552 S.W.3d 123
Mo. Ct. App.2018Background
- Lisa Hooper was convicted by a jury of first-degree murder and armed criminal action for the May 9, 2016 shooting death of her boyfriend; she received life without parole and a concurrent seven-year term.
- Trial evidence: Hooper and victim argued repeatedly that day; while in the truck Hooper allegedly shot the victim in the back of the head; a .380 casing and a slug matched Hooper’s gun and magazine.
- Hooper made multiple unprompted statements at the scene and to 911 asserting the shooting was an “accident”; officers and the 911 dispatcher testified to her calm/inconsistent demeanor.
- While jailed pretrial, three recorded phone calls began with an announcement of “attorney-client privilege”; those recordings were provided to the prosecutor’s office but were not played or admitted at the suppression hearing and were not placed in the trial record.
- Hooper moved to dismiss alleging Sixth Amendment/attorney-client-privilege violation based on State possession of the recordings; the trial court denied the motion.
- On appeal Hooper raised seven points: denial of the motion to dismiss (privilege/Sixth Amendment), insufficiency of evidence for murder and armed criminal action, and alleged plain error by the State in cross-examination and closing argument; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying motion to dismiss for State’s possession of recorded jail calls purportedly protected by attorney-client privilege | Hooper: recordings of three calls with counsel were privileged; mere State possession violated Sixth Amendment and warranted dismissal | State: recordings were not shown in the record; no proof calls were privileged or surreptitious; disclosure at call outset warned calls were recorded | Court: denial affirmed — appellant failed to put recordings or admissible evidence of their content into the record or prove privilege; mere possession alone insufficient |
| Sufficiency of evidence that Hooper caused the victim’s death (first-degree murder) | Hooper: evidence did not prove she caused the fatal gunshot; argued alternative explanations and removal of life support as cause | State: physical evidence (casing, slug, gun with matching ammo), eyewitness reaction (boom/flash), Hooper’s conduct before/after, and expert testimony supported inference Hooper fired the fatal shot | Court: sufficiency affirmed — reasonable inferences from evidence supported that Hooper caused the death and acted knowingly/deliberately |
| Sufficiency for armed criminal action (use of deadly weapon in commission of felony) | Hooper: without proof she caused death, the armed-criminal-action element fails | State: weapon matched evidence and murder conviction supports armed criminal action | Court: affirmed — armed criminal-action conviction supported by murder conviction and weapon evidence |
| Whether plain-error relief is available for alleged prosecutorial misconduct in cross-exam/closing | Hooper: State committed reversible plain error by eliciting improper testimony and attacking defense counsel/credibility | State: errors, if any, derive from prosecutorial conduct not preserved as trial-court rulings; plain-error review not available here | Court: denied relief — appellate court has no basis to grant relief for unpreserved claims against State conduct absent trial-court error |
Key Cases Cited
- State v. Lammers, 479 S.W.3d 624 (Mo. banc 2016) (standard for viewing evidence on sufficiency review)
- State v. Taylor, 298 S.W.3d 482 (Mo. banc 2009) (deference to trial court fact findings and de novo review of legal application)
- State ex rel. Koster v. Cain, 383 S.W.3d 105 (Mo. App. W.D. 2012) (party asserting privilege bears burden to prove it; need for detailed evidence/in camera review)
- State v. Longo, 789 S.W.2d 812 (Mo. App. E.D. 1990) (elements required for attorney-client privilege)
- State v. Smith, 979 S.W.2d 215 (Mo. App. S.D. 1998) (privilege requires attorney-client relationship and subject-matter connection)
- State v. Grim, 854 S.W.2d 403 (Mo. banc 1993) (rejection of heightened circumstantial-evidence rule)
- State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014) (appellate limits on sufficiency review and jury fact-finding authority)
- Holland v. U.S., 348 U.S. 121 (1954) (circumstantial evidence treated like testimonial evidence; juries weigh inferences)
- State v. Bunton, 453 S.W.2d 949 (Mo. banc 1970) (historical circumstantial-evidence approach discussed and distinguished)
- State v. Halverson, 541 S.W.3d 1 (Mo. App. S.D. 2018) (example affirming murder conviction where jury inferred intent from conduct and inconsistent statements)