State v. Handley

Missouri, Respondent, STATE of

Danny HANDLEY, Appellant. D.

No. 60590.

Supreme Court of Missouri.

July 1979.

Rehearing Sept. Denied 1979.

SEILER, Judge.

In which to the writer on comes charged reassignment, appellant was recent (felony-murder) with first murder 559.007, 1975, by under RSMo an indict- § alleged knowingly he aid- ment which that arm- attempted ed others in an and abetted Clay ed the North Hills Bank in robbery of 10, 1976, during on March County, Missouri shot. security guard fatally which a on was submitted to the cause 559.007; murder, degree (felony) first § murder, 559.- second conventional § 1969; manslaugh- voluntary RSMo ter, 559.070, Appellant was RSMo 1969. murder, and, second convicted of being agree upon punish- able to ment, judge to 55 was sentenced years appealed confinement. He to appeals, western district of the court of reversed, concluding which de- second gree is not a included murder lesser offense murder, which felony charged. Believing defendant was prevented which conviction of same reasons pre- defendant for second manslaughter, vented conviction for appeals court of transferred the cause general this court because of the interest importance principal issues corollary questions involved. Appellant during at- present was not tempted robbery Hills Bank North men, about which occurred at three armed alleged 1976. 10:45 a. m. on March His prior occurred to that time. involvement Falk- January February 1976 James ner, plan, robbery who masterminded appellant’s recruited brother and certain With he other men for scheme. them plans “cased” and made for the bank escape. first robbery Falkner contact- 7,1976, time March Handley ed on appellant asked steal an automobile. he On March Falkner asked Shull, Philip William E. Gettig, Gettig, D. Handley automobile. While steal Shull, City, appellant. Coulson & Kansas for fill “order” for one was able to Falkner’s second, nei- Ashcroft, Gen., John such but not Atty. D. automobile Robert Presson, Gen., purpose for Atty. City, Asst. Jefferson ther instance was he told for respondent. used. would be which the stolen vehicle

On the morning plans robbing when dis- abortive for bank were attempt, Handley and a Ed friend named cussed. went to apartment an Troost Avenue “Ed” plan Handley There was no City pursuant mid-Kansas re- to Palkner’s apartment, to return the Paseo but

quest that they help “something”. him with time, day. By did so later that elucidate, Falkner point did not and at this had unsuccess- robbers returned from their Handley nothing still knew about the rob- foray Handley asked ful into the bank and bery plans. Handley first learned of them being told money where was. After that morning, as he heard Falkner brief none, was At no there he left “Ed”. men throe were to who execute the scheme planning robbery time did the of in- as to their assignments and watched final split money clude a the bank for Hand- preparations being made. At Falkner’s be- rather, paid for hest, ley; he was to be a fee Handley Ed then used Ed’s car to help stealing the whenever had the guns deliver LTD Falkner masks to another apartment on Paseo money. Boulevard in mid-Kan- made no of Hand- Falkner mention City, sas changed where the into others ley a he state’s participant when turned their overalls. preparations When were in gave evidence and a detailed confession complete,, all the men drove in a four-car for a 15-year return sentence. caravan, including vehicles, two to stolen Appellant allegations of makes numerous point the “jumping-off” Clay County. error. Because of our resolution of car, Ed’s Handley in which passenger, was a First, we need address three. brought up the rear and proceeding after appellant alleges that the court erred block, about one one of the drivers honked failing grant judgment for his motion his horn and the four pulled cars over. acquittal in was insufficient evi- that there Handley reported to that the driver Falkner dence to he aided show that and abetted of the third was not driving properly. car perpetration robbery of the or homicide. The two changed places men in that car Second, submitting the alleges he error in drive, that the might other and the caravan Third, second resumed instruction. entourage its trek. The arrived at “parking alleges discharged a Depart- lot of the he that he should be Waterworks ment,” River, north of the where on Missouri rather than new trial remanded parked the stolen getaway Buick was as a nor neither the facts vehicle occupants joined and its two manslaugh- support the law a conviction for driver of the stolen LTD. The LTD then ter. proceeded to the North Hills Bank while cars, the other including two the one in I. which Handley riding, was parking left the lot and returned to City. midtown Kansas Although appellant present was not during the was to have robbery and never The three armed burst would-be robbers therefrom, the proceeds received the lobby into of the North Hills Bank in points separate circum state to several City, Kansas north the Missouri River demonstrating appellant’s active stances (Clay shouted, County), and one of them enterprise, the freeze, participation in the criminal “Everybody hit the floor!” Gunfire erupted. By car. its twenty Fifteen to shots were first which is the theft fled, loot, fired before the robbers sans showed uncontradicted evidence state leaving guard a mortally wounded bank he Handley time did not know at the who died about five hours The facts later. stole the car its use be and what would do not show who fired the fatal bullets. cannot be said that he then intended the robbery assist in scheme means

Falkner testified on cross-examination cannot be complicity the auto theft. His presence that the officer security Strawther, on the bank based that act. See State totally unexpected was and (Mo.1972). no shooting contemplated or mentioned 476 Next, pres- the state II. Handley’s relies during briefing ence the final session submission of Appellant next attacks the preparations robbery; pres- for the on his asserting jury, second murder to the ence in the car dis- weapons in which indictment felony-murder that because guises apart- were from the ferried Troost charge did not include to the apartment prior ment Paseo building convicted murder, impermissibly he the robbery; unexpected and on his ar- been accused. he crime of which had not apartment rival at the of one of the robbers agree. We after abortive when attempt, he asked any money. if there was While Con I, Missouri 17 of the Article these facts knowledge demonstrate person shall no guarantees “That stitution purpose, criminal Handley’s presence, with- mis felony or criminally for prosecuted more, prove out does not his participation. by indictment than demeanor otherwise Irby, 800, v. (Mo.1968). State 423 S.W.2d 803 of protection . . .” The information

However, any con may these facts this section renders properly constitutional considered or necessari charged with other evidence a crime not in determin- viction for ing question the or participation. indictment ly underlying of v. State included Reed, 946, 453 can be no (Mo.1970). S.W.2d 948-49 nullity. “There information Viewed in light, we for a crime appellant trial, find will- punishment or conviction ingly joining the caravan which as its accusation.” had formal and sufficient without a goal 1186, intended the bank robbery while 111 S.W.2d McKinley, and 341 Mo. v. State en route to Clay County jurisdic telling Falkner 115, 118 A court is without (1937). that one of the drivers was having difficul- offense unless try person for an tion to ty with Hill, the third car. United States v. informa charged the has been offense 464 F.2d (8th Cir.1972), 1287 Barrett, has been cited v. tion or indictment. See State in which prosecution showed defend- 76, 1020, (1931). 44 78 To 332 Mo. presence ant’s planning at a session for do so would violate a defendant’s due crime, her nodded and plan, assent to the Arkansas, rights, process Cole v. 333 U.S. presence her conspirators with the when 196, 514, 201, (1948), 68 92 L.Ed. 644 S.Ct. robbery was thwarted. The court appellate remand, 929, granted cert. after 337 U.S. ruled that a aiding submissible case of and 1496, 93 L.Ed. 1737 aff’d S.Ct. abetting had not Hill Although been made. 345, 172, S.Ct. L.Ed. 155 seems us, given similar to the facts before 14, (1949); Georgia, Presnell v. totality 236, circumstances —attend- 58 L.Ed.2d 207 ing the planning session, final riding ferrying car has referred us weapons acqui- Although the state disguises, and Williams, escence in the use such as v. stolen car in to cases State (Mo.banc 1975), felonious and State activity finally dur- assistance S.W.2d 883 ing the in which trip Jewell, (Mo.1971), jump-off point during 473 S.W.2d 734 which second was reported inability “instructing down” to murder controlling assigned one carry permitted, drivers to out we do not find them his task, on here, were decided considering all for evidence and infer- on the issue statutes in Reed, ences prosecution, favorable to the under the murder charges filed Before 453 S.W.2d 1975. prior September we find ac- force defendant’s the then “first date, proscription tions participation constituted sufficient 559.010, statute, RSMo the criminal enterprise degree to make a § submissi- murder” form” case “common robbery, 1969,broadly ble included both abetting “felony” although first de murder and degree did not find defendant first doing September gree so. murder.1 On 559.010, “Every be committed 1. Section murder which shall RSMo 1969 defined first de- wait, gree by lying poison, murder as follows: means thereafter, “common degree form” first “first murder” under 559.007 § separated murder was from “felony-murder clearly shows that the latter do not contain degree” first designated “capital legal the former. and factual aver- “[A]ll murder”. section, 559.005, new RSMo necessary ments to sustain a conviction for Supp.1975 (now 565.001, revised in § RSMo a lesser included offense must also be ele 1978) provided, person “A capi- greater Hayes ments of offense.” tal murder if he unlawfully, willfully, State, (Mo.App.1973). 501 S.W.2d knowingly, deliberately, premedi- and with Amsden, See also State v. 299 S.W.2d tation kills or killing causes the of a human (Mo.1957). Thus “common form” being.” hand, On the other that portion of (§ 559.020) degree murder is not a former 559.010 § traditionally described as lesser included offense of “first felo “felony” first murder was isolated ny-murder” under 559.007 because § September 28, “felony-murder latter does not include the elements of will degree” first became the homicide re- fulness, premeditation, or malice afore maining in the designated class “first de- thought, necessary each of are gree murder,” (now 559.007 § revised in “common form” second murder. 565.003, Supp.1977).2 RSMo Thus a dis- Accordingly, the indictment did not tinct new crime murder”, of “first degree charge degree mur common form second created, appear elements of which der, jurisdiction to the court was without in the statutory definition: the unlawful jury’s submit such crime for the considera killing (2) of a being (3) human committed tion. in the perpetration of or attempt in the to Further, be saved the conviction cannot perpetrate (4) one of the five named felo- in force sub- by provisions the of the then nies. 559.009.2, Supp.1975. section Section RSMo Common degree form second murder was 559.009.2 states: then and is presently described in the stat or “Upon the trial of an indictment ute as follows: “All other kinds of murder de- in the first information for murder law, at common not herein declared to be such gree, jury inquire the must under justifiable or or excusable justi- instructions as the court finds are homicide, shall be deemed murder in the evidence, verdict by fied the and their degree.” second 559.020, Section RSMo ascertain, is whether the defendant 1969. The elements of “common form” degree, murder in of murder in the first degree second murder which were here sub manslaughter.” degree, the or second mitted to jury the appellant’s over objec language tions Notwithstanding have the (1) been stated willful, (2) thus: premeditated, subsection, unenforceable killing (4) its terms are of a human being (5) cannot, legislature malice in view aforethought. State Franco, against (Mo.banc protection constitutional 1976), denied, I, cert. abuse, and in the contained in art. 17§ S.Ct. I, (1977). Mo.Const., L.Ed.2d 275 A art. comparison process due clauses of the elements of “common form” to the Unit second and the 14th amendment § degree murder with constitution, jurisdiction those of the then new ed States bestow any willful, 559.007, pre- RSMo.Supp.1975 other kind of deliberate and Section defined killing, every meditated degree homicide which first as follows: murder shall perpetration be committed in the killing being or “The a human unlawful attempt perpetrate arson, rape, to rob- premeditated in- when committed without bery, burglary mayhem, shall be deemed particular indi- tent to cause death of a degree.” murder in the first perpetra- vidual but when committed in arson, perpetrate attempt tion in the of or degree 2. Under the 1975 and 1977 “first mur- rape, robbery, burglary, kidnapping kidnapping replaced mayhem der” statutes degree.” murder in the first one of the five felonies which when linked with killing” an “unlawful constitutes murder first degree. upon the try persons courts dence as to such intentional for offenses charged. statutory however, The command to abetting was, rejected by degree (if submit second warranted supplied. and cannot now be evidence) “first when mur- By convicting of second appellant charged is, instance, der” is in this constitu- murder, acquitted jury implicitly him of tionally impermissible. For these reasons felony-murder. Georgia, 398 U.S. Price reason, infra, and for the noted that convic- 323, 326-28, 1757, 26 L.Ed.2d 300 90 S.Ct. tion of murder was not war- States, (1970); Green v. United evidence, judgment ranted (1957); conviction must be reversed. Favell, (Mo.App. State v. 536 S.W.2d 1976).

III. We must now consider whether undisputed that Falkner’s evidence is may be remanded for new trial on man- armed, henchmen, three burst masked slaughter. Under the facts of this we staging into the intention of bank with the conclude not. a robbery, everyone to “freeze” commanded put in fear. Once inside order to victims as an aider and abetter of manslaughter, lobby unexpected presence one must the bank know ingly and intentionally aid and abet guard brought a bank at a desk seated assault which resulted death of the shooting. exchange about was an There victim, Grebe, (Mo. State v. 461 S.W.2d 265 gunfire, breaking glass, guard much 1970); banc Scott, LaFave and Criminal wounded, gunmen and the fatally fled. Law, Ch. 64 at 506 This distin opening closing argument In both guishes manslaughter from first state stressed murder (felony-murder) in knowingly defense offered was whether or defend- and intentionally aiding abetting encouraged ant aided or the commission of the robbery would suffice for conviction the robbery. Against this factual back- because of liability imposed the strict by the ground, only upon there one basis is felony rule. jury implicitly acquitted the de- could have Here, the is record devoid of in- felony-murder, fendant of under the evidence which would indicate appel that beyond not believe given: structions it did lant intentionally and aided abetted the as appellant’s a that acts reasonable doubt sault on guard. the He was not even at the robbery. abetting the aiding constituted and bank when shooting occurred, the and did apparent That this is from the basis not guard know a died or had who killed reading the evidence a of instruc- and from guard. the He specific cannot have had a tion No. which states: intent to aid and abet the assault or death from the you “If do not find and believe of particular a he individual did not know beyond doubt that evidence a reasonable existed, during robbery a at which he was encouraged the the defendant aided present not jury the and in which found he you then must find attempted robbery aid, did by not person a he did not know the guilty.” defendant not performing Thus, the act. the intent This to instruction No. was a converse to aid and abet required By finding the felony murder instruction.3 by all, Grebe must if supplied, at appellant felony-murder, guilty not proof appellant knowingly and inten tionally jury beyond believe a necessarily aided did not and abetted a crime the natu probable consequence ral and reasonable doubt that defendant aided which was guard. death of the encouraged robbery. The state’s evi- attempted specifically 3. Instruction not No. 8 does refer Since a something, must converse converse instruction However, necessarily instruction No. 5. latter is the was a converse robbery. instruction which refers to the instruction No. 5. However, feloniously appellant up if hold or rob” did not aid and the bank and “as then, facts, robbery abet the he under these part holdup a of and in furtherance of said guilty manslaughter. cannot be The al- robbery” presence did his aid and abet leged aiding abetting robbery upon the others to make an assault attempt is the umbilical cord that connects police by shooting officer him. The state the appellant killing. jury to the The cut argued jury: to the “Under the instructions cord when it found the given, you that have been if find that there guilty felony-murder and conse- holdup partic- was a and that the defendant left, quently connecting there is no cord ipated holdup, you in the then are entitled under the facts and evidence of this to find him of assault with intent to place between defendant and whatever took kill, because the assault was committed robbery provide any at the scene so as to holdup; connection with the that’s the in- basis manslaughter. for a conviction of struction.” that, fortiori, We note the same is true jury defendant, convicted the but a as to second murder: defendant ei- appeal new trial was ordered on because of factually robbery ther aided in the or he did hearsay testimony. admission of In ad- factually robbery. aid in the If he did retrial, dressing “Upon the court said: not, fact, as a matter of in the aid retrial the submission should be restudied (as jury), found then under the evi- and the instruction redrafted so as to obvi- not, fact, dence in this case he did aid in possible ate the criticism that the instruc- anything bank, place took at the in- jury tion assumed and did not submit to the cluding killing guard, intentional- present that defendant was ly or jury’s rejection otherwise. It is the words, abetting.” Id. at 748. other necessary underlying proving facts aid- assault, find, under convict of must ing abetting by acquittal its on first instruction, properly that defend- drafted degree (felony) precludes murder that con- present ant abetted in and aided and require viction of a crime which would crime, robbery. the initial the bank Other- acceptance these facts. position wise defendant would not be aspect distinguishes present This case in a having aided and abetted the others Chernick, from State v. particular [robbery] of which the as- (Mo.1955). Chernick was convicted of as- probable result. sault was the natural sault with intent to kill respect to the In the The connection would be broken. wounding police during of a gun officer bar, acquittal case the effect of the fight in a bank robbery. Chernick was not felony-murder charge finding by was a bank, actually inside the did none of the was not defendant shooting, and the state did not he contend abetting attempted in the bank aiding and participated in the actual robbery. He was (whereas jury find as a fact robbery the did waiting the outside man in getaway car. abetting aiding that Chernick was and Nevertheless, he could be convicted of the robbery) in the and hence de- others bank assault on the officer under the rule stated fendant, admittedly present who was not at joins that purpose one who in a with anoth- scene, was of no crime or near the er robbery] to commit a crime is also [bank by the others of which the death committed commit- other [assault] guard was the natural and probable ted of the bank the other as a natural or consequence robbery attempted probable consequence. or robbery. Id. at 746. As we know from have a second “bite The state cannot court, examining original in this file a new try to convince apple”, instruction No. 1 in the Chernick sub- remand, acts did defendant’s jury, on mitting guilt, the issue of defendant’s re- attempt abetting the aiding and constitute quired jury to find that his Chernick Ashe the rule in aid, abet, robbery. a result of presence ed As at or near the bank “did 443-47, Swenson, 397 U.S. encourage” assist or the three others “to BARDGETT, J., separate (1970), remand for C. concurs in to purpose jeopar- would constitute double concurring opinion. dy Ashe, is thus forbidden. In J., sep- in DONNELLY, concurs in result suspected robbing defendant was six poker players, to which his real defense opinion. arate robbery alibi. He was tried for the FINCH, in Judge, concurs result. Senior one players acquitted. The state then for robbery tried him of a second JJ., MORGAN, dissent RENDLEN and player, of he which was convicted. The separate dissenting opinions. Supreme reversed, United States Court stating basis which the on HOUSER, Judge, participat- not Senior jury first have acquitted could him was that ing. present believed defendant was not dur- ing the The Supreme crime. Court conclud- WELLIVER, J., participating be- ed that to presence submit the issue his cause when not a of the court member at the crime to second constituted cause was submitted. double jeopardy, and the state was collater- ally estopped doing. from so It admonished Justice, concurring. BARDGETT, Chief estoppel collateral to is not be deter- mined hyperteehnically, but rather we I I and III and parts concur in are to conclude “whether a rational principal opinion. As result reached could grounded have upon its verdict an II, murder in part I not certain that am issue other than that which the defendant can nev- manslaughter second seeks to foreclose from consideration.” Id. first-degree upon a trial for er be submitted at 444 and n. 90 S.Ct. at 1194 and n. 9. of this (felony) murder. On the facts here, So re-litigate the state cannot present being case—the defendant whether appellant aided abetted depending culpability totally all and his attempted robbery. result, appellant As a upon aided whether he and abetted discharged must be because there was in- that murder the second agree —I sufficient evidence to sustain conviction was not submissible nor there manslaughter, second murder or support evidence a convic- sufficient such States, Burks v. United 437 U.S. 98 S.Ct. tion. should bear this case in Prosecutors Burks, L.Ed.2d that, submit mind so if intend to Supreme United States Court held that second-degree “the Jeopardy precludes Double Clause charge where highest first-degree reviewing trial once the court has (felony) murder, it to specifi- would be well found insufficient,” the evidence legally cally charge murder the second as and hence overturned the defendant’s con- separate count. viction, id. at 98 S.Ct. at 2150. It fol- that, where, here, lows nothing appears required specific could show the in- DONNELLY, Judge, concurring in result. tent abetting the homicide Louisiana, 145, 157, In Duncan v. (once felony-murder case), is out of the 88 S.Ct. 20 L.Ed.2d 491 being way there supply no deficiency Supreme the United States held that Court undisputed facts, under the case should right by jury Sixth Amendment to trial not be remanded for a trial. new “[T]he only ‘just’ applies remedy prosecutions, to State criminal available for court [this] is the of a judgment acquittal.” direction approval cited with a had con study which States, 18,

Burks v. United 437 98 U.S. juries cluded “that the evi do understand S.Ct. at 2150. dence and to come sound conclusions presented them and most of the cases Consequently, we judgment reverse the result at juries that when differ with the the trial court order defend- arrived, discharged. ant be it is judge would have 466

usually Texas, they serving 14, 1920, are some of v. 388 U.S. 87 S.Ct. 18 very purposes they for which were cre I, (1967) (See Art. L.Ed.2d 1019 Mo.Const. ated and for which are now em Louisiana, (See 18(a)); supra § Duncan v. ployed.” I, 18(a)); Mary- v. Mo.Const. Art. Benton § land, 784, 2056, 395 L.Ed.2d U.S. 89 S.Ct. 23 In Jackson v. Virginia, - U.S. -, 99 I, 19). (1969) (See 707 Art. Mo.Const. § 2781, (1979), 61 L.Ed.2d 560 S.Ct. the Unit ed Supreme rejected States Court the pre suggested It has been the Court’s sumption juries that trial will act rationally upon legal “assault moral im- order and held “that in 'a challenge to a state peratives” to the ex- may have contributed criminal brought conviction under 28 U.S.C. Presidency cesses of the and Water- Nixon procedural § 2254—if the settled prerequi Bickel, gate. The Morali- See Alexander M. sites for such a claim have otherwise been ty (New Haven: Yale Consent 120-123 applicant satisfied —the is entitled to habe- Press, University 1975). suggestion The corpus relief if it upon is found that the may be accurate. It a fact that at some record evidence adduced at the trial no ra point in War II the time after World Su- tional trier of fact proof could have found preme Court of the United ceased States guilt beyond (Em reasonable doubt.” itself into an function as a court. It molded phasis mine). Despite the Court’s disclaim organ and made policy for control of social ers, recent history teaches us in Missouri policy effectual utilization of the Court’s use of the word rational amend the Con- Fourteenth Amendment to gives a federal court carte blanche to sub predilections of according stitution to the stitute its guilt view of or innocence for (Cf. of the Constitu- majority. its Article V that of the trial jury. See Antonio v. Kirk tion). right question I the moti- have no patrick, 1161, 453 F.Supp. (D.C.1978); 1170 majority or its good vation or faith of its Antonio v. Kirkpatrick, 1147, 579 F.2d 1151 things.” question I do good desire “to do (8th Cir., 1978). derogating “the rule wisdom of its How does explain one patent contra- concept creating and its law” as a viable diction? of another climate in which the leaders come to department government could Why did the Court retreat from Stone v. legal limits to the believe that there are no Powell, 465, 428 30, 37, U.S. 96 S.Ct. 49 arbitrary power and no ultimate exercise of L.Ed.2d 1067 and return prac- to the Robert governed. See responsibility to tice injecting judiciary federal into Jackson, Judicial Su- Struggle H. justice administration of in the States? in American premacy Study : A of a Crisis In the words Brennan, of Mr. Justice “[i]t Knopf, (New York: Political Power 322 years was in the from 1962 to 1969 that the Mclllwain, 1941); H. Constitution- Charles changed.” face of the law William J. Bren- (Ithaca: 146 alism : Ancient and Modern nan, Jr., State Constitutions and the Protec- Press, 1947). University Cornell Rights, tion Individual 90 Harvard Law In-1978, Harvard Uni- Professor Tribe of 489, (1977). Review 493 See Robinson v. “the posed question whether California, versity 660, 1417, 82 S.Ct. 8 always what only and Constitution is (1962) (See L.Ed.2d I, 758 Mo.Const. Art. Cooper v. says it is.” See 21); Supreme Court v. Wainwright, 335, Gideon § U.S. 1401, Aaron, 3 L.Ed.2d 78 S.Ct. (1963) (See U.S. 83 S.Ct. 9 L.Ed.2d 799 Mo. that “de- expressed the belief I, 18(a)); He Malloy Const. Art. Hogan, § judicial power, spite growth of federal U.S. S.Ct. L.Ed.2d 653 fundamentally I, remains (1964) (See 19); the Constitution Mo.Const. Art. Pointer § document, competing Texas, open to 13 democratic U.S. S.Ct. only by the values (1965) (See I, interpretations limited Mo.Const. Art. provisions 18(a)); Carolina, the Constitution’s Klopfer v. North 386 which inform themselves, political complex 18 L.Ed.2d 1 (See I, creates —a 18(a)); Washington process Mo.Const. Art. that the Constitution

467 837 so as process 9 L.Ed.2d gives various occasions 83 S.Ct. Court, Supreme President, Congress, meaningful post-convic- provide a state states, the last word in constitutional of elimina- remedy purpose and for the tion Tribe, debate.” Laurence H. American judiciary to ting for the federal any excuse (Mineóla, Constitutional Law 33 N.Y.: criminal of in the administration meddle Press, 1978). agree Foundation I with of 28 under the mantle justice in Missouri Professor Tribe. We now know that reflection, rec- we must 2254. On U.S.C. § Supreme Court does not. Carolina v. North post- ognize provided a viable state that we - Butler, -, U.S. dis- but we failed remedy conviction feder- off the mally to ward attempt in our federal now that judiciary, particularly al up: (1) To sum only “the Constitution is Jackson, authorized judges have been always Supreme what says Court ju- trial supra, Missouri is”; to decide whether tolerated; no deviations will be an finding ac- rationally in ries have acted (3) the lower federal implement courts will doubt —to guilty beyond cused reasonable policies the Court’s through 28 U.S.C. super-jury. as a effectually function §§ and 2254.

I admit that I its am comfortable with I 27.26 and restrict would amend Rule again all of this. To borrow from Professor of provisions to claims violations “ * * * regard Tribe: I do not the rul- that it is I submit Constitution Missouri. ings Supreme synonymous Court as for this longer no excusable conduct Court * * * with constitutional truth. Rob- As Justice “impose to continue to countless ert Jackson Court, once observed ‘We (Jackson, su- unproductive labor” hours of - infallible, are not final because we are but -, 2799) 99 S.Ct. at pra, we are infallible we are final.’ J., judges (Stevens, dissenting) on And the Courts that held non- slaves to be Missouri. persons, separate equal, pregnan- to be I the result. concur cy to be non hardly sex-related can deemed either final or infallible. Such RENDLEN, dissenting. Judge, passing finality judicial as pronouncements possess is compromise an essential between I At the outset it must be stated constitutional order and chaos: the Consti- quarrel majority opin- have little intentionally tution is an incomplete, II, often section ion’s section I or most of deliberately indeterminate structure for the reassigned further that the cause was participatory evolution of political ideals any disa- present to its author because governmental practices. process This of case greement interpretation with the special province cannot be any single therein. How- law and statutes contained entity.” Tribe, supra, at iii. ever, opinion majority section III of the law, import changes the full effects To turn princi- case before us: the justifiable nor legally neither of which are pal opinion, although sufficiency evi- fully described therein. throughout dence an issue does not mention the I agree Jackson rule. Chernick, State v. 278 S.W.2d judgment re- conviction must be if (Mo.1955), two unequivocally states versed and the discharged. defendant I crime, join to persons or more commit also believe that we should address may be other each liable question whether the rule Jackson must be company “in committed one their applied appellate in our state courts on di- pursuance purpose, the common appeal rect and on transfer. See Article probable thereof.” consequence natural or VI, Constitution of the United States. Accord, Paxton, 453 v. S.W.2d State Tolias, 326 (Mo.1970);

What is to be v. S.W.2d the fate of Rule 27.26? State Sneed, (Mo.1959); Rule 27.26 was amended this Court in State v. Williams, Noia, response Fay

1967 in (Mo.App.1977); State (Mo.App.1975); Brooks, S.W.2d 327 unarmed, State v. was but her son had a knife and (Mo.App.1973). S.W.2d 168 In this case had inflicted a non-mortal wound on the preparations for the raid on the bank just victim’s son turning before his atten- included wiping down cleaning and the fire- tion to the victim. grap- Defendant was arms intended for use in the armed robbery. pling stabbing with the victim when the Handley only partici- witnessed and the victim question occurred. The pated early in the phases of operation whether the sufficiently supported evidence but helped afterward deliver weapons finding intentionally that defendant aided to another location. He then assisted in and abetted the stabbing, fatal an eviden- transporting the weapons men and toward tiary question by answered this Court in the place intended of the armed robbery. However, affirmative. Grebe did not in- The shooting of someone at the bank was question addressed, e., volve the Chernick i. indisputably a probable “natural or conse- liability substantive of an aider and quence” of the criminal activity in which who, here, abetter was shown Handley participated and it is of no mo- participated planning evidence to have in happened ment “unexpected” to be an an subsequent armed for the guard bank ultimately who was shot. (homicide) when his participa- intentional authorities, Hence under the Handley could tion in the robbery has been established validly have been convicted of second de- thus, majority quite evidence. The gree murder had it charged been in the logical justification, implicitly without over- indictment substituted information. many prior citing Grebe, rules decisions From this it must be said his conviction dispositive case wherein the facts are only fails pleading because of a deficiency. distinguishable from those decisions and I save the Ashe estoppel v. Swenson properly cannot be said to relate to the harassment issue for the moment. principles for which stand. The majority opinion, citing State v. This brings majority’s us to the assertion Grebe, (Mo. 1970), S.W.2d 265 banc an- that the jury’s acquittal felony on the mur- nounces in effect that one must knowingly charge der jury Handley meant the found aid and abet the homicide directly in order participate attempted did not in the rob- to be held accountable for it and that be- it, bery. puts alleged As the majority “The cause Handley was “not even at the bank aiding abetting robbery attempt shooting occurred, when the and did not ap- is the umbilical cord that connects the guard know a had died or who killed the pellant killing. to the cut that guard . . . cannot have had a [h]e guilty cord when it found the specific intent to aid and abet the assault or felony-murder . . . .” In so do- death of particular individual . . . .” ing the majority disregards the verdict of This statement contradicts the rule of Cher- murder, of second which must nick and other authorities cited above and have predicated jury’s finding Grebe is been on the inapposite ques- because there the tion of the aided abetted the crimi- foreseeability Handley of felonious as- stemming sault planned enterprise.1 simply from a nal It is not correct to robbery did not enter Grebe, the case. Handley, state that who stands convicted of defendant’s son fatally degree (albeit invalidly stabbed the victim murder during an be- altercation which also pleading anomaly) acquit- involved defendant cause of the and the victim’s son. The abetting, defendant herself Ashe v. ted of majority argues appellant’s engaged constituting 1. The converse in the conduct” felony felony second-degree jury’s instruction referred instruction to the murder murder. Thus the verdict engage charge, murder on this if we are to “robbery” it, parsing ley necessarily finding instruction was a ever, referred to. How- that Hand- meant important it is participated something to note that the second which aided required killing something attempt- instruction was the knowingly find that “the robbery. defendant and inten- ed tionally encouraged persons aided or who This Swenson, same crime in almost identical words. S.Ct. (1969), inapposite. At most judgment “too contradicto Court found the presented question there is the of an incon- conviction,” ry support judgment a of ap- sistent verdict which Ashe does support a “too inconsistent to but likewise ply- jeopar judgment acquittal.” of The double dy of Missouri Constitution was clause the The facts of Ashe bear iteration. Six inapplicable and the case was remand held poker players robbed at their were while “are game. trial because the verdicts prosecuted The Ashe for ed for new State first robbery players contradictory of one of the and the a too to be considered verdict jury acquitted him, Supreme Court In the acquittal.” either of conviction or trial, saying the United States of this first vein, Cline, held in same this Court State single rationally “The issue in conceivable 1969), (Mo. 543-44 447 S.W.2d banc dispute jury before the was whether burglarious stealing that a conviction of petitioner had been one of the robbers. jury simulta could not stand when the jury by And the its verdict found that he neously guilty a not verdict on the rendered had not.” 397 U.S. at at 1195. Akers, underlying burglary. Citing prosecuted The State then Ashe for the Cline ruled the verdict “incom court was robbery remaining of the poker play one ambiguous con plete sufficiently ers, and that ultimately conviction was fusing support as to be insufficient to either ground voided on the estop- collateral judgment acquittal. The of conviction or pel, part guaran of the fifth amendment burgla acquit verdict did not defendant against tee jeopardy, double forbade the discharged ry and he is not entitled to be prosecution, second jury “after a deter conclud theory that it did.” The court by mined its verdict the first [in trial] pro ed that a retrial would not offend petitioner was not one of the robbers.” against jeopardy tection double because Id. at 90 S.Ct. at 1195. An unequivocal burglary acquittal “there has been no acquittal had been jury rendered question jeopardy and hence no of double the first crime and in that trial the defense arises.” The same holds true of the “ac alibi; “identity” was was the It issue. Handley: quittal” majority finds for subsequent trial for different acquittal of assuming arguendo its crimes, particularly more robbery of a Handley felony jury murder the found did person different poker game from the same robbery, never aid and abet the armed which the court considered harassment and guilty theless its verdict on second de invoked the estoppel. Handley doctrine of (and gree necessarily inconsist murder could thus on properly remand be tried for Handley abet the ently) found did aid and guard the same bank his robbery armed for the evidence of separate is not a crime but a lesser willing killing connection with the was his included offense principal participation contribution in and intentional charged, as I discuss guilty below. The robbery attempt and this as armed verdict on the second charge murder killing which was a sistance aided in the represents finding of fact adverse to the consequence enter foreseeable of the entire application of estoppel collateral prise. jury The thus can be said to have unlike Ashe who had been squarely acquit by his concluded from the evidence that ted, Handley was convicted of murder in (as second actions submitted in the murder killing for the instruction) knowingly “defendant guard same bank for which he must now be encouraged the intentionally aided or manslaughter. retried for In Ak State v. ” in the ers, persons engaged who . . . 278 Mo. 213 S.W. 424 killing Jackson. shooting and of Warren G. rendered verdicts of on Count I participa of an in effect found that information and of not II, of, Count for and planning preparation but on tion in the examination the two attempt counts were charged partial participation found to have thought rejected by above. This has been knowing constituted the and intentional encouraging killing. instance, federal decisions. For numerous Jewell, (Mo. State v. considering every decisions from fed after 1971), a murder second conviction. appeals and the eral circuit court Su upheld felony charge under a validity preme upholding Court of convic participated on evidence that defendant had though rendered under inconsist tions even burglary during which the victim had verdicts, appeals stated in ent the court held, been murdered. The court there Fox, U.S.App.D.C. United States 738, killing is S.W.2d at committed “[I]f 22, 1235, (1970): F.2d 1238 n. 22 132 n. during attempted perpetration the actual or v. do not understand Ashe Swenson “[W]e of one of the felonies enumerated in Section . to mean that one tried for two 559.010, proof underlying felony of the offenses at the different but interrelated stands equivalent in lieu of and is the of-the time must be convicted of both for a same necessary malice, premeditation, and delib Indeed it conviction of either to stand.” proof eration and is first- tantamount charging sepa was the fact of the new degree Though murder.” Jewell and simi separate (after crimes and a new trial rate lar decisions of this are control Court led to the rever acquittal) an earlier ling today light change in In United States v. sal in Ashe v. Swenson. degree murder first statute discussed in the 1068, (7th Greene, Cir. 497 F.2d 1085-86 majority opinion, clearly here evidence rejected 1974), the ar the Seventh Circuit supportive degree of the murder second legal status gument that Ashe affects the conviction, because defendant was verdicts. The of simultaneous inconsistent “charged” with that crime under “The settled First Circuit stated new degree murder first statute was it is the system the federal is that rule im murder second submission im jury simultaneously prerogative of proper. It is for that rea reason and that verdicts. . . . The return inconsistent son only the conviction for murder second always have been re jury’s deliberations degree should be reversed. other Stated sacrosanct, adoption and the garded as proof wise the sufficed for the conviction exception would un appellant’s proposed given under the “plead instruction but the strong policy against probing ings” support do not the submission. dermine logic reasoning and would jury’s into the As appellate the federal court for the 8th ” speculation.3 interminable open the door to stated, circuit prior has “It is clear that added, footnote, the court “The In the acquittal closely but related different [for . involve eases relies on . linchpin . . crime] prior very situation in which different decision, leading Ashe directly to and serv judicata have a res jury verdict is held to ing as the the ‘collateral foundation for prosecution.” subsequent and to bar a effect estoppel’ applied.” v. doctrine Moton Martorano, 557 F.2d United States v. Swenson, (8th 488 F.2d Cir. (1st 1977) (emphasis original). Cir. 1973), cert. denied 417 U.S. 94 S.Ct. Appeals District of Columbia Court (1974). 41 L.Ed.2d 675 In the case at Smith, bar there v. 337 A.2d 499 simply has been no conclusive United States prede determination of the Handley’s fact issue of Ashe and its federal apply refused to abetting, hence Ashe v. Swenson of a defendant to bar the retrial cessors controlling.' is not inconsistent ended in an whose first trial States, Hamling v. United result. See also Although majority explicitly does not 87, 100-101, 94 S.Ct. state, implicit opinion so within its is the Miller, (1974); v. United States proposition that Ashe v. does not Swenson (9th 1976); United 546 F.2d Cir. permit inconsistent verdicts rendered Dennett, (10th 551 F.2d 261 Cir. States same anything stand as but an States, A.2d 1977); Copening United acquittal, estopping permit thus the retrial (D.C.App.1976). persuaded ted I am under the Missouri authorities cited killings” constitute authorities, Those “unlawful these and if the federal courts excluded, leaving all other find no from Ashe murder are also constitutional command constituting killings” as those acquittal to treat inconsistent verdicts as an “unlawful Therefore manslaughter. crime of we should be reluctant so to do under the new “first Butler, - required for teachings killing” of North Carolina v. “unlawful manslaughter,3 -, includes 60 L.Ed.2d 286 murder” re- indictment charged in the Thus I find Ashe does not vitiate and it was Handley. For these reasons against State v. Akers and State v. Cline. turned order remand dissent and would I must Considering “pleading” question now the manslaughter might tried for Handley whether cause should be remanded charges. filing new necessity without scope for trial on within the underlying “first murder” MORGAN, Judge, dissenting. indictment, it should the 1975 be noted that I belive respectfully I dissent revisions homicide statutes did not an remains as that “second murder” change statutory definition of man- charge predicated included offense under a 559.070, slaughter in section RSMo statute, degree “first murder” on the new provides: which “Every killing of a human (now revised in 559.007, Supp.1975 RSMo § being act, procurement culpable or 565.003, Supp.1977). RSMo § another, negligence of not herein declared justifiable to be murder or excusable or statute was The forerunner said homicide, shall manslaughter.” be deemed 559.010, degree wherein first RSMo § Manslaughter require does not that a kill- defined; and, agree, as all murder was ing intentional, be premeditated much less statutory provision both defined in the one aforethought. malice As in stated degree murder and “conventional” first Williams, (Mo. State v. S.W.2d In as “felony” degree first murder. 1969), ground, banc overruled on another two majority opinion, in the discussed Ayers, (Mo. State statutory banc separated, in the “crimes” were 1971), “There is but one definition of man- being in 565.001 scheme with the former § slaughter state, in this murder) and that is contained latter (identified capital and the 559.070, supra.” recognized And mur- (identified § we as first in 565.003 Stapleton, (Mo. der). thereon, majority opinion State v. 518 S.W.2d Based 1975), banc “If new not find the “. . . a distinct declares that: [does] kill, element of intent created then the defendant murder’ was crime of ‘first was, still be and re- disagree. be- . .” I It [can] cause manslaughter mains, “felony” first mur- require does not a crime of 559.070, long accepted premise element. Sec. RSMo 1969.” der bottomed on the participation in one proof The first element of the new crime “first proof provides “underlying” listed felonies killing.” murder” is an “unlawful It required mental state. felonious seriously disputed cannot be term by quoting killing” broadly encompasses Nothing gained “unlawful would be Williams, (Mo. manslaughter. 559.070, 529 S.W.2d Section from State v. 1975), defines wherein manslaughter, every representative excludes kind banc is, extensively and killing, question of “lawful” discussed all homicides (§ 559.050, 1969) this dissent. I con- either “excusable” consistent with RSMo resolved nothing “justifiable” 559.040, find (§ 1969).2 therein and now RSMo curred portion A full 2. to be without merit. of the new criminal code effec- and find them 1, 1979, January corresponding points tive 559.- contained §§ discussion original opinion chap. Supp. 040 and .050 is revised RSMo for the court’s con- submitted 1977. would their reiteration here sideration but purpose. serve no useful determining proper, 3. that remand is I have allegations examined defendant’s other of error amendments, of the statutory mere-

ly re-numbering otherwise, which neces-

sitate changing the law of this state as

delineated therein. Missouri, Respondent,

STATE of FORD, Appellant.

Michael

No. 60851.

Supreme Missouri, Court of

En Banc.

July 1979.

Rehearing Sept. Denied 1979. Mummert, III, Louis,

Thomas C. St. appellant. Ashcroft, Gen., Atty.

John D. Paul Robert Otto, Gen., City, for Atty. Asst. Jefferson respondent.

RENDLEN, Judge. Ford, capital

Michael convicted of Louis and City of St. imprisonment, appeals con- sentenced to life tending videotaped confession should his not have been shown to the

Case Details

Case Name: State v. Handley

Court Name: Supreme Court of Missouri

Date Published: Jul 17, 1979

Citation: 585 S.W.2d 458

Docket Number: 60590

Court Abbreviation: Mo.