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State v. Elliott

Court of Appeals of Missouri, Western District, Fourth Division

October 18, 2016


         Appeal from the Circuit Court of Benton County, Missouri The Honorable Michael O'Brien Hendrickson, Judge.

          Before: Mark D. Pfeiffer, Chief Judge, Presiding, Victor C. Howard, Judge and Gary D. Witt, Judge.

          Gary D. Witt, Judge.

         Levi Scott Elliott ("Levi")[1] was convicted, following a jury trial in Benton County, Missouri, of murder in the second degree, section 565.021, [2] armed criminal action, section 571.015, and tampering with a motor vehicle, section 569.080. Levi was sentenced to consecutive terms of imprisonment of twenty years, five years, and five years, respectively. Levi raises two claims of error in his appeal. First, Levi claims that the trial court erred in not sua sponte preventing the State from entering a nolle prosequi and refiling the charges because this deprived Levi of the opportunity to be considered for dual jurisdiction in sentencing pursuant to section 211.073. Second, Levi claims that the trial court erred in overruling a hearsay objection at trial. We affirm.

         Factual Background[3]

         The events giving rise to Levi's convictions occurred on the evening of March 24, 2012. In March of 2012, Levi was fifteen years old, and his half-sister, Sierra Elliott ("Sierra"), was twelve years old.[4] Both Levi and Sierra lived with their father, Jim Elliott, and Sierra's mother, Peggy Elliott, in Bolivar, Missouri. The previous month, Jim and Peggy Elliott's older son, Andy Summers ("Summers"), moved out of the house, leaving behind a gun cabinet containing some firearms. The gun cabinet was locked, but the key to the cabinet was located on top of the cabinet. Summers had taught Levi how to shoot the .22 caliber guns for target practice and at the time that Summers moved out of the house, the magazine for the .22 caliber Ruger rifle remained loaded.

         On March 24, 2012, around 8:00 p.m., Jim and Peggy Elliott left twelve-year-old Sierra in the care of her brother Levi while they ran an errand. Jim and Peggy Elliott owned a white Ford pickup truck that remained at the house.

         Jim and Peggy Elliott returned home in about one hour. When they returned, they noticed that the house was dark and their pickup truck was missing. Jim Elliott entered his home and yelled for his children. He heard moaning coming from the master bedroom where he found Sierra lying on the bed with a gunshot wound to her head. Levi was not at home. Jim and Peggy Elliott called 911, and Sierra was airlifted to the hospital. Sierra did not regain consciousness and passed away the following day. The projectile from the gun that injured Sierra was consistent with a Ruger .22 caliber rifle. There were no signs of forced entry into the home and nothing was missing from the home. Summers's gun cabinet was open.

         Video surveillance at the Walmart in Clinton, Missouri showed that Levi parked Jim and Peggy Elliott's white Ford pickup truck in the Walmart parking lot at approximately 9:02 p.m. and walked into the store. Levi remained in the store for approximately two hours. Two Walmart employees testified about speaking with Levi while he was in the store. Nicole Marsh, who worked in the electronics department, received two calls for Levi. She testified that she spoke to a woman who stated she was Levi's grandmother and was frantic wanting to speak with him. She paged Levi's name over the store public address system and identified Levi as the person who responded to the page. Levi told the woman on the phone that he "didn't do anything" and that he did not want his father to know his location. A second call came in from a woman claiming to be Levi's mother. Levi was paged again and he responded. He spoke with the woman on the phone and said he "hadn't done it" and kept telling her not to tell his father his location. Levi also spoke with Walmart employee Vickie Anderson ("Anderson"), who asked him if he needed help. Levi was nervous and said that he was on spring break and was just hanging around. Levi told her that he had been watching movies with his sister. In the conversation, they discussed hunting, and Anderson mentioned to Levi that she had a black Jeep that was parked outside.

         Levi also spoke with his step-father Robert Adams ("Robert"), the husband of Levi's biological mother, Joy Adams ("Joy")[5], while at Walmart. Levi told Robert he needed someone to pick him up from Walmart. In a subsequent conversation, Levi claimed that when he was home alone with Sierra, he heard a loud noise from down the hallway. He went to investigate and saw that Sierra had been shot, and a man with a rifle was rummaging through a dresser. Levi claimed that he put on his shoes and fled the scene in Jim and Peggy Elliott's truck. Levi claimed that the man pursued him in a black Jeep for several miles but eventually gave up. Levi then stopped the truck at Walmart because the truck was out of gas.

         Joy testified that she received a call from Peggy Elliott the night of the shooting, who told her that Levi had shot Sierra. Joy spoke with Levi while he was at Walmart, and Joy's parents, Levi's grandparents, picked Levi up from the Walmart and brought him to a hotel. Levi told the same story regarding the intruder and car chase with the black Jeep to Joy. When Joy learned the police were looking for her son, she took him to a police station in Kansas City.

         Procedural Background

         Levi was charged on June 13, 2012 with second degree murder, armed criminal action, and tampering with a motor vehicle in the first degree. On July 3, 2013, a motion for change of venue was granted and the case was transferred to Greene County, Missouri. On August 27, 2013, the State dismissed the charges and refiled them the same day in Polk County, Missouri.

         A jury trial was held from October 27, 2014 through October 29, 2014. At trial, the trial court overruled a hearsay objection to testimony from Jason Trammell ("Trammell") of the Missouri State Highway Patrol. Trammell was allowed to testify that a paramedic told him that blood found on a nightstand near Sierra was the result of an IV inserted by paramedics in treating Sierra. The jury found Levi guilty of the charges against him. At the time of conviction, Levi was seventeen years and eight months of age. Levi was sentenced on January 7, 2015, at which time he was seventeen years and ten months of age. Levi now appeals.


         Point One

         In Point One on appeal, Levi argues that the trial court erred in failing to sua sponte prevent the State from dismissing the charges against him and refiling the same charges the same day because it deprived him of the opportunity to be considered for dual jurisdiction in sentencing pursuant to section 211.073.[6] Levi argues that had the case not been dismissed and refiled, he would have been under the age of seventeen years and six months at the time he was found guilty and, therefore, would have been eligible for the dual jurisdiction program. Levi argues that this deprived him of due process of law guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Missouri Constitution.

         As no objection to the dismissal was made before the trial court, Levi requests plain error review of his claim under Rule 30.20.

Rule 30.20 authorizes this Court to review, in its discretion, "plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Our Supreme Court has established a threshold review to determine if a court should exercise its discretion to entertain a Rule 30.20 review of a claimed plain error. First, we determine whether or not the claimed error "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted[.]'" State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) (quoting Rule 30.20). If not, we should not exercise our discretion to conduct a Rule 30.20 plain error review. If, however, we conclude that we have passed this threshold, we may proceed to review the claim under a two-step process pursuant to Rule 30.20. In the first step, we decide whether plain error has, in fact, occurred. [State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009)]. "All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious and clear." Id. (citations and internal quotation marks omitted). In the absence of evident, obvious, ...

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