STATE OF MISSOURI,
NELDON H. NEAL,
March 23, 2012
APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY
Honorable Tracy L. Storie, Circuit Judge
Neldon H. Neal ("Defendant") appeals his conviction of involuntary
manslaughter in the first degree for the shooting death of Judy Lewis ("Victim"). See
section 565.024.1 In a prior trial, a jury acquitted Defendant of second-degree murder,
but found him guilty of voluntary manslaughter. We subsequently reversed
Defendant's voluntary manslaughter conviction and its accompanying life sentence in
State v. Neal, 304 S.W.3d 749, 750 (Mo. App. S.D. 2010) (Neal I).
Defendant received a fifteen-year sentence as a persistent felony offender. Unless otherwise indicated,
all statutory references are to RSMo Cum. Supp. 2011, and all rule references are to Missouri Court
As none of the complaints Defendant asserts in the instant appeal were
presented to the trial court, he seeks plain-error review. Defendant claims the trial
court clearly erred by: 1) violating his right to be free from double jeopardy in that the
State's second amended information charged him with "knowingly" causing the death
of Victim -- the mental state required for the second-degree murder charge of which
he was previously acquitted; and 2) submitting an instruction to the jury that
authorized it to find him guilty of involuntary manslaughter in the first degree if it
found that he "recklessly" caused the death of Victim -- a different mental state than
that alleged in the second amended information. Finding no merit in either contention,
Applicable Principles of Review
An issue not properly preserved for appellate review "may be reviewed for
plain error only[.]" State v. Storey, 40 S.W.3d 898, 903 (Mo. banc 2001). "[P]lain
errors affecting substantial rights may be considered in the discretion of the court
when the court finds that manifest injustice or miscarriage of justice has resulted
therefrom." Rule 30.20.
"The rule has long been established that to preserve constitutional questions for
review on appeal, the constitutional issue must be raised in the trial court at the earliest
opportunity, consistent with good pleading and orderly procedure." Carpenter v.
Countrywide Home Loans, Inc., 250 S.W.3d 697, 701 (Mo. banc 2008). "The
determination of whether the protections against double jeopardy apply is a question
of law which this court reviews de novo." State v. Mullenix, 73 S.W.3d 32, 34 (Mo.
App. W.D. 2002).
Facts and Procedural Background
Defendant was originally charged with second-degree murder. As earlier
noted, the jury in Defendant's first trial convicted him of the lesser-included crime of
voluntary manslaughter. Neal I, 304 S.W.3d at 751. In Neal I, we held that the
verdict directors submitted to the jury were erroneous because voluntary manslaughter
was submitted as a lesser-included offense of second-degree murder without the
necessary predicate evidence at trial of "sudden passion arising from adequate cause."
Id. at 754. We found Defendant was prejudiced thereby as "it permitted the jury to
find [Defendant] guilty of a crime that it was impossible to commit given the apparent
absence of 'sudden passion.'" Id. at 755. And because Defendant was acquitted of the
greater charge, he could not again be tried for voluntary manslaughter as a lesserincluded offense of a greater charge now barred by double jeopardy. Id. at 756.
After we issued our mandate reversing the conviction, the State, acting
consistently with that mandate, charged Defendant in an "Amended Information" as a
persistent offender with first-degree involuntary manslaughter for "recklessly
caus[ing] the death of [Victim] by shooting her[.]" Five days before Defendant's
second trial commenced, the State filed a "Second Amended Information." That
information was still subtitled "Involuntary Manslaughter in the First Degree" but it
charged Defendant with "knowingly" causing the death of Victim instead of
"recklessly" doing so.
The Second Trial
The evidence adduced at Defendant's second trial is summarized here in the
light most favorable to the verdict. See State v. Stidman, 259 S.W.3d 96, 98 (Mo.
App. S.D. 2008). On March 13, 2007, Marsha Sumrall and her small child were living
with Victim and Defendant at their trailer in Roby. Ms. Sumrall was formerly
Victim's daughter-in-law and viewed Victim as her "mom." Defendant and Nathan
Light arrived at the trailer around 2:00 p.m.
Mr. Light went to Defendant's trailer to help him with an awning, to take a
shower (because Mr. Light did not have hot water at his residence), and to have a
sandwich. Both Defendant and Mr. Light had been drinking alcohol, and Mr. Light
believed they were both drunk. After the two men arrived at the trailer, Defendant
changed his mind about doing anything with the awning. Mr. Light went inside to
take a shower, and while he was showering he heard "murmuring and cussing and
carrying on, but [he] ignored it[.]"
Ms. Sumrall, who was inside the trailer, heard Defendant yelling at Victim
outside the residence. The yelling continued as the two came inside the trailer.
Defendant was calling Victim derogatory names and accusing her of infidelity.
Defendant grew angrier "and started foaming at the mouth." Defendant also yelled at
Ms. Sumrall, calling her names. He threw a barstool three times. Ms. Sumrall, who
was frightened by Defendant's behavior, took her child and ran to her car, forgetting to
take her car keys with her. When she went back inside to retrieve her keys, Defendant
was standing over Victim, holding a knife sharpener. Victim was crouched down and
had her hands in the air. Ms. Sumrall "[had] never seen a look of terror in [Victim's]
eyes like that." Ms. Sumrall knew where a gun was kept inside the trailer. She
"grabbed the gun and turned and pointed it [at Defendant], and [she] tried to make it
work[,]" but the gun did not fire. At that moment, Mr. Light came into the living
room. Defendant said he was sorry, put the knife sharpener on the kitchen counter,
and went to the back of the trailer.
When Defendant left the room, Ms. Sumrall gave the gun to Victim and told
her to kill Defendant. Instead, Victim, still holding the gun, sat in a chair. Defendant
returned to the living room -- holding a bigger gun -- and took from Victim the smaller
gun she was holding. Ms. Sumrall described what happened next as follows:
Um, [Defendant] said, bitch, pull a gun on me and I'll kill you.
You know, at that time I turned to run out the front door, and he put the
little gun to the back of my head and it went click. And he's like, stop
bitching, I'll shoot. I then see [my child] standing in front of my car, so
I knew I had to get to her.
Ms. Sumrall ran toward her child and Defendant chased her. Victim ran after
Defendant and jumped on his back. Defendant threw Victim off his back, and she
landed against a truck parked next to Ms. Sumrall's car. Defendant then pointed the
gun in Victim's direction and fired. Ms. Sumrall heard the gunshot and saw smoke
come out of Victim's chest. Victim "grabbed her chest and toppled to the ground."
Ms. Sumrall put her child in her car, directed Mr. Light to also put Victim in,
retrieved her car keys from inside the trailer, and drove to a convenience store in
Roby. A Texas county deputy, medical personnel, and other law enforcement-related
persons responded to Ms. Sumrall's car at the convenience store. The Texas County
coroner testified that Victim was in the back seat "in a sitting position and deceased."2
Several officers then went to Defendant's residence and found it vacant. A
search for Defendant ensued, and he was eventually located sixty-two days later at a
campsite in "a very, very remote rugged wooded area along the [Gasconade R]iver."
A subsequent examination revealed that Victim's heart and one lung were perforated by a single bullet
and that she died from excessive blood loss.
Defendant was taken into custody and executed a written waiver of rights before being
questioned. During that questioning, Defendant informed the authorities where to find
the gun he had used to shoot Victim. The interview of Defendant was recorded.
Although that recording was admitted into evidence and played for the jury, Defendant
did not include it in the record on appeal.3
The Challenged Jury Instruction and Resulting Verdict
The verdict-directing instruction, Instruction No. 6, submitted to the jury at
Defendant's second trial read as follows.
If you find and believe from the evidence beyond a reasonable
First, that on or about March 13, 2007 . . .
[Defendant] caused the death of [Victim] by shooting
Second, that [D]efendant recklessly caused the
death of [Victim],
then you will find [Defendant] guilty of involuntary
manslaughter in the first degree.
The instruction further stated "that a person acts recklessly as to causing the death of
another person when there is a substantial and unjustifiable risk he will cause death
and he consciously disregards that risk, and such disregard is a gross deviation from
what a reasonable person would do in the circumstances."
Defense counsel argued to the jury, consistent with his opening statement, that
"this was an accident, [a] terrible and tragic accident, but an accident nonetheless."
The jury found Defendant guilty of involuntary manslaughter in the first degree, and
this appeal timely followed his subsequent sentencing.
"When an exhibit is not filed with an appellate court, its intendment and content will be taken as
favorable to the trial court's ruling and as unfavorable to the appellant." State v. Davis, 242 S.W.3d
446, 449 n.1 (Mo. App. S.D. 2007).
Point I--Double Jeopardy
Defendant's first point contends his conviction of first-degree involuntary
manslaughter violated his Fifth and Fourteenth Amendment rights to be free from
double jeopardy. Defendant bases this claim on the fact that the State's second
amended information charged Defendant with "knowingly" causing the death of
Victim (the mental state required to prove second-degree murder) "and in the appeal
from that [second-degree murder] conviction this Court reversed his conviction of the
lesser[-]included offense of voluntary manslaughter in the first degree." As earlier
indicated, Defendant acknowledges that "because the issue was not raised at the trial
court level, [he] is forced to request review for plain error."4
Defendant cites State v. Elliott, 987 S.W.2d 418 (Mo. App. W.D. 1999), as an
example of plain error review of an alleged double-jeopardy violation. In Elliott, the
court stated that "an exception [to the rule permitting waiver of a double-jeopardy
claim] should be made in any case in which we can determine from the face of the
record that the court had no power to enter the conviction." Id. at 421 (citing Hagan
v. State, 836 S.W.2d 459, 461 (Mo. banc 1992)), overruled on other grounds by State
v. Heslop, 842 S.W.2d 72 (Mo. banc 1992).5
Defendant raised the double-jeopardy issue in his motion for new trial and argued it at the sentencing
hearing, but this was not "the earliest opportunity, consistent with good pleading and orderly
procedure." Carpenter, 250 S.W.3d at 701. Cf. State v. Knifong, 53 S.W.3d 188, 192 (Mo. App. W.D.
2001) ("[a] motion for new trial is too late to properly assert and preserve a claim that a statute is
In Elliott, the court discussed both the Fifth Amendment's double jeopardy clause and the prohibition
stated in section 556.041(1) against conviction for multiple offenses where "[o]ne offense is included in
the other[.]" Id. at 420-22. Mr. Elliott was convicted of both first-degree robbery and first-degree
assault, in addition to other offenses, resulting from acts against a single victim on one occasion. Id. at
419-20. In that particular case, a deadly weapon or dangerous instrument was not used to commit the
robbery, and the defendant was charged "with assault causing serious physical injury to the victim and
A review for plain error involves two steps.
First we determine whether the claim of error facially establishes
substantial grounds for believing that manifest injustice or a
miscarriage of justice has resulted. [State v. Kidd, 75 S.W.3d 804, 811
(Mo.App.2002)]. If so, we can then, in our discretion, consider whether
a miscarriage of justice or manifest injustice will occur if the error is
not corrected. Id. at 811–12. An appellant must go beyond a mere
showing of prejudice to show manifest prejudice affecting his
substantial rights. Id. at 812.
State v. Washington, 249 S.W.3d 255, 257 (Mo. App. W.D. 2008). Here, we do not
make it past the first step, as Defendant has not facially demonstrated the existence of
an error that gives us substantial grounds for believing that a manifest injustice or
miscarriage of justice has occurred.
Here, assuming arguendo, that the State's second amended information
charged Defendant with second-degree murder, he was tried and convicted of firstdegree involuntary manslaughter, not second-degree murder or voluntary
Defendant next argues that "[d]ue process mandates that a criminal defendant
may not be convicted of an offense not expressly charged in the information or
indictment, citing State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999). But
[a] defendant may be convicted of any lesser offense necessarily
included in an indictment or information. Hibler, 5 S.W.3d at 150.
Accordingly, since involuntary manslaughter is a lesser included
offense of second degree murder, State v. Smith, 737 S.W.2d 731, 734
(Mo.App. W.D.1987), the information charging [a]ppellant with second
degree murder was sufficient to support trying him for involuntary
manslaughter. Likewise, the original information charging [a]ppellant
with armed criminal action in connection with the murder in the second
degree charge was sufficient to support [a]ppellant's conviction of
with causing a serious physical injury to rob her. The first-degree assault charge did not require proof of
a fact which the robbery charge did not also require." Id. at 421. The court vacated the conviction with
the shorter sentence. Id. at 422.
armed criminal action in connection with the lesser-included offense of
State v. Hayes, 88 S.W.3d 47, 55 (Mo. App. W.D. 2002). For due-process purposes,
"a defendant is deemed to have notice that he could be convicted of any lesserincluded offense of a charged crime." Id. at 56 n.4.
The State's initial amended information, filed after our remand in Neal I,
clearly stated the offense charged was involuntary manslaughter, it cited the
involuntary manslaughter statute (section 565.024) as authority, and it alleged that
Defendant "recklessly caused" the death of Victim as required by section 565.024.1.
The second amended information changed the dates of Defendant's alleged prior
convictions and asserted that Defendant "knowingly caused" Victim's death. Despite
this change in the mental state asserted, the second amended information still referred
to the offense charged as "Involuntary Manslaughter in the First Degree," and it still
cited section 565.024, the involuntary manslaughter statute.
The incorrect use of the "knowingly caused" language in the State's second
amended information did not create a double-jeopardy violation in the instant case
because the jury convicted Defendant of first-degree involuntary manslaughter; it did
not convict Defendant of either second-degree murder or voluntary manslaughter. As
discussed more fully in our analysis of Defendant's second point, the jury was asked to
determine whether Defendant "recklessly" caused Victim's death -- the appropriate
mental state for first-degree involuntary manslaughter. Moreover, our review of the
transcript reveals that the word "knowingly" was never uttered during Defendant's
second trial. It is clear that the case was prosecuted, defended, and submitted to the
jury for it to determine whether Defendant was guilty of first-degree involuntary
manslaughter, not second-degree murder or voluntary manslaughter. No manifest
injustice or miscarriage of justice appears. Point one is denied.
Point Two--Alleged Instructional Error
Defendant's second point contends the trial court erred in instructing the jury
that it could find Defendant guilty of first-degree involuntary manslaughter "if [it]
found that [Defendant] recklessly caused the death of [Victim]" because this
"fundamentally changed the culpable mental state" as set forth in the second amended
information. As with his first point, Defendant acknowledges that his claim may only
be reviewed for plain error as he lodged no objection to the submission of this
instruction at trial.6
Defendant does not allege that the challenged instruction incorrectly set forth
the elements necessary to support a conviction for first-degree involuntary
manslaughter, and he acknowledges that instructional error seldom constitutes plain
error, citing State v. Thomas, 75 S.W.3d 788, 791 (Mo. App. E.D. 2002). Instead,
Defendant characterizes his claim as one pointing out a "fatal variance" between the
charge and the instruction. Defendant argues that he "was entitled to rely on the
factual allegations in the second amended information[,]" citing State v. Madison, 997
S.W.2d 16, 19 (Mo. banc 1999), and that it was a manifest injustice for "the State to
fix the error in the second amended information by means of the jury instruction."
Rule 28.03 provides that "[n]o party may assign as error the giving or failure to give instructions or
verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating
distinctly the matter objected to and the grounds of the objection." The rule also provides that "[t]he
objections must also be raised in the motion for new trial in accordance with Rule 29.11." Id.
Defendant's motion for new trial claimed that the verdict director was erroneous, but not because it
varied from the charge. Rather, Defendant alleged in his motion for new trial that the instruction
"fail[ed] to specify what actions of Defendant the State alleged were reckless[.]"
"A variance is prejudicial only if it affects the appellant's ability adequately to
defend against the charges presented in the information and given to the jury in the
instructions." State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992); see also Madison,
997 S.W.2d at 19 (even if the charging document was incorrect, the defendant must
still demonstrate actual prejudice); State v. Goss, 259 S.W.3d 625, 627 (Mo. App.
S.D. 2008) ("[e]ven a material variance is prejudicial only if it impairs the defendant's
ability to adequately defend"). Indeed, "the Crossman Court enunciated a standard
that 'unless the defendant can be said to have been prejudiced in that he would have
been better able to defend had the information contained the phrase . . ., he should not
be entitled to relief on account of the variance.'" Lee, 841 S.W.2d at 650 (quoting
State v. Crossman, 464 S.W.2d 36, 42 (Mo. banc 1971).
As noted by the State, section 562.021 addresses the application of culpable
mental states and provides that while "reckless" acts are insufficient to prove that
someone "knowingly" acted in a certain way, "[w]hen recklessness suffices to
establish a culpable mental state, it is also established if a person acts purposely or
knowingly." Section 562.021.3 and .4, RSMo 2000. Defendant argues that he "was
not properly given notice that he would be required to defend against the 'reckless'
mental state which greatly impaired his ability to properly prepare his defense."
Tellingly, he suggests no actual impairment or harm. And, given our opinion from
Defendant's first appeal, the language used in the State's first amended information,
the other language used in its second amended information, and our review of the
transcript of Defendant's second trial, Defendant's claim of prejudice due to lack of
notice is unpersuasive. Defendant's position from his opening statement through
closing argument was that the incident was an accident. This clearly refutes
Defendant's after-the-fact claim that the substitution of "knowingly caused" for
"recklessly caused" in the State's second amended information negatively impacted his
ability to adequately defend the case.
The challenged instruction was not erroneous -- it correctly submitted the
charge of first-degree involuntary manslaughter. And Defendant's trial conduct
demonstrated that the erroneous language in the State's second amended information
did not prejudice his ability to prepare and execute his defense. No manifest injustice
or miscarriage of justice appears. Defendant's second point is also denied, and the
judgment of conviction and sentence is affirmed.
Don E. Burrell, Presiding Judge
Rahmeyer, J. - Concurs
Lynch, J. - Concurs
Attorney for Appellant - Erika R. Eliason, Columbia, MO.
Attorney for Respondent - Chris Koster, Attorney General, and, Evan J.
Buchheim, Assistant Attorney General, Jefferson City, MO.