STATE of Missouri, Respondent, v. Michelle Rene RUMBLE, Appellant.
No. 66155.
Supreme Court of Missouri, En Banc.
Nov. 20, 1984.
Rehearing Denied Dec. 18, 1984.
680 S.W.2d 939
BILLINGS, Judge.
The principal opinion contends that the failure to instruct the jury on the wife‘s right to use force in the defense of another was not prejudicial to the defendant, because Instructions Nos. 5 and 10 yield the same result. However, Instruction No. 10, patterned on MAI-CR2d 2.10 [withdrawn effective January 1, 1983, a date subsequent to trial of this case], and No. 5, the verdict director, as a practical matter permitted the jury to find the defendant guilty of capital murder, even though it believed that defendant‘s wife, rather than defendant, actually shot the victim, without any instructional guidance as to whether she did so with or without a culpable mental state or whether defendant, independent of his wife, had a culpable mental state when she did so. The assertion that Instructions Nos. 10 and 5 are functionally equivalent to an instruction on the justification of the use of force in defense of a third person is erroneous. To excuse as unprejudicial any failure to instruct on a “special negative defense” on the ground that the jury, by its guilty verdict, necessarily found that the state proved all requisite elements set forth in its verdict directing instruction violates fundamental fairness.
I dissent.
David Hemenway, Kathryn Shubik, St. Louis, for appellant.
John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
BILLINGS, Judge.
pressly provides that duress is not available as a defense to the crime of murder.
The salient facts in this case can be briefly stated. In July of 1981, defendant, a convicted felon, turned to prostitution at the suggestion of her boyfriend, Kennard Keys. Defendant met the murder victim for the first time in July of 1981 while working the “Stroll“—an area in St. Louis habitually frequented by prostitutes and their customers. At the time defendant first met the victim, she and Keys had been living in her mother‘s house in St. Louis. After her first sexual encounter with the victim, she agreed to provide him with her services approximately twice a week on a somewhat regular basis. In return for her services, the victim paid defendant between $75 and $100 for each visit.
During this period of time, defendant and Keys grew dissatisfied with their lack of money and having to live in her mother‘s home. On September 3, 1981, the victim and defendant had arranged another of their customary meetings for that evening. However, defendant and Keys had decided to rob the victim rather than provide him with his usual fare.
Their plan called for the defendant to ask the victim to take her to Eads Park before going elsewhere to transact their usual business. After defendant led the victim to the park, Keys was to rob him. This plan was put into effect and the victim robbed, but he was also stabbed to death by Keys with a kitchen knife taken from the home of the defendant‘s mother. Approximately $300 to $350 in cash was stolen from the body of the victim.
After killing and robbing the victim, they fled the scene in his car. The twosome returned to defendant‘s mother‘s house where defendant attempted to bandage Keys’ hands which had been injured when he repeatedly thrust the knife into the victim‘s body. From there they drove to East St. Louis to drink beer and smoke marijuana with friends. After returning from East St. Louis, defendant accompanied Keys to a hospital where his hands were properly bandaged.
Their activities that evening concluded with a six hour stay at a St. Louis motel. However, before entering the motel, they abandoned the victim‘s car—but not before they attempted to wipe it clean of any fingerprints.
The fundamental question in this case is whether
We initially observe that “at common law, a homicide was either murder or manslaughter....” State v. Clark, 652 S.W.2d 123, 125 (Mo. banc 1983). See also W. LaFave & A. Scott, Criminal Law, 528-30 (1972). In the early stages of the development of the common law there was but one type of murder, which consisted of the unlawful killing of another with a premeditated intent to kill. Model Penal Code and Commentaries § 210.2, Comment 1 (Rev., 1980) However, as society progressed and the common law developed, courts began to recognize a number of new forms of the crime of murder—including felony murder, depraved-heart murder, and intent to do grievous bodily injury murder. Id. These new forms of murder merely signified a variety of mental states “deemed sufficient to support liability for murder.” (emphasis added). Id. What remained unchanged, though, was that at common law each of these new offenses represented a single crime—murder.4
Next, we consider the application and availability of the affirmative defense of duress. In State v. St. Clair, 262 S.W.2d 25, 27 (Mo.1953), we clearly delineated the elements and perimeters of this common law defense.
[T]o constitute a defense to a criminal charge, the coercion must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse.
Moreover, in defining its limitations, we stated that “it is established by the great weight of authority that although coercion does not excuse taking the life of an innocent person, yet it does excuse in all lesser crimes.” State v. St. Clair, supra, 262 S.W.2d at 27.
In St. Clair we simply reaffirmed the common law rule that duress is not available as a defense to the crime of murder:
Adopting defendant‘s argument would require us to presume that when the General Assembly codified the rule of duress in
Defendant‘s second point for reversal is that the trial court erred in giving Instruction 10.5 This Court has previously held
that “the giving or failure to give a proper instruction is error, the prejudicial effect of which, if any, to be judicially determined.” State v. Holland, 653 S.W.2d 670, 675 (Mo. banc 1983).
The trial court did not include in Instruction 10, which was a modified version of MAI-CR2d 2.126, nor in any other instruction, the requirement that the jury must find that defendant knew that Keys was practically certain to murder the victim. Defendant contends it was error not to instruct on this point.
To be convicted of first degree felony murder under
Defendant also contends that the giving of an instruction modeled on MAI-CR2d 2.12 in a felony murder prosecution constitutes prejudicial error because Note on Use 2 cautions against the use of MAI-CR2d 2.12 for felony murder. However Note on Use 2 also directs the reader to Note on Use 8 which indicates that courts should develop instructions submitting the responsibility of one person for the conduct of another—in felony murder prosecutions—on a case-by-case basis. That portion of the transcript covering the jury instruction conference clearly reveals that the trial judge recognized that there was a complete absence of any MAI-CR2d instructions covering felony murder. He therefore modified MAI-CR2d 2.12 to submit defendant‘s responsibility for the conduct of Keys; and in so doing, he gave an instruction that contained a correct statement of the law of first degree felony murder. The judgment is affirmed.
RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN and DONNELLY, JJ., concur.
BLACKMAR, J., concurs in separate opinion filed.
BLACKMAR, Judge, concurring.
I concur for the reasons stated in the principal opinion and for the further reason that the defendant, who had ample opportunity to warn the victim of his impending fate, did not make a submissible case of duress.