*1 Missouri, Respondent, STATE of HOLLAND, Appellant.
Samuel
No. 62320.
Supreme Missouri, Court
En Banc. 30, 1983.
June
ing his counsel’s voir dire of the venire permitting improper pros- certain panel ecutorial comment. judgment.
We affirm supports The evidence that defendant’s *3 beyond for first a conviction points reasonable doubt to events that be- rectory the of the Shrine of gan in St. Joseph North St. As Father Ed- Louis. Filipiak, year priest, ward a old sat alone his defendant and rectory, room broke into the church in- companions two burglarizing tent its contents. The explored the recto- intruders the church and handling objects along way. the ry, various a thumbprint deposited Defendant’s was bottle of altar wine. of a television by
Attracted the sound program, defendant and his associates unsuspecting crime entered room of elderly Filipiak. Although Father condition, had a heart pleaded that he priest his attack- urgings unavailing; his were for foot, him to ers bound him hand and forced pummeled position the floor a fetal mercilessly. pillowcase put him A had been Mary-Louise Moran, Asst. Public Defend- gag another priest’s mouth a er, Louis, appellant. St. for victim suffered placed over his head. The ribs, a massive chest 16 broken bruise Ashcroft, Gen., John Atty. Henry Her- thorax, the entire frontal bruises covering schel, Gen., City, Asst. Atty. Jefferson a hands, a massive head bruise and respondent. sometime hemorrhage. cerebral He died entry p.m. 9:30 between defendant’s GUNN, Judge. and the time rectory into the church and Defendant-appellant was body 8:30 and discovery of his between capital murder. In accordance with in- Cause death morning. a.m. the next 8:45 given, structions he was convicted of first of mul- to be a combination was determined murder), degree murder a violation (felony hemorrhage, shock tiple factors: cerebral and sentenced to and suffocation from by caused broken ribs imprisonment. appeal presents life His five pillowcase gag in his mouth and points alleged Instructing I. error: over his head. placed was no murder when there savage complete, attack for that crime and the evidence indictment victim, companions appar- left their support was insufficient to such an instruc- and his haste, with them tion; taking much Submitting improper ently II. modifica- without old 2.12; malgained lucre an Admitting paltry III. his as their tion MAI-CR2d set, razor and a few an electric videotaped confession maculated for mul- television had been e.g., reasons, cigarettes cartons of Kool involuntary titude of friend. Filipiak by to Father right given and obtained in violation of to coun- subsequently sel; burglary Refusing appoint provide substance IV. intruders. traced to the a forensic V. Limit- pathologist; funds Defendant, in a videotaped confession is an preju- reached there absence of viewed the jury, acknowledged dice to a defendant in instructing on first church; break-in to the he was the first to degree murder in the circumstance —as in through enter a window. But he offered this case—that supports evidence which that he had not priest’s contributed to the the first degree murder instruction “is death, as he had only “just tapped” him exactly the same evidence which would about three times as he lay bound on the have supported conviction for floor. admitted He also tying priest’s Hence, murder.” Id. at 889. the defend- feet together, but in a humane fashion with ant in Goddard was not prejudiced by the string so that nearly year instruction, old man particularly would be able to free himself. Neither as the did form of submission had been ap- defendant observe any overwhelming proved as- in Missouri for many years and was sault on Father Filipiak although he ac- law extant at time of trial.
knowledged that all three intruders had
Goddard also notes that
participated in some sort of “light” physical
had
notice that
ample
capital
under a
mur-
battery to the bound and gagged elderly
der charge, he would also be on trial for
victim. But somehow through
“light
this
Thus,
first degree
process
murder.
no due
tapping,” binding
gagging,
Father Fi-
problem exists.
lipiak’s
end;
earthly life came to an
So,
case,
too in this
defendant cannot
body
somehow his
came to bear the marks
complain of lack of
process by
notice or due
of a
beating.
ruthless
jury’s
being
degree
instructed on first
I.
murder on a capital
charge;
murder
this for
The charge
capital
jury
was
murder. The
reasons,
a variety
notably
v.
State
murder,
was instructed on capital
first de- Daughеrty,
(Mo.1982).
first degree is reversible error.
murder.
to the
degree
State
Notice
v.
Gardner, 618
S.W.2d 40
involved,
See
keystone
precept
also
Wilkerson,
court had failed to instruct on first says murder. that But defendant now several instruc alleges Defendant without or on first indictment information First, argues he that the evi tional errors: murder, there can no conviction be to an in support dence insufficient charge. perceive on that We no error in point murder. capital struction on This Goddard, supra. instance. capi of moot because he was not convicted Second, the argues murder. that tal Lewis, stated in As to Note on Use 5 erroneously applied court pur S.W.2d “[t]he (a) to 2.12, it failed MAI-CR2d because of pose an information or indictment of initially contemplated the proper define charges twofold: the of to inform accused fense, give separate failed to a (b) and against prepare that he may him so Third, he ar defense; that offense. and retrial instruction on adequate preclude to third, para fourth and fifth acquit gues that the charges same should a incorrectly 2.12 were of MAI-CR2d purposes expression graphs him.” These are an of requires four verdict directors proposition that due omitted from the 6 MAI-CR2d charge be on a made. See on Use conviction violation Note Wilkerson, instruc at 833. that the Finally, 2.12. he contends conjunction standards with warp What follows does not these robbery given tion on matter, nor, incorrectly intrude legal felony rubric for that murder the instruction on v. Baker points solution of State of these stated the law.1 None failure to instruct down to meritorious. guilty you given: following If do not find instructions
1. The were murder, you must wheth- consider then INSTRUCTION NO. degree. guilty the first er he is giving give used, or failure to “If 2.12 MAI-CR court must error, proper instruction is the prejudicial give separate defining instruction the of- which, any, effect of if judicially initially contemplated, fense and must any determined. error from define word used in the definition Any flows noncompliance must be defined according *6 you However, guilty then you will find of mur- and if do not find believe from degree. der in beyond the first the doubt each evidence a reasonable However, you propositions, you if do not find from and bеlieve and of these must find all the beyond guilty the evidence a each reasonable doubt of offense. defendant that propositions, you and all of these find the must NO. 13 INSTRUCTION guilty you guilty defendant not of that offense. If do not find defendant of the person forcibly steals, thereby murder, A capital and com- or murder in the first or second when, robbery, stealing, you degree, guilty mits in the course of must consider whether 570.030, RSMo, manslaughter. defined in section he uses or of physical you threatens the immediate use of force and from the If find believe evidence person purpose beyond another Preventing for the of: a reasonable doubt: (a) 29, 1979, overcoming First, September or to resistance that on or abоut in taking Louis, Missouri, property City the of the or to the retention of St. of cer- the State immediately taking; attempted thereof persons after the with the or aid of or tain aid (b) defendant, Compelling property the owner of such the offense of man- committed person up or property slaughter, persons another to deliver or in that with the aid certain engage defendant, attempted to in other conduct in which aids aid of the caused the or Filipiak striking commission of the theft. of death Father Edward him, suffocating INSTRUCTION NO. 11 and you Second, defendant, guilty If do not find the of either before or that the degree, during murder or murder in the the offense of man- commission of you promoting guilty slaughter, purposе must consider whether he is of mur- its with commission, degree. persons der in the second other in aided such you committing offense, If find believe from the evidence
beyond guilty you a reasonable doubt: will of man- then find the defendant First, 1979, 29, September slaughter. that on or about Missouri, City Louis, However, you of St. State of cer- if do and believe from not find persons beyond attempted tain doubt each with aid or aid of a reasonable evidence defendant, you foregoing, must find the committed the offense mur- and all of the then degree, per- guilty der in the offense. second in that defendant not of that certain ignores ant’s argument reasoning dispositive.2 fact the above evidence was sufficient to support finding a are paragraphs unnecessary where a These initially contemplated he had second charged defendant is not offense degree Moreover, murder or manslaughter. originally contemplated. other than one applies Note 5 to the offense that the jury 6 of MAI-CR2d 2.12 refers to Note Note must determine was committed by someone 2.10, appli- MAI-CR2d which makes the order find that party liability attached applies only cation of Note 6 clear: It to a defendant. It does not apply of- where a defendant can be convicted of more fenses elements of offenses neither obviously Defendant than one offense.3 required nor found a be felony of both mur- cоuld not convicted conviction. Guyton, 635 S.W.2d predicate felony. and the v. Ma- der State (Mo.App.1982). 1981); 112,114 (Mo. haney, 625 S.W.2d Morgan, v. S.W.2d State respect to the verdict director With 1980). purposes For the of MAI- on murder in the robbery, 2.12, felony underlying felony CR2d finding robbery that a occurred is not nec offense, para- murder are the same essary party to establish for mur liability three, unnecessary. and five are graphs four robbery. der in the first What is Emory, v. 27-28 State required liability finding See party robbery (Mo.App.1982). murder in the first oc is, curred. That portion Returning the second “initially contemplated” offense within the of instruc allegation second defendant’s course, meaning Note 5. Of the law of failing erred in tional error—that court requires a fеlony-murder finding of one of defining the give separate instruction the named felonies no contemplated—we find initially offense 1978; and, certainly, the verdict director error, di because the verdict prejudicial given required the find that defend all the es adequately hypothesized rectors attempted ant robbed or to rob the victim. contemplat initially sential elements robbery. It law also defined But the repeatedly issue has been ed offense. The party implemented in liability Note Use position. defendant’s State against decided 5 to 2.12 require MAI-CR does not more (Mo. banc Mcllvoy, v. finding than a that first Colvin, 1982); State offense, occurred because that rob Flowers, 630 (Mo.App.1982); bery, contemplated is the initially (Mo.App.1981); party liability. for the purposes 31, 33 Simpson, (Mo.App.1981). Moving allega- third ahead defendant’s in allegation of Defendant’s final tion-—that the omitted erroneously *7 is that the three, structional error paragraphs four and five of MAI- incorrectly hypothe director of murder verdict CR2d 2.12 in violation of the mandate robbery. namely, felony, predicate Note on Use 6 of MAI-CR2d 2.12—wehold sized the para- Third, burglary. paragraphs This Fifth the of a 2. 6. Fourth and in commission being only de- if is where the graph must all be included the defendant included should be by (as- charged an committed with offense another offense with the second is fendant person original above). but than the offense con- given other еxample It must be the sault in by templated he defendant that and the other by evidence; supported by supported if not person would commit. See Note under MAI- to an would be entitled the defendant evidence CR 2.10. acquittal of law. The a matter on motion as paragraph derived from in law stated paragraph of MAI-CR 3. 4. second re- renders a 562.036 which Section responsibility 2.10 with of the defendant deals by sponsible committed another offense an by others but other for offenses committed above) given (assault example person in the contemplated by initially the than culpa- “required only had the if the defendant deals, example, a de- It defendant. (the in assault for the offense ble mеntal state” responsibility for commit- an assault fendant’s example given). 562.036. Section aiding by person ted whom argues He that it while set out the elements substantially behalf and testified to of stealing, it should have set the ele- out same as in the statement. facts earlier of robbery ments in De- degree. the first Moreover, oath that clearly he stated under fendant’s proposition in this with- regard is his statement truth and videotaped was the First, out merit. in the first that it he he had made because in robbery does require robbery person. truthful thus Defendant resolved underlying felony. its See. issue of voluntariness of video- 565.003, Second, “forcibly RSMo dispelled taped taint statement steals” as defined for the in an instruc- from the earlier statеments. following tion 33.01 and 569.- MAI-CR2d § RSMo is coterminous with rob- IV. bery; and, thus, of robbery definition alleges Defendant next the trial 569.010.1, tracks is an refusing court erred in either to appoint adequate definition of robbery pur- for the to provide independent funds for an foren- poses of murder in rob- sic pathologist to evaluate the medical evi- bery. There was prejudicial no error in the dence of prosecution thereby denied instructions. counsel, him due effective assistance equal protection law.
III. He contends there was a substantial error, In his third allegation of de question requiring expert testimony con- fendant contends that a videotaped confes cerning the cause and time of the viсtim’s sion should have been suppressed because it death and that his be defense could not bears the blemish of statements earlier elic fully without developed professional assist- ited from him in juvenile violation of the argues, specifically, ance. He that unaided code. Four statements, including that by independent pathologist, forensic his which videotaped, question. are in defense counsel was unable to explore what This contention decided, need not be be he characterizes as an inconsistency in cause the admission of the statement could testimony of the medical examiner at not possibly have been prejudicial de Daugherty, of his co-defendant by fеndant reason his subsequent testi testimony origi- at defendant’s trial and the mony admitting every material fact con nal report, Daugh- towit: he states that at tained the statement declaring under erty’s trial oath medical examiner testified that it Brown, was true. State v. there were two for the victim’s causes (Mo.1966), quoting from hemorrhage. death: anoxia and At Ussery, defend- 357 Mo. trial, (1948), ant’s the medical examiner testified directly point in law shock, hemorrhage may and fact: anoxia truth of a confession “[W]hen Finally, have person established caused death. the medical very who made it under such report solemn examiner’s written indicated that circumstances as on court, oath open gravamen de- permitted he anoxia caused death. The may to claim error because fendant’s point may of the use of the is that the victim have ground confession on the actually was involun died heart failure before the tary.” Petrik, See also Thus, robbery argues, occurred. neither 613, 617 (Mo.App.1977). bar, In the case at nor robbery the first *8 Brown, as in defendant testified his own robbery could have occurred. Forcibly (a) Preventing steals. overcoming or resistance taking property or to the retention chapter used in forcibly person [As 569] immediately taking; thereof after the or steals, thereby robbery, when, commits and (b) Compelling property the owner of such stealing, the course of as defined in section person up property or another to deliver 570.030, RSMo, he uses or threatens the imme- engage in other conduct which aids physical person diate use of force another [569.010(1) (Em- commission of theft. ]. purpose for the of: phasis added)
678 141, Hamilton, (Mo.App.
This Court
ruled that the state
143-44
is not
constitutionally
81.12(b);
81.14(a).
mandated to
Rule
provide 1980); Rule
public
such
at
expense.
services
in determin
trial court has broad discretion
Williams,
562,
questions during voir
ing
propriety
public
Whether to
provide
funds
aid an
thereof,
dire,
the re
and absent an abuse
accused in the preparation of his defense is
court
not interfere.
viewing
should
within the
trial
discretion of the
court.
Garrett,
(Mo.
Moss,
United
544 F.2d
States
only
case
1982). The record in this
reveаls
(8th Cir.1976),
denied,
1077,97
cert
429 U.S.
neutral, passive
prosecution
made
(1977);
S.Ct.
V. WELLIVER, J. senting opinion of Finally, defendant that the trial contends permitted prosecu- it court erred when BLACKMAR, JJ., not BILLINGS tion to certain statements the ve- make of the not members participating because panel permit nire and when it refused to his was submitted. Court when cause dire pose questions trial counsel to voir prosecution’s Justice, the effect of the RENDLEN, concurring. assess Chief alleges remarks. Specifically, he make opinion I but majority concur in prosecu- trial court allowed the improperly concerning the following observations requested tion state that defendant had apples dissenting opinion compares which severance of his trial from those of his Baker, oranges. State v. al- improperly co-defendants and refused to - cert, den., U.S. low his counsel whether to determine -, (1983), 74 L.Ed.2d S.Ct. venire panel prej- members of the harbored hеld that a udices those co-defendants. towards instruction, not entitled evidence. The appeal supported must transcript “A 1, 1979, and January after proceedings contain of the was committed all records Supp.1979 made 556.046.1(2), ques necessary to a determination re- “instructing down” was decision, clear that presented tions and where cases, there in homicide unless nothing quired such are absent there is items *9 offense. support v. lesser appellate evidentiary decide.” to State
679
wholly
WELLIVER,
This
proposition
Judge, dissenting.
sound
has
fol-
been
opinion
lowed in later cases. As the Baker
This
that
the Court
case demonstrates
out,
points
the Supreme Court of
Unit-
to
murder
continues
hold
first
holds,
ed States
emphatically, that
there
both
a
offense
is and is not
lesser included
Evans,
no due
problem. Hooper v.
opinion
of capital
principal
murder. The
605,102
Goddard,
456 U.S.
S.Ct.
L.Ed.2d
relies on State v.
S.W.2d
(Mo.
63476],
1983)
banc
to hold that
(1982). There is no
Baker
why
[No.
reason
appellant
properly
was
convicted
first
applied
should not be
case in which
charge
capital
a
degree murder under
January
the homicide occurred after
a
persuade
murder. Since I
unable
my
of the Court with
dissent in
majority
Goddard,
(Mo.
649 S.W.2d 882
Goddard, normally I would
to the
accede
1983),
banc
involved
offense committed
and,
Goddard,
majority
will
bound
jury
in October of 1980. The
was instruct-
principal opinion.
concur in the
The Court
on
ed
first
murder. This instruction
itself, however,
consistently
has not
fol-
improper by
rule,
the Baker
but
it
applied
lowed
Instead
Goddard.
way
this,
trial court had no
of knowing
Baker,
(Mo.
904-05
cert,
followed earlier cases
indicating that was
1982),
denied,-U.S.-,
banc
obliged
to instruct down. The jury convict-
(1983),
S.Ct.
680 Betts, 94, (Mo. keep Baker’s convic v. 646 96 banc dard’s conviction and
State
S.W.2d
818,
and death sentence intact.
1982);
Woods,
v.
639 S.W.2d
819 tion
State
739,
(Mo.1982);
Blair,
v.
638
State
S.W.2d
problems
Goddard itself caused
Court
denied,-U.S.
(Mo.
747
banc
cert
The defendant
immediately.
almost
-,
838,
(1983).
103
breaches the equal protection
of the to group laws one of defendants or
the other. af- Concomitantly, process
forded —either instruction on and conviction
of first failure instruct on that deprives defendants BARNETT, Plaintiff/Appellant, Shannon offensе — or the other of due one hand law. government Our as was created one Missouri, STATE of laws and not of men. majority Defendant/Respondent. frustrated by this substituting framework No. WD 33853. judgment its guilt own for the rule of Appeals, Missouri Court of law. That is not the function of this Court. Western District. guardians We are not of society. duty Our dispense is to justice evenhandedly in ac- 12, April 1983. cordance with principles established of law. Motion for Transfer Rehearing and/or Inconsistent application principles of those Supreme May Court Denied 1983. is tantamount to nonapplication of those to Transfer Denied Application principles. What Judge Learned Hand said 16, 1983. Aug. quarter century ago applies equal today. myself,” said, force “For “it
would be by most irksome be ruled
bevy Guardians, of Plantonic if I knew even I penalty imposed. concurred in Baker. I also concurred the death above, has been As noted Woods, opinion Blair and wrote the both in effect held that the rule Goddard applied retroactively. joined which Baker I permit of Bak- Baker created affirmance Betts, Judge Senior Seiler’s dissent but that Blair’s tri- er’s conviction and death sentence. grounds appli dissent rested on other than the decided, and al occurred before Baker was cation of Baker. thus, Goddard, Blair should have re- under My viability regarding views the continued on first murder. ceived instruction my Baker are set forth Goddard dissent and ignored to affirm Williams Goddard in order Goddard, fully need not be detailed here. See men, therefore, another death sentence. Three (Welliver, J., dissenting). It by currently of the are scheduled die reason say suffices to that I have concluded vacillation. Court’s might appropriate to overrule Baker and reflecting legislative construe 556.046 § problem legislative effort to solve this 2. The change intent that 556.046 work no sec. embodied H.C.S.S.C.S.S.B. law that existed at the time its enactment. 565.020-.025, Gen.Assem., Reg. 82d 1st §§ (Welliver, J., dissenting). Id. at 892 signed by (1983), June 15. Sess. Governor adhere, however, my I position in Goddard July 1984. Id. sec. The bill becomes effective apply that § 556.046 must cases in which all legislation A. date of this leaves The effective January trials were held after the date сompounding year further a full for the § 556.046 became effective. The statute can- vacillation error caused the Court’s thing something not mean one in one case and matter. when, Particularly else in another. is this true issue, as with this we deal with cases in which with MAI-CR2d is deemed which Notes under form prejudicial applicable on Use MAI-CR contrary clearly ap unless Betts, 28.02(e); pears. Rule to that offense.” Defendant contends with regard Turning to allegation defendant’s second to all four verdict directors that Note 5 of instructional error —that required the court instructions present failed to define the proper initially burglary contem- defining robbery. and/or With plated separate offense in instruction-— to the verdict respect directors Note on 5Use states: manslaughter, MAI-CR2d 2.12 and defend- second you If find attempted and believe from the evidence sons with the aid or aid of the beyond defendant, a reasonable doubt: caused the death of Father Ed- First, September 29, Filipiak by striking that on or suffocating about ward Louis, City Missouri, him, persons of St. State of cer- and that certain with the aid or persons defendant, attempted attempted tain with aid or aid of aid of the intended to defendant, bodily committed the offense mur- serious cause harm Father Edward degree, persons der in Filipiak, persons the first in that certain and that certain with the aid attempted defendant, attempted the aid or aid of defend- or aid of the did not do ant, Filip- suddenly caused provoked the death of Father Edward so in fear the unex- by striking him, suffocating iak pected acts or of Father conduct Edward persons certain attempted Filipiak, with the aid or aid defendant, Second, defendant, robbing did so in or at- either that the before or tempting during Filipiak, to rob Father Edward commission of offense of mur- Second, defendant, degree, purpose that the either before der in second with the during commission, promoting the commission of the of mur- its aided such other degree, offense, purpose der in persons committing the first with the commission, promoting guilty you its aided such other will find then of mur- persons committing offense, degree. der in the second