State v. Middleton, 80941

• Decision Date: 03 August 1999
• Docket Number: No. 80941,80941
• Citation: 998 S.W.2d 520
• Parties: STATE of Missouri, Respondent, v. John J. MIDDLETON, Appellant.
• Court: Missouri Supreme Court

Page 520

998 S.W.2d 520

STATE of Missouri, Respondent, v. John J. MIDDLETON, Appellant.

No. 80941.

Supreme Court of Missouri En Banc.

Aug. 3, 1999.

Rehearing Denied Sept. 7, 1999.

Elizabeth Unger Carlyle, Lee's Summit, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for Respondent.

DUANE BENTON, Judge.

A jury convicted appellant John J. Middleton of two counts of murder in the first degree and two counts of armed criminal action, for shooting Randy Hamilton and Stacey Hodge. The jury assessed two death sentences, which the circuit court imposed. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. Affirmed.

I. Facts

This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).

On June 10, 1995, several drug dealers were arrested in Cainsville, Missouri. Appellant, a drug dealer, worried that informants would implicate him as well. That afternoon, he told Tom Constable that there were "some snitches that should be taken care of," because he did not want to go back to prison. He mentioned several names, including Randy "Happy" Hamilton.

The next day, appellant and his girlfriend, Maggie Hodges, met Hamilton and Stacey Hodge on a gravel road. Stacey Hodge was Hamilton's girlfriend. Appellant shot Hamilton in the back once with an SKS rifle, and shot Stacey Hodge in the back three times. Appellant then shot Hamilton in the head, killing him. Maggie Hodges killed Stacy Hodge by shooting her in the head with another SKS rifle. Both bodies were placed in the trunk of Hamilton's car. Appellant drove the car, looking for a place to dispose of the bodies. Hodges followed in a truck.

While driving around, appellant saw Danny Spurling. Appellant - covered in blood and driving Hamilton's car - said that he had "taken care" of Hamilton. He asked Spurling what to do with the bodies, indicating that he might burn them in Hamilton's old house. The next morning, appellant gave Spurling the car stereo from Hamilton's car, and said that "they were really going to freak out when they found those two." Appellant had a written list of names, and asked if Spurling knew anyone on the list.

About a week and a half later, appellant told Richard Pardun that "there was a narc around and they were going to take care of it." He said that he had a "hit list," mentioning several names on it, including Hamilton, Alfred Pinegar, ¹ and William Worley. Appellant offered Pardun $3,500 to set up a meeting with Worley.

On June 25, 1995, John Thomas was at appellant's house, discussing informants. Appellant listed several people who "needed to be taken care of," including Hamilton, Pinegar, and Worley. Thomas noticed two SKS rifles and a box belonging to Hamilton. When Thomas asked about the box, appellant replied, "the guy who owned that box wouldn't be needing it no more."

About the same time, appellant visited Dennis Rickert in Iowa. Appellant told Rickert: "I'd knowed 'Happy' for 15 [years]. He knew enough to put me away for life. I done 'Happy.' " Appellant also gave Rickert several guns, including two SKS rifles, which Rickert later turned over to the police.

Appellant was arrested for another murder (Pinegar's) in late June 1995. On July 10, 1995, Hamilton's car was discovered in the woods where it had been abandoned. The car stereo was missing. The victims' decomposed bodies were in the trunk. Bullet fragments taken from Stacy Hodge's body displayed class characteristics consistent with the SKS rifles that appellant gave Rickert.

While awaiting trial in the Harrison County jail, appellant confessed to fellow inmate Douglas Stallsworth. Stallsworth testified that appellant described the murders, admitted killing Hamilton and Hodge because they were informants, and acknowledged hiding their bodies and taking the rifles to Iowa.

II. Pretrial Matters

A.

Appellant asserts that the trial court erred in overruling his pretrial motion to quash the information or estop the court from imposing the death sentence. Appellant argues that the State exercises unconstitutional discretion in seeking the death penalty. This point is again denied. E.g., State v. Smith, 944 S.W.2d 901, 923 (Mo. banc), cert. denied, --- U.S. ----, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997).

B.

Appellant alleges that the circuit court should have sustained his pretrial motion to dismiss the charge of murder in the first degree. Appellant contends that first- and second-degree murder are indistinguishable because the definition of "deliberation" is devoid of meaning and provides inadequate notice of the crime charged. To the contrary, first- and second-degree murder are distinguishable. State v. Rousan, 961 S.W.2d 831, 851-52 (Mo. banc), cert. denied, --- U.S. ----, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). First-degree murder requires sufficient evidence of deliberation, defined by statute as "cool reflection for any length of time no matter how brief." Section 565.002(3). ² The trial court properly overruled appellant's motion to dismiss.

C.

Appellant next argues that his absence at three pretrial hearings violated his statutory and constitutional rights to be present at trial. Appellant was absent from hearings on October 24, 1997; February 13, 1998; and March 13, 1998.

At the hearing on October 24, the trial court scheduled several pretrial hearings, and the defense withdrew its "Notice of Intent to Rely on the Defense of Mental Disease or Defect." The notice was re-filed on December 8, and appellant was present on December 19, when defense counsel, the prosecutor, and the court specifically discussed the notice and the court ordered a mental examination under section 552.030.3.

At the February 13 hearing, the trial court scheduled another pretrial hearing. Also on February 13, the prosecutor mentioned that appellant had, "refused to talk to [the court-appointed psychiatrist] when he met with him on ... January 21st of 1998." Defense counsel responded that appellant "has agreed that he will meet with [the psychiatrist] and cooperate with him." The court set a two-week deadline for the mental examination.

Finally, at the hearing on March 13, the court ruled on 41 defense motions. It also granted the State leave to file a First Amended Information.

Appellant contends that his absence at these three hearings violated his right to be present under section 546.030; article I, section 18(a) of the Missouri Constitution; and the Due Process Clause of the Fifth Amendment. He stresses that the trial court:

ruled on the majority of the pretrial motions at these settings. The court's rulings on these motions were material to the way in which the trial was ultimately conducted and therefore to the defense strategy at that trial.

Moreover, appellant notes that he was absent when the prosecutor said he refused to submit to the court-ordered mental examination. He argues: "This strongly suggests his disagreement with his counsel's decision to present a mental illness defense."

This claim was not raised in appellant's motion for new trial. Rule 29.11(d) ; see State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 692 (1943). Accordingly, this Court reviews for plain error. Rule 30.20. Relief will be granted only if substantial rights are involved and the Court finds a manifest injustice or miscarriage of justice. Id.; State v. Davidson, 982 S.W.2d 238, 242 (Mo. banc 1998).

1. Statutory Right to Be Present

"No person indicted for a felony can be tried unless he be personally present, during the trial." Section 546.030 ; see also Rule 31.03(a). Under the statute: "The trial does not embrace every procedural and administrative step and judicial examination of every issue of fact and law." State v. Durham, 416 S.W.2d 79, 83 (Mo.1967). A defendant's presence is not required at preliminary or formal proceedings or motions that do not affect guilt or innocence. Id.

In this case, the proceedings at issue were all pretrial. Appellant concedes that no evidence was adduced during these hearings. Defense counsel explicitly acknowledged at the March 13 hearing: "These are all our legal motions, Judge, they're not evidentiary." Nor does appellant contend that any rulings affected his guilt or innocence. Rather, he says that the "motions were clearly material to the trial of the case."

Appellant's statutory claim to be present for all motions affecting the trial is without merit. The statute requires a defendant's presence only "during the trial." Section 546.030. Appellant's absence at the pretrial hearings was not plain error amounting to a manifest injustice.

2. State Constitutional Right to Be Present

The Missouri Constitution provides: "That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel." Mo. Const. art. I, sec. 18(a). This right is broader than that in section 546.030, but can be waived. Neal, 169 S.W.2d at 694. Waiver occurs when neither defendant nor defense counsel requests the defendant's presence. Id.; Durham, 416 S.W.2d at 83 ("There was no request by defendant's counsel that defendant be brought from confinement to the courtroom or that the hearing on the motion be postponed until defendant could be present."); State v. Bizzle, 500 S.W.2d 259, 263 (Mo.App.1973).

Here, defense counsel expressly waived appellant's presence at all three pretrial hearings. At the end of the October 24 hearing, defense counsel stated: "We were here on behalf of our client. Our client was not present in court. That was with the consent of the client." On February 13, 1998, defense counsel stated: "I did not request the court to writ in my client this morning. Voluntarily waive my client's presence." Finally, on March 13, 1998, defense counsel began: "Judge, for the record I would note that I did not writ my client in for this...