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State v. Hooper

Court of Appeals of Missouri, Southern District, Second Division

May 9, 2018

STATE OF MISSOURI, Respondent,
v.
LISA D. HOOPER, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY [1] Honorable Michael M. Pritchett, Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         Lisa D. Hooper ("Hooper") appeals her conviction, following a jury trial, of first-degree murder and armed criminal action. The trial court sentenced Hooper to life imprisonment without parole for the first-degree murder conviction, and seven years' imprisonment for the armed criminal action conviction, with the sentences to run concurrently. Hooper challenges her convictions in seven points on appeal. Finding no merit to any of Hooper's points, we affirm the judgment and sentences of the trial court.

         Factual and Procedural History

         We recite the facts of this matter in accord with the principle that we view the evidence (and the reasonable inferences therefrom) in the light most favorable to the verdict. State v. Lammers, 479 S.W.3d 624, 630 (Mo. banc 2016).

         Victim and Hooper were dating, though their relationship was rocky. Around a month before the shooting at issue in this appeal, Hooper had "run off [Victim and] a couple of other people from her house[, ] and . . . she had taken her gun and shot at [Victim]'s tailgate as they were leaving."

         Around noon on May 9, 2016, Victim was driving Hooper, Brandon Hamm ("Hamm"), and K.H., to a restaurant in a nearby town. En route, Victim and Hooper got into an argument. When the four arrived, Hamm and K.H. got out of the truck to go into the restaurant. Hooper remained in the truck, "throwing a fit." Victim got out, directed Hamm and K.H. to get back in the truck, and the four departed without eating. They drove to Hooper's house. Hamm and K.H. stayed there, while Hooper and Victim left in Victim's truck. K.H. went home. A short time later, Victim and Hooper returned and picked up Hamm.

         Victim was driving, Hooper was in the front passenger seat, and Hamm was in the rear passenger seat. Hooper and Victim began arguing about Hooper sending naked pictures of herself to another man. Victim broke up with Hooper, and the conversation went silent. Victim pulled up to a stop sign, paused, and then proceeded. At that time, Hooper shot Victim in the head with her pistol.

         Hamm heard a loud "boom, " and saw an "orange flash" near the truck's rearview mirror, around eye level for Hamm. Hamm was "certain" he had seen and heard a gunshot. Realizing that Hooper had shot Victim, Hamm jumped out of the truck and ran to his mother's house, which was a short distance down the street. He told his parents that Hooper had shot Victim, and his mother called authorities.

         Hooper called 911 on her cell phone. She exited the vehicle, pistol in hand, and paced in front of the truck. Hooper insisted at least six times that the shooting was "an accident." Hooper turned and saw Hamm's mother, who was standing outside her home down the street. While still on the phone with 911 dispatch, Hooper went back in the truck, wedged her gun between the console and the front passenger seat, and came back out again.

         When authorities arrived, Hooper made numerous self-serving statements. She insisted that: she did not mean to shoot Victim; the gun fell out of her "pocket" "when it went and misfired"; the gun "evidently" fell out of her "pouch" without her realizing; she did not know it would "misfire"; she did not know the gun fell out when she was reaching for her cigarettes in the console; the gun was on her side; and she did not know the safety was off.

         Jennifer Hedgepath ("Hedgepath"), the 911 dispatcher, took Hooper's call. Hedgepath had been a dispatcher for 12 years and had taken thousands of 911 calls. Hedgepath would later testify that when Hooper first called, "it was as calm as me sitting here talking to you now. It was like oh, nonchalant." Then as more people arrived, Hooper's "voice escalated into I need to be panicked or I should change for this. It wasn't a natural response as far as any other 911 call I've ever taken."

         Officer Michael Sanders ("Officer Sanders") was the first officer to arrive. He observed Hooper standing outside the driver's side door of Victim's truck applying pressure to Victim's neck with a T-shirt (Hooper shot Victim in the head). Officer Sanders later testified that Hooper was speaking "louder and louder. The more people got there the louder she got." From Hooper, he observed "no tears, no emotions whatsoever."

         Officer Sanders found a "38 bodyguard" gun in the front of the truck, between the passenger seat and the center console. There were three rounds left in the six-round magazine, and there was one round in the chamber. The safety was off. No other firearms were found at the scene. Officer Sanders located a bullet wound to the back of Victim's head. The slug in Victim's head would later be determined to match the shell casing found in Victim's truck, as well as the bullets found in the magazine of Hooper's gun.

         Sergeant David Maclin arrived at the scene, and performed an initial investigation. Hamm then approached him and said that Hooper shot Victim.

         Victim was transported to the hospital by ambulance. His family made the decision to remove life-support shortly thereafter, and Victim died. Dr. Russell Deidiker, a pathologist, performed Victim's autopsy. He determined that Victim's death was caused by a single gunshot wound to the head, and classified the death as a homicide. Dr. Deidiker found the entrance wound to be in the back of Victim's head just to the left of the mid-line, about the level of the ears. The path of the bullet was from Victim's back to front-from Victim's right to left, and slightly downward. The bullet path indicated that the fatal shot had not been fired from a position lower than the entry point.

         Hooper was charged by amended information with the class A felony of first-degree murder (Count I), pursuant to section 565.020;[2] and armed criminal action (Count II), pursuant to section 571.015.[3]

         While awaiting trial on those charges, Hooper was held at the Pemiscot County Jail. The jail had a policy to record all incoming and outgoing calls, and utilized a third-party contractor- IC Solutions-to implement and maintain the recording system. A voice at the beginning of these calls warned that the call was being recorded. If an attorney called the jail, or IC solutions, and provided phone numbers the attorney did not want recorded for purposes of attorney-client privilege, those phone numbers would then be entered into the system, and the calls to or from those phone numbers were not recorded.

         There were three phone calls Hooper either made or received, wherein a voice stated "this is an attorney-client privilege call" at the beginning of the call. These calls were recorded, as no one had requested that such phone numbers be excluded from the recording system.

         These recordings (along with the other recordings of Hooper's prison communications) subsequently came into the possession of both defense counsel and the prosecutor. An investigator at the prosecutor's office, upon noticing the initial recitation at the beginnings of the calls that they were attorney-client communications, stopped listening, and segregated those calls such that their substance would not be reviewed or revealed. Defense counsel sent the prosecutor a text message saying that the prosecutor's office had received some CDs containing conversations between Hooper and her attorney. The prosecutor promptly acknowledged defense counsel's message, and instructed staff to maintain the recordings, but not to review them until the prosecutor's office received instructions from the trial court on what was to be done with them.

         On April 13, 2017, Hooper filed a "Motion to Dismiss for State's Violation of Defendant's 6th Amendment Rights and Defendant's Right to a Fair Trial" asserting that: (1) three confidential and privileged telephone conversations Hooper had with her attorney were recorded by the Pemiscot County Jail staff; (2) the conversations were confidential/privileged communications between Hooper and her attorney; (3) the recorded conversations contained Hooper's version of the events that transpired; and (4) a CD containing the recorded conversations was delivered to the prosecuting attorney's office. Hooper requested dismissal of all charges then pending against her.[4]

         A hearing was held April 21, 2017, on Hooper's motion to dismiss. The challenged recordings were not admitted into evidence, and not submitted for in camera review. Hooper's counsel made various unsworn arguments as to the contents of the recordings, but there was no evidence adduced thereto. The trial court overruled Hooper's motion to dismiss.

         Trial commenced on April 27, 2017. Hooper did not testify. The jury found Hooper guilty of first-degree murder and armed criminal action.

         Hooper filed a "Renewed Motion for Judgment of Acquittal Pursuant to Missouri Supreme Court Rule 27.07(C), " and a "Motion for New Trial." After hearing argument, the trial court took the motions under advisement. The trial court subsequently overruled both motions.

         Thereafter, the trial court sentenced Hooper to life imprisonment without the eligibility for probation or parole for her conviction of first-degree murder, and a term of seven years' imprisonment for her conviction of armed criminal action, with the sentences to run concurrently. This appeal followed.

         Hooper challenges her convictions in seven points relied on. Summarily, these points challenge the trial court's denial of her motion to dismiss the charges against her on the basis of her "Motion to Dismiss for State's Violation of Defendant's Sixth Amendment Rights and Defendant's Right to a Fair Trial" due to the prosecutor's possession of certain recordings of attorney-client communications; insufficient evidence to support her convictions; and various plain errors alleged to have been committed by the State.[5]

         Analysis

         Point I: Hooper's "Motion to Dismiss"

         In her first point, Hooper alleges that the trial court erred in denying her "Motion to Dismiss for State's Violation of Defendant's Sixth Amendment Rights and Defendant's Right to a Fair Trial." Hooper argues that three recordings of phone conversations she had with pre-trial counsel came into the possession of the prosecutor's office before trial. As best as we can track Hooper's reasoning, we discern the thrust of her argument to be: (1) the content of the three calls were subject to attorney-client privilege; (2) the State's possession of the recordings was-by itself- sufficient to demonstrate prejudice; and (3) the appropriate remedy was dismissal of all charges then pending against Hooper, and the trial court erred in denying that relief.

         As applicable here, we defer to the trial court's fact findings (explicit and implicit) relevant to its challenged ruling; our review is de novo as to the trial court's application of the law to those facts (i.e., the existence or non-existence of attorney-client privilege). See State v. Taylor, 298 S.W.3d 482, 492 n.4 (Mo. banc 2009); see also Roesing v. Dir. of Revenue, ---S.W.3d---, 2018 WL 1276969, at *6 (Mo.App. W.D. Mar. 13, 2018).

         Hooper's argument on appeal is premised on a violation of, in Hooper's words, "[t]he Sixth Amendment to the United States Constitution [that] guarantees every defendant the right to effective assistance of counsel."

This Court has clearly set out that in order to preserve a constitutional issue for appeal a party must (1) raise the constitutional issue at the first available opportunity, (2) specifically designate the constitutional provision claimed to have been violated by express reference to the article and section of the constitution or by quoting the provision itself, (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.

State v. Gannaway, 497 S.W.3d 819, 821-22 (Mo.App. S.D. 2016) (internal quotation and citation omitted) (emphasis added). The facts, for this purpose, refer to the credited evidence, [6] "as there presented, " based "on the record made in the trial court" at the time of the constitutional challenge. State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011) (internal quotation and citation omitted). The constitutional challenge is limited to the record's recitation of "those objections or grounds of objection" made at that time, and the credited evidence there presented. Id. Only these bases for the constitutional challenge, "without change and without addition, will be considered on appeal." Id. (internal quotation and citation omitted); see State v. Driskill, 459 S.W.3d 412, 425-26 (Mo. banc 2015). Where a constitutional challenge is not preserved, the appellant "is not entitled to review." Gannaway, 497 S.W.3d at 823.

         Hooper was the party asserting attorney-client privilege, and had the burden to adduce credited evidence proving "the existence of the privilege." State ex rel. Koster v. Cain, 383 S.W.3d 105, 117 (Mo.App. W.D. 2012). "The subjective intent or wishes of the parties cannot create a privilege where none exists." Id. at 120 (internal quotation and citation omitted). Our courts have rejected claims of attorney-client privilege that were "generic, " "non-specific, " "hypothetical, " "blanket assertions, " or where such claims were limited to matters that were only "potentially privileged, " or "'may' require . . . disclosure" of privileged communications. Id. at 117-18 (emphasis added). "[S]tatements and arguments of counsel are not evidence we may consider for purposes of evaluating whether a [party] has met his burden[.]" State v. Jones, 525 S.W.3d 132, 138 (Mo.App. S.D. 2017).

         Generally, a party seeking to demonstrate the existence of attorney-client privilege must submit any "detailed information, in camera or otherwise, sufficient to permit the trial court . . . [and the reviewing] court to meaningfully evaluate the claim of privilege, as [the courts are] required to do on a case-by-case basis." Koster, 383 S.W.3d at 118. For the attorney-client privilege to attach, the party seeking to invoke the privilege must adduce-and persuade the trial court to credit-sufficient evidence to sustain its burden of proof as to:

1) [i]nformation transmitted by voluntary act of disclosure; 2) between a client and his lawyer; 3) in confidence; and 4) by a means which, so far as a client is aware, discloses the information to no third parties other than those reasonably necessary for the transmission of the information or for the accomplishment of the purpose for which it is to be transmitted. All four of the above elements must be present for the privilege to apply. In addition, surrounding circumstances should be considered as they indicate the existence, or nonexistence, of any one of the elements.

State v. Longo, 789 S.W.2d 812, 815 (Mo.App. E.D. 1990) (internal citations omitted).

         Further, as this Court has previously explained, "[i]n all instances, [the party seeking to invoke attorney-client privilege] must show (1) the existence of an attorney-client relationship at the time of the interaction or communication, and (2) that such relationship existed with regard to the subject matter of the communication or incident." State v. Smith, 979 S.W.2d 215, 220 (Mo.App. S.D. 1998) (emphasis added).

         In other words, a party claiming the privilege has the burden to prove that the subject matter of the asserted privilege was within the scope of the attorney-client relationship-"non-legal" communications, even between a lawyer and a non-lawyer, are not protected by attorney-client privilege.[7] Smith, 979 S.W.2d at 220. Absent this evidence, "the trial court ha[s] no basis for deciding" that the attorney-client privilege should attach, and is obliged to reject the application of the privilege to the matters at issue. Id. Even where the appellant demonstrates trial court error as to its application of the attorney-client privilege, the appellant must also show prejudice therefrom before appellant becomes entitled to relief on appeal. Id.

         At oral argument, this Court specifically asked Hooper's appellate counsel-who was also Hooper's defense counsel at trial-whether the trial court "ever heard the recordings." In response, appellant's counsel made the following representation to this Court: "Yes, your Honor. We made a copy for the judge to review in camera. And . . . we assume that [the trial court] did review [it] in camera after the ...


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