STATE of Missouri, Respondent, v. Jerry Allen GODDARD, Appellant.
No. 63476.
Supreme Court of Missouri, En Banc.
April 26, 1983.
Rehearing Denied May 31, 1983.
The judgment is reversed with respect to the inclusion of royalties in petitioner‘s net income base and is affirmed in all other respects.
RENDLEN, C.J., HIGGINS, BLACKMAR and DONNELLY, JJ., and HOUSER, Senior Judge, concur.
WELLIVER, J., concurs in part and dissents in part in separate opinion filed.
BILLINGS, J., not sitting.
WELLIVER, Judge, concurring in part and dissenting in part.
I concur in the holdings of Points II, III, and IV of the principal opinion. I respectfully dissent, however, from Point I. The principal opinion ignores the clear and unambiguous language of
The Missouri taxable income of a corporation taxable under sections
143.011 to143.996 shall be so much of its federal taxable income for the taxable year, with the modifications specified in subsections 2 and 3 of this section, as is derived from sources within Missouri as provided in section143.451 .
On November 5, 1968, the constitution was amended to provide as follows:
In enacting any law imposing a tax on or measured by income, the general assembly may define income by reference to provisions of the laws of the United States as they may be or become effective at any time or from time to time.... The general assembly may in so defining income make exceptions, additions, or modifications to any provisions of the laws of the United States so referred to ....
John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
BILLINGS, Judge.
Defendant Jerry Allen Goddard was convicted of first degree murder [
Because the evidence relied upon by the state was almost entirely circumstantial, certain established principles govern our review of defendant‘s challenge to the sufficiency of the evidence. The facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the verdict and all contrary evidence and inferences must be disregarded. Being a circumstantial evidence case, the facts and circumstances must be consistent with each other and with the hypothesis of defendant‘s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. However, the circumstances need not be absolutely conclusive of guilt and they need not demonstrate impossibility of innocence—the mere existence of other possible hypothesis is not enough to remove the case from the jury. State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).
On October 26, 1980, the body of Ronald Burr was found floating in the Lake of the Ozarks. Ropes had been tied around the arms and legs and an anchor tied to the ankles. The body had been in the water approximately two weeks before it surfaced, and death was attributed to a blow on the head. The events and circumstances which led to defendant being charged with the homicide had their beginning several months earlier.
Defendant and witness Aldridge were coworkers and friends. Aldridge had become acquainted with Burr and Burr had told him of an investment scheme whereby $3,000.00 turned over to Burr would result in the return of $4,500.00 four months later or $6,000.00 would result in a return of $10,000.00 over the same time period. Aldridge told defendant about the plan and defendant was interested. In April defendant, his wife and Aldridge met with Burr at the Columbia restaurant where Burr was employed and the foursome discussed the investment plan. Burr advised the group that June 15 was the next date for investing but defendant and Aldridge decided to wait until the October date. In August defendant told Aldridge he had talked further with Burr and because there was a $6,000.00 limit per person that he was considering putting up the maximum amount for himself, his wife, son and daughter. By doing this and “turning it over” every four months, defendant said he could retire in a few years. Defendant was counting heavily on making substantial money from the scheme, according to Aldridge.
In late September Aldridge learned Burr had disappeared from the Columbia area. He relayed this information to defendant and told him several people were speculating that Burr was a con man and had left town with their money. Defendant was surprised and upset when he heard this but told Aldridge he believed Burr would return to the area because he was to meet with him on October 7 or 8 so he could turn over his money before the October 15 deadline. Although defendant indicated he still expected Burr to keep their appointment, he and Aldridge concluded the investment scheme was illegal and Burr was a crook. Aldridge also told defendant that he understood Burr carried approximately $180,000.00 on his person at times. A day or two later defendant, expressing the view that Burr had ruined his life because the scheme
Defendant outlined the following plan to Aldridge: “If this guy comes into my house I can go back and get the money and walk in and hand it to him, and while he‘s sitting down, as he looks down, I have got this gun ... and hit him on the back of the head and rob him.” Defendant further explained that in the event things got out of hand and he had to kill Burr then “I have got a boat down at the lake. We can take the guy down to the lake and put him in the car. You can drive the car around to the side of the lake. I can get in my boat and meet you ... and we can put the guy in the boat and take him out and put him in the lake and nobody would ever know.” Defendant said Burr‘s car would be left near the Columbia airport and he would arrange for his children to go to a friend‘s house or a movie the night of the robbery.
On the night of October 8 defendant, a resident of Jefferson City, telephoned Aldridge twice at the latter‘s residence in Columbia. He said Burr had been to his apartment and was to return the night of October 10 to pick up defendant‘s money. Defendant wanted to know if Aldridge was coming down from Columbia to help him as planned. Aldridge told defendant he would talk to him at work. Aldridge did not work October 9 but on October 10 the two men discussed the proposed robbery for about two hours after defendant stated “this is the day.” Defendant told Aldridge he already had some ropes at his apartment to use tying Burr. Defendant got mad and became visibly upset when Aldridge told him he had decided not to participate in the criminal venture.
According to Burr‘s wife he left Pueblo, Colorado, on October 6, driving his 1980 Mustang automobile. He told her he had some business to take care of in Jefferson City. He was registered at the Governor Hotel in Jefferson City on October 7 and 8 and at the Best Western Motel on October 9 with a planned departure date of October 11. He talked with his wife by telephone the nights of October 7 and 9. At about 7 o‘clock the night of October 10 he arrived at defendant‘s apartment. He was not seen thereafter.
In July 1980 defendant purchased a boat and trailer for the sum of $8,500.00. He kept the boat at the Wheelhouse Marina on the Lake of the Ozarks which is located near the four mile marker. Early on a Saturday morning, either October 11 or 18, the dock owner of the Wheelhouse Marina saw defendant and an unidentified man removing defendant‘s boat from the lake. Defendant advised the dock owner he would be bringing the boat back to the marina the following spring. On October 18 defendant traded the boat and trailer, plus $1,000.00 cash, to a Jefferson City automobile dealer for a used car priced at $6,400.00. At the time of the transaction the boat was “very clean.” An anchor that had been on the boat when defendant bought it was missing.
On October 19 a Columbia policeman noticed what turned out to be Burr‘s automobile parked near a commuter parking area on the outskirts of Columbia. When the vehicle was checked for fingerprints after Burr‘s body was discovered, the only print found was that of one of the investigating officers who had touched the car in the process of opening a door. The car had been “swept” so that the fingerprint expert was unable to find even smudges of prints either on the interior or exterior of the automobile.
Burr‘s body came to the surface at about the five mile marker on the lake. The water there is approximately 100 feet deep and one of the deepest parts of the lake. A Water Patrolman had been over the area a short time before the body surfaced and had not seen it. A passerby reported seeing the body and reported the sighting to the Water Patrol and the patrolman went to the scene. He reported the body was visible in the water from a distance of about 300 feet. He secured the body with a rope and towed it to the Wheelhouse Marina.
There was no current in the lake where the body was found. The body had been underwater for approximately two weeks and death was due to a hemorrhage of the brain caused by a blow to the right rear portion of the skull. Because of the water temperature at 100 feet, the body was not decomposed and a laceration of the scalp was about the same size and shape as the butt of a pistol. Blood had pooled in the skull which indicated the body had been “folded up in a very unusual position like in a trunk of a car.” Fingerprints confirmed the victim was Ronald Burr.
At trial, defendant testified in his own behalf. He admitted he and Aldridge had discussed robbing Burr at gunpoint at his apartment in Jefferson City the night of October 10 when Burr came to pick up defendant‘s money. He said Burr called him on September 21 at which time he advised Burr he wanted to invest $6,000.00 and they agreed Burr would get the money on October 10. Further, that Burr said he would call him on October 7.
Defendant acknowledged that after he learned of Burr‘s departure from the Columbia area in September that he had concluded Burr was a con man and a crook. He testified that after he got home on October 8 Burr came to his apartment and he told Burr the money would be ready October 10. He admitted that he called Aldridge in Columbia twice the night of October 8 to inform Aldridge that Burr was back in the area and would be coming to his apartment the night of October 10 to pick up money. Aldridge did not come to work October 9 but the two men talked about the proposed robbery at work on October 10, or, as defendant put it—“the same thing we talked about before, about taking the money away from him.”
Defendant admitted that when Aldridge told him he was not going to participate in the proposed crime this news made him mad and “upset me.” He said that about 7 o‘clock the night of October 10 his wife drove their two children to the movie and Burr arrived at his apartment. According to defendant, Burr left the apartment about an hour later after being advised defendant was not going to invest his money. Defendant denied striking or robbing Burr and said that after the children returned from the movie shortly after 9:30 o‘clock he and his wife went out to eat.
Defendant‘s wife and children also testified in his behalf. The wife said Burr left the apartment about 8 o‘clock and that she and defendant were home when the children returned from the movie. The children both testified their parents were home when they came back from the movie. However, shortly after defendant‘s arrest in early November both children told investigating officers that their parents were not at the apartment when they returned from the movie and one told the officers she stayed up until midnight watching television and her parents were still away when she went to sleep.
Up to a point, the testimony of Aldridge and defendant were entirely consistent with their plan and scheme to rob, and if need be, kill Burr. Any conflicts in their testimony, as well as that of defendant‘s family, were for the jury to resolve, considering all the facts and circumstances in evidence.
We conclude the jury could reasonably find that defendant carried out his original plan to “rip off” Burr; that, as he had outlined to Aldridge, he lured Burr to his apartment under the guise of investing his money in Burr‘s scheme. Further, that the six foot six inch defendant, weighing 230 pounds, struck the five foot seven inch, 140 pound, Burr on the right rear portion of the head with the butt of his pistol, with sufficient force to inflict a fatal blow. The jury could also reasonably infer that defendant bound Burr‘s arms and legs with ropes that he had cut from ropes he had at his dock
The facts and circumstances, supra, are such that the jury could reasonably find and infer that defendant thoroughly cleaned his boat before trading it for a substantially less price than he had paid for it only three months earlier and “swept” Burr‘s automobile of any fingerprints before leaving it near the area that he had mentioned to Aldridge.
We hold that the facts and circumstances outlined herein are consistent with each other and with the jury‘s finding of defendant‘s guilt and exclude every reasonable hypothesis of his innocence. State v. Franco, supra; State v. Williams, 515 S.W.2d 544 (Mo. 1974); State v. Paige, 446 S.W.2d 798 (Mo. 1969); State v. Bayless, 362 Mo. 109, 240 S.W.2d 114 (Mo. 1951).
Defendant contends that because he was charged with capital murder it was reversible error for the trial court to give the jury a first degree murder instruction. In support of this contention he avers that even though the evidence supports the finding that he killed Burr by striking him, in robbing or attempting to rob him, he cannot be convicted of murder in the first degree because he was not charged with that offense, citing State v. Baker, 636 S.W.2d 902 (Mo. banc 1982).
Baker holds that since the amendment to
The trial judge understandably “instructed down“. The instant trial commenced August 31, 1981. Only a short time before, June 11, 1981, this Court handed down State v. Gardner, 618 S.W.2d 40 (Mo. 1981), in which this same trial judge was reversed because he did not instruct on first degree when the charge was capital murder. Baker observed that at the time of the killing in Gardner,
By their verdict ascertain whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, manslaughter, or is not guilty of any offense.
The 1979 amended version of
the court shall not give instructions on any lesser included offense which could not be supported by the evidence presented in the case.
The amendment made no change in defining “capital murder” [
Baker also referred to the repeal of
Prior to 1975 the offense of “capital murder” was unknown to Missouri. The elements of that offense were drawn from the former first degree murder statute that included what was termed “conventional” first degree murder and “felony murder“. That statute provided as follows:
Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree. [
§ 559.010, RSMo 1969 (repealed)]
Under the foregoing statute the felony murder offense could extend to a killing which was not intended at all, or to one not perpetrated by the defendant. Nevertheless, it is interesting to note that the usual form of information or indictment charged the murder to have been done deliberately, premeditatedly, etc., and this was sufficient to charge murder in the first degree, whether the prosecution intended to rely on deliberate murder or felony murder. Kelley‘s Criminal Law and Practice, § 486 (3rd ed. 1913). This form of submission was sustained countless times as against due process charges, even though it might be argued that it permitted a conviction of a defendant on charges which might not possibly be sustained under a literal reading of the indictment or information, in the context of the evidence in this case. Furthermore, the conventional and approved instruction under this statute was one which required a finding of willful, deliberate and premeditated intent, even though there might be no evidence whatsoever that the defendant intended to kill, or had any part in the actual killing. The possible confusion to the jury was solved by further instruction to the effect that the felony served to prove the homicide. Although this manner and form of charging and instructing may have been artificial, and possibly confusing, it was sustained against numerous challenges.
In 1975 the General Assembly split the two aspects of the then existing first degree murder statute into two classes, capital murder [now
This Court did not see any constitutional problem, following the statutory changes, in submitting murder in the first degree in a capital murder case in which it was not charged separately. This follows by implication from Wilkerson and explicitly from Gardner. Defendant‘s argument that first degree murder is a different offense from capital murder, consisting of different elements, is close akin to the argument found in the dissenting opinion of Bardgett, J., in Wilkerson and which was rejected by a majority of the Court. In State v. Fuhr, 626 S.W.2d 379 (Mo. 1982), and State v. Daugherty, 631 S.W.2d 637 (Mo. 1982), both post-1979 cases, the Court ruled first degree murder was properly submissible in a capital murder case. Fuhr, citing Wilkerson and Gardner, reversed the conviction because first degree murder was not instructed upon. Daugherty, relying upon Wilkerson and Gardner, held the evidence supported the submission of murder in the first degree. While it is true that both Fuhr and Daugherty appear to be necessarily overruled by Baker, they are of interest in the history of the matter, and in expounding the Court‘s conclusions on the constitutional implications of charging capital murder and convicting of murder in the first degree.
The repeal of
The process of “instructing down” often works to the benefit of the defendant, in giving the jury the opportunity to mitigate the guilt and punishment where there is substantial evidence to find the defendant guilty. There would be a strange twist in the criminal law if a defendant who had the benefit of the jury‘s mercy could then use the resultant conviction as a basis for avoiding conviction on the higher offense charged, on the less serious offense of which he was convicted, and possibly, of any offense whatsoever.1 Such a result should be countenanced only if compelled by express statutory provisions or by constitutional imperatives.
We are of the opinion that the form of submission was not prejudicial to the instant defendant in the context of this case and it did not deprive him of constitutional rights. The State‘s case depended on the jury‘s accepting evidence demonstrating a chain of circumstances in which the defendant declared a purpose of robbing and killing Burr, whom he considered to be a confidence man with large quantities of cash.
Here, the absence of prejudice to the defendant comes, not from the strength of the case against him, but from the circumstance that the evidence which supported the instruction on first degree murder is exactly the same evidence which would have supported a conviction of capital murder. There is no evidence that defendant acted other than alone. If he acted at all, he acted in the commission or attempted commission of a robbery, planned in advance and therefore premeditated. If the defendant killed Burr, he killed him willfully, deliberately, and with premeditation. A clear issue was made for the jury in the evidence, the arguments, and the instructions. Based on the facts as the jury saw them, the conviction of murder in the first degree was a mitigation of the offense charged, and not a conviction of something other than what was charged. Under these circumstances, we do not believe that we are required to reverse defendant‘s conviction because of a form of submission which had been approved in Missouri for many years and which, at time of trial, was the law.
We agree that the defendant, as a matter of due process, is entitled to notice of the charges against him and may not be convicted of any offense for which the information or indictment does not give him fair notice. For the reasons assigned above, however, the problem before us is not one of due process but rather of procedure.
This Court holds Baker is not retroactive, but prospective, in its application and the trial court did not commit reversible error in submitting first degree murder. Defendant was on clear notice at the time of the homicide and his trial that he could be convicted of first degree murder even though he was formally charged with capital murder.2
Defendant contends that he was denied the right to a speedy trial pursuant to the Sixth Amendment of the U.S. Constitution and under the Missouri statutory provision
Defendant also contends that his rights under the Missouri speedy trial provisions were violated. The statute,
The foregoing analysis should be considered in light of
We have reviewed defendant‘s remaining assignments, directed to evidentiary rulings by the trial court. We find no error calling for reversal.
The judgment is affirmed.
RENDLEN, C.J., and HIGGINS and GUNN, JJ., concur.
WELLIVER, J., dissents in separate opinion filed.
DONNELLY, J., dissents in separate opinion filed.
SEILER, Senior Judge, dissents and concurs in separate dissenting opinions of WELLIVER and DONNELLY, JJ.
BLACKMAR, J., not participating because not a member of the Court when cause was submitted.
WELLIVER, Judge, dissenting.
I respectfully dissent. The principal opinion demonstrates the classic catch-22 into which the majority has written the Court in an effort to affirm criminal convictions.
For a long period of time, instructing down on homicides has been one of the most confused areas of the criminal law. It has been one of the most perplexing problems facing our criminal instructions committee, which only last month met with the Court in an effort to find a solution to the problem.
Four recent cases in which defendants were charged with capital murder have put the ball in our “court.” Those are State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983); State v. Daugherty, 631 S.W.2d 637 (Mo. 1982), now pending in this Court on a motion to recall the mandate under the authority of Baker; State v. Holland, No. 62320 (Mo. banc argued Sept. 27, 1982); and this case. In Baker defendant was not given an instruction down on first degree felony murder. In each of the other three cases an instruction down on first degree felony murder was given. All four murders were committed after
Baker was the first case involving instruction on lesser included offenses under a capital murder charge to recognize the existence of
Appellant herein contends that on the authority of Baker it was error to convict him of first degree felony murder because he was not charged with that offense. The principal opinion seeks to avoid Baker by holding that it is to be applied prospectively, thereby making affirmances possible in all of these cases. Baker, however, cannot be applied only prospectively. Baker merely applied the plain language of
If Baker is viable, then the principal opinion works a flagrant deprivation of due process, for it allows appellant to be imprisoned for life on a conviction for a crime with which he was never charged. In Missouri there are but two ways in which a defendant can be charged with a criminal offense: either (1) expressly by the language of the indictment or information or (2) impliedly because the offense is a lesser included offense of that which is expressly charged. See State v. Wilkerson, 616 S.W.2d 829, 832 (Mo. banc 1981). See also State v. Stone, 571 S.W.2d 486, 487 (Mo. App. 1978). This principle has been firmly entrenched in our system of criminal law for more than 140 years. See State v. Shoemaker, 7 Mo. 177, 180 (1841). In view of this fact there is no question that if Baker is viable, appellant was not charged with first degree felony murder. The express language of the indictment charged appellant with capital murder, not first degree felony murder, and Baker held that first degree felony murder is not a lesser included offense of capital murder. If Baker stands, appellant could not properly be convicted of first degree felony murder. It is fundamental that a defendant cannot be convicted of a crime with which he is not charged. Wilkerson, 616 S.W.2d at 833; State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979); State v. Billingsley, 465 S.W.2d 569, 570 (Mo. 1971). Indeed, “[c]onviction upon a charge not made would be a sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). That is so because the trial court lacks subject matter jurisdiction to render a conviction for a crime that is not charged. State v. Gladies, 456 S.W.2d 23, 25 (Mo. 1970); Montgomery v. State, 454 S.W.2d 571, 574-75 (Mo. 1970).
The principal opinion does not deny that this jurisdictional defect exists. Instead, it treats the problem as one of harmless error, arguing that appellant was not prejudiced because “the evidence which supported the instruction on first degree murder is exactly the same evidence which would have supported a conviction of capital murder.” That argument falls on its own premise. In this case the same evidence that would have supported a conviction for capital murder would also have supported a conviction for robbery or attempted robbery. The princi-
The principal opinion would appear to construe, rather than apply,
The appearance of conservatism in the area of criminal law has become a shibboleth for many courts in view of the public demand today for law and order. We should not allow ourselves to be blinded to that fact. Nearly eighty years ago Mr. Justice Holmes warned that
[g]reat cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Northern Securities Co. v. United States, 193 U.S. 197, 400-01, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904) (Holmes, J., dissenting). We are bound to decide cases in accordance with principles of justice and not on the basis of our own perception of guilt or innocence. We are faced with a situation in which we must either apply Baker and grant Goddard, Holland, and Daugherty new trials or overrule Baker and grant Baker a new trial. To strain law and logic in order to reach the principal opinion‘s result is to work a deprivation of individual liberty that true conservatism could not, and should not, condone.
DONNELLY, Judge, dissenting.
It is settled in Missouri that a court is without jurisdiction to enter a judgment of conviction against an accused as to an offense with which he has not been charged. Montgomery v. State, 454 S.W.2d 571 (Mo. 1970). “Conviction upon a charge not made would be a sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937).
Appellant Goddard was charged with capital murder. He was not charged with first degree murder. He was convicted of first degree murder. In my view, this judgment of conviction cannot stand.
Section
I respectfully dissent.
M.H. SIEGFRIED REAL ESTATE, Appellant, v. CITY OF INDEPENDENCE, Missouri, Respondent.
No. 64470.
Supreme Court of Missouri, En Banc.
April 26, 1983.
Rehearing Denied May 31, 1983.