Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF BUTLER COUNTY  Honorable Michael M.
Pritchett, Circuit Judge
WILLIAM W. FRANCIS, JR., J.
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.
and Procedural History
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
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."
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.
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.
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
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.
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.
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."
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
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.
David Maclin arrived at the scene, and performed an initial
investigation. Hamm then approached him and said that Hooper
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.
was charged by amended information with the class A felony of
first-degree murder (Count I), pursuant to section
565.020; and armed criminal action (Count II),
pursuant to section 571.015.
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.
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.
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.
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.
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
commenced on April 27, 2017. Hooper did not testify. The jury
found Hooper guilty of first-degree murder and armed criminal
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.
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.
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.
I: Hooper's "Motion to Dismiss"
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.
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).
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
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,  "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.
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).
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
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).
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).
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. 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.
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 ...