State v. Williams

• Decision Date: 13 January 2004
• Docket Number: No. SC 85355.,SC 85355.
• Parties: STATE of Missouri, Respondent, v. Paul E. WILLIAMS, Appellant.
• Court: Missouri Supreme Court

126 S.W.3d 377

STATE of Missouri, Respondent, v. Paul E. WILLIAMS, Appellant.

No. SC 85355.

Supreme Court of Missouri, En Banc.

January 13, 2004.

As Modified on Denial of Rehearing February 24, 2004.

James R. Wyrsch, Charles M. Rogers, J. Justin Johnston, Wyrsch, Hobbs & Mirakian, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Breck K. Burgess, Assistant Attorney General, Jefferson City, Philip M. Koppe, Assistant Attorney General, Kansas City, for Respondent.

MICHAEL A. WOLFF, Judge.

This appeal raises issues of the requisite mental state for charging armed criminal action.

Following his conviction on one count each of second-degree assault and armed criminal action, Paul Williams challenges the sufficiency of the amended information, claiming that the assault charge failed to allege that he engaged in a substantial step toward the commission of the assault and that the armed criminal action charge omitted the mental culpability requirement. He contends that the evidence was insufficient on the armed criminal action count because there was no allegation or evidence that he used his vehicle with the intent to cause death or serious physical harm to the victim. Williams also claims that the State violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose exculpatory evidence.

Following opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const. art. V, sec. 10.

This Court concludes: (1) Williams was effectively charged with assault in the second degree and armed criminal action; while the amended information should have included the mens rea requirement of "knowingly" or "purposely" in charging Williams with armed criminal action, Williams failed to demonstrate that he was prejudiced by the deficiency. (2) Williams used his car as a "dangerous instrument" as defined in section 556.061(9).¹ (3) The circuit court did not err in denying Williams' claim that the State violated Brady.

The judgment is affirmed.

Facts and Procedural Background

Two Kansas City, Missouri, police officers responded to a disturbance call to a residence in Kansas City made at Marva Mosley's request. The police saw Paul Williams run out the front door of the residence and get into a car and then saw Mosley run into the street and wave her arms at the officers. Mosley stood in front of Williams' car, and Williams drove toward her, striking her and causing her to be thrown onto the hood of the car. She rolled off the hood on the passenger side and fell to the ground, rolling approximately two times. The officers pursued Williams for a few blocks and arrested him.

Mosley told the police officers that she and Williams had an argument that evening and Williams had kicked her door open, struck her in the mouth with a closed fist, intentionally ran into her car with his car, and tried to run her over with his car. In a signed statement, Mosley said: "Paul drove the car into the street and ran into me. I landed on top of the hood and he just kept on going." Mosley obtained an order of protection against Williams. About one to two weeks later, Mosley told an assistant county prosecutor that she was recanting her statements to the police. Mosley later gave an affidavit to Williams' attorney recanting her statements to the police.

The Jackson County prosecutor's amended information charged Williams as a prior, persistent, and dangerous offender with one count of second-degree assault, one count of third-degree assault, and one count of armed criminal action for attempting to injure Mosley with the car. In a bench trial on these charges, Mosley testified for the defense that she had lied to the police because she was angry with Williams and "wanted to get him into trouble." The circuit court found Williams guilty of second-degree assault and armed criminal action. The circuit court denied Williams' post-trial motions and sentenced Williams as a prior, persistent, and dangerous offender to seven years in prison for assault and five years in prison for armed criminal action, to run concurrently.

Williams Was Not Prejudiced by Deficiencies in the Amended Information

Williams challenges the sufficiency of the amended information on count one, assault in the second degree, and on count three, armed criminal action.

Rule 23.01(b)(2) instructs that a charging indictment or information must "[s]tate plainly, concisely, and definitely the essential facts constituting the elements of the offense charged[.]" The test for the sufficiency of an indictment or information is whether it contains the essential elements of the offense charged as set out in the statute or statutes that define the offense. State v. Briscoe, 847 S.W.2d 792, 794 (Mo. banc 1993).

Failure to allege an essential element in the information does not automatically require reversal. Because Williams did not contest the sufficiency of the amended information until after his conviction, he is only entitled to narrow review. An information or indictment will be deemed insufficient, where the issue is raised for the first time after a verdict or judgment, "only if it is so defective that (1) it does not by any reasonable construction charge the offense of which the defendant was convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced." State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992).

A defendant is only entitled to relief based on a post-trial claim that the information is insufficient if the defendant demonstrates actual prejudice. A defendant suffers actual prejudice if the information or indictment was either so deficient that the defendant was not placed on notice as to what crime he or she was being charged with or was so lacking in clarity that the defendant was unable properly to prepare a defense. State v. Baker, 103 S.W.3d 711, 722 (Mo. banc 2003).

The Assault Charge

Williams claims that the amended information was insufficient because it did not allege that he engaged in a "substantial step" toward the commission of the assault and it failed to identify the facts constituting the substantial step toward commission of the underlying offense. He claims that this alleged defect impaired his ability to prepare a defense.

A person commits the crime of seconddegree assault if he or she "[a]ttempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument." Section 565.060.1(2). Count one of the amended information charging Williams with second-degree assault stated that "the defendant attempted to cause physical injury to Marva Mosley by means of a dangerous instrument, to wit: a car."

Section 564.011 governs all attempt crimes, and a substantial step is an essential element of any attempt under Missouri law, including attempt-based assault as defined by section 565.060.1(2). State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). Section 564.011 says: "A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense." The statute defines "substantial step" as "conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." Section 564.011.1. After Withrow, the pattern charge for second-degree assault was amended, effective September 1, 2001, to require that a charge include a description of the conduct constituting the substantial step.

Rule 23.01(b) states that if an indictment or information is substantially consistent with the forms of indictments or informations approved by this Court, it is deemed to comply with the requirements of Rule 23.01(b). Williams' second-degree assault charge followed, word-for-word, MACHR 19.04, the pattern charge in effect at the time Williams was charged and tried. Because the amendment to the pattern charge was not effective until after Williams was charged and tried, Williams was properly charged with second-degree assault in the amended information.

Parkhurst requires that Williams demonstrate actual prejudice to be entitled to relief. 845 S.W.2d at 35. A defendant who claims a charging instrument is insufficient because it does not include an essential element of the crime charged does not demonstrate actual prejudice where he fails to identify an aspect of his defense that was hindered due to the variance of the information from the statute. State v. Pride, 1 S.W.3d 494, 503 (Mo.App.1999). Williams claims that he "could not know the allegations or evidence, precisely, against which he should be prepared to defend."

The conduct that constituted the substantial step was Williams driving into Mosley with his car. At trial, Williams' defense was that Mosley jumped on the hood of his car. Williams neglects to explain in this appeal how the failure to include a description of the substantial step in the amended information hindered his ability to make this defense; he does not suggest an alternative defense he would have offered. See Baker, 103 S.W.3d at 722.

Because the second-degree assault charge mirrored the pattern charge in effect at the time Williams was charged and tried and Williams fails to demonstrate actual prejudice, Williams is not entitled to relief.

Williams also claims that the absence of a description of the substantial step in the charge hindered his ability to plead former jeopardy, although he does not specify how. The Court looks at the proceedings as a whole, along with the information, when analyzing a double jeopardy claim. State v. McCullum, 63 S.W.3d 242, 250 (Mo.App.2001). An alleged defect in a charging instrument does not preclude a defendant from later arguing double jeopardy when "it is abundantly clear from the facts and the record exactly what activity was alleged to...