and poured part of the contents on Victim's head and shoulder area. Defendant admitted he knew the thinner was a flammable substance and that he had a cigarette lighter in his hand at the time. According to this account, Defendant went back into the house and Victim then ran past him out the front door. Thereon, Defendant chased Victim and caught her in the neighbor's yard where Victim was screaming and yelling, apparently "freaked out" because some lacquer thinner had gotten into the wound above her eye. According to Defendant, he had a lighter in his hand at the time, was flicking it, and Victim caught on fire.

Eyewitness testimony by neighbors included the following. Barbara Lee, who lived next door, heard a "commotion" in her front yard. She stepped out to look and saw Defendant chasing Victim, and then Victim was engulfed in flames. Victim was screaming, "He set me on fire." Also, Barbara witnessed Defendant drag Victim by her hair. Barbara ran back into her house where she told her son, Stan Lee, to call 911. When Barbara went back outside to get a water hose, Victim was lying on the ground and screaming for help. Defendant was gone.

Stan Lee testified he looked out his bedroom window after hearing a noise outside. He saw two people, a man and woman, chasing one another. Stan then saw the male figure reach out, saw a "flick of a cigarette lighter," and saw the woman go "up in flames." Next, Stan saw the male individual grab the female by the hair of her head. After calling 911, Stan went outside and found the Victim who was screaming, "He set me on fire."

An emergency medical technician, Katherine Knapp, called to the scene to treat Victim, assessed Victim's injuries as second and third-degree burns. While attending to Victim, Knapp heard Victim say, "Oh my god . . . I can't believe he lit me on fire!" When Knapp asked Victim who set her on fire, Victim responded, "Leo A. McCullum, the son of a bitch."

After sheriff's deputies arrived and checked with Victim, they went to Victim's and Defendant's house. There they were met by Danielle, Defendant's fifteen-year-old daughter. After Danielle let the officers in the house, they walked through its various rooms and into the garage to assure themselves the children were safe and that Defendant was no longer on the premises. During this walk-through, the officers saw blood in the entry hall and blood and a broken beer bottle in the garage.

Later, a search warrant was obtained. During its execution, the officers found and seized from the garage a broken bottle, blood, and an open five-gallon container of lacquer thinner. Pictures of these items and the can of lacquer thinner were admitted at trial over Defendant's objection.

Additional facts are recounted as necessary during the analysis and discussion of Defendant's points on appeal.

DISCUSSION AND DECISION

Point I: Information Error: No "Substantial Step" Attempt Charged

Defendant's first point maintains the trial court erred when it refused to dismiss the information which charged him with first-degree assault, section 565.050.² The subject information complied with a form approved by the Supreme Court of Missouri, specifically MACH-CR No. 19.02 (10-1-98). Even so, Defendant challenged the sufficiency of the information by filing a motion to dismiss it on the morning of trial before voir dire commenced. Defendant's motion to dismiss was grounded, in part, on the premise that State v. Withrow, 8 S.W.3d 75 (Mo.banc 1999), mandated that the information charge a "substantial step" attempt, and that, because the information failed to do so, it was insufficient.³ On appeal, Defendant's first point argues the trial court committed reversible error by not dismissing the information.

The information here was filed before Withrow was decided and was never amended. Until Withrow changed the law, if a first-degree assault information charged a person with attempt to kill or cause serious physical injury, the State's burden was to prove a "common law" attempt; the State could not get a sustainable conviction with evidence that only met the lesser "substantial step" definition of section 564.011. MACH-CR 19.02 (10-1-98) "Notes on Use 6."

Defendant argues that Withrow mandated the filing of an information in this case that conformed to MACH-CR section 18.02, i.e., an information that contained both an allegation Defendant engaged in described conduct and express language that "such conduct was a substantial step toward the commission of the crime." Defendant asserts the "substantial step" allegation is now an element of a first-degree assault crime.⁴ Based on that premise, Defendant insists the trial court committed reversible error when it refused to dismiss the information because it did not contain the "substantial step" language comparable to that found in MACH-CR 18.02(7-1-97).⁵

When an essential element is omitted from an information, the sufficiency of that charging instrument is called into question. Any analysis of the sufficiency of an information must begin with a discussion of State v. Parkhust, 845 S.W.2d 31 (Mo.banc 1992). Parkhurst teaches that a failure to allege an essential element in the indictment does not automatically require reversal. State v. Briscoe, 847 S.W.2d 792, 794 (Mo.banc 1993).⁶ However, Parkhurst dealt only with a question of an untimely challenge to the information and created a narrow, strict standard of review. Therefore, the standard of review for timely-challenged objections to the information remains to be decided.⁷In considering what is the appropriate standard of review, we note that the Parkhurst court relied on several federal cases in its analysis. Also, "[e]ach time our courts have compared the state and federal constitutional provisions, they have concluded that art. I, section 18(a) of the Missouri Constitution protects the same rights as the Sixth Amendment of the United States Constitution." State v. Hester, 801 S.W.2d 695, 697 (Mo.banc 1991).⁸ See also State v. Schaal, 806 S.W.2d 659 (Mo.banc 1991) (confrontation rights); State v. Bolin, 643 S.W.2d 806 (Mo.banc 1983) (right to speedy trial); Alexander v. State, 864 S.W.2d 354 (Mo.App. 1993) (compulsory process). Similarly, Article I, Section 10 of the Missouri Constitution provides the same guarantees as the federal constitutional due process rights. State v. Hill, 827 S.W.2d 196, 198 (Mo.banc 1992). It is appropriate, therefore, to look at federal standards when analyzing this claim of trial court error.

A sufficient charging instrument serves three constitutional purposes: (1) inform the accused of the charges against him or her so that he or she may prepare an adequate defense, (2) prevent retrial on the same charges in case of an acquittal, and (3) inform the court of the facts alleged to determine if those facts as alleged are sufficient, as a matter of law, to withstand motions (such as to dismiss) or support a conviction if one is to be had. United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 573, 574, 31 L.Ed. 516 (1888); Russell v. U.S., 369 U.S. 749, 765-70, 82 S.Ct. 1038, 1047-50 (1962); State v. O'Connell, 726 S.W.2d 742, 746 (Mo.banc 1987).⁹

Omitting an essential element from a charging instrument hinders these aforementioned purposes, but the extent and prejudicial effect of the hindrance must be judicially determined. Under the federal standard of review, constitutional errors can be held harmless only if found harmless beyond a reasonable doubt. Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967). In Stringer, 211 S.W.2d at 929, the court declared that if "there is no possible prejudice to the rights of the accused it is not necessary to follow the [common law rules of pleading]."

Here, we need not decide if the Chapman standard, the Stringer standard, or another standard of review is to be used when a defendant timely challenges an information that omits an element. This follows because we find Defendant suffered no prejudice at all due to the omission of "substantial step" language from the information. The first reason we find no prejudice is that Defendant's trial counsel was on the committee that drafted the...