# Petition — Missouri v. Morgan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 809

## Text

Ruprema Court, U. i
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IN THE
SUPREME COURT OF THE UNITED STATES

No. 61504

STATE OF MISSOURI,
Petitioner,

v.

DENNIS LEE MORGAN,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF MISSOURI

JOHN ASHCROFT
Attorney General

Pavut Rosgrr Orrto
Assistant Attorney General
Supreme Court Building
P. O. Box 899
Jefferson City, Missouri 65102
(314) 751-3321

Attorneys for Petitioner

Steven W. Garrett
Assistant Attorney General
of Counsel

| NE TNTARRNRNRERE eR:
KELLY PRESS, INC., 201 South Eighth Street, Columbia, Missouri Dial 449-4163

EEE noe Se ee

oD METIS TEE, COC PRET Ste ee 1
Juriagiotomal Gtaternent .. cj... ni. cccevccscescnes 2
OOMINOI: TOMMRIIOR | oi. bso 60555 lab sae eee 2
Constitutional and Statutory Provisions Involved .... 3
enemas oF Gis CAN 5 6k oss dene ee 4
Reasons for Granting the Writ ..................... )
CUI 3 5.5 bs aS oho 5s eee eee 14
Appendix A—Opinion, Supreme Court of Missouri .... Al
Appendix B—Relevant Missouri Statutes ............ A26
Appendix C—Relevant Michigan Statutes ............ A30

Table of Authorities
Cases CITED

Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed.
PP A TADS o.-s.s-vs pase menb estes ek ee 13

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,
7m Ramee. De CRORE) s ko. ods cdveccdwus 6, 8, 10, 11, 12, 13

Brintley v. Michigan, .... U.S. ...., 100 S.Ct. 418, 62
SiMe Ae CURTONS 5. sic senscaguceeeeeeee 2, 6, 7, 8

Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Bd.2d
SOF CIOPT Es oo oo ok oecadeccscee eee 9, 10

Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed.
1208 ABB: ook eee 12

Ennis v. State, 364 So.2d 497 (Fla. App. 1978); ...... 9
Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55
Lats: QW: EROMRDS 5 ov (has ka sa badeeewe eee 12
Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2
rm BS Rt: | eee rN 12
Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53
Sot e DOGG CTOTT bs xn nccdcedvecteuee 3, 4, 7, 8, 10

ii
Harris v. State, 555 P2d 76 (Okla. Crim. App. 1976) . .10, 11

Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3
L.Ed.2d 597, rehearing denied, 359 U.S. 976, 79 S.Ct.

ee Ge COOUPES vu 6 ale ce scenes cccaces soe 12
In re Neilson, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118
Ne ck dan ys oh.6 chp date eae aaa 11
Jeffers v. Umted States, 432 U.S. 137, 97 S.Ct. 2207,
EE ees dc wn ecn endo e6eys se 9
Ladner v. United States, 358 U.S. 169, 75 S.Ct. 209, 3
os es a 5 yyw wek BW we 08 oOo oes 9
Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53
on a nw adios osbed bs x wkede es 7
Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728,
OE SMES cnc c cass sccsnendvnsveson 13
North Carolina v. Butler, .... U.S. ...., 99 S.Ct. 1755,
SEE GE CAMPOS... ccc cccccccccecccccccces 8
Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d
es dried de chek ok Ka kN KOS 4408 k ows 7
Prince v. Umited States, 352 U.S. 322, 77 S.Ct. 402, 1
BG 13

Sours v. State, No. 61458 (Mo. banc January 15, 1980); 5,8
State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975); . 4
State v. Morgan, No. 39358 (Mo.App., E.D. May 9,

MEE Se oho ydip nde ei bebrccenscsaceeacceccers 4
State v. Morgan, No. 61504 (Mo. bane January 15,

Gc Lica pese.wadedecseces 2, 3, 4, 5, 6, 8, 9, 11, 14
State v. Whitley, 382 S.W.2d 665 (Mo. 1964); ...... 8
Vanetzian v. Hali, 562 F.2d 88 (1st Cir. 1977); ...... i)

Whalen v. United States, 379 A.2d 1152 (D.C.Ct.App.,
aaa SAN os 60's bogs Vs a 002 c0ccnsseseevecs 11

lil

Statutes Crrep

District of Columbia Felony Murder Statute ....... 11
District of Columbia Rape Statute ................ 11
SeaD Ty FI 6 4s. kad 8 cs See A
Section 559.020, RSMo 1969 ................... 2, 3, 4, 5
Section 559.225, RSMo Supp. 1976 ................. 5
Section 560.135, RSMo Supp. 1975 ................. 5
Section 560.156, RSMo 1969 ...............0ccccee 2, 3, 4
Section 560.160, RSMo 1969 ...................5. 2, 4, 5
meotion 750,.287(b), MO UA i ciccccccccacccscuss 2, 3, 6
26 Crim.L.Rep. 4032—Whalen v. United States, No.
FR Sect kndadassdawh aki beeee tee Ae 12
oe CMa, GA io oo va yo ea eek 6, 12

CoNSTITUTIONAL Provisions Crrep

United States Constitution, Fifth Amendment ....... 3

Article V, Section 10, Missouri Constitution ......... 4

ARTICLES CITED

‘‘Consecutive Sentences in Single Prosecutions, Judi-
cial Multiplication of Statutory Penalties,’’ 67 Yale
Law Journal 916 (1958) ......... ccc ccc cece cece 13

‘‘Notes and Comments; Twice in Jeopardy,: 75 Yale
Law Journal, 262 (1965) ........cccccccccceuccc, 12

IN THE
SUPREME COURT OF THE UNITED STATES

No. 61504

STATE OF MISSOURI,

Petitioner,
¥a

DENNIS LEE MORGAN,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF MISSOURI

Petitioner, the State of Missouri, prays that a Writ
of Certiorari issue to review the judgment and opinion
of the Supreme Court of Missouri entered in the above-
entitled cause on January 15, 1980.

OPINION BELOW

The opinion of the Supreme Court of Missouri, as yet
unreported, is styled and numbered as follows: State of
Missouri, Respondent, v. Dennis Lee Morgan, Appellant,
No. 61504, In the Supreme Court of Missouri, en banc. A
copy of the opinion is reprinted as Appendix A.

JURISDICTIONAL STATEMENT

Judgment was entered in this cause by the Supreme
Court of Missouri on January 15, 1980. On February 1],
1980, the Supreme Court overruled both respondent’s Mo-
tion to Stay Mandate and respondent’s Motion for Rehear-
ing. The present petition is filed within ninety (90) days
of the entry of judgment in this case, and this Court’s juris-
diction is invoked under 28 U.S.C., ¢ 1257 (3).

QUESTIONS PRESENTED

1. Whether the Missouri Supreme Court’s decision in
State v. Morgan, No. 61504 (Mo. bane January 15, 1980),
wherein the Court held that, convicting respondent in a
single proceeding of both the underlying felony (stealing
over $50, § 560.156 and § 560.160, RSMo 1969) and the
‘greater offense’’ (second degree murder, felony murder,
§ 559.020, RSMo 1969) violates the double jeopardy clause
of the Fifth Amendment to the United States Constitu-
tion, conflicts with this Court’s decision on the merits re-
garding the same federal Constitutional issue rendered in
Brintley v. Michigan, .... U.S. ...., 100 S.Ct. 418, 62

L.Ed.2d 317 (1979), wherein this Court dismissed, for want _

of a substantial federal question, petitioner’s appeal which
sought to review the Michigan Supreme Court’s decision
holding that the double jeopardy clause of the Fifth
Amendment to the United States Constitution was not
violated by convicting a defendant separately of both the
‘‘greater offense’? (possession of a firearm during the
commission of a felony, ¢ 750.227(b), M.C.L.A.) and the
underlying felony (armed robbery, § 750.593, M.C.L.A.),
even though all proofs required to establish violation of
the latter are necessarily required for proof of violation
of the former.

2. Whether imposition of concurrent sentences for sec-
ond degree murder, felony murder, and for the underlying

3

felony, in a single sentencing proceeding following a single
trial, violates the double jeopardy clause of the Fifth
Amendment to the United States Constitution.

3. Whether the holding of Harris v. Oklahoma, 433
U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); to wit,
that

‘*[A] person [who] has been tried for a crime which

has various incidents included in it, . . . cannot be a

second time tried for one of those incidents without

being twice put in jeopardy for the same offense,”’’

433 U.S. at 683.

mandates the result reached in State v. Morgan, No. 61504
(Mo. banc January 15, 1980) ; to wit, that conviction in one
proceeding of both felony murder and its underlying felony
violates the double jeopardy clause to the Fifth Amend-
ment of the United States Constitution.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
United States Constitution, Fifth Amendment, reads
as follows:

‘*No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment
or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in
active service in time of war or public danger; nor shall
any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without
due process of law, nor shall private property be taken
for public use without just compensation.”’

Sections 560.156, 560.161, 559.010, 559.020, 559.040,
559.050, and 559.070, RSMo 1969, are set forth in Appendix
B. Sections 750.227(b) and 750.529, M.C.L.A., are set forth
in Appendix C.

STATEMENT OF THE CASE

After being convicted of both second degree murder
(felony murder), § 559.020, RSMo 1969, and stealing over
$50, §§ 560.156 and 560.160, RSMo 1969, respondent was
sentenced to served ten (10) years imprisonment on each
count, said sentences to run concurrently. Respondent then
appealed his convictions to the Missouri Court of Appeals,
Kastern District, said convictions having been affirmed by
that court in a decision styled State v. Morgan, No. 39358
(Mo.App., E.D. May 9, 1979). Respondent’s case was then
ordered transferred to the Missouri Supreme Court, pur-
suant to Art. V, § 10, Constitution of Missouri; and Rule
83.09, V.A.M.R., which provides that causes transferred
to the Missouri Supreme Court are to be determined by
that court in the same manner as if the case were on original

appeal.

The Missouri Supreme Court, in its opinion styled
State v. Morgan, NO. 61504 (Mo. bane January 15, 1980),
citing Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53
L.Ed.2d 1054 (1977), held that:

‘Inasmuch as the convictions and sentences for
the greater offense of felony murder and the lesser
included offense of the felony, stealing, violate the
Fifth Amendment proscription against double jeop-
ardy, the judgments are vacated and the cause is re-
manded to the trial court with directions to enter a
new judgment and sentence consistent with the views
expressed herein [footnote omitted].’’ slip op. at 22.

It is from that decision, reversing the well-established rule
in this jurisdiction found in State v. Chambers, 524 S.W.2d
826 (Mo. bane 1975), that petitioner seeks this Court’s
review.

REASONS FOR GRANTING THE WRIT

In its January 15, 1980, opinion, holding that respond-
ent’s conviction in a single proceeding for both second
degree murder (felony murder), § 559.020, RSMo 1969,
and the underlying felony of stealing over $ 50, §§ 560.156
and 560.160, RSMo 1969, violates the double jeopardy clause
of the Fifth Amendment to the United States Constitu-
tion, the Missouri Supreme Court was careful to point out
that appellant’s convictions did not fall within the state’s
constitutional proscription regarding double jeopardy.
State v. Morgan, No. 61504 (Mo. bane January 15, 1980).
That same day, the Missouri Supreme Court adopted the
same reasoning in its reversal of an armed-criminal-action
conviction in a case wherein the defendant, in the same
proceeding, had been charged with, and convicted of, first
degree robbery, § 560.120, RSMo 1969, and § 560.135, RSMo
Supp. 1975, and armed criminal action, § 559.225, RSMo
Supp. 1976. Sours v. State, No. 61458 (Mo. bane January
15, 1980) (petition for Writ of Certiorari is pending be-
fore this Court). In both cases, the Missouri Supreme
Court found that convicting the defendants in a single
proceeding of both the underlying felony (stealing over
$50, in the instant case, and first degree robbery, in Sours),
and the ‘‘greater offense’’ (second degree murder, felony
murder, and armed criminal action) violates the double
jeopardy clause of the Fifth Amendment to the United
States Constitution because the proof of the underlying
felony in each case was necessary to prove the ‘‘greater
offense.’’' The court reached its conclusion hy reasoning

1. It should be noted that, prior to Morgan, Missouri Courts
had never used the “greater-lesser included offense” analysis with
regard to felony murder-double jeopardy issues. See Chambers,
supra; State v. Hicks, 530 S.W.2d 396 (Mo.App., St.L.D. 1975); State
v. Johnson, 549 S.W.2d 627 (Mo.App., K.C.D. 1977); State v. Jasper,
486 S.W.2d 268 (Mo. banc 1972); and State v. Moore, 326 Mo. 1199,
33 S.W.2d 905 (1930).

6

that the test prescribed by Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as applied
in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53
L.Ed.2d 1054 (1977), relegates the underlying felony to
‘‘lesser included offense”’’ status.

Petitioner submits that a Writ of Certiorari should
issue in the case at bar for the reason that the Missouri
Supreme Court’s holding in State v. Morgan, supra, con-
flicts with a recent decision of this Court summarily dis-
missing an appeal for want of a substantial federal ques-
tion. Brintley v. Michigan, .... U.S. ...., 100 S.Ct. 418,
62 L.Ed.2d 317 (1979). The question, which Brintley had
sought to present, was as follows:

‘‘Does double jeopardy clause prohibit separate con-
victions and sentences for violation of state statute,
§ 750.227(b), proscribing possession of firearm during
commission of felony, and for (armed robbery in one
case and second degree murder in another) where all
proofs required to establish violation of underlying
felony are necessarily required for proof of violation
of § 750.227(b), where there is no evidence that weapon
has been possessed for any other purpose than com-
mission of underlying felony, where underlying felony
is specifically charged as felony element of firearms
possession charge, and where (in armed robbery case)
state has already augmented punishment for armed
robberies above punishment imposed for unarmed rob-
beries?’’ 26 Crim.L.Rep. 4113.

Although Brintley dealt with a felony committed by use
of a firearm and its underlying felony, the issue which
the defendant sought to present to this Court is identical
to the issue raised in Morgan, supra; to wit, does it con-
stitute double jeopardy in violation of the Fifth Amend-
ment to the United States Constitution to charge and con-

7

vict of two offenses in a single proceeding, where all proofs
required to establish a violation of the underlying felony
are necessarily required for proof of the violation of the
‘‘oreater offense.’’

Respondent submits that a summary disposition, such
as in Brintley v. Michigan, supra is a disposition on the
merits. Such a disposition rejects the specific challenges
presented in the Statement of Jurisdiction and leaves, un-
disturbed, the judgment appealed from. Mandel v. Bradley,
432 U.S. 173, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977);
Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281,
2289, 45 L.Ed.2d 223 (1975). While summary actions should
not be understood as breaking new gruond, they do pre-
vent lower courts from coming to opposite conclusions
on the precise issues presented and necessarily decided
by those actions. Mandel v. Bradley, supra.

Petitioner submits that this Court’s desision in Brint-
ley clarifies the breadth of Harris. If this Court had in-
tended for Harris to be applied to situations other than
cases where there have been separate prosecutions, then
certainly this Court would not later dismiss an appeal
wherein the issue was identical except for the fact that it
involved a single prosecution. Harris, supra, and Brintley,
supra, raised identical legal issues but diverge, petitioner
submits, because the latter involved a single prosecution
and the former, multiple prosecutions.

The Missouri Supreme Court’s attempt to expand on
a federal Constitutional right conflicts with this Court’s
opinion rendered in Oregon v. Hass, 420 U.S. 714, 95 S.Ct.
1215, 43 L.Ed.2d 570 (1975), wherein the Court stated:

‘‘[A] state is free as a matter of its own law to impose
greater restrictions on police activity than those this
Court holds to be necessary upon federal constitutional
standards [citations omitted] But, of course, a State

8

may not impose such greater restrictions as a matter
of federal constitutional law when this Court specifi-
cally refrains from imposing them.’ Jd. U.S. at 719.

See also North Carolina v. Butler, .... U.S. ...., 99 S.Ct.
1755, 60 L.Ed.2d 286 (1979).

Petitioner submits that, although Brintley dealt with
the use of a firearm during the commission of a felony
and its underlying felony, the legal issue is identical to
that raised in the case at bar. That this is true is high-
lighted by the fact that the Missouri Supreme Court used
this Court’s decision in Harris v. Oklahoma, supra, a case
involving felony murder-double jeopardy, to reverse Sours
v. State, supra, a case involving armed criminal action-
double jeopardy. It would, therefore, follow that a United
States Supreme Court decision dealing with armed criminal
action-double jeopardy which conflicts with a state supreme
court decision dealing with felony murder-double jeopardy,
should be controlling.

Notwithstanding the aforementioned, petitioner con-
tends that the Missouri Supreme Court’s decision over-
looked the basic fundamentals of double jeopardy. In
Morgan, not only were two crimes charged, but each crime
was perpetrated against a different victim. The victim of
the stealing was not also the victim of the murder. The
fact that each crime was perpetrated against different
victims should be sufficient for purposes of meeting the
Blockburger standard in that separate victims constitute
separate elements and, thus, separate units of prosecution.
Indeed, the Missouri Supreme Court recognized this in
State v. Whitley, 382 S.W.2d 665 (Mo. 1964). Petitioner
can find no precedent for invoking double jeopardy in a
situation wherein the crimes charged were perpetrated
against separate victims. This is not a case wherein the
same act of force resulted in victimizing two individuals

-

9

as was the case in Ladner v. United States, 358 U.S. 169,
79 S.Ct. 209, 3 L.Ed.2d 199 (1958), wherein this Court held
that a single discharge from a shotgun, wounding two
federal officers, was but one assault. This is simply a case
wherein two individuals, unknown to each other, were vic-
timized, miles apart, as a result of the criminal inclinations
of one person.

Petitioner further submits that, whatever may have
been required to be proved in the particular circumstances
of this case, stealing over $50 and second degree murder
(felony murder) are not the ‘‘same’’ offense for purposes
of determining double jeopardy as it is not ordinarily
necessary to commit the former offense in order to commit
the latter. A greater offense will invariably require proof
of every fact necessary to show the lesser included offense
as well as proof of one or more additional elements. See
Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53
L.Ed.2d 168 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct.
2221, 53 L.Ed.2d 187 (1977). Under Missouri’s Second De-
gree Murder Statute (which makes all other kinds of mur-
der at common law, other than first degree murder, man-
slaughter, o: justifiable or excusable homicide, murder
in the second degree), neither stealing over $50 nor any
other felony at common law is a necessarily included offense
of felony murder since proof of any of those felonies is
sufficient to support a felony murder conviction. Put an-
other way, the statute does not require that stealing over
$50 need always be proven in order to secure a conviction
for murder committed in the course of a felony. See Ennis
v. State, 364 So.2d 497, 499 (Fla.App. 1978) (See Vanetzian
v. Hall, 562 F.2d 88, 89-90 (1st Cir. 1977)). Petitioner con-
tends that none of the decisions, cited by the Missouri
Supreme Court in its opinion in Morgan, supports the argu-
ment that the underlying felony and the felony murder
are the ‘‘same’’ offense. In Brown v. Ohio, supra (the

10

main case relied on in Harris v. Oklahoma, supra), the
United States Supreme Court held that, once the defend-
ant had been convicted and punished for the offense of
‘*joyriding,’’ i.e., taking or operating an automobile with-
out the owner’s consent, he could not thereafter be tried
for theft of the auto. The court noted that ‘‘joyriding’’
was, under Ohio law, a lesser included offense of auto theft.
432 U.S. at 163-164, 167. Because each offense did not re-
quire ‘‘proof of a fact that the other does not... .’’ Brown
v. Ohio, supra at 432 U.S. at 167, quoting Blockburger v.
Umited States, supra, 284 U.S. at 304, the offenses were
the ‘‘same.’’ This Court held that the trial court had erred
in overruling Brown’s objection that the double jeopardy
clause barred a trial for the auto theft following his trial
and conviction for ‘‘joyriding.’’ See 432 U.S. at 163-164.

While Harris v. Oklahoma, supra, is somewhat more
pertinent, it does not confirm the Missouri Supreme Court’s
view of the Blockburger test. Harris was convicted of felony
murder, arising out of an armed robbery. He was then
charged, in a second prosecution, with the armed robbery.
Prior to trial, he moved to dismiss the information, assert-
ing that, under the double jeopardy clause, his earlier
conviction barred any subsequent trial for an armed rob-
bery. Harris v. State, 555 P.2d 76, 78 (Okla.Crim.App.
1976). This motion was denied, and Harris was tried, con-
victed and sentenced to thirty (30) years imprisonment.
Id. at 77. This Court reversed, in a per curiam opinion,
holding that:

‘*[w]hen, as here, conviction for a greater crime, mur-

der, cannot be had without conviction for the lesser

crime, robbery with firearms, the double jeopardy
clause bars prosecution for the lesser crime after con-

viction for the greater one.’’ 432 U.S. at 682.

But this Court did not expressly hold that robbery and
murder were the ‘‘same’’ offense under the Blockburger

11

test; indeed, the brief opinion in Harris did not even cite
the Blockburger decision. Instead, the court relied pri-
marily on Jn re Neilson, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed.
118 (1889), which, like all the other cases cited in Harris,
involved multiple prosecutions.

Petitioner contends that, succinctly stated, Harris
establishes that, had he (Harris) been previously convicted
or acquitted of the felony murder, he could not thereafter
been tried for the robbery that formed the predicate for
the murder conviction.

In its opinion in Morgan, the Missouri Supreme Court
stated that the determination of legislative intent is an
exercise, independent of the Blockburger test, and, there-
fore, said test is not a rule of statutory construction. Peti-
tioner submits that, even if that court’s interpretation of
how the Blockburger test should be applied is assumed,
said test is not triggered until, and unless, it cannot be
determined that the legislative intent was to punish the
crimes separately.

In this regard, it is interesting to note the case of
Whalen v. United States, 379 A.2d 1152 (D.C.Ct.App.,
1977), wherein the court held that the imposition of con-
secutive sentences for first degree murder and for the rape
that was charged and proved as the predicate felony, was
proper because, even if the rape is considered an ‘‘element”’
of the felony murder, the two offenses do not merge upon
conviction because the two statutes were designed to pro-
tect separate societal interests; and the two offenses were
sufficiently distinct. That court refused to analyze, solely
by abstract consideration, the statutes involved but looked
instead to the societal interests protected by the statutes
under consideration. It held that the societal interests,
which Congress sought to protect by enactment of the Dis-
trict of Columbia Felony Murder Statute and Rape Statute,
were separate and distinct. It reasoned that the rape stat-

12

ute was promulgated to protect women from sexual assault,
while the felony murder statute purports to protect human
life. Whalen, supra at 1159. The Whalen case is currently
pending before this Court, styled W*alen v. United States,
No. 78-5471, 26 Crim.L.Rep. 4032. See summary of the argu-
ment before this Court on November 27 and 28, 1979, at
26 Crim.L.Rep. 4113.

Worthy of this Court’s consideration is: ‘‘Notes and
Comments; Twice in Jeopardy,’’ 75 Yale Law Journal.
262 (1965), which states in part as follows:

‘When the legislature clearly indicates in a statute
its intent with respect to the cumulation of convic-
tions, the court’s task of construction is at an end and
if legislative intent, though not proclaimed in the stat-
ute, is nonetheless perfectly clear from the legislative
history, the legislature’s purpose should be honored.
But in the vast majority of cases, unequivocal legis-
lative intent cannot honestly be found in the statute or
its official history. Thus, the court must ordinarily
resort to presumptions about legislative intent—-canons
of construction—to determine the unit of conviction
created by a statute.”’’

It should be noted that several cases is the Blockburger
line do not clearly indicate that the use of tests of statutory
construction is called for only when legislative intent is
unclear. Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59
L.Ed. 1151 (1915); Harris v. United States, 359 U.S. 19,
79 S.Ct. 560, 3 L.Ed.2d 597, rehearing denied, 359 U.S. 976,
79 S.Ct. 873, 3 L.Ed.2d 843 (1959); Gore v. United States,
307 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); and
Gavieres. v. United States, 220 U.S. 338, 31 S.Ct. 421, 55
L.Ed. 489 (1911). However, in each of these eases, legis-
lative intent was not at all apparent in the criminal-sen-
tencing statutes in question. Thus, it is implicit in these

13

cases that the use of a ‘‘same offense’’ defining test, same
as that found in Blockburger, is to be resorted to by the
courts only when there is an absence of an indication of
legislative intent.

It is apparent that there is some confusion surrounding
Blockburger and other multiple-punishment cases (although
concurrent sentences were imposed in the instant case, the
Missouri Supreme Court apparently construed such as a
multiple-punishment case), but, as indicated in ‘‘Consecu-
tive Sentences in Single Prosecutions, Judicial Multiplica-
tion of Statutory Penalties, 67 Yale Law Journal 916,
920 (1958), ‘‘much of the confusion in multiple-punish-
rent cases is directly attributable to use of traditional
double jeopardy tests.’’ It is argued in this article that
‘‘the legislature is the ultimate authority for imposition
of punishment.’’ Zd. at 923, and that ‘‘the legislature may,
consonant with legitimate penological principles, authorize
consecutive sentences when a single act may violate several
statutory provision.’’ Jd. at 919-920. With a specific refer-
ence to the Blockburger test, the article states,

‘*Acting in a context which limits the punishment by
the will of the body that defines crime, courts in multi-
ple-convictions cases should abandon automatic and
inappropriate application of the same evidence test
and focus on legislative intent instead.’’ Id. at 931.

Petitioner submits that there exists no precedent for
the proposition that the Blockburger test must be applied
in the case at bar. In fact, there have been several multi-
ple-punishment cases decided solely on the basis of legis-
lative intent without reference to tests of statutory con-
struction. Prince v. Umted States, 352 U.S. 322, 77 S.Ct.
403, 1 L.Ed.2d 370 (1957); Bell v. United States, 349 U.S.
81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); and Milanovich v.
Umted States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773
(1961).

14

In Morgan, supra, the Missouri Supreme Court used
certain tests of statutory construction to override, what
petitioner submits was, the clear expression of legislative
intent to convict and punish for both felony murder and
its underlying felony. Petitioner respectfully submits that
the Missouri Supreme Court has misconstrued the essence
of the Fifth Amendment’s double-jeopardy guarantee.

Because a definitive decision by this Court is long
overdue concerning whether or not convictions can be had
and punishment imposed for both felony murder and its
underlying felony and, further, because there exists de-
cisions of this Court, conflicting with the Missouri Supreme
Court’s decision in State v. Morgan, supra, it is respect-
fully requested that this Court grant full review of this
issue so as to resolve the confusion still prevailing, not only
in the State of Missouri, but within every jurisdiction with-
in this country.

CONCLUSION

For the foregoing reasons, the petition for Writ of
Certiorari should be granted.

Respectfully submitted,

JoHN ASHOROFT
Attorney \ 2neral

Pau Rosert Orto
Assistant Attorney General
Supreme Court Building
P. O. Box 899
Jefferson City, Missouri 65102
(314) 751-3321

Attorneys for Petitioner

Steven W. Garrett
Assistant Attorney General
of Counsel

Al

APPENDIX

APPENDIX A

STATE OF MISSOURI, }
Respondent,

bis | No. 61504

DENNIS LEE MORGAN,
Appellant.

4

APPEAL F’Rom THE Circuit Court or THE Crry or St. Louis
HonoraBte Lackianp H. Broom, Jupar

Appellant was convicted in one trial of stealing over
$50 and second degree (felony) murder. The victim was
killed when the car in which she was a passenger was struck
by a car driven by appellant, who was seeking to elude
police in a high-speed chase. The stealing had occurred
earlier when appellant pulled into a gasoline station and
engaged the attendant in conversation about the car while
a companion, never seen by the attendant, entered the stor-
age room of the station and stole some cigarettes, a check
protector and some quarters.

The Court of Appeals, Eastern District, affirmed appel-
lant’s convictions,’ after which this Court granted transfer
and now decides the case as an original appeal.

Seven claims of error are lodged here. Appellant con-
tends that the trial court erred in (1) denying his motion

1, Although this Court reaches a different conclusion as to the
double jeopardy issue presented here and in the court of appeals,
it concurs in the results reached by Crist, J. as to the other issues
involved and adopts his reasoning without use of quotation marks
in several parts of this opinion.

A2

to dismiss on the ground that the two counts in the sub-
stitute information subjected him to double jeopardy; (2)
denying his motions for acquittal because there was insuf-
ficient evidence of stealing; (3) limiting defense counsel’s
cross-examination of one of the police officers; (4) denying
his motion to suppress evidence seized without a warrant
at the scene of the wreck; (5) submitting a verdict-direct-
ing instruction that varied from the substitute information:
(6) failing to give in full MAI-OR 2.70 as required, and
(7) overruling defense objections to testimony by the sta-
tion attendant as to the value of cigarettes stolen and fail-
ing to declare a mistrial after sustaining defense counsel’s
motion to strike testimony as to the value of the check
protector, thus prejudicing appellant’s right to a fair trial.

The state’s evidence established the following: On De-
cember 4, 1975, a man identified by the station attendant
as appellant drove into the Clark Service Station on South
Grand in St. Louis and asked the attendant to check the
oil. The attendant described the car as a black over white
Cadillac, although his testimony varied v. whether it was
a two-door or four-door car and he did not know the model
of the car. When the attendant told appellant that the oil
was fine, appellant then asked the attendant to listen for
a knocking noise in the engine. The attendant estimated
that the encounter lasted between five and ten minutes.
He testified that during that time appellant never got out
of the car and that he saw no one else in the car or around
the station. When the attendant returned to the station
building after appellant had left, he saw that the door to
the storage room was open, a bag of cigarettes lay open
and some loose change was on the floor. The attendant then ~
called the police. One of the policemen involved in the chase
testified that he and his partner were out on routine patrol
and began following the Cadillac appellant was driving
after a call came over their radio on a holdup at the Clark

A3

station. The call included a description, although what the
description was is unknown. Very soon after the call, the
officer and his partner observed the Cadillac approaching
with two persons inside. The driver was a black male, and
as the police passed, one officer testified that the driver
put his hand up to his face so as to obstruct their view
of him, while the passenger in the Cadillac appeared to
be doing something down on the seat. After following the
Cadillac about half a block, another call came out over
the police radio with a description of the automobile and
its occupants. At that time the policemen accelerated and
turned om the red roof lights and siren. The Cadillac also
accelerated at this point, and the chase ending in the fatal
crash ensued. After the crash and while the appellant and
his companion were subdued, the front seat of the car was
searched for weapons. N.wne was found. At some point after
ambulances and other police cars had arrived, one of the
officers had a radio conversation with the attendant or
manager of the service station and told him he had found
a carton of cigarettes in the car. The attendant or manager
told him more cartons had been stolen. The officer returned
to the Cadillac and opened its trunk by means of a remote
switch in the glovebox. There he found thirteen cartons
of cigarettes and a check protector. Fingerprints on one
carton and the check protector were identified later as
belonging to appellant. Apparently, appellant was in the
ambulance at the time of the trunk’s search.

The complexity of the first issue presented, double
jeopardy, requires a detailed analysis of this case vis A vis
Missouri and United States Supreme Court cases on this
issue. Appellant relies primarily on Harris v. Oklahoma,
433 U.S. 682 (1977) to support his claim of double jeopardy
here. A superficial comparison of this case and Harris
yields the conclusion that the two cases are distinguishable.
In Harris a grocery store clerk was shot and killed by a

A4

companion of Harris in the course of a robbery. Harris
was convicted of robbery under an Oklahoma statute.
Thereafter Harris was brought to trial and convicted on
a separate information charging felony-murder also under
an Oklahoma statute. His motion to dismiss on the ground
that this prosecution violated the Double Jeopardy Clause
of the fifth amendment was denied. The United States
Supreme Court reversed, saying, ‘‘When, as here, convic-
tion of a greater crime, murder, cannot be had without
conviction of the lesser crime, robbery with firearms, the
Double Jeopardy Clause bars prosecution for the lesser
crime after conviction of the greater crime.’’ In a foot-
note to this sentence the court said the state had conceded
that in the murder case it was necessary for all the in-
gredients of the underlying felony of robbery with fire-
arms to be proved. The distinction between Harris and
the instant case is that in Harris there were two trials
and in this case there was one. This cannot be the end of
the analysis, however, for several reasons.

The fifth amendment to the United States Constitu-
tion states in pertinent part: ‘‘. . . nor shall any person

be subject for the same offense to be twice put in jeopardy
of life or limb; ....’’ U.S. Const. amend. V.* The United

2. Although the opinion in Harris v. Oklahoma, 433 U.S. 682
(1977), relates that Harris first was convicted of felony murder,
then tried and convicted of robbery, the underlying cases in the
Oklahoma state courts indicate that the opposite was true. See,
Harris v. State, 558 P.2d 1199 (Okla. Cr. 1977) and Harris v. Okla-
homa, 439 U.S. 970 (dissenting opinion by Brennan, J.) (1978).

In either event, Brown v. Ohio, 432 U.S. 161 (1977), had made clear
that the order of prosecution was of no significance in a double
jeopardy situation.

3. Appellant here also claims entitlement to relief under the
double jeopardy provision in the Missouri Constitution. Mo. Const.
art. I, § 19 declares that the state is prohibited from placing a person
“again in jeopardy of life or liberty for the same offense, after being
once acquitted by a jury.” The circumstances of this case obviously
do not fall within this proscription. It has been said, however, that

(Continued on following page)

bao

A5

States Supreme Court has construed this language to refer
to the dangers of multiple prosecution and multiple punish-
ment for the same offense. North Carolina v. Pearce, 395
U.S. 711 (1969). That court also has addressed the ques-
tion of what constitutes the same offense for constitutional
purposes. Although application of the test developed in
this regard has been checkered, Blockburger v. United
States, 284 U.S. 299 (1932) still is the leading case. The
defendant there was charged with violating provisions of
the Harrison Narcotic Act. Of the five counts charged,
defendant was convicted in one trial of three counts. Two
of those three, he claimed, constituted but one offense for
which only a single penalty lawfully could be imposed.
One of those counts charged a sale of morphine hydro-
chloride not in or from the original stamped package, and
the other charged that sale as also having been made not
in pursuance of a written order of the purchaser as re-
quired by the statute. In finding two offenses, the court
stated the following:
The applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to deter-
mine whether there are two offenses or only one, is
whether each provision requires proof of a fact which
the other does not... .

Td. at 304.

The test was reaffirmed in Brown v. Ohio, 432 U.S.
161 (1977), which held that it applied to successive prosecu-

Footnote continued—

“there is no readily discernible difference between the Fifth Amend-
ment guarantee against double jeopardy, enforceable against the states
through the Fourteenth Amendment, and the common law guarantee
[against a defendant being placed twice in jeopardy] as applied in
this State. State v. Ri n, 460 S.W.2d 537, 538 (Mo. banc 1970).”
State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977), cert. denied,
439 U.S. 838 (1978).

A6

tions as well as to the imposition of cumulative punish-
ment at a single trial. The court there noted that the
Blockburger test is not the only standard for determining
whether successive prosecutions impermissibly involve the
same offense but said, ‘‘Because we conclude today that
a lesser included and a greater offense are the same under
Blockburger, we need not decide whether the repetition of
proof required by the successive prosecutions against
Brown would otherwise entitle him to. . . additional pro-
tection... .’’ Jd. at 167, n. 6.

Thirteen days after the court handed down Brown v.
Ohio, another decision was rendered on greater and lesser
included offenses. That case was Harris v. Oklahoma,
supra.

The issue addressed in Harris has been before this
Court as well. The case urged as controlling here is State
v. Chambers, 524 S.W.2d 826 (Mo. bane 1975), cert. denied,
423 U.S. 1058 (1976), decided before Harris. There de-
fendant and a companion, after a four-hour drinking bout,
stole a pickup and towed it behind a car. The vehicles
weaved through both lanes of the highway and collided
with an oncoming automobile, killing four persons. Cham-
bers was convicted in one trial of one count of stealing
and four counts of murder, second degree. In his appeal
to this Court, Chambers challenged the submission of both
the underlying felony and the murders, claiming convic-
tion for both crimes would violate the doctrine of double
jeopardy. This Court said in that regard:

The question is now restated, whether, in the cir-
cumstances of this case, the stealing charge is an essen-
tial element of, or a lesser included offense within,
the felony-murders as to bring the case within the
prohibition of State v. Toombs, [326 Mo. 981, 34 S.W.2d
61 (1930) ].

AZ7

The felony-murder rule permits the felonious in-
tent necessary to a murder conviction to be shown
by the perpetration of or attempt to perpetrate a
felony. Proof of intent to commit the underlying
felony raises a conclusive presumption that the de-
fendant possessed the necessary felonious intent to
support conviction for the resulting murder .... The
rule does not make the underlying felony an element
of the felony-murder; it merely provides an additional
means of proving the requisite felonious intent for
murder. (citations omitted)

Id. at 829.

The Court concluded that the two offenses ‘‘are not merged,
but are separate and distinct in law and in fact.”’

The Court of Criminal Appeals of Oklahoma echoed
these statements in Harris v. State, 555 P.2d 76 (1976),
rev’d per curiam sub nom, Harris v. Oklahoma, 433 U.S.
682 (1977). The Oklahoma court had said:

In the case at bar the two offenses complained of,
felony murder, and robbery with firearms, are separate

and distinct .. .

In a felony murder case, the proof of the under-
lying felony is needed to prove the intent necessary

for a felony murder conviction. . .

555 P.2d at 80, 81.

This language did not go unnoticed by the United States
Supreme Court in its subsequent opinion and, in fact, was
quoted specifically in that per curiam. 433 U.S. 682.

It is clear that after Harris, the underlying felony is
a lesser included offense of felony murder. Respondent
here contends that the Supreme Court in Harris meant
only to address those states such as Oklahoma, whose felony
murder laws require proof of the underlying felony as an

A8

element of felony murder. No support can be found for
this claim.

The law under which Harris was convicted read:
Homicide is murder in the following cases . . .

3. When perpetrated without any design to effect
death by a person engaged in the commission of any
felony. Okla. Stat. tit. 21, 4 701 (1971), repealed Laws
1973, c. 167 § 7, emergency eff. 5-17-73.

Missouri’s statute at the time of appellant’s arrest
read:

099.007. First degree murder defined.—The un-
lawful killing of a human being when committed with-
out a premeditated intent to cause the death of a
particular individual but when committed in the perpe-
tration of or in the attempt to perpetrate arson, rape,
robbery, burglary, or kidnapping is murder in the first
degree.

999.020. Murder in the second degree.—All other
kinds of murder at common law, not herein declared
to be manslanghter or justifiable or excusable homi-
cide, shall be deemed murder in the second degree.

RSMo 1969 (Supp. 1975).

Appellant was charged under the latter statute, under
the theory resurrected in State v. Jasper, 486 S.W.2d
268, 271 (Mo. banc 1972):

It is thus clear that Missouri recognizes the com-
mon law felony-murder rule under which a homicide
committed in connection with a felony other than those
enumerated in § 559.010 [Repealed L. 1975 H.B. 150
§ A, $ 559.007 above substituted in its place] is murder
in the second degree, absent other evidence from which
the jury could find the elements necessary to a find-
ing of murder in the first degree.

A9

A reading of the Oklahoma statute may lead one to
the conclusion that it makes the underlying felony an ele-
ment of felony murder. The Oklahoma Court of Criminal
Appeals, however, did not view it in that manner, and
the United States Supreme Court did not single out the
Oklahoma statute for containing the underlying felony as
an element. Rather it spoke of the use of the underlying
felony to prove the intent necessary. If the Supreme Court
meant to create a distinction between Oklahoma and other
states on the basis of the wording of its murder statutes,
it gave no hint of that in Harris.

This being the case, Chambers is infirm at least to
the extent that it holds that a defendant may be convicted
and punished for felony murder and the underlying offense.
whether in one trial or two.

The second aspect of this double jeopardy question is
whether Harris is distinguishable from this case because
it involved two separate prosecutions rather than one in
which the two charges were joined.

When North Carolina v. Pearce, supra, declared that
the fifth amendment guarantee protected against three
separate constitutional protections, including multiple pun-
ishment for the same offense, it was merely restating the
law as it had existed since at least 1874. The court in
Pearce quoted from Ex Parte Lange, 18 Wall. 163, 168:

If there is anything settled in the jurisprudence
of England and America, it is that no man can be
twice lawfully punished for the same offence. And
... there has never been any doubt of [this rule’s]
entire and complete protection of the party when a
second punishment is proposed in the same court, on
the same facts, for the same statutory offence.

Although some advocates might seek to limit Lange
and Pearce to their facts, other cases reveal that such a

A10

limitation would be unwarranted. Those double jeopardy
cases which do not involve multiple prosecution or col-
lateral estoppel must necessarily be addressing the prob-
lem of multiple punishment. Blockburger is an example of
such a case. The two drug statutes there were determined
not to be the ‘‘same,’’ i.e., that two offenses were com-
mitted even though there was only one sale. Although the
court gave no indication there as to what the result would
have been had the statutes been the ‘‘same”’ it is at the
very least reasonable to assume that had they been found
to be the same, that finding would have had some signifi-
cance. After all, if it wasn’t potentially a violation of dou-
ble jeopardy to punish twice in one proceeding for the
‘‘same’’ offense, what could have been the purpose of de-
termining whether the offenses were indeed the same? It
is argued that the Blockburger test is to be used only to
determine if Congress or a legislature intended that there
be separate crimes. The most obvious problem with this
contention is its implication that a law-making body can
determine the scope of the double jeopardy clause. But
beyond that flaw, there exist subsequent cases which lend
no support to the theory that Blockburger is merely a rule
of statutory construction.

For example, in Brown v. Ohio, 432 U.S. 161, 165
(1977), the court said:

... the Fifth Amendment double jeopardy guarantee
serves principally as a restraint on courts and prose-
cutors. The legislature remains free under the Double
Jeopardy Clause to define crimes and fix punishments:
but once the legislature has acted, the courts may not
impose more than one punishment for the same of-
fense and prosecutors ordinarily may not attempt to
secure that punishment in more than one trial.

In Jeffers v. United States, 432 U.S. 137, 155 (1977),
the court said:

All:

The critical inquiry is whether Congress intended
to punish each stautory violation separately. [cita-
tions omitted] ... If some possibility exists that the
two statutory offenses are the ‘‘same offense’’ for
double jeopardy purposes, however, it is necessary to
examine the problem closely, in order to avoid consti-
tutional multiple-punishment difficulties... .

As petitioner concedes . . . the first issue to be
considered is whether Congress intended to allow eumu-
lative punishment for violations of [these enumerated
offenses.] We have concluded that it did not, and this
again makes it unnecessary to reach the lesser-in-
cluded-offense issue.

(Emphasis added.)

Less than a year after Jeffers, the court in Simpson
v. United States, 435 U.S. 6 (1978), said:

Cases in which the Government is able to prove
violations of two separate criminal statutes with pre-
cisely the same factual showing, as here, raise the
prospect of double jeopardy and the possible need to
evaluate the statutes in light of the Blockburger test.
That test, the Government argues, is satisfied in this
case. We need not reach that issue. Before an examina-
tion is made to determine whether cumulative punish-
ments for the same offenses are constitutionally per-
missible, it is necessary, following our practice of
avoiding constitutional decisions where possible, to
determine whether Congress intended to subject the
defendant to multiple penalties for the single criminal
transaction in which he engaged.

Td. at 11, 12.

These cases clearly imply that the determination of
legislative intent is an exercise independent of the Block-

A12

burger test, and therefore that test is not a rule of statutory
construction.

These cases also suggest an alternate path this Court
could follow in resolving the double jeopardy issue in this
case, that is, to determine the legislative intent. Because
the theory of murder in this case is based in the common
law, however, and not in statutory language, such an ex-
cursion would arrive at a dead end.

Missouri’s decisions on double jeopardy follow those
United States cases in which multiple punishment, rather
than successive prosecutions, was the issue. Two cases
handed down the same day by this Court, one in division
and one en bane, are in point.

In State v. Neal, 514 S.W.2d 544 (Mo. banc 1974),
defendant was convicted in one proceeding of first-degree
robbery by means of a dangerous and deadly weapon and
assault with intent to kill with malice aforethought. The
robbery alleged had occurred at a hardware store, and
there were two counts of assault on two persons. After
affirming the robbery conviction, the Court said at 548:

First, the robbery in this case of Cordes Hard-
ware by taking money from the custody of Johnnie
Walton, Count I, was the result of the assault com-
mitted upon Johnnie Walton and it was the identical
assault also charged in Count III. To thus split the
single crime of robbery and prosecute it in Count {
and a second time in Count III as an assault violated
the rule against double jeopardy. State v. Richardson,
460 S.W.2d 537 (Mo. bane 1970).

In State v. Parsons, 513 S.W.2d 430 (Mo. 1974), two
counts of murder were lodged against defendant, first-
degree murder by inflicting a mortal wound with an ex-
plosive device and causing an explosive device to be ex-
ploded whereby the same victim was put in danger of death.

A13

The Court found there was only one crime, despite the
existence of two distinct statutes, and that conviction on
both in the same proceeding violated the double jeopardy
protection against multiple punishment for the same of-
fense.

It is therefore clear that under Blockburger as applied
in Harris, the felony relied on to prove intent in a felony-
murder case is a lesser-included offense of the murder.
Here stealing was a lesser-included offense of second-de-
gree murder. That there should be more protection for a
defendant who is doubly prosecuted than one who is doubly
punished for the same offense is not supported by the
cases from the United States or Missouri Supreme Court.
A majority of other jurisdictions confronting this double
jeopardy issue in the one-proceeding circumstance have
ruled as this Court does today on the question. See, State
v. Pinder, 375 So.2d 836, 838 (Fla. 1979); Tyson v. State,

. Ind. ...., 386 N.E.2d 1185, 1193 (1979); Mitchell v.

State, .... Ind. ...., 382 N.E.2d 932, 934 (1978); State
v. Frye, 283 Md. 709, 393 A.2d 1372, 1375 (1978); State
v. Innis, .... R.I. ...., 391 A.2d 1158, 1165 (1978), cert.
granted on another issue, 440 U.S. 934 (1979); State v.
Briggs, .... Tenn. ...., 573 S.W.2d 157, 159 (1978). See

also, United States v. Larkin, 605 F.2d 1360 (5th Cir. 1979)
and Harrison v. Commonwealth, 257 S.E.2d 777 (Va. 1979).!

One last question to be considered in this regard is
the effect of concurrent sentences imposed here. The state

4. In this Virginia case, defendant was tried in a single bench
proceeding on separate indictments for capital murder in the com-
mission of armed robbery and for robbery. The court there found
no double jeopardy violation, reasoning that, unlike in Harris proof
of the intent necessary for the defendant’s murder conviction was
— by the independent showing that the killing was willful,
deliberate and premeditated. Thus it was not a case where “convic-
tion of the greater crime, murder, cannot be had without conviction
of the lesser crime [the underlying felony].” Harris v. Oklahoma,
433 U.S. at 682.

Al4

urges this Court to exercise its discretion and refuse to re-
view any claim concerning double jeopardy by reason of
the concurrent sentence doctrine.

In Benton v. Maryland, 395 U.S. 784 (1969), the court
explaied the role of the doctrine at 789-90:

One can search through these cases, and related
ones, without finding any satisfactory explanation for
the concurrent sentence doctrine. [citation omitted]
But whatever the underlying justifications for the
doctrine, it seems clear to us that it cannot be taken
to state a jurisdictional rule. [citations omitted] More-
over, whatever may have been the approach in the past,
our recent decisions on the question of mootness make
it perfectly clear that the existence of concurrent
sentences does not remove the elements necessary to
create a justiciable case or controversy.

The court concluded by noting the adverse collateral legal
consequences of a conviction, saying:

The concurrent sentence rule may have some con-
tinuing validity as a rule of judicial convenience. This
is not a subject we must canvass today, however. It
is sufficient for present purposes to hold that there
is no jurisdictional bar to consideration of challenges
to multiple convictions even though concurrent sen-
tences were imposed.

Td. at 791.

The two collateral consequences mentioned in Benton
pertain in this case as well, i.e., use of all prior felony econ-
victions for the purpose of enhancing sentence under ha-
bitual criminal statutes® and for the purpose of impeach-

5. In the states of Texas and West Virginia, a life sentence is
to be imposed upon conviction for third felony. See, Tex. Penal Code
Ann., tit. 1, § 12.42(d) (Vernon) and W. Va. Code § 61-11-18 (1977).

Al5

ing his character if put in issue in a future trial. Nothing
presented by the state and nothing discovered independent-
ly about this case compels this Court to invoke its discre-
tion in this matter.

Appellant also contests the sufficiency of the evidence
to sustain submission of the stealing charge to the jury.
Before reaching this question, the admissibility of evidence
seized from the trunk of the car after the crash must be
determined.

Testimony at trial indicated that appellant and his
companion were placed under arrest as soon as they were
removed from their car after the crash. The evidence con.
tested at trial was not seized until after the arrest. Al-
though the validity of the arrests is not attacked directly
in this case, their validity is of no moment here because
of the rule from State v. Edmonds, 462 S.W.2d 782, 784
(Mo. 1971), restating Chambers v. Maroney, 399 U.S. 42,
51 (1970):

... The right to search an automobile and the validity
of a seizure are not dependent upon the right to arresi
but depend upon the existence of reasonable cause on
the part of the seizing officer to believe that the con-
tents of the automobile offend against the law.

The Court in State v. Hornbeck, 492 S.W.2d 802, 805
(Mo. 1973), stated the definition of probable cause to be
‘‘mroe than mere suspicion . . . [existing] where the facts
and circumstances within the knowledge of the seizing
officers, and of which they have reasonably trustworthy
information, are sufficient in themselves to warrant a man
of reasonable caution in the belief that an offense has
been or is being committed or that the contents of the auto-
mobile offend against the law.’’

At the time of the search the officers knew that upon
their initial sighting of appellant and his companion, the

Al6

two tried to cover their faces, that a robbery (later deter-
mined to be stealing) had been committed for which the
police had issued a description over the police radio seek-
ing two Negro males driving a white over black 1968 Cadil-
lac, that the car that the police had been following before
turning on the siren and lights matched the description
issued, that the car matching the description accelerated
rather than pulling over when the officers activated the
siren and red lights, that during a several-block chase the
Cadillac failed to stop at any stop sign or light and traveled
at excessive speeds, that after the crash but before open-
ing the trunk one of the officers noticed a carton of Kool
cigarettes broken open in the seat and loose change lying
on the floor and that prior to looking in the trunk one of
the officers was in contact by radio with the station man-
ager who advised that there should be more than one ear-
ton of cigarettes in the car.

These facts and circumstances meet the test set out
in Hornbeck as to probable cause. And as stated in that
case, given probable cause to search the automobile, the
officers were permitted to carry out an immediate search
without presenting the probable cause issue to a magis-
trate. State v. Hornbeck, 492 S.W.2d at 807, Chambers v.
Maroney, 399 U.S. at 51. Appellant’s point is without merit.

As to the sufficiency of the evidence, appellant in
his motion for new trial claimed that the state had failed
to prove that he had caused the death of the car wreck
victim, but on appeal says the state failed to prove that
he was guilty of stealing items of a value over $50. Although
the latter contention was not preserved properly for appeal,
it will be reviewed under the plain error doctrine, Rule
27.20(ce).

In determining the sufficiency of the evidence in a
criminal case after the verdict of guilty, the Court accepts
as true all evidence in the record tending to prove the

Al7

defendant’s guilt, whether such evidence is circumstantial
in nature, together with favorable inferences that can be
reasonably drawn therefrom and disregards all contrary
evidence and. inferences. State v. Johnson, 457 S.W.2d
795 (Mo. 1970), State v. Chase, 444 S.W.2d 398 (Mo. bane
1969), citing also from State v. Bayless, 362 Mo. 109, 240
S.W.2d 114 (Mo. 1951).

When the state’s case rests upon circumstantial evi-
dence, ‘‘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 ex-
clude every reasonable hypothesis of this innocence.’’ State
v. Franco, 544 §.W.2d 533, 534 (Mo. bane 1976), citing
from State v. Ramsey, 368 S.W.2d 413, 416 (Mo. 1963).

The application of this circumstantial evidence rule
is realistically tempered, however, such that the cireum-
stances need not be absolutely conclusive of guilt or demon-
strate impossibility of innocence. ‘‘{T]he mere existence
of other possible hypothesis is not enough to remove the
case from the jury.’’ State v. Thomas, 452 S.W.2d 160,
162 (Mo. 1970).

With these rules to guide the Court, it is clear that
the evidence presented here was sufficient to support sub-
mission of the issue of appellant’s guilt to the jury. As
the court of appeals opinion written by Crist, J., noted,
appellant’s presence at the station at the time of the theft,
his actions at the station, his proximity to the scene when
initially spotted by the police, his behavior when spotted,
his subsequent flight, his unexplained possession of the
exact property stolen only moments before his arrest and
his fingerprints on the stolen goods created a chain of
circumstances pointing to his guilt. Moreover, the testi-
mony of the station owner established that the value of
the cigarettes exceeded $50, without considering the value
of the check protector or the loose change stolen. The

A18

trial court did not err in denying appellant’s motions for
acquittal.

Appellant also complains that his cross-examination
of one of the police officer’s present at the scene of the
wreck was limited unjustifiably. Defense counsel inquired
of the officer if he was aware that the victim’s mother
was contemplating a lawsuit against him. The prosecutor
objected to the question and after a conference at the bench
defense counsel indicated that he sought to get before the
Jury whether the officer had ‘‘a stake in the outeome”’ of
the suit. The trial court instructed defense counsel that
he would be permitted to ask ‘‘whether or not there has
been any claim made against him personally, or any claims
made against him personally arising out of that accident
that took place on December 4, 1975. If he said, ‘yes,’ you
may inquire as to what the claim is, and you cannot argue
with him about it at all.’’? The prosecutor’s objection was
sustained, and then in open court again, defense counsel
asked the following:

Q Mr. Healey, has any claim been made against you
personally arising out of this accident?

A Elaborate what you mean by claim, sir?

Q Certainly. Has anybody contacted you pertaining
to this accident?

A Anybody?

Q Yeah. Virginia Stuckmeyer?

A She has not contacted me personally.
( Has her attorney?

A No, sir.

Q Are you aware that a civil action is—

At this point the prosecutor objected to this question as
going outside the court’s ruling. The trial court permitted

A19

defense counsel to ask the question which it had authorized
earlier. Defense counsel asked, ‘‘Are vou aware that a
claim is pending against you arising out of this accident?”’
The officer answered in the negative, and defense counsel
asked no more questions of him.

Appellant’s precise point in this regard is that the
trial court erred ‘‘in preventing defense counsel from cross-
examining Officer Healey as to his knowledge that the
mother of the deceased, alleged victim, was considering
filing a lawsuit against the officer arising out of the acci-
dent, as such questioning would have shown interest and
bias of the witness, and therefore constituted proper cross-
examination.’’

While permissible to attempt to show a witness’s in-
terest or bias and the extent thereof on cross-examination
as bearing on the credit which should be accorded his testi-
mony, the scope of the inquiry is within the discretion of
the trial court. State v. Pigques, 310 S.W.2d 942, 947 (Mo.
1958). In this instance defense counsel was permitted to
ask the officer whether he had knowledge of a civil suit
pending against him stemming from the death of the vie-
tim. The officer said he had no such knowledge, and ques-
tioning was ended by defense counsel. No abuse of discre-
tion has been shown in this regard. Moreover, the limits
placed on cross-examination by the trial court need not
have frustrated defense counsel’s effort to show bias, for
once the witness denied knowledge of a suit, defense coun-
sel was free to produce other witnesses or evidence show-
ing the existence or pendency of such a suit. See State v.
Pigques, supra.

Appellant next contends that the trial court erred in
submitting a verdict director that was a fatal variance
from the substitute information filed in lieu of indictment.
The pertinent part of the information said that appellant

A20

‘being then and there in the perpetration of the offense
of Stealing Fifty Dollars or Over, did then and there
propel his automobile, at, upon and against the body of
Connie Duganich, thereby feloniously inflicting a morta!
wound ....’’ The challenged instruction included a para-
graph alleging ‘‘that the defendant either acted alone or
knowingly with common purpose together with another
in the conduct referred to in the above paragraphs... .”’

This claim is governed by the rule announced in State
v. Seullin, 185 Mo. 709, 84 S.W. 862 (1905). There a similar
claim was lodged, to which the Court responded that

‘‘the fact that the instruction tells the jury that the
defendant, acting alone or with others then and there
present and acting with him, did not make it any
broader than the information [which charged the de-
fendant alone with the commission of the crime] .. .
It is approved practice in criminal prosecutions, where
two or more persons are engaged in the commission
of crime, to prosecute them jointly or severally ...
and where only one is prosecuted, it may be shown
that others were present, participating in the criminal
act, although not included in the indictment or infor-
mation, and it is not thought that an instruction upon
the same lines as in the case at bar is subject to the
objection that it is broader than the information.’’

Id. at 863.

Accord: State v. Braddock, 558 S.W.2d 776, 779 (Mo.
App. 1977); State v. Martin, 525 S.W.2d 804, 811 (Mo.
App. 1975). Appellant’s claim in this regard is rejected.

A modification of MAI-CR 2.70 alse comes under at-
tack by appellant. The second paragraph of MAI-CR 2.70,
which was deleted in this case, reads in pertinent part:
‘*You may find the defendant guilty or not guilty on any

A21

or all of the counts submitted against him.’’ The trial judge
explained the modification in this way:

The reason the court is eliminating that is under the
law of this case, the jury could not logically follow
that instruction because the jury cannot find him not
guilty on Count I [stealing $50 or over] and guilty of
Murder Second Degree on Count II. The court is not
instructing the jury with respect to that because in
the opinion of the court they can find him guilty on
Count IT for manslaughter, even though they don’t find
him guilty of stealing under Count I, which seems in
the court’s opinion to create some kind of hiatus with
respect to Instruction 2.70, which is mandatory under
MAI. The court is directing the circuit attorney in his
argument to explain to the jury that if they find the
defendant guilty of Murder Second Degree on Count
II, they must first find him guilty of Stealing under
Count I.

Rule 20.03(3) provides that failure to give a required
instruction, as is MAI-CR 2.70, ‘‘shall constitute error, its
prejudicial effect to be judicially determined.’’ This case
is not one in which the court failed to give a mandatory
instruction; instead, it failed to give the entire instruction
as set out in MAI-CR. Assuming, however, that such an
omission is error, it is for this Court to determine its
prejudicial effect, as well.

State v. Arrington, 559 S.W.2d 749 (Mo. bane 1978),
is the most recent case from this Court on the prejudicial
effect of omitting 2.70 in its entirety. In reviewing under
the plain error rule [27.20(c)], the Court found no preju-
dice, saying:

Upon reading all of the instructions, taken to-
gether, it is clear that the jury knew that it could find
appellant guilty or not guilty on either or both counts,

Pe

A22

[citation]. Separate verdict directing instructions were
given on the robbery in the first degree, murder in
the first and second degrees and manslaughter. Each
carried a tail directing acquittal if all the elements
were not found beyond a reasonable doubt. Further,
the jury was given six verdict forms, two of which
entitled the jury to find appellant not guilty of the
robbery or the homicide, plus three more verdict di-
recting forms which allowed the jury to find appellant
guilty of an offense without assessing punishment.
Thereby, the jury was given every opportunity to
find appellant guilty or not guilty of each offense.

Id, at 750.

The Court went on to cite State v. Boyington, 544
S.W.2d 300 (Mo. App. 1976) to the effect that the purpose
of MAI-CR 2.70, as stated in the notes on use as being that
separate consideration be given to each offense, had been
accomplished ‘‘beyond possibility of doubt and there could
be no prejudice to defendant.’’ 7d. at 304.

The considerations noted in Arrington had been set
out earlier in State v. Minor, 556 S.W.2d 35 (Mo. bane
1977), another case in which no prejudice was found by
the omission of MAI-CR 2.70. In the present case, separate
verdict directors for robbery, murder second degree and
manslaughter were given, each with a tail directing acquit-
tal if the jury did not believe every submitted element.
Five verdict forms referencing the counts and crimes were
given. MAI-CR 3.02 also was given, informing the jury
that they could not find appellant guilty of murder in the
second degree unless they also found him guilty of stealing.
The instructions, viewed in their entirety, clearly man-
dated separate consideration of every charge. Moreover,
the inclusion of the manslaughter instruction precluded
the possibility that the jury would convict on the stealing

A23

charge only because they believed appellant was in some
way responsible for the death of the victim but not guilty
of the stealing. The omission of paragraph two of MAI-CR
2.70 in this case did not prejudice appellant.

In his last point, appellant claims error in the over-
ruling of objections to testimony on direct examination
by the service station attendant as to the value of the
cigarettes. He admitted on cross-examination that he did
not order or pay for the items. The value at issue was
established at greater than $50 by the testimony of the
owner of the station that he had paid $4.20 a carton. There-
fore, any possible error in admitting the attendant’s testi-
mony was harmless.

Within this last point, appellant also contends that
the trial court erred in refusing to declare a mistrial after
sustaining his motion to strike the testimony of the sta-
tion owner on the value of the check protector stolen. The
owner admitted after giving a variety of estimates that
he did not know the value. The trial court granted appel-
lant’s motion to strike the testimony and his request that
the jury be instructed to disregard the testimony.

Mistrial, regarded as a drastic remedy, is to be granted
only with greatest caution and in extraordinary cireum.
stances. The propriety of using the remedy is lodged se-
eurely in the discretion of the trial court. No abuse of
discretion was shown here, especially in light of the fact
the other evidence established the requisite value for the
felony stealing charge.

Inasmuch as the convictions and sentences for the
greater offense of felony murder and the lesser included
offense of the felony, stealing, violate the fifth amendment
proscription against double jeopardy, the judgments are
vacated and the cause is remanded to the trial court with

A24

directions to enter a new judgment and sentence consistent
with the views expressed herein.®

J. P. Morgan, Judge

Bardgett, C. J., Seiler, Welliver and Higgins,
JJ., concur; Donnelly, J., dissents in separate
dissenting opinion filed ; Rendlen, J., dissents.

6. The Committee on Pattern Criminal Charges and Instructions
is requested hereby to review the applicable instructions in light of
the views set forth in this opinion.

A25

STATE OF MISSOURI, ;
Respondent,

VS.

> No. 61504

DENNIS LEE MORGAN,
Appellant.

4

DISSENTING OPINION

The principal opinion treats the Per Curiam in Harris
v. Oklahoma, 433 U.S. 682 (1977) as decisive here.

In my view, we are not bound by general declara-
tions of law made by the United States Supreme Court.
See State v. Clark, .... S.W.2d....,.... (Mo. bane 1979)
(Donnelly, J., dissenting) (No. 60221, decided December 6,
1979).

Of course, in a given factual setting, when the United
States Supreme Court takes jurisdiction over the subject
matter and the parties, its adjudicativi: ‘s the law of the
case and its judgment is binding on this Court. But this
is not the situation here.

I respectfully dissent.

Rosert T. Donne ty, Judge

A26

APPENDIX B

Section 559.010, RSMo 1969 reads as follows:

559.010. Murder in the first degree——Every murder
which shall be committed by means of poison, or by lying
in wait, or by any other kind of willful, deliberate and pre-
meditated killing, and every homicide which shall be com-
mitted in the perpetration or attempt to perpetrate any
arson, rape, robbery, burglaru or mayhem, shall be deemed
murder in the first degree. (R.S.1939, § 4376)

Section 559.020, RSMo 1969 reads as follows:

559.020. Murder in the second degree.—All other kinds
of murder at common law, not herein declared to be man-
Slaughter or justifiable or excusable homicide, shall be
deemed murder in the second degree. (R.S.1939, § 4377)

Section 559.040, RSMo 1969 reads as follows:

559.040. Justifiable homicide——Homicide shall be
deemed justifiable when committed by any person in either
of the following cases:

(1) In resisting any attempt to murder such person, or
to commit any felony upon him or her, or in any dwelling
house in which such person shall be; or

(2) When committed in the lawful defense of such per-
son, or of his or her husband or wife, parent, child, brother,
sister, uncle, aunt, nephew, niece, master, mistress, appren-
tice or servant, when there shall be reasonable cause to appre-
hend a design to commit a felony, or to do some great
personal injury, and there shall be reasonable cause to
apprehend immediate danger of such design being accom-
plished; or

(3) When necessarily committed in attempting by law-
ful ways and means to apprehend any person for any felony
committed, or in lawfully suppressing any riot or insurrec-

A27

tion, or in lawfully keeping or preserving the peace. (R.S.
1939, § 4379)

Section 559.050, RSMo 1969 reads as follows:

559.050. Excusable homicide.—Homicide shall be deemed
excusable when committed by accident or misfortune, in
either of the following cases:

(1) In lawfully correcting a child, apprentice or servant.
or in doing any other lawful act by lawful means, with usual
and ordinary caution, and without unlawful intent; or

(2) In heat of passion, upon any sudden or sufficient
provocation, or upon sudden combat, without any undue
advantage being taken, and without any dangerous weapon

being used, and not done in a cruel and unusual manner.
(R.S.1939, § 4380)

Section 559.070 reads as follows:

559.070. Manslaughter.—E.very killing of a human be-
ing by the act, procurement or culpable negligence of an-
other, not herein declared to be murder or excusable or

justifiable homicide, shall be deemed manslaughter. (R.S.
1939, § 4382)

Section 560.156, RSMo 1969 reads as follows:

560.156. Stealing—elements of offense.—1. As used in
sections 560.156 and 560.161, the following words shall mean:

(1) “‘Property’’, everything of value whether real or
personal, tangible or intangible, in possession or in action,
and shall include but not be limited to the evidence of a
debt actually executed but not delivered or issued as a valid
instrument and all things defined as property in sections
996.070, 556.080 and 556.090, RSMo;

(2) ‘‘Steal’’, to appropriate by exercising dominion
over property in a manner inconsistent with the rights of
the owner, either by taking, obtaining, using, transferring,
concealing or retaining possession of his property.

2. It shall be unlawful for any person to intentionally

A28

steal the property of another, either without his consent
or by means of deceit.

3. If the property stolen within the meaning of sub-
section 2 is a chattel and the person charged with stealing
the same proves by a preponderance of the evidence that
no further transfer was made, and that, at the time of the
appropriation he intended merely to use the chattel and
promptly to return or discontinue his use of it, he has a
defense to a prosecution under subsection 2. ‘‘Chattel’’ as
used in this section does not include money, securities, ne-
gotiable instruments, documents of title, postage or revenue
stamps, or other valuable papers.

4. A person who appropriates lost property shall not
be deemed to have stolen the same within the meaning of
subsection 2, unless such property is found under cireum-
stances which give the finder knowledge of or means of
inquiry as to the true owner.

Section 560.160, RSMo 1969 reads follows:

560.161. Penalties for stealing—fourth offense.—1. Any
person convicted of stealing as provided in subsection 2 of
section 560.156 shall be punished as follows:

(1) If the value of the property stolen is less than fifty
dollars, unless otherwise provided herein, by a fine of not
more than one thousand dollars or by imprisonment in the
county jail for not more than one year or by both such fine
and imprisonment;

(2) If the value of the property stolen is at least fifty
dollars, by imprisonment in the penitentiary for not more
than ten years nor less than two years, or by imprisonment
in the county jail for not more than one year, or by a fine
of not more than one thousand dollars, or by both such fine
and imprisonment.

2. The offense defined in subsection 2 of section 560.156
is deemed a felony regardless of the value of the property

A29

stolen and a person convicted shall be punished as provided
in subdivision (2) of subsection 1, if the property inten-
tionally stolen:

(1) Is taken from a dwelling house or a person;

(2) Consists of any motor vehicle;

(3) Consists of any horse, mare, gelding, colt, filly, ass,
mule, dog, sheep, goat, hog or neat cattle;

(4) Consists of any domestic fowl, and the same is taken
in the nighttime from the messuage of another;

(5) Consists of any will or deed affecting real property,
whether recorded or unrecorded;

(6) Consists of any act, bill or resolution, introduced
or acted upon by the legislature of the state of Missouri;

(7) Consists of any pleading notice, judgment, or any
other record or entry of any court of this state, any other
state, or of the United States;

(8) Any book of registration or list of voters required
by chapter 116, RSMo;

(9) Consists of narcotic drugs as defined by section
195.010, RSMo.

3. Every person who has been previously convicted of
larceny or of stealing as defined in subdivision (1) of sub-
section 1, three times, and who is subsequently convicted
of stealing within the meaning of this section, is deemed
guilty of a felony regardless of the value of the stolen prop-
erty, and shall be punished as provided by subdivision (2)
of subsection 1.

A30

APPENDIX C

Section 750.529, M.C.L.A., reads as follows:

750.529. Armed robbery; aggravated assault.— Any per-
son who shall assault another, and shall feloniously rob,
steal, and take from his person, or in his presence, any
money or other property, which may be the subject of lar-
ceny, such robber being armed with a dangerous weapon,
or any article used or fashioned in a manner to lead the
person so assaulted to reasonably believe it to be a danger-
ous weapon, shall be guilty of a felony, punishable by im-
prisonment in the state prison for life or for any term of
years. If an aggravated assault or serious injury is inflicted
by any person while committing an armed robbery as de-
fined in this section, the sentence shall be not less than 2
years’ imprisonment in the state prison. As amended P.A.
1959, No. 71, § 1, Eff. March 19, 1960.

Michigan Compiled Laws Annotated, 750.227b, reads
as follows:

Michigan Compiled Laws Annotated, 750.227b. Posses-
sion at time of commission or attempted commission of
felony; additional sentence, punishment—

‘See. 227b (1) A person who carries or has in his
possession a firearm at the time he commits or attempts
to commit a felony except the violation of section 227 or
section 227a', is guilty of a felony, and shall be imprisoned
for 2 years. Upon a second conviction under this section,
the person shall be imprisoned for 5 years. Upon a third
or subsequent conviction under this section, the person shall
be imprisoned for 10 years.

‘*(2) The term of imprisonment prescribed by this sec-
tion shall be in addition to the sentence imposed for the
conviction of the felony or the attempt to commit the felony,
and shall be served consecutively with and preceding any

A31

term of imprisonment imposed for the conviction of the
felony or attempt to commit the felony.

‘*(3) The term of imprisonment imposed under this
section shall not be suspended. The person subject to the
sentence mandated by this section shall not be eligible for
parole or probation during the mandatory term, imposed
pursuant to subsection (1). P.A. 1931, No. 328, § 227b, added
to P.A. 1976. No. 6, § 1, Eff. Jan. 1, 1977.” [Footnote
omitted. ]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2262%3A1. Public record. Not legal advice.