Petition — Missouri v. Sours
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Supreme Court, U.S.
80-571 FILED
OCT 9 1980
No. MICHAEL RODAK, JR., CLERK
NN —————
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
STATE OF MISSOURI,
Petitioner,
Vv.
WILLIAM SCOTT SOURS,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF MISSOURI
Joun ASHOROFT
Attorney General
Pavu Rosert Orro
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.
i eeianedenieadeliasemeeenenitmamadiataenmeninmmeniiniaietaaeahieeeentamieiaetn edits ema
KELLY PRESS, INC., 201 South Eighth Street, Columbia, Missouri Dial 449-4163
QUESTIONS PRESENTED
1. Whether the double jeopardy clause of the Fifth
Amendment to the United States Constitution is violated
by convicting a defendant, in one proceeding, of both first
degree robbery, § 560.120, RSMo 1969, and § 560.135, RSMo
Supp. 1975, and armed criminal action, § 559.225, RSMo
Supp. 1976, where the proof required to establish a viola-
tion of the former is necessarily required to prove a viola-
tion of the latter?
2. Whether the Missouri Supreme Court is bound by
Brintley v. Michigan, USS. , 100 S.Ct. 418, 62
L.Ed.2d 317 (1979), a decision of this Court dismissing
an appeal (wherein the same federal constitutional issue
was raised) for want of a substantial federal question?
3. Whether the Missovri Supreme Court’s most recent
decision in Sours v. State, 593 S.W.2d 208 (Mo. bane 1980),
rehearing en banc, (August 18, 1980), wherein, that court
held that convicting respondent in a single proceeding of
both first degree robbery and armed criminal action vio-
lates the double jeopardy clause of the Fifth Amendment
to the United States Constitution, confliets with this
Court’s decision in Brintley v. Michigan, gj i Sa
100 S.Ct. 418, 62 L.ED.2d 317 (1979); therein this Court
dismissed, for want of a substantial federal question, an
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 in a single pro-
ceeding of both armed robbery, § 750.593, M.C.L.A., and
possession of a firearm during the commission of a felony,
§ 750.227(b), M.C.L.A.
4. Whether the Missouri Supreme Court’s most recent
decision in Sours v. State, 593 S.W.2d 208 (Mo. bane 1980),
II
rehearing en banc, (August 18, 1980), conflicts with this
Court’s decision rendered in Whalen v. United States,
U.S. ——_, 100 S.Ct. 1432, L.Ed.2d (1980) ?
5. Whether the Missouri Supreme Court’s most recent
decision in Sours v. State, supra, is in accordance with
this Court’s order of May 27, 1980, vacating judgment and
remanding the case to the Missouri Supreme Court for
further consideration in light of Whalen v. United States,
supra?
PARTIES
In the Missouri Supreme Court, the parties were: Wil-
liam Scott Sours, appellant, and the State of Missouri,
respondent.
III
TABLE OF CONTENTS
PAGE
ONE We ti leans ur ten aes, 3k I
WO cr aices bs Rabie oeM aaa teed has Gee Gide ce es IT
Ne NO 6s cies SaWhiiyk & OEE ke ee Pe ae om 1
TUE DY. Seals PINE chan s ow vier Ohba 2
Constitutional Provisions, Statutes and Rules Involved .. .2
eben WE BIS 8 oo Po ks ene eee 3
Reasons for Granting the Writ ...................0056.. 7
Petitioner submits that a writ of certiorari should
issue because the Missouri Supreme Court’s hold-
ing in Sours v. State, 593 S.W.2d 208 (Mo. bane
1980), rehearing en banc, (August 18, 1980), con-
flicts with recent decisions of this Court ............ 7
COR Sedeceeees sn scdetasveri Oe oT 16
Appendices
A. William Scott Sours v. State of Missouri,
No. 61458, August 18, 1980 (Most recent
PE NINE. ns bs Pere e ck eras. A-1
B. William Scott Sours v. State of Missouri,
No. 61458, January 15, 1980, (original
OG IO in ie cls avaceccuce: A-49
C. Pertinent Missouri statutes ................. A-83
IV
TABLE OF AUTHORITIES
Cases: PAGES
Blockburger v. United States, 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306
(| ee eae 13, 14, A-6, A-24, A-33, A-57, A-65, A-73
Briggs v. State, 573 S.W.2d 157 (Tenn. 1978) ........... 15
Brintley v. Michigan, U.S. __, 100 S.Ct. 418,
Se ee RP ROUEN 6s wks vi aigeas oc'w woman I, A-43
Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d
187 (1977) ..6, 13, A-8, A-24, A-26, A-35, A-40, A-41,
A-42, A-53, A-57, A-69
Elmore v. State, 382 N.E.2d 893 (Ind. 1978) ..6, A-28, A-72
Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421,
aes GRRE oo vv ss'cdedeostenkoccens 14, A-57
Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53
L.Ed.2d 1054 (1977) ..6, A-3, A-11, A-26, A-31, A-40,
A-41, A-57, A-68, A-81
Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281,
OD Suen ee CTO). vice cvncensewhar tans 11, A-45
Hunter v. Delaware, No. 215 (March 15, 1980) .......... 15
[annelli v. United States, 420 U.S. 770, 95 S.Ct. 1284,
43 L.Ed.2d 616 (1975) ....A-2, A-8, A-23, A-54, A-57,
A-62, A-63
Illinois v. Vitale, 27 Crim.L.Rep. 3190 ............... 5, 13
Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207,
63 L.Ed.2d 168 (1977) ..A-2, A-5, A-6, A-8, A-18, A-23,
A-24, A-34, A-42, A-54, A-57, A-61
Jones v. Commonwealth of Virginia, 235 S.E.2d 313
POMUP ED Sok Gans Pane WRA vase ck oad on ee kas 14, A-66
Kowalski v. Parratt, 533 F.2d 1071 (8th Cir. 1976),
cert, denied, 429 U.S. 844 (1976) ........0... 14, A-66
V
Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238,
OD Rime AO CAME ED ici dic ccciceieccedeece 11, A-45
North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755,
et gt ee een eee 12, A-32
Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215,
GD Ente OPO COGTG) 5. oc iccccnkddccodcess 11, A-32
Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909,
59 L.Ed.2d 70 (1978) ..A-2, A-5, A-6, A-8, A-23, A-32,
A-41, A-57, A-59
Sours v. State, 593 S.W.2d 208 (Mo. bane
1980) ....I, 2, 4, 5, 6, 7, A-1, A-14, A-23, A-28- A-29,
A-31, A-34
Sours v. State, No. 6.458 (Mo. bane August 18, 1980) ..1,5,7
State v. Frye, 283 Md. 709, 393 A.2d 1372
CUPNEE “chs Caundenbun cus cncctebecnvons 15, A-28, A-72
State v. Pinder, 375 So.2d 836 (Fla. 1979) ...15, A-28, A-72
State v. Saxon, 193 Neb. 278, 226 N.W.2d 765 (1975) ....14
State v. Treadway, 558 S.W.2d 646 (Mo. bane
RRS Pr eee OR Slams 3, A-19, A-52, A-64, A-79
State v. Valentine, 584 S.W.2d 92 (Mo. banc
ME aca socek ueulieaatsanuteoes 3, A-14, A-52, A-64
State v. Woods, 574 S.W.2d 942 (Mo.App., St.L.D.
EE 6 Sac cGaien Goat Cacae mass ee 3
Tyson v. State, 386 N.E.2d 1185 (Ind. 1979) . .15, A-28, A-72
United States v. Hearst, 412 F.Supp. 877
fe 8 eae ee. 14, A-66
Wayne County Prosecutor v. Recorder’s Court Judge,
406 Mich. 374, 280 N.W.2d 793 (1979) ...14, A-61, A-66
Whack v. State, 416 A.2d 265 (Md. 1980) .............. 15
Whalen v. United States, U.S. ___., 100 S.Ct.
1432, 63 L.Ed.2d 715
(1980) ..IT, 2, 4, 6, 7, A-2, A-6, A-24, A-29, A-33, A-36,
A-37, A-46
Constitutional Provisions:
United States Constitution, Fifth
| i ee Se ee I, 2, 3, 4, A-23, A-52
Statutes:
Section 560.120, Revised Statutes of Missouri
(1969) ..I, 3, 4, A-1, A-34, A-49, A-58, A-79, A-80, A-83
Section 560.135, Revised Statutes of Missouri
Supplement (1975) ....I, 3, A-1, A-34, A-49, A-58, A-83
Section 559.225, Revised Statutes of Missouri
Supplement (1976) ..I, 3, 5, A-1, A-6, A-11, A-12, A-13,
A-14, A-17, A-22, A-34, A-41, A-49, A-58, A-77,
A-79, A-80, A-83
Section 750.227(b), M.C.L.A. ............00e0, I, 3, 10, 11
SOTO Sn ee ala I
CR SO en, «mate ee 2
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
STATE OF MISSOURI,
Petitioner,
V.
WILLIAM SCOTT SOURS,
Respondent.
On Writ or CERTIORARI TO THE
SupREME Court or Missouri
PETITION FOR CERTIORARI
Petitioner, State of Missouri, respectfully requests that
a writ of certiorari issue to review the judgment of the
Supreme Court of Missouri in this case.
OPINIONS BELOW
The most recent opinion of the Missouri Supreme Court,
as yet unreported, is styled and numbered as follows: Wil-
liam Scott Sours, appellant’ v. State of Missouri, respond-
ent,” No. 61458, in the Supreme Court of Missouri, En Bane,
August 18, 1980. A copy of the opinion is reprinted as
Appendix A.
1Hereinafter referred to as: Respondent.
*Hereinafter referred to as: Petitioner.
2
The original opinion of the Supreme Court of Missouri,
on which this Court issued a writ of certiorari on May 27,
1980, vacated the judgment and remanded the case back
to the Missouri Supreme Court for further consideration,
is styled and reported as follows: William Scott Sours,
appellant v. State of Missouri, respondent, 593 S.W.2d 208
(Mo. bane 1980). A copy of the original opinion is reprinted
as Appendix B.
JURISDICTIONAL STATEMENT
Judgment was originally entered in this cause by the
Supreme Court of Missouri on January 15, 1980. On Febru-
ary 11, 1980, the Supreme Court overruled petitioner’s
motion to stay mandate and its motion for rehearing.
Thereafter, on May 27, 1980, this Court granted the
petition of the State of Missouri for a writ of certiorari,
vacated judgment and remanded the case to the Missouri
Supreme Court for further consideration in light of Whalen
v. Umted States, 445 U.S. (1980). Subsequently, on
August 18, 1980, judgment was again entered in this cause
by the Supreme Court of Missouri.
The present petition is filed within sixty (60) days
after the entry of judgment in this case, and this Court’s
jurisdiction is invoked under 28 U.S.C. § 1257(3).
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
actual service in time of War or public danger; nor
3
shall any person be subject for the same offense to be
twice put in jeopardy of iife or limb; nor shall be com-
pelled 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.
Section 560.120, RSMo 1969, § 560.135, RSMo Supp.
1975, and § 559.225, RSMo Supp. 1976 are set forth in Ap-
pendix C. Sections 750.227(b) and 750.529, M.C.L.A. are
set forth in Appendix D.
STATEMENT OF THE CASE
This petition is brought as a result of the Missouri
Supreme Court’s opinion holding that convictions for both
robbery first degree and armed criminal action violate the
Fifth Amendment to the United States Constitution. The
history of this case is as follows:
After pleading guilty to charges of first degree rob-
bery, § 560.120, RSMo 1969, and § 560.135, RSMo Supp. 1975,
and armed criminal action, § 559.225, RSMo Supp. 1976,
respondent was sentenced to five (5) years imprisonment
on the charge of first degree robbery and three (3) years
imprisonment on the charge of armed criminal action, said
sentences to run consecutively.
Although respondent recognized that he could be con-
victed of both first degree robbery and armed criminal
action, based on the long standing case law in existence
in Missouri, State v. Valentine, 584 S.W.2d 92 (Mo. bane
1979) ; State v. Woods, 574 S.W.2d 942 (Mo.App., St.L.D.
1978) ; and State v. Treadway, 558 S.W.2d 646 (Mo. bane
1977), cert. denied, 439 U.S. 838 (1978), he alleged on appeal
that a different offense from robbery in the first degree
was involved, %.e., robbery in the first degree by means of
a dangerous and deadly weapon. Respondent argued that
4
robbery in the first degree (not with a dangerous and
deadly weapon) was a lesser included offense of robbery
in the first degree by means of a dangerous and deadly
weapon, in that the additional element needed to prove the
latter was the use of a ‘‘dangerous and deadly weapon.’’
The Missouri Supreme Court specifically rejected this
argument in its original decision (on which certiorari was
granted by this Court), stating that, although the element
of fear required under § 560.120, RSMo 1969, was produced
by a dangerous and deadly weapon, the use of a dangerous
and deadly weapon is not an element of robbery, in the
first degree, and therefore is mere surplusage. Sours v.
State, 593 S.W.2d 208 (Mo. bane 1980). Nevertheless, the
court went on to say that, if its prior holding in Treadway
was valid, to-wit: that robbery in the first degree is not
included in armed criminal action, appellant’s motion for
post-conviction relief cannot be sustained. Jd, The court
also held that convictions for both robbery first degree
and armed criminal action placed a defendant twice in
jeopardy by multiplying the punishment for one offense
and, as such, violated the double jeopardy clause of the
Fifth Amendment to the United States Constitution. From
that decision, petitioner sought this Court’s review by
way of certiorari.
On May 27, 1980, this Court granted Missouri’s peti-
tion for a writ of certiorari, vacated judgment, and re-
manded the case to the Supreme Court of Missouri for
further consideration in light of Whalen v. United States,
445 US, (1980).
On July 11, 1980, after further briefing, the Missouri
Supreme Court heard oral argument pursuant to this
Court’s order of May 27, 1980. Thereafter, on August 18,
1980, the Missouri Supreme Court rendered its second
decision in this case (from which petitioner presently seeks
5
certiorari), making two specific holdings. It first held
that:
[W]e find that the general assembly has in clear and
unequivocal terms expressed in section 559. 225, RSMo
Supp. 1976, its intent to authorize conviction and pun-
ishment for armed criminal action and for the under-
lying felony. In arriving at this conclusion, we apply
every test and standard available to us under Missouri
law.
* * *
... The unique wording of the armed criminal action
statute dictates that we must bite the bullet and meet
the federal constitutional issue.
Sours v. State, No. 61458 (Mo. bane August 18, 1980), slip
opinion at 10, 17-18.
The Missouri Supreme Court addressed the Fifth
Amendment issue as follows:
There is little that we can add to the analysis
given the constitutional question in Sours v. State,
593 S.W.2d 208, 211-14, 218-21 (Mo. bane 1980), and
we would incorporate that analysis by reference into
our opinion today, and reinstate the opinion originally
published.
« os *
. . . We must conclude, for the reasons set forth in
Sours v. State, 593 S.W.2d 208 (Mo. bane 1980), that
the proof of the underlying felony—robbery first de-
gree—does not require proof of a fact not also required
to prove armed criminal action, or in other words, that
proof of armed criminal action necessarily proves every
fact required to establish the underlying felony. Con-
sequently, the two offenses are the ‘same offense’ for
double jeopardy purposes, Illinois v. Vitale, US.
at » 48 U.S.L.W. at 4744; Whalen [v. United
6
States], ___ U.S..at __, 100 S.Ct. at 439; Harris
[v. Oklahoma], 433 U.S. at 682; Brown [v. Ohio],
432 U.S. at 167, and the [federal] double jeopardy
clause prohibits the state from punishing appellant
for both offenses. We believe that, because the double
jeopardy clause prohibits punishing a person twice
for the same offense, ‘the prosecution may not do in
one trial what it is prohibited from doing in two trials.’
Elmore v. State, 382 N.E.2d 893, 894-895 (Ind. 1978).
After thorough examination of the opinions in
Whalen v. United States [citation omitted], we have
concluded that our original opinion and judgment in
Sours v. State, 593 S.W.2d 208 (Mo. bane 1980), was
correct and should be reinstated as supplemented by
our opinion today.
Sours, supra, slip opinion at 18, 21-22, 23.
It is from this most recent decision of the Missouri
Supreme Court that petitioner seeks this Court’s review.
THE REASONS FOR GRANTING THE WRIT
Petitioner submits that a writ of certiorari should
issue because the Missouri Supreme Court’s holding in
Sours v. State, 593 S.W.2d 208 (Mo. bane 1980), rehearing
en banc, (August 18, 1980), conflicts with recent decisions
of this Court.
On May 27, 1980, this Court vacated the Missouri
Supreme Court’s judgment in Sours v. State, 593 S.W.2d
208 (Mo. bane 1980) (hereinafter referred to as Sours
I), and remanded the case back for further consideration
in light of Whalen v. United States, US. , 100
S.Ct. 1432, 63 L.Ed.2d 715 (1980). The Missouri Supreme
Court responded to this Court’s directive by rendering
an opinion in Sours v. State, No. 61458 (August 18, 1980)
(hereinafter referred to as Sours Il), wherein the Missouri
Supreme Court, after determining unequivocally that the
Missouri legislature clearly intended that punishment be
imposed for both armed criminal action and its underlying
felony, incorporated by reference its analysis on the Fifth
Amendment issue made in Sours I. See, Sours II, slip
opinion at 18.
Although the Missouri Supreme Court was presented
with the argument that the combined wisdom of both
Whalen v. United States, supra, and Brintley v. Michigan,
supra, expressed this Court’s definitive determination that
a defendant can be convicted in one proceeding of two
crimes even where the proof required to establish a viola-
tion of the first is necessarily required to prove the second,
if the legislature so intends, it nevertheless opined as
follows:
'The Missouri Supreme Court’s most recent holding in the Sours
case is identical to its original holding made prior to this Court’s grant-
ing of the State’s petition for a Writ of certiorari.
8
The United States Supreme Court has never de-
cided whether imposing separate punishments in a
single proceeding both for the offense of committing
a felony by means of a dangerous and deadly weapon
and for the commission of the felony violates the dou-
ble jeopardy clause of the federal constitution. The
Court expressly declined to rule on this issue in Simp-
son v. United States, [citation omitted] C.F. Whalen
v. United States [citation omitted]. Each time a dou-
ble jeopardy question has been before the United
States Supreme Court, it has found it unnecessary
to address the constitutional question, because it has
been able to find that the legislature did not intend
to separately punish the two offenses involved. Whalen
v. United States, [citation omitted] ; Simpson v. United
States, [citation omitted], Jannelli v. United States
[citation omitted]. See Jeffers v. United States [cita-
tion omitted]. No United States Supreme Court opinion
has considered a statute that contained wording simi-
lar to, or identical to, that found in Missouri’s Armed
Criminal Statute.
Sours II, slip opinion at 2.
In discussing Whalen v. United States, supra, the Mis-
souri Supreme Court stated:
The Court expressly reserved the question whether,
had Congress clearly imposed multiple punishments
for the same offense, the imposition would violate the
double jeopardy clause. Before holding that the Court
would decide the question of statutory interpretation
without deferring to the interpretation of the District
of Columbia Court of Appeals, the Court carefully
distinguished the question of statutory interpretation
from the constitutional question. . . . Accordingly, since
the Court did not reject the petitioner’s statutory claim,
+)
it did not reach the constitutional issue presented.
[footnote omitted]
Sours II, slip opinion at 3.
Before reasserting its position taken in Sours I, the
Missouri Supreme Court determined that, without question,
the Missouri General Assembly intended that punishment
be imposed for both armed criminal action and its under-
lying felony. That court went on tc say that neither case
law nor legislative enactment conflicted with the Missouri
General Assembly’s unequivocal intent, which appears on
the face of the statute (See Appendix C), that punishment
be imposed for both crimes. Sours II, slip opinion at 8-18.
The Missouri Supreme Court concluded its legislative
intent analysis with the specter of this Court quite ap-
parent: ‘‘The unique wording of the armed criminal action
statute dictates that we must bite the bullet and meet the
federal constitutional issue.’’ Sours II, slip opinion 17-18
[footnote omitted].
With the ‘‘bullet’’ firmly between their teeth, the
Missouri Supreme Court proceeded to readopt their origi-
nal opinion rendered in Sours I, but not without, again,
the specter of the United States Supreme Court reappear-
ing:
If the vacation of our prior judgment and the
remand of the case for reconsideration in light of
Whalen was intended to lead this Court [sic] to adopt
the view that the General Assembly is free to impose
separate punishments for two crimes that constitute
the same offense under the traditional same evidence
test, we are unable to so read Whalen and we are not
prepared to take that step. We believe that the United
States Supreme Court has heretofore reserved that
question as noted above. We believe that such a ruling
would abolish the traditional double jeopardy pro-
10
tection against multiple punishments for the same of-
fense. It would require bifurcation of the meaning
of ‘same offense’ under the double jeopardy clause.
It would grant to the state legislature the power to
define meaning of ‘same offense’ as used in the double
jeopardy clause of the Constitution, a traditional judi-
cial function. The implicit effect of such a holding
would be that the double jeopardy clause would here-
after be only a limitation on the executive and judicial
branches, but not on the legislative branch of govern-
ment. We do not believe that it is appropriate for this
Court [sic] to make such a ruling. If such a ruling
is to be made, it is the responsibility of the United
States Supreme Court to make it.
Sours II, slip opinion at 22-23.
Petitioner requests that this Court reassert its defini-
tive decisions on this federal constitutional issue for the
benefit of the Missouri Supreme Court. It is clear that
the Missouri Supreme Court has chosen to disregard recent
decisions of this Court which have attempted to elucidate
the law of double jeopardy herein raised. In Brintley v.
Michigan, supra, the appellant sought to present the fol-
lowing question to this Court:
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 underlying felony (armed
robbery in one case and second degree murder in an-
other), where all proofs required to establish viola-
tion 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 commission of underlying felony, where
underlying felony is specifically charged as felony
11
element of firearms possession charge, and where (in
armed robbery case) state has already augmented
punishment for armed robberies above punishment im-
posed for unarmed robberies.
26 Crim.L.Rep. 4113. (§ 750.227(b), M.C.L.A. appears in
Appendix D).
Petitioner submits that this Court’s summary dis-
missal in Brintley v. Michigan, supra, was a disposition
on the merits which conflicts with the Missouri Supreme
Court’s decisions rendered in Sours I and Sours II. Such
a disposition rejects the specific challenges presented in
the statement of jurisdiction and leaves, undisturbed, the
original 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 1.8. 332, 343-345, 95 S.Ct. 2281, 2289, 45
L.Ed.2d 223 (1975).
While summary actions by this Court should not be
understood as breaking new ground, they should prevent
lower courts from coming to contrary conclusions on identi-
cal issues. Mandel v. Bradley, supra. It is clear that the
Missouri Supreme Court in Sours IT has come to a conclu-
sion contrary to that reached by this Court in Brintley
v. Michigan, supra. The Michigan statute, which appears
in Appendix D, is remarkably similar to the Missouri
armed criminal action statute. The issue summarily dis-
missed, for want of a substantial federal question in Brint-
ley, is precisely the same issue the Missouri Supreme Court
found to be dispositive in its reversal of respondent’s
conviction for armed criminal action in Sours I and II.
This Court has manifested its disapproved of state
court expansion of federal constitutional rights as evi-
denced by this Court’s opinion rendered in Oregon v. Hass,
420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), where
it was stated:
12
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. [citation omitted]. But, of course, a state
may not impose such greater restrictions as a matter
of federal constitutional law when this Court specifi-
eally refrains from imposing them.
Id., 420 U.S. at 719. See also North Carolina v. Butler,
441 U.S. 369, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286 (1979).
Petitioner submits that the Missouri Supreme Court
misinterpreted this Court’s decision rendered in Whalen
v. United States, supra, The Missouri Supreme Court quite
clearly disregarded the Court’s conclusion, reached in
Whalen, that:
In the present case, therefore, if Congress has not
authorized cumulative punishment for rape and for
an unintentional killing committed in the course of
the rape, contrary to what the Court of Appeals be-
lieved, the petitioner has been impermissibly sentenced.
The dispositive question, therefore, is whether Con-
gress did so provide.
Whalen v. United States, 100 S.Ct. at 1436. (Emphasis
added). It appears that the Missouri Supreme Court mis-
interpreted the following words of this Court:
The Fifth Amendment guarantee against double
jeopardy embodies in this respect simply one aspect
of the basic principle that within our federal consti-
tutional framework the legislative power, including
the power to define criminal offenses and to proscribe
the punishments to be imposed upon those found guilty
of them, resides wholly with the Congress. If a federal
court exceeds its own authority by imposing multiple
punishments not authorized by Congress, it violates
13
not only the specific guarantee against double jeop-
ardy but also the Constitutional principle of separa-
tion of powers in a manner which trenches particu-
larly harshly on individual liberty.
Whalen v. United States, 100 S.Ct. 1436-1437 [Citations
and footnote omitted.) [Emphasis added.]
Further evidence of the Missouri Supreme Court’s
failure to grasp the import of the Whalen decision is its
inability to recognize dispositive language in the Whalen
decision. In discussing Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (which this
Court found to be incorporated in the District of Columbia
Code), the majority in Whalen stated that:
We think that the only correct way to read § 23-112,
in light of its history and its evident purpose, is to
read it as embodying the Blockburger rule of constru-
ing the penal provisions of the District of Columbia
Code. Accordingly, where two statutory offenses are
not the same under the Blockburger test, the sentences
imposed ‘shall, unless the court expressly provides
otherwise, run consecutively.’ [footnote omitted] And
where the offenses are the same under that test, the
cumulative sentences are not permitted, unless else-
where specifically authorized by Congress.
Whalen v. United States, 100 S.Ct. at . [Emphasis
added.] That the Missouri Supreme Court misapplied the
Blockburger rule is further evidenced by this Court’s recent
opinion in Illinois v. Vitale, 27 Crim.L.Rep. 3190, wherein
the test is characterized as follows:
In Brown v. Ohio, 432 U.S. 161 (1977), we stated
the principal test for determining whether two of-
fenses are the same for purposes of barring successive
prosecutions. Quoting from Blockburger v. United
14
States, 284 U.S. 299, 304 (1932), which in turn relied
on Gavieres v. United States, 220 U.S. 338, 342-343
(1911), we held that
‘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.’
Illinois v. Vitale, supra.
Petitioner submits that a definitive decision by this
Court, on this federal constitutional issue is necessary in
this case. Diametrically opposed views exist regarding this
issue in different jurisdictions, both state and federal.
There appears to be conflicting views on this issue between
the Missouri Supreme Court and the Eighth Cireuit Court
of Appeals.
The following cases from other jurisdictions have
found that armed robbery and the use of a firearm in the
commission of a felony are distinct offenses under the
tests set forth in Blockburger v. United States, 284 U.S.
299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932), because it was
held that the charge of robbery contains elements not
necessarily included in the felony firearms offense. State
v. Saxon, 193 Neb. 278, 226 N.W.2d 765 (1975); Kowalski
v. Parrait, 533 F.2d 1071 (8th Cir. 1976), cert. denied,
429 U.S. 844 (1976) ; Wayne County Prosecutor v. Record-
er’s Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979)
(decision of the Michigan Supreme Court giving rise to
this Court’s decision in Brintley v. Michigan); Jones v.
Commonwealth of Virginia, 235 8.E.2d 313 (1977) ; United
States v. Hearst, 412 F.Supp. 877 (N.D.Calif. 1976).
The Missouri Supreme Court recognized but neglected
the foregoing authority and chose to follow cases from
15
other jurisdictions which it felt supported its view that
the double jeopardy clause prohibits punishing a person
twice for the same offense in a single prosecution. State
v. Pinder, 375 So.2d 836, 838 (Fla. 1979); Tyson v. State,
386 N.E.2d 1185, 1193 (Ind. 1979); State v. Frye, 283 Md.
709, 393 A.2d 1372, 1375 (1978); Briggs v. State, 573 S.W.
2d 157, 159 (Tenn. 1978).
The dire need for a decision of this Court in regard
to this federal constitutional issue is exemplified by recent
decisions of certain state supreme courts which conflict in
their interpretation of the federal double jeopardy clause.
In Whack v. State, 416 A.2d 265 (Md. 1980), the Court of
Appeals of Maryland (highest state court) held that im-
position of punishment for both robbery with a dangerous
or deadly weapon and the separate crime of use of a hand-
gun in the commission of a felony does not violate the Fifth
Amendment prohibition against double jeopardy. Converse-
ly, the Supreme Court of Delaware, in Hunter v. Delaware,
No. 215 (March 15, 1980), held that the double jeopardy
clause prevented imposing punishment for both assault in
the first degree and the separate crime of possession of a
deadly weapon during the commission of a felony.
An immediate decision on this federal constitutional
issue is necessary; even the Missouri Supreme Court so
stated in Sours II: ‘‘Following the original Sours opinion
our prosecutors and penal authorities indicated informally
to this Court [sic] that they believed that as many as four-
hundred to six-hundred prior convictions might be affected
by the opinion.’’ Sours II, slip opinion at 12.
Every jurisdiction in this country is anxiously await-
ing a definitive decision by this Court in this case because
the facts and federal constitutional issue here present an
excellent opportunity for this Court’s review; this is espe-
cially true since the legislative intent issue has been deter-
16
mined and no further state grounds remain in the case.
Finally, a decision is necessary because there exist decisions
of this Court conflicting with the Missouri Supreme Court’s
decision in Sours II. Therefore, it is respectfully requested
that this Court issue the writ and resolve the bewilderment
regarding double jeopardy not only in the State of Mis-
sour}, but in every jurisdiction within this country.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of
Certiorari should be granted. |
Respectfully submitted,
Joun ASHCROFT
Attorney General
Pau Rosert 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.
APPENDICES
A-1
APPENDIX A
IN THE
SUPREME COURT OF MISSOURI
EN BANC
ng ETE
WILLIAM SCOTT SOURS, |
Appellant,
Vs. No. 61458
STATE OF MISSOURI,
Respondent.
SS500—WOW0OOoOees eee
August 18, 1980
APPEAL FROM THE CIRCUIT COURT OF
JASPER COUNTY
Honorable Ben F. Pyle, Judge
Appellant, William Scott Sours, pleaded guilty to two
counts of an information filed June 20, 1977. Count I charged
appellant with first degree rcbbery, § 560.120, RSMo 1969,
and § 560.135, RSMo Supp. 1975; Count II charged armed
criminal action, § 559.225, RSMo Supp. 1976 (now § 571.015,
RSMo 1978). A separate punishment was imposed for each
count. Appellant sought relief from his convictions in a
collateral proceeding under Rule 27.26. In Sours v. State,
993 S.W.2d 208 (1980), we reversed the judgment of the
trial court insofar as it denied appellant relief from his
conviction for armed criminal action, and vacated and set
aside that conviction on the ground that the conviction
placed appellant twice in jeopardy for the same offense. .
We affirmed the judgment insofar as it denied appellant
A-2
relief from his conviction for robbery first degree. The
United States Supreme Court vacated our decision and
remanded the case for reconsideration in the light of Whalen
v. United States, US. , 100 S.Ct. 1482 (1980). '
Missouri v. Sours, No. 79-1565, filed May 27, 1980. The
detailed facts and prior procedural history of this case may
be found in this Court’s earlier opinion, 593 S.W.2d at 210.
The United States Supreme Court has never decided
whether imposing separate punishments in a single pro-
ceeding both for the offense of committing a felony by means
of a dangerous and deadly weapon and for the commission
of the felony violates the double jeopardy clause of the
federal Constitution. The Court expressly declined to rule
on this issue in Simpson v. United States, 435 U.S. 6 (1978).
Cf. Whalen v. United States, US. ——, 100 S.Ct.
1432 (1980). Each time a similar double jeopardy question
has been before the United States Supreme Court, it has
found it unnecessary to address the constitutional question,
because it has been able to find that the legislature did not
intend to separately punish the two offenses involved.
Whalen v. United States, U.S. —___, 100 S.Ct. 1432,
1435 (1980); Simpson v. United States, 435 U.S. 6, 11
(1978); Iannelli v. United States, 420 U.S. 770, 785-86 nn.
17-18 (1975). See Jeffers v. United Stataes, 432 U.S. 137,
155 (1977). No United States Supreme Court opinion has
considered a statute that contained wording similar to or
identical to that found in Missouri’s armed criminal action
statute.
In Whalen, the defendant was convicted of rape, D.C.
Code Ann. § 22-2801, and of felony-murder, i.e., the killing
of the rape victim in the course of the rape, D.C. Code
Ann. § 22-2401. He was sentenced to consecutive terms of
imprisonment of 20 years to life for first degree murder,
and of 15 years to life for rape. The District of Columbia
Court of Appeals affirmed, 379 A.2d 1152. The United
A-3
States Supreme Court reversed, holding that under D.C.
Code Ann. § 23-112,! Congress did not intend that multiple
punishments be imposed for two offenses arising out of
the same criminal transaction unless each offense requires
proof of a fact which the other does not. The Court stated
that
Congress did not authorize consecutive sentences for
rape and for a killing committed in the course of the
rape, since it is plainly not the case that ‘‘each pro-
vision requires proof of a fact which the other does
not.’’ A conviction for killing in the course of a rape
cannot be had without proving all the elements of the
offense of rape. See United States v. Greene, 160 U. S.
App. D. C. 21, 489 F.2d 1145, 1158 (1973). Cf. Harris
v. Oklahoma, 433 U.S. 682, 682-683 [1977].
—— US. at __., 100 S.Ct. at 1439. The Court expressly
reserved the question whether, had Congress clearly in-
tended to impose multiple punishments for the same of.
fense, the imposition of such punishment would violate
the double jeopardy clause. Before holding that the Court
would decide the question of statutory interpretation with-
out deferring to the interpretation of the District of Co-
lumbia Court of Appeals, the Court carefully distinguished
the question of statutory interpretation from the constitu-
‘D.C. Code Ann. § 23-112 provides:
A sentence imposed on a person for conviction of an offense
shall, unless the court imposing such sentence expressly provides
otherwise, run consecutively to any other sentence imposed on such
person for conviction of an offense, whether or not the offense
(1) arises out of another transaction, or (2) arises out of the same
transaction and requires proof of a fact which the other does not.
The Court stated that, although the phrasing of this statute was “less
than felicitous,” it would be construed to mean “that multiple punish-
ments cannot be imposed for two offenses arising out of the same criminal
transaction unless each offense ‘requires proof of a fact which the other
does not.’” _____' US. at ——, 100 S.Ct. at 1438.
A-4
tional question. The Court stated that, if the matter of
whether it must defer to the construction given D.C. Code
Ann. §§ 22-2801 and 22-2401 by the District of Columbia
Court of Appeals were absent, ‘‘we would as a matter of
course first decide the petitioner’s statutory claim, and,
only if that claim were rejected, would we reach the con-
stitutional issue. See Simpson v. United States, 435 U.S.
6, 11-12.’’ 445 U.S. at ___., 100 S.Ct. at 1435. Ac-
cordingly, since the Court did not reject the petitioner’s
statutory claim, it did not reach the constitutional issue
presented.”
Mr. Justice Blackmun, concurring in the judgment in
Whalen (Mr. Justice White filed an opinion concurring in
part and concurring in the judgment and Mr. Justice Rehn-
quist filed a dissenting opinion in which Mr. Chief Justice
Burger joined) stated that prior cases had wrongly sug-
gested:
that the Double Jeopardy Clause may prevent the im-
2The Court stated:
Because we have concluded that the District of Columbia Court
of Appeals was mistaken in believing that Congress authorized
consecutive sentences in the circumstances of this case, and because
that error denied the petitioner his constitutional right to be deprived
of liberty as punishment for criminal conduct only to the extent
authorized by Congress, we reserve the judgment of the Court
of Appeals.
U.S. at , 100 S.Ct. at 1487.
Mr. Justice Rehnquist, in his dissent in Busic v. United States,
US. , 100 S.Ct. at 1747 (1980), considered the decision in Whalen
to have decided the very issue which it expressly reserved. He stated:
“In Whalen v. United States, No. 78-5471 (filed April 16, 1980), six
Members of this Court held that Congress’ intent to impose cumulative
punishments at a single criminal proceeding completely controlled the
question of double jeopardy.” ___ U.S. at , 100 S.Ct. at 1759.
The Court in Whalen in fact held that the case involved a congressional
intent not to impose cumulative punishments at a single criminal pro-
ceeding. U.S. at , 100 S.Ct. at 1489. Perhaps it is note-
worthy that eight members of the Court did not join in Mr. Justice
Rehnquist’s reading of the holding of Whalen.
A-5
position of cumulative punishments in situations in
which the Legislative Branch clearly intended that
multiple penalties be imposed for a single criminal
transaction. See Simpson v. United States, 435 U.S.
6, 11-13 (1978) ; Jeffers v. United States, 432 U.S. 137,
155 (1977) (plurality opinion). I believe that the Court
should take the opportunity presented by this case to
repudiate those dicta squarely, and to hold clearly that
the question of what punishments are constitutionally
permissible is not different from the question of what
punishments the Legislative Branch intended to be
imposed. I must conceded that the dicta that seemingly
support a contrary view have caused confusion among
state courts that have attempted to decipher our pro-
nouncements concerning the Double Jeopardy Clause’s
role in the area of multiple punishments.
U.S. at , 100 S.Ct. 1441. Clearly, the five justices
who joined in the opinion of the Court in Whalen (Justices
Stewart, Powell, Stevens, Brennan, and Marshall) declined
Justice Blackmun’s invitation to hold that the question
of what punishments are constitutionally permissible can
be reduced to the question of what punishment the legis-
lature intended to be imposed. The two questions remain
distinet.* The opinion of the Court in Whalen cited Simp-
8Our refusal to collapse the constitutional question into the ques-
tion of legislative intent does not commit us to the assumption, criticized
by Mr. Justice Rehnquist, “that any particular criminal transaction is
made up of a determinable number of constitutional atoms that the
legislature cannot further subdivide into separate offenses.” See Whalen,
US. at » 100 S.Ct. at 1443 (Mr. Justice Rehnquist, dis-
senting). On the contrary, we recognize that the legislature may divide
the criminal transaction into its subatomic particles, into protons and
neutrons and electrons, into particles of different electrical charges and
weights and spins. We hold only that, once the definition of a crime
is fixed as a configuration of such elements, the state may not, 2on-
sistently with the due process clause and the double jeopardy clause,
impose separate punishments both for the neutron and for the atom of
which it is a part.
A-6
son with approval for its separation of the statutory claim
from the constitutional issue and for its avoidance of
the constitutional issue by finding that the legislature did
not intend multiple punishments. U.S. at , 100
S. Ct. at 1435.
Our original opinion discussed in detail two recent
United States Supreme Court cases in which the question
whether the legislature intended to subject the defendant
to multiple penalties for a single criminal transaction was
carefully distinguished from the question whether cumula-
tive punishments for the two offenses are constitutionally
permissible. Simpson v. United States, 435 U.S. 6, 11
(1978); Jeffers v. United States, 432 U.S. 137, 155 (1977)
(plurality opinion). See Sours v. State, 593 S.W.2d 208,
214-16 (1980).
The decision of the United States Supreme Court to
vacate the original judgment of this Court and to remand
this case ‘‘for further consideration in light of Whalen
v. United States, 445 U.S. (1980),’’ mandates that
we reexamine the intent of the General Assembly in enact-
ing § 559.225, RSMo Supp. 1976. In Whalen, the Court
determined that Congress did not intend to punish the
petitioner both for committing rape and for committing
a killing in the course of the rape. In reaching this con-
clusion, the Court applied to D.C. Code Ann. § 23-112 the
doctrine of Blockburger v. United States, 284 U.S. 299
(1932) as ‘‘a rule of statutory construction.’’ US.
at ___, 100 S.Ct. at 1438. In Blockburger, the Court held
that ‘‘[t]he applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.’’ 284
U.S. at 304, The Blockburger rule has often been cited by
the Court. At times it has been presented as a rule of
A-7
statutory construction, but more often it has been used
as the definition of ‘‘same offease’’ for double jeopardy
purposes.* Whalen v. United States, U.S. at
’
‘In numerous decisions of the United States Supreme Court from
1902 to 1959, the same evidence test was uniformly treated as the
definition of sameness of offense for double jeopardy purposes. The
same evidence test was used more frequently in the single prosecution
multiple punishment context than it was in the multiple prosecution
context. Harris v. United States, 359 U.S. 19, 23-24 (1959) (single
proceeding; convictions and punishments for purchasing heroin from
an unstamped package, a violation of 26 U.S.C. § 4704(a), and for
receiving and concealing the same knowing it to have been unlawfully
imported, a violation of 21 U.S.C. § 174, affirmed; offenses held dis-
tinct under same evidence test); Gore v. United States, 857 U.S. 386,
388-91 (1958) (single proceeding; convictions and punishments for
sale and distribution of heroin and cocaine not in the original stamped
package, a violation of 26 U.S.C. § 4704(a), for sale of the drugs not
pursuant to an order written on the requisite Treasury form, a violation
of 26 U.S.C. § 4705(a), and for facilitating concealment and sale of
the drugs, a violation of 21 U.S.C. § 174, affirmed; offenses held dis-
tinct under same evidence test); Pereira v. United States, 347 U.S. 1,
9, 11-12 (1954) (single proceeding; convictions and punishments for
mail fraud a violation of 18 U.S.C. § 1341, for transporting stolen prop-
erty in interstate commerce, a violation of 18 U.S.C. § 2314, and for
conspiracy to commit both offenses, a violation of 18 U.S.C. § 371,
affirmed; offenses held distinct under same evidence test); United States
v. Michener, 331 U.S. 789 (1947) (per curiam) (single proceeding;
convictions and punishments for procuring a plate from which genuine
$10 Federal Reserves Notes had been printed, and of having possession
of such a plate, violations of 18 U.S.C. § 264; offenses held distinct
under same evidence test; reversing 157 F.2d 616 (8th Cir. 1946) );
American Tobacco Co. v. United States, 328 U.S. 781, 787-89 (1946)
(single proceeding; convictions and punishments for conspiracy in re-
straint of trade, monopolization, and conspiracy to monopolize under
Anti Trust Sherman Act; offenses held distinct under same evidence
test); United States ex rel. Marcus v. Hess, 317 U.S. 537, 552 (1943)
(single proceeding; convictions for 56 instances of defrauding the United
States through collusive bidding on P.W.A. projects, violations of 18
U.S.C. §§ 80, 83, and separate forfeitures of $2,000 per instance plus
double damages affirmed; the incidence of fraud on each project held
distinct offense under same evidence test) ; Blockburger v. United States,
284 U.S. 299, 304 (1932) (single proceeding; convictions and punish-
(Continued on next page)
A-8
100 S.Ct. at 1488 (1980); Simpson v. United States, 435
U.S. 6, 11, (1978) ; Brown v. Ohio, 432 U.S. 161, 166, (1977) ;
Jeffers v. United States, 432 U.S. 137, 151 (1977) (plurality
opinion) (see opinion of White, J., concurring in part and
dissenting in part, at 158); Iannelli v. United States, 420
U.S. 770, 785 n. 17, (1975).
Footnote continued
ments for sale of morphine not in or from the original stamped package
and for sale not pursuant to a written order on the requisite Treasury
form affirmed; offenses held distinct under same evidence test); King
v. United States, 280 U.S. 521 (1929) (per curiam) (two proceed-
ings; plea of former jeopardy rejected where sentence for selling morphine
not in or from the original stamped package was imposed in one pro-
ceeding and executed before second indictment charging interstate ship-
ment of drugs by a person who has not registered and paid the special
tax required was brought; offenses held distinct under same evidence
test; affirming 31 F.2d 17 (8th Cir. 1929)); Albrecht v. United States,
273 U.S. 1, 11-12 (1927) (single proceeding; convictions and punish-
ments for four counts of illegal possession of liquor and four counts
of illegal sale of liquor in violation of the National Prohibition Act and
one count of maintaining a common nuisance affirmed; sale and posses-
sion held distinct under same evidence test); Morgan v. Devine, 237
U.S. 632, 638-39, 641 (1915) (single proceeding; convictions and sen-
tences on guilty pleas to charges of unlawful forcible breaking into a
post office building with intent to commit larceny, a violation of § 192
of the Penal Code, and of stealing postage stamps and funds belonging
to the United States, a violation of § 190 of the Penal Code, affirmed;
offenses held distinct under the same evidence test; using same evidence
test for two purposes—both to determine the legislative intent and
separately to respond to the double jeopardy claim); Ebeling v. Morgan,
237 U.S. 625, 630-31 (1915) (single proceeding; convictions and
punishments for six counts of tearing, cutting, and injuring United
States mailbags, in violation of § 189 of the Federal Criminal Code,
affirmed; offenses held distinct under the same evidence test); Gavieres
v. United States, 229 U.S. 338, 343-44 (1911) (two proceedings;
conviction and punishment for insulting a public officer by deed or
word in his presence, a violation of article 257 of the Penal Code of
the Philippine Islands, after previous conviction because of the same
words and conduct of behaving in an indecent manner in a public place,
a violation of an ordinance of the city of Manila; offenses held distinct
under the same evidence test); Carter v. McClaughry, 183 U.S. 365,
(Continued on next page)
A-9
In Whalen, the Court stated that the Blockburger rule
had been consistently relied on ever since it was first stated
in 1932:
to determine whether Congress has in a given situation
provided that two statutory offenses may be punished
cumulatively. The assumption underlying the rule is
that Congress ordinarily does not intend to punish
the same offense under two different statutes. Accord-
ingly, where two statutory provisions proscribe the
‘“‘same offense,’’ they are construed not to authorize
Footnote continued
394-95, 398 (1902) (single court martial proceeding; conviction and
punishment for conspiring to defraud the United States, a violation of
the 60th article of war, for causing false and fraudulent claims to be
made against the United States, a violation of the 60th article of war,
for conduct unbecoming an officer and a gentleman, a violation of the
61st article of war, and for committing embezzlement, a violation of
§ 5488 of the Revised Statutes of the United States and of the 62nd
article of war, held to be within the jurisdiction of the court martial;
offenses held distinct under the same evidence test); In re Nielsen,
131 U.S. 176, 188, 190-91 (1889) (two indictments; conviction and
punishment on a guilty plea to bigamy, i.e. living with more than one
woman as husband and wife continuously from October 15, 1885, to
May 13, 1888; second indictment charged adultery with one of the
two women occurring on May 14, 1888; convicted for unlawful cohabi-
tation held to bar a subsequent prosecution for adultery under the same
evidence test, since the continuous bigamy offense necessarily implied
sexual intercourse, so that proof of adultery did not require proof of
a fact not also required to show bigamy).
The claim that the meaning of the phrase “same offense” in the
multiple punishment context is in fact different from the meaning of
the phrase “same offense” in the multiple prosecution context requires
justification. We can find nothing in the legislative intent to impose two
punishments, one for the greater offense and one for the lesser included
offense, which would justify refusing to classify the two crimes as the
“same offense” under the double jeopardy clause. If a state legislature
could manipulate the meaning of the phrase “same offense” as it is
used in the fifth amendment to the Constitution, there would be no
reason to suppose that the Constitution prevents a legislaure from
authorizing, by a clear expression of intent, the sequential prosecution
and punishment of the greater and lesser included offense.
A-10
cumulative punishments in the absence of a clear indi-
cation of contrary legislative intent.
—_. U.S. at —___, 100 S.Ct. at 1438. (Emphasis added.)
I. LEGISLATIVE INTENT
Applying Blockburger as a rule of statutory construc-
tion to the armed criminal action statute® and the statute
5Section 559.225, RSMo Supp. 1976, defined the crime of armed
criminal action and fixed the punishment for that crime as follows:
559.225. Armed Criminal Action—penalty—exceptions.—1. Ex-
cept as provided in subsection 4 of this section, any person who
commits any felony under the laws of this state by, with, or through
the use, assistance, or aid of a dangerous or deadly weapon is also
guilty of the crime of armed criminal action and, upon conviction,
shall be punished by imprisonment by the division of corrections
for a term of not less than three years. The punishment imposed
pursuant to this subsection shall be in addition to any punishment
provided by law for the crime committed by, with, or through the
use, assistance, or aid of a dangerous or deadly weapon. No person
convicted under this subsection shall be eligible for parole, proba-
tion, conditional release or suspended imposition or execution of
sentence for a period of three calendar years.
2. Any person convicted of a second offense of armed crimi-
nal action shall be punished by imprisonment by the division of
corrections for a term of not less than five years. The punishment
imposed pursuant to this subsection shall be in addition to any
punishment provided by law for the crime committee [sic] by,
with, or through the use, assistance, or aid of a dangerous or deadly
weapon. No person convicted under this subsection shall be eligible
for parole, probation, conditional release or suspended imposition
or execution of sentence for a period of five calendar years.
3. Any person convicted of a third or subsequent offense of
armed criminal action shall be punished by imprisonment by the
division of corrections for a term of not less than ten years. The
punishment imposed pursuant to this subsection shall be in addi-
tion to any punishment provided by law for the crime committed,
by, with, or through the use, assistance, or aid of a dangerous or
deadly weapon. No person convicted under this subsection shall
be eligible for parole, probation, conditional release or suspended
imposition or execution of sentence for a period of ten calendar
years.
4. The provisions of this section shall not apply to the felonies
defined in sections 559.005, 564.590, 564.610, 564.620, 564.630,
and 564.640, RSMo.
A-il
defining the underlying offense, in this case the robbery
first degree statute,® we find that it is plainly not the case
that ‘‘each provision requires proof of a fact which the
other does not.’’ A conviction for committing robbery first
degree ‘‘by, with, or through the use, assistance, or aid
of a dangerous or deadly weapon,”’’ ¢ 959.225, RSMo Supp.
1976, cannot be had without proving all the elements of
the offense of robbery first degree. See Vitale v. United
States, 48 U.S.L.W. 4741, 4744, No. 78-1845, filed June 19,
1980; Whalen, U.S. at ___, 100 S.Ct. at 1439; Harris
v. Oklahoma, 433 U.S. 682, 682-83 (1977); United States
v. Greene, 160 U. S. App. D. C. 21, 489 F.2d 1145, 1158
(1973). Thus, the General Assembly should be presumed
not to have intended that punishment be imposed under
both statutes. US. , 100 S.Ct. at 1438. Never-
theless, we find that the General Assembly has in clear
°The underlying felony in this case was robbery first degree, as
it was defined in § 560.120, RSMo 1969, and the punishment for which
was prescribed in § 560.135, RSMo Supp. 1975. Section 560.120, RSMo
1969, provided:
Every person who shall be convicted of feloniously taking the
property of another from his person, or in his presence, and against
his will, by violence to his person, or by putting him in fear of
some immediate injury to his person; or who shall be convicted of
feloniously taking the property of another from the person of his
wife, servant, clerk or agent, in charge thereof, and against the
will of such wife, servant, clerk or agent, by violence to the person
of such wife, servant, clerk or agent, or by putting him or her in
fear of some immediate injury to his or her person, shall be adjudged
guilty of robbery in the first degree,
Section 560.135, RSMo Supp. 1975, provided:
Every person convicted of robbery in the first degree by means
of a dangerous and deadly weapon and every person convicted
of robbery in the first degree by any other means shall be punished
by imprisonment by the division of corrections for not less than
five years; every person convicted of robbery in the second degree
shall be punished by imprisonment by the division of corrections
not exceeding five nor less than three years; every person con-
victed of robbery in the third degree shall be punished by im-
prisonment by the division of corrections not exceeding five years.
A-12
and unequivocal terms expressed in § 559.225, RSMo Supp.
1976, its intent to authorize conviction and punishment for
armed criminal action and for the underlying felony. In
arriving at this conclusion, we apply every test and stand-
ard available to us under Missouri law. First, we consider
the plain meaning of the language used. We consider the
requirements of our own constitution regarding construc-
tion of the statute. We examine every reported decision
involving convictions under the armed criminal action
statute, in order to discern the application given the statute
by Missouri’s courts and prosecutors in prior cases. We
examine the form of the information or indictment used
to charge armed criminal action, both before and after a
standard form for charging armed criminal action was ap-
proved; and we examine the form of the jury instructions
used in submitting a charge of armed criminal action, both
before and after a pattern instruction for submitting armed
criminal action was approved.
The language of the armed criminal action statute shows
that the General Assembly clearly intended that a defendant
convicted of armed criminal action shall be punished for
both armed criminal action and for the underlying felony.
Section 559.225, RSMo Supp. 1976 (now § 571.015, RSMo
1978) expressly provides that ‘‘any person who commits
any felony under the laws of this state by, with, or through
the use, assistance, or aid of a dangerous or deadly weapon
is also guilty of the crime of armed criminal action.’’ (Em-
phasis added.) The armed criminal action statute provides
in three separate subsections for punishment of not less
than three years’ imprisonment for the first offense, not
less than five years’ imprisonment for the second offense,
and not less than ten years’ imprisonment for the third.
The legislative intent to impose punishment both for the
underlying felony and for the ‘‘compound’? offense of which
A-13
it is a part is clearly and unambiguously expressed in the
following sentence, which appears in each of the three
subsections: ‘‘The punishment imposed pursuant to this
subsection shall be in addition to any punishment provided
by law for the crime committed by, with, or through the
use, assistance, or aid of a dangerous [instrument] or deadly
weapon.’’ There is nothing ambiguous or uncertain about
the meaning of this provision. The statute provides that
the state may punish for any felony and also punish for
that felony a second time in virtue of its having been com-
mitted through the use of a dangerous or deadly weapon.
This is the plain meaning of the words used, and it is the
unmistakable intent of our General Assembly. Clearly,
§ 559.225, RSMo Supp. 1976, provides for more than the
mere enhancement of the sentence for the underlying felony.
It calls for conviction of a second crime and for the imposi-
tion of a second sentence. Consequently, we cannot avoid
the question whether the double jeopardy clause prohibits
the imposition in a single proceeding of multiple punish-
ments for the same offense.
What was said in City of St. Louis v. Crowe, 376
S.W.2d 185 (Mo. 1964) is fully applicable to our armed
criminal action statute:
This section of the statutes now under scrutiny
is clear and unambiguous in its language. It is not
susceptible of more than one construction. Therefore,
we may not resort to any extraneous matter because
there is no room for construction of such language.
State ex rel. Bell v. Phillips Petroleum Co., 349 Mo.
360, 160 S.W.2d 764; Rathjen v. Reorganized School
Dist. R-II of Shelby County, 365 Mo. 518, 284 S.W.2d
516. We have no right to read into the statute an intent
which is contrary to the legislative intent made evi-
A-14
dent by the phraseology employed. State ex inf. Rice
ex rel, Allman v. Hawk, 360 Mo. 490, 228 S.W.2d 785;
Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577. The
legislative pronouncement means what it says... .
376 S.W.2d at 189-90. See State ex rel. Stevenson v. Kirk-
patrick, 536 S.W.2d 740, 741 (Mo. bane 1976) ; State ex rel.
Dravo Corp. v. Spradling, 515 S.W.2d 512, 517 (Mo. 1974) ;
Missourians for Honest Elections v, Missouri Elections
Commission, 536 S.W.2d 766, 775 (Mo.App. 1976); Con-
solidated School District No. 1 of Jackson County v. Bond,
900 S.W.2d 18, 21 (Mo.App. 1973). See also J. Sutherland,
2A Statutes and Statutory Construction § 46.01, pp. 48-
49 (C. Sands 4th ed. 1973).
We note that we are not free to construe the armed
criminal action statute as a mere punishment-enhancement
statute which amends by implication numerous felony
Statutes, because Mo. Const. art III, § 28 prohibits the
General Assembly from amending statutes without setting
forth in full the statutes so amended. Sours v. State, 593,
S.W.2d 208, 222 n. 10 (Mo. bane 1980); State v.
Valentine, 584 S.W.2d 92, 96 (Mo. banc 1979). Cf. State
v. Hudson, 562 S.W.2d 416 (Tenn. 1978).
The uniformity of the interpretation and application
of § 559.225, RSMo Supp. 1976 (§ 571.015, RSMo 1978),
confirms that it plainly authorizes punishment both for
armed criminal action and for the underlying felony. Fol-
lowing the original Sours opinion our prosecutors and penal
authorities indicated informally to this Court that they
believed that as many as four hundred to six hundred prior
convictions might be affected by the opinion. In the four
years since the enactment of the statute, the appellate courts
of this state have been called upon literally dozens of times
to review convictions for both armed criminal action and
A-15
the underlying felony.” In none of these cases was it ever
questioned that the legislature intended to say exactly what
it said in the armed criminal action statute. No case has
been discovered where the armed criminal action statute
has not been understood by our trial and appellate judges
‘State v. Valentine, 584 S.W.2d 92 (Mo. banc 1979) (per Rendien,
J.) (affirming unspecified sentences for both armed criminal action and
robbery first degree); State v, Treadway, 558 S.W.2d 646 (Mo. banc
1977), cert. denied, 489 U.S. 838 (1978) (per Donnelly, J.) (three
year sentence for armed criminal action and fifteen years for robbery
first degree, to run consecutively); State v. Merritt, 591 S.W.2d 107
(Mo.App. 1979) (per Manford, J.) (five years for armed criminal
action to run concurrently with consecutive sentences of twenty years
for robbery first degree and five years for assault with intent to kill
with malice); State v. Irvin, 590 S.W.2d 699 (Mo.App. 1979) (per
Clemens, Sr.J.) (five years for armed criminal action to run consecu-
tively to twenty years for robbery); Riley v. State, 588 S.W.2d 738
(Mo.App. 1979) (per Kelly, J.) (three years for armed criminal action
to run consecutively to concurrent sentences of seventeen years each
for two counts of robbery first degree and one count of assault with
intent to kill. State v. Pollard, 588 S.W.2d 212 (Mo.App. 1979) (per
Swofford, J.) (five years for armed criminal action to run concurrently
with five years for sodomy and to run consecutively to twenty-five years
with rape, State v. Medley, 588 S.W.2d 55 (Mo.App. 1979) (per
Pudlowski, J.) (three years for armed criminal action and twenty years
for robbery first degree); State v. Mays, 588 S.W.2d 6 (Mo.App. 1979)
(per Reinhard, P.J.) (five years for armed criminal action to run con-
secutively to fifteen years for robbery first degree); State v. Tyler, 587
S.W.2d 918 (Mo.App. 1979) (per Kennedy, J.) (twenty-five years for
armed criminal action to run consecutively to seventy-five years for
robbery first degree, seventy-five years for rape, and ten years for
kidnapping); State v. Williams, 587 $.W.2d 618 (Mo.App. 1979) (per
Crist, J.) (five years for armed criminal action to run concurrently with
twenty years for robbery first degree); State v. Gant, 586 $.W.2d 755
(Mo.App. 1979) (per Somerville, P.J.) (reversing conviction for armed
criminal action where armed criminal action in conjunction with assault
was charged but armed criminal action in conjunction with murder was
submitted in jury instructions); State v. Crews, 585 S.W.2d 131 (Mo.
App. 1979) (per Gunn, J.) (sentences unspecified; underlying felony
unspecified; convictions for armed criminal action, first degree robbery,
and three counts of assault with intent to kill with malice); State v.
Brown, 584 S.W.2d 413 (Mo.App. 1979) (per Reinhard, P.J.) (thirty
(Continued on next page)
A-16
and by our pros *utors, assistant attorneys general, and
Attorney General to mean that punishment may be imposed
once for a felony and a second time (‘‘in addition to’’) for
the same felony if it was committed by the use, aid, or
assistance of a dangerous or deadly weapon. No amount
Footnote continued
years for one count of armed criminal action to run concurrently with
ten years each for two counts of robbery first degree); State v. Jones,
583 S.W.2d 561 (Mo.App. 1979) (per Clemens, J.) (three years for
armed criminal action to run consecutively to robbery first degree)
(reversed and remanded for error in admission of heresay); State v.
Burse, 583 S.W.2d 221 (Mo.App. 1979) (per Crist, J.) (thirty-five
years for armed criminal action to run concurrently with eight years for
attempted robbery first degree); State v. Davidson, 583 S.W.2d 208
(Mo.App. 1979) (per Higgins, Sp.J.) (unspecified sentences for one
count of armed criminal action and two counts of robbery first degree) ;
State v. Hutchinson, 582 S.W.2d 350 (Mo.App. 1979) (per Crist, J.)
(twenty-five years for one count of armed criminal action to run con-
currently with concurrent sentences of twenty-five years each for eight
counts of robbery first degree); State v. Hawkins, 582 S.W.2d 333
(Mo.App. 1979) (per Pritchard, J.) (underlying felony unspecified;
three years for armed criminal action to run consecutively to ten years
for robbery first degree and fifteen years for assault with intent to do
great bodily harm with malice) (reversed for defect in jury panel);
State v. Burns, 581 S.W.2d 590 (Mo.App. 1979) (per Reinhard, P.J.)
three years for armed criminal action to run consecutively to fifteen
years for robbery first degree); State v. Bargeon, 578 S.W.2d 364
(Mo.App. 1979) (per Gunn, J.) (twenty-five years for armed criminal
action to run consecutively to seventy-five years for rape); State v.
Jones, 578 S.W.2d 286 (Mo.App. 1979) (per Reinhard, P.J.) (under-
lying felony unspecified; five years for armed criminal action to run
consecutively to consecutive sentences of ten years for forcible rape and
five years for robbery first degree); State v. Carter, 577 S.W.2d 109
(Mo.App. 1978) (per Welborn, Sp.J.) (five years for armed criminal
action to run concurrently with ten years for robbery first degree); State
v. Woods, 578 S.W.2d 942 (Mo.App. 1978) (per Clemens, J.) (three
years for armed criminal action to run consecutively to twenty years
for robbery first degree); State v. Tilley, 569 S.W.2d 346 (Mo.App.
1978) (per Reinhard, J.) (fifteen years for armed criminal action to
run consecutively to ten years for attempted robbery in the first degree) ;
Simms v. State, 568 S.W.2d 801 (Mo.App. 1978) (per McMillan,
J.) (three years for armed criminal action to run consecutively to twelve
years for robbery first degree).
A-17
of analysis premised on presumptions concerning legislative
intent can obscure the fact that § 559.225, RSMo Supp.
1976, provides that a person guilty of armed criminal action
shall be punished for both of two crimes, one of which
by definition includes every element of the other.
This construction of our state statute is binding on
the United States Supreme Court. In Memorial Hospital
v. Maricopa County, 415 U.S. 250 (1973), the United States
Supreme Court stated ‘‘{I]t is not our function to con-
strue a state statute countrary to the construction given
it by the highest court of a state.’’ Jd. at 256; O’Brien v.
Skinner, 414 U.S. 524, 531 (1973).
In the reported decisions involving convictions for
both armed criminal action and the underlying felony, the
armed criminal action charge was entered in a separate
count from that charging the underlying felony. The two
count information in the instant case is typical.
Count I alleged:
that on or about the 14th day of May, 1977, in the
County of Jasper and State of Missouri, WILLIAM
S. SOURS did wilfully, unlawfully and feloniously by
means of a certain dangerous and deadly weapon, to-
wit: a handgun, take, stea[l] and carry away Nine
Hundred Forty-nine and 06/100 ($949.06) Dollars, law-
ful money of the United States of America, the money
and personal property of Mr. Quick, then and there in
the lawful care and custody of Kendall Carnes, by then
and there putting the said Kendall Carnes in fear of
an immediate injury to his person and then and there
did feloniously rob, take, steal and carry away the
said money and personal property from the person of,
in the presence of and against the will of the said
Kendall Carnes with the felonious intent to permanently
deprive the owner of the use thereof and to convert
the same to his own use.
A-18
Count II alleged:
that on or about the 14th day of May, 1977, in the
County of Jasper and State of Missouri, WILLIAM
S. SOURS did wilfully, unlawfully and feloniously
commit a felony, to-wit: Robbery First Degree, by and
with the use, aid and assistance of a dangerous or deadly
weapon, to-wit: a handgun.
See Jeffers v. United States, 432 U.S. 137, 150 n. 16 (1977).
use
This Court recently approved a patterned charge for
in charging armed criminal action, MACH-Cr 25.02,
the patterned charge is as follows:
The (Grand Jurors) (Cireuit Attorney) (Prose-
cuting Attorney) of the (City) (County) of :
State of Missouri, charge(s) that the defendant, in
violation of Section 571.015, RSMo, committed the class
A felony of armed criminal action, punishable upon
conviction under Section (571.015.1) (571.015.2) (571.
015.3), RSMo, in that (on) (on or about) [date], in
the (City) (County) of , State of Missouri,
the defendant [insert one of the following, omitting
number and brackets]
[1] committed the felony of [name of felony]
charged in Count , all allegations of which are
incorporated herein by reference, and
[2] committed the felony of [name of felony, al-
leging all essential elements thereof with the same
specificity as that used in a charge of that felony], and
The defendant committed the foregoing felony of
[name of felony] by, with and through the use, assist-
ance and aid of a (dangerous instrument) (deadly
weapon) (, and)
((On) (On or about) [date] in [identify the par-
A-19
ticular court and jurisdiction], the defendant was con-
victed of the offense of armed criminal action (, and) )
((On) (On or about) [date] in [identify the par-
ticular court and jurisdiction], the defendant was con-
victed of the offense of armed criminal action) ).
Both pre-patterned and patterned charges indicate that our
statute has been universally interpreted to permit the charg-
ing of armed criminal action and the underlying felony in
separate counts.
Similarly, the instructions commonly used to submit
to the jury the question of the guilt or innocence of the
accused of armed criminal action and of the underlying
felony illustrate that the statute has uniformly been in-
terpreted to authorize separate conviction and punishment
for both armed criminal action and the underlying felony,
as does our recently adopted pattern jury instruction, MAI-
Cr 25.02. The verdict-directing instructions used in State
v. Treadway, 558 S.W.2d 92 (Mo. bane 1979) are typical:
INSTRUCTION NO. 7
As to Count I, if you find and believe from the
evidence beyond a reasonable doubt:
First, that on September 25, 1976, in the City of
St. Louis, State of Missouri, Rotha Grimes
was in charge of a purse owned by Jerry
Hanks, and
Second, that at that time and place the defendant,
acting with another, took the property from
Rotha Grimes against her will be causing her
to fear immediate injury to her person, and
Third, that the defendant, acting with another,
took the property with the intent to perma-
nently deprive Rotha Grimes and Jerri Hanks
A-20
of the property and to convert it or any part
of it to the use of the defendant and another,
and
Fourth, that the defendant acted either alone or
knowingly and with common purpose together
with another in the conduct referred to in the
above paragraphs,
: then you will find the defendant guilty under Count I
of robbery in the first degree.
However, if you do not find and believe from the
evidence beyond a reasonable doubt each and all of
the foregoing, you must find the defendant not guilty
of that offense. MAI-CR 7.60 modified by 2.12
Submitted by the State
Given by the Court
INSTRUCTION NO. 8
As to Count II, if you find and believe from the
evidence beyond a reasonable doubt:
First, that the defendant, acting with another,
committed the crime of robbery in the first
degree, a felony, as defined heretofore in In-
struction No. 7, and
Second, that the perpetration of the aforesaid
felony was done through the aid or use of a
weapon, to-wit: a gun, held by either the de-
fendant or his accomplice, and
Third, that the defendant acted either alone or
knowingly and with common purpose together
with another in the conduct referred to in the
above paragraphs,
then you will find the defendant guilty under Count IT
of armed criminal action.
A-21
However, if you do not find and believe from the
evidence beyond a reasonable doubt each and all of
the foregoing, then you must find the defendant not
guilty under Count II of that offense.
Not in MAI-CR
Modified by 2.12
Submitted by the State
Given by the Court
INSTRUCTION NO. 9
The defendant is charged with a separate offense
in each Count submitted to you. Each offense and the
evidence and law applicable to it should be considered
separately. Any evidence which was or has been limited
to one of the offenses charged or one purpose should
not be considered by you as to another offense charged
or for any other purpose.
You may find the defendant guilty or not guilty
on any or all of the Counts submitted against him.
MAI-CR-2.70
Given by the Court ]
Our pattern jury instructions for use in submitting armed
criminal action, MAI-Cr2d 25.02, were promulgated effec-
tive January 1, 1979. The verdict-directing instruction which
was provided for use in cases involving a first offender
under the armed criminal action statute, and ‘‘where the
underlying felony is charged in a separate count,’’ is as
follows:
(As to Count , if) (If) you find and believe
from the evidence beyond a reasonable doubt:
First, that the defendant is guilty under Count
of ({name of the offense, if it is a felony
A-22
under all circumstances]) ([name of the of-
fense, and if it is a misdemeanor under some
circumstances and a felony under other cir-
cumstances, include the circumstances making
it a felony]), and
Second, that the defendant committed that offense
by, with or through the use, assistance or aid
of a (dangerous instrument) (deadly weapon),
then you will find the defendant guilty (under Count
) of armed criminal action.
However, if you do not find and believe from the
evidence beyond a reasonable doubt each and all of
these propositions, you must find the defendant not
guilty of that offense.
If you do find the defendant guilty (under Count
) of armed criminal action, you will assess and
declare his punishment at imprisonment by the division
of corrections for a term fixed by you, but not less
than three years or more than life imprisonment.
We have measured the legislature’s intent regarding
§ 559.225, RSMo Supp. 1976 (now § 571.015, RSMo 1978) by
every test and standard available to us under the law of
Missouri. The conclusion is inescapable that the Missouri
General Assembly did intend to impose punishment for
armed criminal action ‘‘in addition to any punishment
provided by law for the crime committed by, with, or
through the use, assistance, or aid of a dangerous [instru-
ment] or deadly weapon.’’ The General Assembly did
clearly intend to impose two separate punishments for
armed criminal action and the lesser included offense.
At this point, the mandate that we reconsider in light
of Whalen offers little help or guidance. In Whalen it was
determined that Congress had not intended cumulative
A-23
punishments. The constitutional question sould be and was
reserved by the Court. In other cases in which the legisla-
tive intent was less clear than it is in the case of our armed
criminal action statute, the constitutional question also
has been reserved. Simpson v. United States, 435 U.S.
6, 11 (1978) ; Iannelli v. United States, 420 U.S. 770, 785-86
nn. 17-18 (1975). See Jeffers v. United States, 432 U.S.
137, 155 (1977). The unique wording of the Missouri statute
and the clear, positive and unequivocal intent to doubly
punish, does not leave us a similar option. The unique
wording of the armed criminal action statute dictates that
we must bite the bullet and meet the federal constitutional
issue.®
II. DOUBLE JEOPARDY AND MULTIPLE
PUNISHMENT FOR THE SAME OFFENSE
There is little we can add to the analysis given the
constitutional question in Sours v. State, 593 S.W.2d 208,
211-14, 218-21 (Mo. bane 1980), and we would incorporate
that analysis by reference into our opinion today, and re-
instate the opinion originally published. The argument can
be reduced to a simple syllogism:
(1) The double jeopardy clause of the fifth amend-
ment to the United States Constitution prohibits
the state from punishing a person twice for the
same offense. Benton v. Maryland, 395 U.S. 784,
793-96 (1969); North Carolina v. Pearce, 395 U.S.
8Firm as our conviction may be that neither a citizen of Missouri
nor a citizen of the United States should be twice punished for the same
offense, to so hold under the Missouri Constitution would require rein-
terpretation of our own double jeopardy clause, Mo. Const. art I, § 19,
which has been construed to apply “only where there has been an
acquittal of the defendant by a jury.” Murray v. State, 475 S.W.2d 67,
70 (Mo. 1972); Kansas City v. Henderson, 468 S.W.2d 48, 52 (Mo.
1971), cert denied, 404 U.S. 1004 (1971). See Sours v. State, 593
S.W.2d 208, 210 (Mo. bane 1980).
A-24
711, 717 (1969); State v. Neal, 514 S.W.2d 544,
548 (Mo. bane (1974); State v. Parsons, 513
S.W.2d 430, 487-38 (Mo. 1973).
(ii) Armed criminal action and the underlying felony
(iii)
used to prove armed criminal action—in this case,
robbery first degree—are the same offense for
double jeopardy purposes under the same evidence
test, because it is not the case that proof of rob-
bery requires proof of any fact not also required
to prove armed criminal action. Vitale v. United
States, No. 78-1845, filed June 19, 1980; Whalen
v. United States, US. —_, 100 S.Ct. 1432,
1439 (1980); Simpson v. United States, 435 U.S.
6, 11 (1978); Brown v. Ohio, 432 U.S. 161, 166
(1977); Jeffers v. United States, 432 U.S. 137,
151 (1977); Iannelli v. United States, 430 U.S.
770, 785 n. 17 (1975); Harris v. United States,
359 U.S. 19, 23-24 (1959); Gore v. United States,
357. U.S. 386, 388-91 (1958); Blockburger v. United
States, 284 U.S. 299, 304 (1932); Carter v. Mc-
Claughry, 183 U.S. 365, 394-95, 398 (1902); Morey
v. Commonwealth, 108 Mass. 433, 434 (1871).
Therefore, the double jeopardy clause prohibits
separately punishing a person both for armed
criminal action and for the underlying felony.
We continue to find this argument persuasive.
We may note that Whalen’s application of the Block-
burger doctrine as a rule of statutory construction paral-
leled the application given Blockburger in our effort to
resolve the constitutional issue in Sours. Compare Whalen,
U.S. at —__, 100 St.Ct. at 1439, with Sours, 593
S.W.2d at 219. In Sours, we stated thet if the underlying
felony used to prove armed criminal action were a single
named felony instead of a class of offenses, ‘‘it would be
A-25
obivous that armed criminal action includes all of the ele-
ments of the felony specified.’” We observed that ‘the
result is no different where the statute refers to ‘any
felony.’ ’’ 593 S.W.2d at 219. In Whalen, the Court con-
cluded that ‘‘[a] conviction for killing in the course of a
rape cannot be had without proving all the elements of
the offense of rape.” U.S. at , 100 S.Ct. at
1439, The Court rejected the government’s contention that
felony murder and rape were not the same offense under
the same evidence test of Blockburger.
The Government contends that felony murder and rape
are not the ‘‘same offense’’ under Blockburger, since
the former offense does not in all cases require proof
of a rape; that is, D.C. Code § 22-2401 proscribes the
killing of another person in the course of committing
rape or robbery or kidnapping or arson, etc. Where
the offense to be proved does not include proof of a
rape—for example, where the offense is a killing in
the perpetration of a robbery—the offense is of course
different from the offense of rape, and the Govern-
ment is correct in believing that cumulative punish-
ments for the felony murder and for a rape would
be permitted under Blockburger. In the present case,
however, proof of rape is a necessary element of proof
of the felony murder, and we are unpersuaded that
this case should be treated differently from other cases
in which one criminal offense requires proof of every
element of another offense,
There would be no question in this regard if Congress,
instead of listing the six lesser included offenses in
the alternative, had separately proscribed the six
different species of felony murder under six statutory
provisions. It is doubtful that Congress could have
imagined that so formal a difference in drafting had
any practical significance, and we ascribe none to it.
A-26
iting , 100 S.Ct. at 1439.
The application of the same evidence test in Sours
is also supported by the United States Supreme Court’s
holding in Vitale v. United States, No. 78-1845, (filed
June 19, 1980), (48 U.S.L.W. 4741) a multiple prosecution
ease. In Vitale, respondent, a juvenile was convicted of
failing to reduce speed to avoid an accident, a violation
of § 11-601(a) of the Illinois Vehicle Code. The charge
arose out of an accident in which an automobile driven
by respondent struck and fatally wounded two small chil-
dren. Subsequently, a petition for adjudication of ward-
ship was filed against respondent in the Circuit Court of
Cook County, charging Vitale with two counts of involun-
tary manslaughter. The Illinois Supreme Court upheld
the dismissal of the second proceeding on the ground that
it was barred by the double jeopardy clause. In re Vitale,
71 Ill.2d 229, 375 N.E.2d 87 (1978). The United States
Supreme Court vacated the judgment and remanded the
case for consideration whether the judgment was based
on state or federal grounds. 439 U.S. 974 (1978). The
Illinois Supreme Court certified that the judgment was
based on federal constitutional grounds, and the United
States Supreme Court again granted certiorari. US.
, 100 S.Ct. 42 (1979). The Court reaffirmed the prin-
ciple that the double jeopardy clause not only prohibits
multiple prosecutions for the same offense but also pro-
tects against imposing multiple punishments for the same
offense. 445 U.S. at , 48 U.S.L.W. at 4743. Accord,
Brown v. Ohio, 432 U.S. 161, 165 (1977); North Carolina
v. Pearce, 395 U.S. 711, 717 (1969). The Court in Vitale
also reaffirmed its holding in Harris v. Oklahoma, 433
U.S. 682 (1977):
an Harris, we held, without dissent, that a de-
fendant’s conviction for felony murder based on a
killing in the course of an armed robbery barred a
A-27
subsequent prosecution against the same defendant for
the robbery. The Oklahoma felony murder statute on
its face did not require proof of a robbery to establish
felony murder; other felonies could underlie a felony-
murder prosecution. But for the purposes of the Dou-
ble Jeopardy Clause, we did not consider the crime
generally described as felony murder as a separate
offense distinct from its various elements. Rather, we
treated a killing in the course of a robbery as itself
a separate statutory offense, and the robbery as a
species of lesser-included offense. The State conceded
that the robbery for which petitioner had been in-
dicted was in fact the underlying felony, all elements
of which had been proved in the murder prosecution.
We held the subsequent robbery prosecution barred
under the Double Jeopardy Clause, since under In
re Neilsen, 131 U.S. 176 (1889), a person who has been
convicted of a crime having several elements included
in it may not subsequently be tried for a lesser-included
offense—an offense consisting solely of one or more
of the elements of the crime for which he has already
been convicted. Under Brown, the reverse is also true;
a conviction on a lesser-included offense bars subse-
quent trial on the greater offense.
aS , 48 U.S.L.W. at 4744.
Despite the Illinois Supreme Court’s assertion in
Vitale, that ‘‘the lesser offense, failing to reduce speed,
requires no proof beyond that which is necessary for con-
viction of the greater, involuntary manslaughter,’’ and
its conclusion that, ‘‘the greater offense is by definition
the ‘same’ as the lesser offense included within it,’’ 71 Iil.2d
at 239, 375 N.E.2d at 91, the United States Supreme Court
vacated the judgment and remanded the case for further
proceedings ‘‘[b]ecause of our doubts about the relation-
ship under Illinois law between the crimes of manslaughter
A-28
and a careless failure to reduce speed to avoid an accident,
and because the reckless act or acts the State will rely
on to prove manslaughter are still unknown.’’ US.
at , 48 U.S.L.W. at 4744.
We are here forced to address the constitutional issue
expressly reserved in Whalen, U.S. at , 100 S.Ct.
at 1435, 1437; Simpson, 435 U.S. at 11; and Jannelli, 420
U.S. at 785-86 nn. 17-18. See Jeffers, 482 U.S. at 155. We
must conclude, for the reasons set forth in Sours v. State,
593 S.W.2d 208 (Mo. bane 1980), that the proof of the
underlying felony—robbery first degree—does not require
proof of a fact not also required to prove armed criminal
action, or in other words, that proof of armed criminal
action necessarily proves every fact required to establish
the underlying felony. Consequently, the two offenses are
the ‘‘same offense’’ for double jeopardy purposes, Vitale,
U.S. at , 48 U.S.L.W. at 4744; Whalen,
U.S. at , 100 S.Ct. at 439; Harris, 433 U.S. at 682;
Brown, 432 U.S. at 167, and the double jeopardy clause
prohibits the state from punishing appellant for both of-
fenses. We believe that, because the double jeopardy clause
prohibits punishing a person twice for the same offense,
‘‘the prosecution may not do in one trial what it is pro-
hibited from doing in two trials.’? Elmore v. State, 382
N.E.2d 893, 894-95 (Ind. 1978). See cases that apply the
rationale of Harris v. Oklahoma in the single prosecution
context. State v. Morgan, 592 S.W.2d 796, 803 (Mo. bane
1980); State v. Pinder, 375 So.2d 836, 838 (Fla. 1979);
Tyson v. State, 386 N.E.2d 1185, 1193 (Ind. 1979) ; Mitchell
v. State, 382 N.E.2d 932, 934 (Ind. 1978); Elmore v. State,
382 N.E.2d 893, 894-95 (Ind. 1978); State v. Frye, 283 Md.
709, 393 A.2d 1372, 1375 (1978) ; Briggs v. State, 573 S.W.2d
157, 159 (Tenn. 1978). See also State v. Neal, 514 S.W.2d
A-29
544, 548 (Mo. bane 1974); State v. Parsons, 513 S.W.2d
430, 438 (Mo, 1974).
If the vacation of our prior judgment and the remand
of the case for reconsideration in light of Whalen was in-
tended to lead this Court to adopt the view that the Gen-
eral Assembly is free to impose separate punishments for
two crimes that constitute the same offense under the tradi-
tional same evidence test, we are unable to so read Whalen
and we are not prepared to take that step. We believe
that the United States Supreme Court has heretofore re-
served that question as noted above. We believe that such
a ruling would abolish the traditional double jeopardy pro-
tection against multiple punishments for the same offense.
It would require bifurcation of the meaning of ‘‘same of-
fense’’ under the double jeopardy clause. It would grant
to the state legislature the power to define the meaning of
‘*same offense’’ as used in the double jeopardy clause of
the Constitution, a traditional judicial function. The im-
plicit effect of such a holding would be that the double
jeopardy clause would hereafter be only a limitation on
the executive and judicial branches, but not on the legis-
lative branch of government. We do not believe that it
is appropriate for this Court to make such a ruling. If such
a ruling is to be made, it is the responsibility of the United
States Supreme Court to make it.
After thorough examination of the opinions in Whalen
v. United States, US. , 100 S.Ct. 1432 (1980),
we have concluded that our original opinion and judgment
in Sours v. State, 593 S.W.2d 208 (Mo. bane 1980), was
correct and should be reinstated as supplemented by our
opinion today. We reverse the judgment of the trial court
insofar as it denied appellant relief from his conviction
for armed criminal action, and vacate and set aside that
conviction. We affirm the judgment of the trial court inso-
A-30
far as it denied appellant relief from his conviction for
robbery first degree.
WARREN D. WELLIVER, Judge
Bardgett, C. J., Seiler, Morgan and Higgins, JJ., concur;
Donnelly, J. dissents in separate dissenting opinion filed;
Rendlen, J. dissents in separate dissenting opinion filed and
concurs in dissenting opinion of Donnelly, J.
A-31
IN THE
SUPREME COURT OF MISSOURI
EN BANC
5
WILLIAM SCOTT SOURS,
Appellant,
vs. : No. 61458
STATE OF MISSOURI,
Respondent.
J
DISSENTING OPINION
In Benton v. Maryland, 395 U.S. 784 (1969), the United
States Supreme Court overruled Palko v. Connecticut, 302
U.S. 319 (1937) and applied the Double Jeopardy Clause of
the United States Constitution to the states.
In Sours v. State, 593 S.W.2d 208 (Mo. bane 1980),
a majority of this Court ordered a conviction under Mis-
souri’s armed criminal action statute set aside because it
felt compelled to do so by general declarations of law made
in Harris v. Oklahoma, 433 U.S. 682 (1977).
On May 27, 1980, in Missouri v. Sours, No. 79-1565,
the United States Supreme Court vacated the judgment of
-this Court in Sours, and remanded the case to this Court
‘‘for further consideration in light of Whalen v. United
States, 445 U.S. __._ (1980).”’
Of course, the mandate of May 27, 1980, is the law
of the case and is binding on this Court.
In North Carolina v. Pearce, 395 U.S. 711, 717 (1969),
A-32
the United States Supreme Court stated ‘‘that the Fifth
Amendment guarantee against double jeopardy * * * has
been said to consist of three separate constitutional protec-
tions. It protects against a second prosecution for the same
offense after acquittal. It protects against a second proscu-
tion for the same offense after conviction. And it protects
against multiple punishments for the same offense. * * * .’’
I agree with the conclusion of the principal opinion
that the Missouri General Assembly intended that two
separate punishments be imposed for first degree robbery
and armed criminal action. I do not agree that the hold-
ings in Harris and Vitale, both second prosecution cases,
are pertinent to this multiple punishments case. See State
v. Neal, 514 8.W.2d 544, 550, 551 (Mo. bane 1974) (Don-
nelly, C. J. concurring). See also Rules 23.05 and 24.07.
The essential question is: should this Court apply
the holdings of Harris and Vitale, both second prosecution
cases, in this multiple punishments case when we know
that the United States Supreme Court declined the oppor-
tunity to apply the Harris holding in Simpson v. United
States, 435 U.S. 6, 12 (1978), also a multiple punishments
case? I think not. In Oregon v. Hass, 420 U.S. 714, 719
(1975), the Court stated that ‘‘a State may not impose * * *
greater restrictions as a matter of federal constitutional
law when this Court specifically refrains from imposing
them.’’ See also North Carolina v. Butler, 441 U,S. 369,
376 (1979).
In my view, the logic of Whalen is that the multiple
punishments proscription of Pearce is satisfied if the
multiple punishments in this case were intended and au-
thorized by the General Assembly—to hold otherwise is
to make the mandate of May 27, 1980, inscrutable.
I respectfully dissent.
Robert T. Donnelly, Judge
A-33
IN THE
SUPREME COURT OF MISSOURI
EN BANC
WILLIAM SCOTT SOURS,
Appellant,
vs. No. 61458
STATE OF MISSOURI,
Respondent.
DISSENTING OPINION
INTRODUCTION
I respectfully dissent. The majority’s mechanical treat-
ment of Blockburger v. United States, 284 U.S. 299 (1932),
‘‘same offense’’ test as substantive double jeopardy doc-
trine is in my view a misapplication of that test and an
exaltation of form over substance. The principal opinion
decides the double jeopardy clause forbids conviction and
punishment in a single prosecution for armed criminal ac-
tion and robbery under Blockburger. The majority does so
against a tapestry of dicta woven largely from successive
prosecution cases and by skillful conversion of the canon
for ‘‘statutory construction’’ prescribed by Blockburger,
into a rigid doctrine of constitutional right. The Supreme
Court’s mandate that on reconsideration we be guided by
Whalen v. United States, US. , 100 S.Ct. 1482,
63 L.Ed.2d 715 (1980), neither so requires nor permits.
In this regard the present effort is little more than a re-
casting of our original opinion vacated by the Court.
A-34
William Scott Sours was charged with robbery first
degree by means of a dangerous and deadly weapon
(§ 560.120, RSMo 1969 and § 560.135, RSMo Supp. 1975)
and armed criminal action (§ 559.225, RSMo Supp. 1976)
for participating in an armed robbery of a Mr. Quick Store
in Jasper County. On October 5, 1977, Sours pled guilty
to both charges and on January 5, 1978, was sentenced to
five years imprisonment on the robbery conviction and
three years imprisonment on the armed criminal action
conviction, the sentences to run consecutively. See Sours
v, State, 593 S.W.2d 208, 209-210 (Mo, bane 1980) (vacated
__. U.S. — _, 64 L.Ed.2d 820 (1980)).
It should be noted at the outset that the majority fails
to address the important question of whether Sours’ guilty
plea constituted ‘‘a break in the chain of events’’ so as to
preclude litigation of the double jeopardy issue in this
post-conviction Rule 27.26 proceeding. See Tollett v. Hen-
derson, 411 U.S. 258, 267 (1973); Francis v. Henderson,
425 U.S. 536, 541-542 (1976); Wainwright v. Sykes, 4383
U.S. 72, 86-87 (1977). c.f. Jeffers v. United States, 482 U.S.
137, 152 (1977). Recently in Weir v. State, 589 S.W.2d
256 (Mo. bane 1979), this Court questioned the cognizability
of a claim of double jeopardy in a Rule 27.26 proceeding
following defendant’s failure to raise the objection at the
trial level. The majority fails to consider the rule announced
by Weir, at 258:
[I]t is now settled by numerous decisions in both
the federal and state systems that where there is a
deliberate bypass, whether for strategic, tactical, or
other reasons, of orderly state procedure, a movant is
precluded from raising a constitutional issue on a post
conviction motion.
Instead of eagerly seizing the constitutional issue, we should
remand for a determination by the sentencing court whether
A-35
Sours by pleading guilty has deliberately by-passed orderly
state procedures' and only after a determination that he
has not, should we address the far reaching federal con-
stitutional question.
Turning to the constitutional issue, it was the framers’
intent? that the Fifth Amendment embody the common
law’s double jeopardy protection against a defendant’s
reprosecution following conviction or acquittal upon a
criminal charge.’ See Brown v. Ohio, 482 U.S. 161, 165
(1977); United States v. Wilson, 420 U.S. 332, 340-342
(1975). James Madison tendered the original draft of the
Fifth Amendment,‘ later amended to its present form, midst
concern that a defendant’s right to new trial not be
abridged by a conviction erroneously obtained. See Wilson,
id. citing I Annals of Congress 753 (1789). At the time
of adoption the limited number of common law felonies,
e.g., rape, robbery, murder, arson and burglary allowed
for ready application and more certain protection for
criminal defendants under the double jeopardy clause. To-
1The “deliberate bypass” standard employed by our courts in deter-
mining whether constitutional ‘issues improperly preserved at trial may
be raised in post-conviction proceedings is similar to the “cause and
prejudice” standard employed in the federal system for making deter-
mination in habeas proceedings. Wainwright v. Sykes, 483 U.S. 72,
95n.1 (1977) (Stevens, J., concurring).
“For a discussion of the historical development of the concept of
double jeopardy see Bartkus v. Illinois, 359 U.S. 121, 151-155 (1959)
(dissenting opinion of Justice Black).
8At common law double jeopardy was in the nature of a plea of
abatement. The technical plea was either autrefoits acquit or autrefoits
convict. See 2 Hawkins, Pleas of the Crown, 522-537 (6th. ed. 1777).
Either plea was an absolute bar to a subsequent prosecution as “the
party ought not to be brought twice into danger of his life for the same
crime.” Id, at 534. |
‘The original proposal would have protected a defendant from “more
than one punishment or one trial for the same offense . . . ” United
States v. Wilson, 420 U.S. 332, 341 (1975), citing I Annals of Con-
gress 434 (1789).
A-36
day, given the proliferation of complex statutory crimes,
it is recognized that the doctrine’s original scope cannot
provide complete and certain answers in many cases. Never-
theless in the constitutional construction process, we are
guided by the purposes and policies underlying the consti-
tutional protections afforded by the framers and those who
ratified our Bill of Rights.
The fountainhead of that aspect of double jeopardy
jurisprudence described as the double punishment doctrine
appears to be Ex parte Lange, 85 U.S. (18 Wall.) 163
(1873). There the sentencing court exceeded the legislative
authorization for punishment of a statutory crime. De-
fendant was convicted of stealing post office property for
which the statutes provided as punishment, imprisonment
for not more than one year or a fine of $10 to $200. The
court however sentenced Lange to one year’s imprisonment
and a fine of $200. It was in that context of the trial court
having exceeded its statutory authority that the double
punishment doctrine had its origins. On review, the Court
was concerned with the trial court having exceeded the
legislative authorization not the legislature’s constitutional
authority to proscribe certain acts as crimes and prescribe
punishment therefore. The Court at 176 stated:
We are of opinion that when the prisoner, as in
this case, by reason of a valid judgment, had fully
suffered one of the alternative punishments to which
alone the law subjected him, the power of the court to
punish further was gone. That the principle we have
discussed then interposed its shield, and forbid that
he should be punished again for that offense. (Km-
phasis added.) |
Whalen v. United States, US. , 100 S.Ct. 1432,
63 L.Ed.2d 715 (1980), which guides us here, emphasized
that the decision in terms of ‘‘double punishment’’ turns
A-37
on the legislative intent, stating that ‘‘the disvositive ques-
tion, therefore, is whether Congress did so provide.’’ 100
S.Ct. 1432 at 1436, 63 L.Ed.2d at 722.
The double punishment doctrine does not constitute
a substantive limitation on the legislature’s power to define
and punish crimes. See Whalen v. United States, US.
—___, 100 S.Ct. 1432, 1440, 63 L.Ed.2d 715, 726 (1980) (con-
curring opinion of White, J.); ___. U.S. , 100 S.Ct.
1432, 1440, 63 L.Ed.2d 715, 726 (concurring opinion of
Blackmun, J.) Westen and Drubel, Towards A General
Theory of Double Jeopardy, Sup. Ct. Rev. 81, 112-115
(1978). See also Note ‘Twice in Jeopardy’’ 75 Yale L. J.
262, 311-313 (1965). The Court in Whalen addressed the
multiple punishment issue in terms of whether the judicial
action had exceeded the legislative authorization. After
a discussion of Lange, which as noted above can best be
described as a legislative authorization case, the Court
held, ‘‘[t]he Double Jeopardy Clause at the very least
precludes federal courts from imposing conservative sen-
tences unless authorized by Congress to do so. The Fifth
Amendment guarantee against double jeopardy embodies
in this respect simply one aspect of the basic principal
that within our federal constitutional framework the legis-
lative power, including the power to define criminal of-
fenses and to prescribe the punishments to be imposed
upon those found guilty of them, resides wholly with the
Congress.’’ Whalen, U.S. ___, 100 S.Ct. 1432, 1436,
63 L.Ed.2d 715, 722 (1980).
The reason for this conclusion seems self apparent.
To say that the legislature can punish crime X by life
imprisonment but that it cannot define certain acts as
crime X' punishable by five years to life and crime X?
punishable by three years to life respectively, employs
an intellectual artifice providing the criminal defendant
little or no additional protection, The majority holds that
A-38
under the then applicable statutes a defendant could be
convicted of armed robbery punishable by five years to
life or of armed criminal action and sentenced to three
years to life,® but could not be convicted of both in the
same proceeding and if so convicted the armed criminal
5Section 560.135, RSMo 1969, provided that a person convicted
of robbery in the first degree by means of a dangerous and deadly
weapon could be sentenced to death or imprisonment ranging from a
minimum of 5 years to life. Those convicted of robbery in the first
degree could be sentenced only to imprisonment ranging from a minimum
of 5 years to life. Id. Subsequently in 1975 the legislature amended
the statute and provided that the punishment for both robbery in the
first degree and robbery in the first degree by means of a dangerous
and deadly weapon would be imprisonment ranging from a minimum of
5 years to a life term. § 560.135, RSMo Supp. 1975.
Section 559.225, RSMo Supp. 1976 provides:
1. Except as provided in subsection 4 of this section, any
person who commits any felony under the laws of this state by,
with, or through the use, assistance, or aid of a dangerous or deadly
weapon is also guilty of the crime of armed criminal action and,
upon conviction, shall be punished by imprisonment by the division
of corrections for a term of not less than three years. The punish-
ment imposed pursuant to this subsection shall be in addition to
any punishment provided by law for the crime committed by, with,
or through the use, assistance, or aid of a dangerous or deadly
weapon. No person convicted under this subsection shall be eligi-
ble for parole, probation, conditional release or suspended im-
position or execution of sentence for a period of three calendar
years.
2. Any person convicted of a second offense of armed crimi-
nal action shall be punished by imprisonment by the division of
corrections for a term of not less than five years. The punishment
imposed pursuant to this subsection shall be in addition to any
punishment provided by law for the crime committee [sic] by,
with, or through the use, assistance, or aid of a dangerous or deadly
weapon. No person convicted under this subsection shall be eligible
for parole, probation, conditional release or suspended imposition
or execution of sentence for a period of five calendar years.
3. Any person convicted of a third or subsequent offense of
armed criminal action shall be punished by imprisonment by the
(Continued on next page)
A-39
action conviction must be vacated. (One might ask, why
the armed criminal action conviction?) The principal opin-
ion skirts the Double Jeopardy Clause’s historical purpose
to protect the defendant from harassment, relitigation, and
judicial usurpation of the legislative authority to punish.
See Note, Twice in Jeopardy, 75 Yale L.J. 262, 266-267
(1965). Instead the majority seeks to transform the pro-
vision protecting against double punishment into a diluted
analogue of the Eighth Amendment without measurably
enhancing the defendant’s protections as shown above.®
Though the Eighth Amendment remains a vital and essen-
tial safeguard against excessive punishment by the legis-
lature (see Coker v. Georgia, 433 U.S. 584, 592 (1977);
State v. Higgins, 592 8.W.2d 151 (Mo. bane 1979), appeal
dismissed USS. , 100 S.Ct. 1825 (1980), redesign-
ing the Fifth Amendment to serve the purpose filled by
Footnote continued
division of corrections for a term of not less than ten years. The
punishment imposed pursuant to this subsection shall be in addition
to any punishment provided by law for the crime committed by,
with, or through the use, assistance, or aid of a dangerous or deadly
weapon. No person convicted under this subsection shall be eligible
for parole, probation, conditional release or suspended imposition
or execution of sentence for a period of ten calendar years.
4, The provisions of this section shall not apply to the felonies
defined in sections 559.005, 564.590, 564.610, 564.620, 564.630,
and 564.640, RSMo.
8It is true that conviction of both robbery in the first degree and
armed criminal action will affect a prisoner’s eligibility for parole. See
Rules and Regulations Governing the Granting of Paroles, Conditional
Releases, and Related Procedures, Missouri Board of Probation and
Parole, pp. 8-10 (1979). However such delay in parole eligibility would
be present upon a conviction for armed criminal action alone. Id.,
§ 559.225, RSMo Supp. 1976. The mere fact that multiple convictions
occur and consecutive sentences are imposed does not alter eligibility
for parole in any way. Rules and Regulations Governing the Granting
of Paroles, Conditional Releases, and Related Procedures, Missouri Board
of Probation and Parole, pp. 11-12 (1979).
A-40
the Eighth serves no legitimate function’ and violates the
canons of orderly constitutional construction.
The only apparent justification for the majority’s
manipulation of the double punishment doctrines is to
guard against prosecutorial and judicial arbitrariness. A
constitutional issue of some dimension would be presented
if the statutory pattern allowed random and capricious
results in which some defendants were convicted of one
of the constituent crimes and other convicted of both with-
out any ascertainable justification. Such is not the case
under our statutes. The legislature, 18 U.S.C. 848 (con-
ducting an enterprise to distribute heroin), and held that
a defendant convicted of 846 in a prior proceeding had
no double jeopardy claim in respect to a later 848 prose-
cution because the defendant had earlier successfully
moved to sever the charges. A fortiori, it may be said that
Jeffers, who was tried and convicted in two proceedings
for two offenses, one of which the Court assumed to be
a lesser included offense, could have been tried for both
in a single proceeding and so it is with Sours.
The majority’s reliance on Harris v. Oklahoma, 433
U.S. 682 (1977) and Brown v. Ohio, 482 U.S. 161 (1977),
is misplaced. First, Harris and Brown were successive
prosecution cases involving the serious risks of vexation
and harassment to criminal defendants attendant in mul-
tiple prosecutions. Further, the precise issue presented
7This Court has held that punishment enhancement schemes which
impose additional liability upon conviction of a crime if certain facts
are shown to exist (i.e., previous convictions) are not violative of double
jeopardy. See § 556.280, RSMo 1969 (repealed); § 558.016, RSMo
1978; State v. Johnstone, 335 S.W.2d 199, 204 (Mo. 1960), cert. denied,
864 U.S. 842 (1960). It is difficult to perceive a functional difference
between a sentence enhancement scheme and the “armed criminal action—
first degree robbery consecutive punishment plan” the majority now
holds is forbidden by the Fifth Amendment to the United States Con-
stitution.
A-41
here was specifically reserved by the Court in Simpson v.
United States, 435 U.S. 6, 11-12 (1978), decided some eight
months following Harris, which teaches that Harris was
not, as asserted by the majority, dispositive of the issue
here. I might add that the mandate of the Court in Sours
does not direct us to decide this case ‘‘in the light of
Harris v. Oklahoma.’’ Harris merely held that a defend-
ant’s conviction of felony murder based on a killing in
the course of an armed robbery barred a subsequent prose-
cution against that same defendant for robbery. Harris
v. Oklahoma, 433 U.S. 682 (1977). Brown decided only that
once a defendant was convicted of misdemeanor joyrid-
ing, the State was barred by double jeopardy from con-
victing the defendant of the greater included offense of
felony auto theft in a subsequent prosecution. ‘‘[T]he
Fifth Amendment forbids successive prosecution and cumu-
lative punishment for a greater and lesser included of-
fense,’? (Emphasis added), Brown v. Ohio, 432 U.S. 161
at 169 (1977). Indeed the Court in Brown reiterated at
165 the as recognized by the majority, clearly intended
that a person committing a felony with a firearm be con-
victed and punished for both the underlying felony and
armed criminal action. ‘‘Any person who commits any
felony under the laws of this State by, with, or through
the use, assistance, or aid of a dangerous or deadly weapon
is also guilty of the crime of armed criminal action .... The
punishment imposed pursuant to this subsection shall be
in addition to any punishment provided by law for the
crime committed by, with, or through the use, assistance,
or aid of a dangerous or deadly weapon.’’ Section 559.225,
RSMo Supp. 1976. The uncertainty as to legislative intent
in Whalen is not present here. Further, it was noted there
that ‘‘[t]he Double Jeopardy Clause at the very least pre-
cludes federal courts from imposing consecutive sentences
unless authorized by Congress to do so.’’ Whalen,
A-42
U.S. —__, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715, 722 (1980).
The penalties imposed here were explicitly provided by
the legislature. The problem of ambiguity for which the
rule of lenity provides an important safeguard against
prosecutorial and judicial arbitrariness, simply is not
present. In sum, when the legislative intent that an act
be punished as two crimes is clear, the potential for arbi-
trariness by prosecutors and judges is de minimus. As a_
result, no issue of constitutional dimension arises under
the Fifth Amendment by the operation of our Missouri
armed criminal action statute.
An examination of earlier United States Supreme
Court opinions and recent summary actions by that Court
points up the validity of our Missouri armed criminal ac-
tion scheme under which a person who commits a felony
with a dangerous and deadly weapon may be found guilty
of two offenses, armed criminal action and the underlying
felony. In Jeffers v. United States, 432 U.S. 137, 147-150
(1977), the Court assumed arguendo, that 18 U.S.C. 846
(conspiracy to distribute heroin) was a lesser included
offense of freedom of the legislature to proscribe criminal
conduct and prescribe punishment.
[T]he Fifth Amendment double jeopardy guaran-
tee serves principally as a restraint on courts and
prosecutors. The legislature remains free under the
Double Jeopardy Clause to define crimes and fix
punishments; but once the legislature has acted courts
may not impose more than one punishment for the
same offense and prosecutors ordinarily may not at-
tempt to secure that punishment in more than one
trial. Brown v. Ohio, 432 U.S. 161, 165.
Not only does the majority disregard the Court’s con-
sistent concern in decisions from Lange to Whalen with
A-43
the scope of legislative authorization as to double punish-
ment claims, it also fails to recognize that the defendant’s
interest in finality, the core value furthered by the Double
Jeopardy Clause, is not implicated in unitary prosecution
cases. The prime consideration 12 this unitary prosecution
case is the legislative objective of deterring violent of-
fenders by increasing penalties for felonies committed with
a weapon.® The principal opinion effectively thwarts that
objective.
The majority fails to discuss the recent action of the
Court on a nearly identical issue dismissing an appeal
for want of a substantial federal question. The Court dis-
missed the appeal from a Michigan Supreme Court decision
holding that consecutive punishment does not violate the
federal constitution’s Fifth Amendment. Wayne County
Prosecutor v. Recorder’s Court Judge and People v. Brint-
ley, 280 N.W.2d 793 (Mich. 1979) appeal dismissed sub
nom Brintley v. Michigan, 444 U.S. 948, 100 S.Ct. 418, 62
L.Ed.2d 317 (1979). There, the Michigan Supreme Court
addressed the constitutionality of convictions under a
Michigan statute (similar to the Missouri armed criminal
action statute) providing that a felony committed by a
person with a firearm constituted an additional offense,
for which one convicted was to be punished consecutively
to the sentence imposed on the underlying felony. Defend-
ant contended his convictions violated rights protected by
8At the time of the enactment of the armed criminal action statute
law enforcement authorities intiated a publicity campaign warning “use
a gun, go to prison.” Whether the armed criminal action statute sub
judice furthered these important goals is a matte for legislative deter-
amination. Fixing punishment for crimes defined by statute is the province
of the legislature, not the courts. State v. Alexander, 315 Mo. 199, 285
S.W. 984, 985 (1926); State v. Higgins, 592 S.W.2d 151, (Mo. banc
1979), appeal dismissed, U.S, __., 100 S. Ct 1825 (1980).
A-44
the Fifth Amendment. See MCLA 750.227(b) ;° Zd. at 794.
The Michigan Court, in a persuasive and comprehensive
opinion dealing with the precise question here presented,
held that by enacting the felony-firearm statute the legis-
lature created a separate crime distinct from the under-
lying felony and intended that consecutive punishments
be imposed. Brintley, 280 N.W.2d 793 at 795-796. In one
of the cases involved in that consolidated appeal, People v.
Brintley, the court firmly concluded that conviction of
both felony firearm and armed robbery offenses (described
as the ‘‘same offense’’ under the majority opinion here)
was not violative of the federal constitution’s protection
against double jeopardy. Id. at 799-800. Of prime impor-
tance here, the United States Supreme Court dismissed
the appeal from that judgment ‘‘for want of substantial
federal question.’’ 444 U.S. 948. The Court’s refusal to
disturb the conclusion of the Michigan Supreme Court that
conviction of both felony-firearm and armed robbery in
®MCLA 750.227(b) provides:
(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 section 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 term of imprisonment im-
posed 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).
As is readily apparent from the face of the statute, it is indistinguishable
in all important details from the Missouri armed criminal action statute.
See n.8 supra.
A-45
a single proceeding did not violate the Fifth Amendment’s
prescription has precedential value as a disposition on
the merits. See Hicks v. Miranda, 422 U.S. 332, 344-345
(1975). We are bound to follow that summary decision
under the command of the Supremacy Clause as to all
federal questions. Art. VI, § 2, United States Constitution.
As recently explained by the United States Supreme Court,
‘‘fs]uummary affirmances and dismissals for want of a
substantial federal question without doubt reject the spe-
cific challenges presented in the statement of jurisdiction
and do leave undisturbed the judgment appealed from.
They do prevent lower courts from coming to opposite
conclusions on the precise issues presented and necessarily
decided by those actions.’’ Mandel v. Bradley, 432 U.S.
173 at 176 (1977). Here the majority has reached a de-
cision diametrically opposed to the conclusion reached in
Brintley and seems unconcerned that the appeal was dis-
missed by the Supreme Court for want of a substantial
federal question. In the jurisdictional statement to the
appeal filed by Brintley, a claim was made that conviction
of both felony-firearm and armed robbery violated the
double jeopardy doctrine.’° The Supreme Court necessarily
10In the jurisdictional statement filed on October 15, 1979, in
Brintley v. Michigan, No. 79-5506, appeal dismissed, 444 U.S. 948
(1980), Brintley’s counsel argued that conviction and consecutive punish-
ment in one proceeding for armed robbery and felony-firearm under
MCLA 750.227b constituted double jeopardy as multiple punishment.
The argument headings contained in the statement of jurisdiction spell
out this claim. “I. THE DOUBLE JEOPARDY CLAUSE IS A SUB-
STANTIVE LIMITATION ON THE MICHIGAN LEGISLATURE.”
Appellant’s Statement of Jurisdiction, page 8. “II. THE VIOLATION
OF § 750.227b ALLEGED IN COUNT II OF EACH INFORMATION
REQUIRED PROOF OF ALL ELEMENTS CONTAINED IN COUNT
I, AND THUS THE OFFENSES WERE THE SAME FOR DOUBLE
JEOPARDY PURPOSES.” Appellant’s Statement of Jurisdiction, page 11.
“III. CONVICTION UNDER § 750.227b REQUIRES PROOF OF A
SPECIFIC FELONY.” Appellant’s Statement of Jurisdiction, page 12.
(Continued on next page)
A-46
rejected that claim when it dismissed the appeal. Yet the
majority ignores or overlooks Brintley and decides the same
issue on federal constitutional grounds, While such action
is defensible in the context of adjudication of state con-
stitutional provisions, it does not square with the command
of the { ypremacy Clause and ‘the role of state courts in
the federal system when federal questions are presented.
Neither do subsequent doctrinal developments justify
the majority’s disregard of the Court’s summary action
in Brintley. As previously noted in Whalen, the Court’s
most recent pronouncement, the constitutional issue was
discussed in terms of whether the punishment imposed
exceeds the legislative authorization. Having determined
Congress did not intend consecutive punishments by enact-
ing D.C. Code 23-112, the Court stated, ‘‘Congress is clearly
free to fashion exceptions to the rule it chose to enact in
§ 23-112.’’ Whalen, US. , 100 S.Ct. 1432, 1439,
63 L.Ed.2d 715, 725 (1980). We might add, if the Congress
has such latitude, why not the Missouri General Assembly?
I conclude the majority opinion confers upon courts
a role neither contemplated by those who ratified the Fifth
Amendment nor supported by subsequent Supreme Court
decisions interpreting it. As Justice Frankfurther analyzed
Footnote continued
“IV. MR, BRINTLEY'S SENTENCE HAS BEEN TWICE ‘AUG.
MENTED UNDER TWO STATUTES WHICH ARE THE SAME
FOR DOUBLE JEOPARDY PURPOSES.” Appellant’s Statement of
Jurisdiction, page 15, “V, THE DOUBLE JEOPARDY CLAUSE BARS
MULTIPLE CONVICTIONS ARISING FROM A SINGLE ACT OC.
CURRING AT ONE PLACE, AT ONE TIME, AND FOR ONE
PURPOSE.” Appellant's Statement of Jurisdiction, page 16, The Su-
preme Court necessarily rejected all these contentions in respect to MCLA
750.227b virtually identical in its consecutive punishment scheme to
§ 559,225, RSMo Supp. 1976. Such rejection is of precedential value
in this case and we are bound to follow it, Hicks v. Miranda, 422 U.S,
332, 344, 345 (1975),
A-47
a similar claim, ‘‘In effect, we are asked to enter the
domain of penology, and more particularly that tantaliz-
ing aspect of it, the proper apportionment of punishment.
Whatever views may be entertained regarding severity
of punishment, whether one believes in its efficacy or its
futility, these are peculiarly questions of legislative poli-
cy.’’ Citations omitted. Gore v. United States, 357 U.S.
386 at 393 (1958). I submit the majority opinion in the
name of double punishment doctrine invades the power
of the legislature to define crimes and prescribe punish-
ment, Accordingly, I must dissent.
ALBERT L. RENDLEN, Judge
A-49
APPENDIX B
IN THE
SUPREME COURT OF MISSOURI
EN BANC
Reported at: 593 SW2d 208
——seaeeeeooooooooeeSSS oS
WILLIAM SCOTT SOURS, |
Appellant,
vs. No. 61458
STATE OF MISSOURI,
Respondent.
ananassae
January, 15, 1980.
Rehearing Denied February 11, 1980
APPEAL FROM THE CIRCUIT COURT OF
JASPER COUNTY
Honorable Ben F’, Pyle, Judge
This is an appeal from the denial after hearing of
appellant’s Rule 27.26 motion to set aside convictions
entered October 4, 1977. Appellant seeks relief from con-
victions based on pleas of guilty to an information in two
counts charging robbery first degree by means of a danger-
ous and deadly weapon, § 560.120, RSMo 1969 and § 560,135,
RSMo Supp. 1975 (now § 569,020.1(2) RSMo 1978), and
armed criminal action, § 559.225, RSMo Supp. 1976 (now
§ 571,015, RSMo 1978). Appellant contends that convio-
| PREVIOUS PAGE WAS BLANK
A-50
tions for both crimes based on one incident violates his
constitutional right against being twice placed in jeopardy.
Jurisdiction is in this Court because the case involves the
constitutionality of a statute of this state. Mo. Const. art.
V, § 3.
On May 14, 1977, appellant accompanied Charles Mahan
into a fast-food store named Mr. Quick, where Mahan,
armed with a pistol, took $949.06 from the store’s clerk,
Kendall Carnes. Mahan was charged with armed robbery
and pleaded guilty, receiving a sentence of five years in
the Department of Corrections. In an information filed
June 20, 1977, appellant was charged with both armed rob-
bery and armed criminal action. On October 5, 1977, appel-
lant pleaded guilty to both counts. On January 5, 1978,
appellant was sentenced to five years imprisonment on the
robbery conviction and three years imprisonment on the
armed criminal action conviction, the sentences to run con-
secutively.
On September 21, 1978, appellant filed a motion to
vacate the convictions and sentences, alleging that his at-
torney rendered ineffective assistance; that the plea was
coerced by the threat of the use of allegedly false testimony
to be given by Charles Mahan; and that the conviction
for both first degree armed robbery and armed criminal
action placed him in double jeopardy. On April 3, 1979,
appellant by appointed counsel filed an amended motion
alleging that the conviction for both offenses violated ap-
pellant’s constitutional right to be free from double jeop-
ardy; that the consecutive sentences should be vacated
because it is not mandatory for a sentence under the armed
criminal action statute to run consecutively with the sen-
tence for the underlying felony; that the trial court did not
properly advise the appellant as to the range of punishment
for the crimes with which he was charged; that the trial
court failed to obtain an adequate factual basis before ac-
A-51
cepting appellant’s guilty pleas; and, that the sequence
in which the appellant was to serve the two sentences should
be reversed so as to permit him his statutory opportunity
to be released on parole.
In a hearing held April 16, 1979, appellant and his
attorney withdrew all of the allegations contained in the
amended motion except the claim based on double jeopardy
and that based on the court’s alleged erroneous assumption
that the armed criminal action statute required consecutive
sentencing. In this hearing, appellant and respondent stipu-
lated that both of the charges filed against appellant arose
from the same occurrence, and that there was only one
robbery involved.
On April 19, 1979, the court sustained the part of the
motion that was based on the court’s erroneous assump-
tion that it could not make the armed criminal action
sentence run concurrently with the robbery sentence. As a
correction of the sentence entered January 5, 1978, the
court resentenced appellant to five years on the robbery
charge and three years on the armed criminal action charge,
the sentences to run concurrently. Also on April 19, 1979,
the court denied the part of the motion that was based on
the claim of double jeopardy. On June 5, 1979, appellant
filed with the circuit court his notice of appeal to this Court.
We are not here presented with a case involving multi-
ple prosecutions for the same offense. The only question
preséhted in this appeal is whether it constitutes double
jeopardy to charge and convict a defendant in a single
prosecution with both first degree robbery by means of a
dangerous and deadly weapon and armed criminal action
arising out of the same incident, We find that armed crimi-
nal action and the underlying felony, in this case robbery
first degree, are the ‘‘same offense’’ for double jeopardy
purposes, We reverse appellant’s conviction for armed
A-52
criminal action and affirm appellant’s conviction for rob-
bery. To the extent that our decisions in State v. Valentine,
584 S.W.2d 92 (Mo. bane 1979) and State v. Treadway, 558
S.W.2d 646 (Mo. bane 1977), cert. denied, 439 U.S. 838
(1978) are inconsistent with this opinion, we disapprove
those cases,
Analysis begins with the double jeopardy provision
in the Missouri Constitution. Mo. Const. art. I, § 19 pro-
hibits the state from placing a person ‘‘again in jeopardy
of life or liberty for the same offense, after being once
acquitted by a jury.’’ This language has been interpreted
to apply ‘‘only where there has been an acquittal of the
defendant by a jury.’’ Murray v. State, 475 S.W.2d 67,
70 (Mo. 1972); Kansas City v. Henderson, 468 S.W.2d
48, 52 (Mo. 1971), cert. denied, 404 U.S. 1004 (1971). Since
the convictions from which appellant seeks relief were
obtained in a single prosecution, Mo. Const. art. I, § 19
does not apply in this case.
While the double jeopardy provision in the Missouri
Constitution does not resolve the issue presented, Benton
v. Maryland, 395 U.S. 784, 793-96 (1969) has held that
the double jeopardy clause of the fifth amendment to the
United States Constitution does apply to the states through
the fourteenth amendment, because it is ‘‘fundamental to
the American scheme of justice.’’ The fifth amendment
provides: ‘‘{N]or shall any person be subject for the same
offense to be twice put in jeopardy of life or limb.’’ This
privision prohibits not only multiple prosecutions but also
multiple punishments for the same offense, North Carolina
v. Pearce, 395 U.S. 711 (1969), decided the same day as
Benton, stated that the guarantee against double jeopardy
has been said to consist of three separate constitutional
protections. It protects age'ast a second prosecution
for the same offense after acquittal. It protects against
A-53
a second prosecution for the same offense after con-
viction, And it protects against multiple punishments
for the same offense.
Id. at 717; Brown v. Ohio, 432 U.S. 161, 165 (1977) ; State
v. Parsons, 513 8.W.2d 430, 438 (Mo. 1974). The Court
in Pearce quoted at length from ‘‘the landmark case’ of
Ex parte Lange, 85 U.S. (18 Wall.) 163 ( 1874) as providing
‘‘the controlling constitutional principle.’’ 395 U.S. at 717.
The protection against multiple punishments was estab-
lished in Lange in the following language :
For of what avail is the constitutional protection
against more than one trial if there can be any number
of sentences pronounced on the same verdict? Why is
it that, having once been tried and found guilty, he
can never be tried again for that offence? Manifestly
it is not the danger or jeopardy of being a second time
found guilty. It is the punishment that would legally
follow the second conviction which is the real danger
guarded against by the Constitution. But if, after judg-
ment has been rendered on the conviction, and the
sentence of that judgment executed on the criminal, he
can be again sentenced on that conviction to another
and different punishment, or to endure the same punish-
ment a second time, is the constitutional restriction
of any value? Is not its intent and its spirit in such
a case as much violated as if a new trial had been had,
and on a second conviction, a second punishment in-
flicted ?
The argument seems to us irresistible, and we
do not doubt that the Constitution was designed as
much to prevent the criminal from being twice punished
for the same offence as from being twice tried for it.
85 U.S, (18 Wall.) at 173. The principle that the double
jeopardy clause prohibits double punishments for the same
A-54
offense has been reaffirmed in subsequent decisions of the
United States Supreme Court in Simpson v. United States,
435 U.S. 6, 11 n. 5 (1978); Brown v. Ohio, 432 U.S. 161,
165 (1977); Jeffers v. United States, 432 U.S. 137 (1977)
(plurality opinion, at 155; opinion of Stevens, J., concur-
ring in part and dissenting in part, at 159 n. 5); and Ian-
nelli v. United States, 420 U.S. 770, 786 n. 18 (1975).
One more than one occasion, this Court has held that
‘‘where in law and in fact there is only one crime,’’ the
protection of the double jeopardy clause against multiple
punishments for the same offense forbids convicting and
punishing a defendant for two offenses in one proceeding.
State v. Parsons, 513 S.W.2d 430 (Mo. 1974). Accord,
State v. Neal, 514 S.W.2d 544 (Mo. bane 1974). Cf. State
v. Richardson, 460 S.W.2d 537 (Mo. banc 1970).
In State v. Parsons, 513 S.W.2d 430 (Mo. 1974), the
defendant was convicted in one proceeding of first degree
murder of his wife by bombing (Count I), and of putting
a person in danger of bodily injury or death by wilfully
and maliciously exploding a bomb (Count II), a violation
of § 564.560, RSMo 1969. The defenda &t was sentenced to
life imprisonment for the murder and to 99 years’ im-
prisonment for the bombing. The Court reversed on double
jeopardy grounds the defendant’s conviction of the sepa-
rate charge of bombing. The Court stated:
The bombing described in each count was the identical,
self-same bombing. The person charged in Count I to
have been killed by the bombing is the identical, self-
same person whose life was charged to have been
endangered by bombing, in Count II. The bombing
which endangered the victim’s life was one and the
same, inseparable and indivisible with the bombing
which took her life. The victim’s death was instan-
taneous and simultaneous with the explesion of the
A-55
bomb. The bomb was the death weapon, The necessary
act toward the commission of the murder was the
bombing. Likewise, the necessary act toward the com-
mission of the bombing was the identical act necessary
to constitute the crime of murder, The bombing was
an incident included in the crime of murder as charged,
but the state has obtained a conviction not only of
the crime of murder by bombing but also a conviction
for the incident of bombing. Absent a waiver .. . a
person cannot be ‘‘tried and convicted for a crime
which has various incidents included ‘in it,’’ and at
the same time be tried for one of those incidents, ‘‘ with-
out being twice put in jeopardy for the same offence.”
In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33
L.Ed. 118 (1889). There was but one crime. The state
cannot split a single crime and prosecute it in separate
parts. State v. Toombs, 326 Mo. 981, 34 S.W.2d 61,
64 (1930); State v. Whitley, 382 S8,W.2d 665 (Mo.
1964); State v. Richardson, 460 S.W.2d 537, 539 [1]
(Mo. bane 1970). If there is but a single act of force
proved as an incidental means of committing a murder
that act of force may not also be charged as a separate
crime. In that situation only one punishment may be
had.
513 S.W.2d at 437-38, (Emphasis added.) In State v. Neal,
014 S.W.2d 544 (Mo. bane 1974), the defendant was charged
in one proceeding of robbery first degree by means of a
dangerous and deadly weapon of Johnnie Walton (Count I)
and with assault with intent to kill with malice aforethought
of William Cordes (Count IT) and of Johnnie Walton (Count
III). The defendant was convicted and sentenced under
all three counts. The Court reversed the conviction and
sentence under Count III, stating:
First, the robbery in this case of Cordes Hard-
ware by taking money from the custody of Johnnie
A-56
Walton, Count I, was the result of the assault committed
upon Johnnie Walton and it was the identical assault
also charged in Count III. To thus split the single
erime of robbery and prosecute it in Count I 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). Accordingly, Count III
was improperly submitted; and the judgment, insofar
as it convicts defendant and sentences him to five years’
imprisonment for the offense there charged, must, there-
fore, be reversed.
514 §.W.2d at 548. Thus, it is well-established in Missouri
that if two statutory crimes constitute the ‘‘same offense,’’
the protection against multiple punishment embodied in
the double jeopardy clause prohibits convicting a defendant
of both crimes in a single proceeding.’
Because the double jeopardy clause prohibits multiple
punishments for the same offense, the criterion for dis-
tinguishing one offense from another for double jeopardy
purposes is crucial to resolution of this case. Conviction
and punishment for two distinct offenses arising out of the
In State v. Richardson, 460 S.W.2d 5387 (Mo. banc 1970), the
defendant pleaded guilty in one proceeding to attempted robbery by
means of a deadly weapon, and was found guilty by a jury in a sub-
sequent proceeding of assault with intent to maim without malice. Both
prosecutions were based on a single incident. The sentence for the at-
tempted robbery was ten years; the sentence for the assault was three
years. In reversing the second conviction, the Court relied on the rule
that “‘[i]f there is but a single act of force proved as an essential ele-
ment of the crime of robbery, then such act of force cannot be availed
of as constituting the separate crime of assault.’” The Court cited Wilk-
erson v. State, 41 Ala.App. 265, 130 S.2d 348, 349 (1961); State v.
Miller, 129 C.A.2d 305, 276 P.2d 846, 848 (1954); People v. Logan,
41 Cal.2d 279, 290, 260 P.2d 20 (1953); State v. Wines, 47 N.J.
Super. 235, 135 A.2d 548, 544 (1957). In each of these cases, the
defendant was charged with multiple offenses in a single proceeding,
and it was held that only one conviction and punishment could be had.
A-57
same transaction does not offend the federal double jeop-
ardy provision. Gore v. United States, 357 U.S. 386 (1958);
Blockburger v. United States, 284 U.S. 299 (1932). Cf.,
State v. Moton, 476 S.W.2d 785, 790 (Mo. 1972); State v.
Whitley, 382 S.W.2d 665, 668 (Mo. 1964).
The test for determining whether two offenses are
‘‘the same’’ for double jeopardy purposes was stated in
Blockburger v. United States, 284 U.S. 299, 304 (1932):
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. Gavieres v. United States, 220 U.S.
338, 342, and authorities cited.
The Blockburger test has been reaffirmed on numerous
occasions, most recently in Simpson v. United States, 435
U.S. 6, 11 (1978) ; Brown v. Ohio, 432 U.S. 161, 166 (1977) ;
Jeffers v. United States, 432 U.S. 137 (1977) (plurality
opinion, at 150; opinion of White, J., concurring in part
and dissenting in part, at 158); Iannelli v. United States,
420 U.S. 770, 785 n. 17 (1975); Gore v. United States, 357
U.S. 386, 388 (1958). The word ‘‘each’’ is essential to a
proper application of the Blockburger criterion. If statute
A requires proof of a fact not required by statute B, but
statute B does not require proof of any fact not required
by statute A, then the offense defined by statute B is a
lesser included offense of that defined by statute A. The
greater offense is the ‘‘same offense’’ as the lesser in-
cluded offense for double jeopardy purposes. Brown v.
Ohio, 432 U.S. 161, 167 (1977); Jeffers v. United States,
432 U.S. 137, 146, 150, 158 (1977); Harris v. Oklahoma,
433 U.S. 682, 682 (1977). See also United States v. Stavros,
097 F.2d 108, 112 (7th Cir. 1979). The double jeopardy
A-58
clause prohibits successive prosecutions for both the lesser
included offense and the greater offense, and it prohibits
the imposition of a separate sentence for both the lesser
included offense and the greater offense.
Comparison of the two statutes under which the defend-
ant in the instant case was convicted is necessary for appli-
cation of the Blockburger test. In this case, the defendant
was convicted of robbery first degree, and armed robbery,
§ 560.120, RSMo 1969 and § 560.135, RSMo Supp. 1975, and
of armed criminal action, § 559.225, RSMo Supp. 1976.
Section 560.120, RSMo 1969 provided:
Every person who shall be convicted of feloni-
ously taking the property of another from his person,
or in his presence, and against his will, by violence
to his person, or by putting him in fear of some im-
mediate injury to his person; or who shall be convicted
of feloniously taking the property of another from
the person of his wife, servant, clerk or agent, in charge
thereof, and against the will of such wife, servant,
clerk or agent, by violence to the person of such wife,
servant, clerk or agent, or by putting him or or her in
fear of some immediate injury to his or her person,
shall be adjudged guilty of robbery in the first degree.
Sectic > gg@O.135, RSMo Supp. 1975 provided:
Every person convicted of robbery in the first de-
gree by means of a dangerous and deadly weapon and
every person convicted of robbery in the first degree
by any other means shall be punished by imprisonment
by the division of corrections for not less than five
years; every person convicted of robbery in the second
degree shall be punished by imprisonment by the
division of corrections not exceeding five or less than
three years; every person convicted of robbery in the
A-59
third degree shall be punished by imprisonment by
the division of corrections not exceeding five years.
Section 559.225.1, RSMo Supp. 1976 provided:
Except as provided in subsection 4 of this section
any person who commits any felony under the laws
of this state by, with, or through che use, assistance,
or aid of a dangerous or deadly weapon is also guilty
of the crime of armed criminal action and, upon con-
viction, shall be punished by imprisonment by the di-
vision of corrections for a term of not less than three
years. The punishment imposed pursuant to this sub-
section shall be in addition to any punishment provided
by law for the crime committed by, with, or through
the use, assistance, or aid of a dangerous or deadly
weapon. No person convicted under this subsection shall
be eligible for parole, probation, conditional release
or suspended imposition or execution of sentence for
a period of three calendar years.
As will be seen, the reference to “fany felony’? in § 559.225.1,
RSMo Supp. 1976 mandates the conclusion that the offense
of armed criminal action includes the underlying felony.
Since the double jcopardy clause prohibits the imposition
of punishments both for the lesser included offense and
for the greater offense, the appeilant’s conviction for armed
criminal action must be reversed.
~The United States Supreme Court has never decided
whether robbery and the offense of committing a felony
by means of a dangerous and deadly weapon censtitute
the ‘‘same offense’’ for double jeopardy purposes. The
Court expressly declined to rule on this issue in the recent
case of Simpson v. United States, 435 U.S. 6 (1978). In
Simpson, the defendants were convicted in two separate
jury trials of two bank robberies committed in Middles-
boro, Kentucky, one on September 8, 1975, and the second
A-60
on November 4, 1975. For each of the two bank robberies,
the defendants were convicted of violating 18 U.S.C.
§ 2113(d) and 18 U.S.C. § 924(¢c) (1970). Section 2113(d)
provides for penalties for assaulting or jeopardizing the
life of any person ‘‘by the use of a dangerous weapon or
device’’ in taking or attempting to take property belonging
to a bank or similar institution from another person by
force and violence or by intimidation. Section 924(¢) pro-
vides that whoever uses a firearm to commit any felony
or carries a firearm unlawfully during the commission of
any felony ‘‘shall, in addition to the punishment provided
for the commission of such felony, be sentenced to a term
of imprisonment for not less than one year nor more than
ten years.’’ The District Court rejected the defendants’
argument that sentencing under both sections constituted
multiple punishment forbidden by the double jeopardy
clause, and the Sixth Cireuit Court of Appeals affirmed.
The Supreme Court expressly declined to decide whether
the two offenses were the same under the Blockburger
test, and found it unnecessary to decide whether sentenc-
ing under both provisions was violative of the double
jeopardy clause protection against multiple punishment
for the same offense. 435 U.S. at 11-12. Instead, the Court
analyzed the legislative history of § 924(c) and deter-
mined that ‘‘the section was intended to be unavailable
to prosecutions of § 2113(d).’’ Jd. at 15.
The Court held that ‘‘in a prosecution growing out
of a single transaction of bank robbery with firearms, a
defendant may not be sentenced under both § 2113(d)
and § 924(c).’’ Id. at 16. The Court deemed it unnecessary
to decide the constitutional question precisely because it
found that the legislature did not intend that a defendant
be charged under both sections.
Cases in which the Government is able to prove
violations of two separate criminal statutes with pre-
A-61
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 the issue. Before an examina-
tion is made to determine whether cumulative punish-
ments for the two 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. Jeffers v. United
States, 432 U.S. 137, 155 (1977).
Id, at 11-12. The obvious implication of this analysis is
that, had the legislature clearly intended that a person
be prosecuted under both sections 924(c) and 2113(d),
the question whether the two sections define the ‘‘same
offense’’ for double jeopardy purposes would have to be
addressed, See United States v. Makres, 598 F.2d 1072,
1078 (7th Cir, 1979); United States v. Dorsey, 591 F.2d
922, 940 (D.C. Cir, 1978); O’Clair v. United States, 470
F.2d 1199, 1203 (1st Cir, 1972); Wayne County Prosecutor
v. Recorder’s Court Judge, 406 Mich. 374, 280 N.W.2d
793, 805, 806-07 (1979) (Kavanagh, J., dissenting, and
Levin, J., dissenting); People v. Hughes, 85 Mich. App.
674, 272 N.W.2d 567, 572-74 (1978) (Walsh, J., dissenting).
The inference that the double jeopardy clause prevents
giving effect to the legislative intent to twice punish the
‘*same offense’’ is strengthened by consideration of Jeffers
v. United States, 432 U.S. 137 (1977).
In Jeffers, the defendant was charged with violations
of 21 U.S.C. § 848 (1970) conducting a continuing criminal
enterprise to violate the federal drug statutes, and was
charged along with nine codefendants with violations of
21 U.S.C. § 846 (1970) conspiracy to distribute heroin
A-62
and cocaine in violation of 21 U.S.C. § 841(c)(1)(1970).
The government sought to consolidate the two charges
for trial, but the defendants objected and the court denied
the motion to consolidate. Jeffers and six codefendants
were found guilty of the conspiracy charge. Jeffers then
moved to dismiss the continuing criminal enterprise charge
on double jeopardy grounds since all of the elements of
the conspiracy offense were included in the continuing
criminal enterprise offense. The Seventh Circuit Court
of Appeals agreed that the offense defined by § 846 was
a lesser included offense of that defined by § 848, but held
that in cases of complex statutory crimes greater and lesser
offenses could be separately punished if Congress so in-
tended, relying on an interpretation of Iannelli v. United
States, 420 U.S. 770 (1970). 532 F.2d 1101 (7th Cir. 1976).
The Supreme Court rejected the Seventh Circuit’s inter-
pretation of Jannelli that a second trial on the ‘‘same
offense’’ was permissible under the double jeopardy clause
if Congress intended separate punishment. The plurality
opinion written by Justice Blackmun, joined by Justices
Burger, Powell, and Rehnquist, determined that even as-
suming, without deciding, that § 846 defines an offense
that is included in the offense defined in § 848, Congress
did not intend to allow cumulative punishment for viola-
tions of §§ 846 and 848, The Court held that Jeffers could
be prosecuted separately for the lesser included offense
because he had opposed consolidation and asked for sepa-
rate trials, but Jeffers’ actions did not permit him to be
punished twice. Accordingly, the fine imposed on the peti-
tioner was vacated to the extent that it exceeded the statu-
tory maximum prmitted under § 848.? The plurality opinion
stated:
*Justice White did not think that the § 846 offense was a lesser
included offense of the § 848 offense, and thus concurred in the plurality
opinion’s affirmance of petitioner’s conviction, but dissented from the
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The critical inquiry is whether Congress intended
to punish each statutory violation separately. . . . In
Tannelli v. United States [420 U.S. 770 (1975)], the
Court concluded that Congress did intend to punish
violations of 4 1955 separately from § 371 conspiracy
violations, Since the two offenses were different, there
was no need to go further, See 420 U.S., at 785-786,
nn, 17-18, See also Gore v, United States, 357 U.S.
386 (1958). If some possibility exists that the two statu-
tory offenses are the ‘‘same offense’’ for double jeop-
ardy purposes, however, it is necessary to examine
the problem closely, in order to avoid constitutional
multiple-punishment difficulties.
432 U.S, at 155, (Emphasis added.) Here again, the obvious
implication is that where the legislature does intend to
punish two statutory offenses separately, but the offenses
are the ‘‘same offense’’ under the Blockburger criterion,
it is necessary to ‘‘go further’? to avoid violation of the
double jeopardy clause protection against multiple punish-
ment.
The General Assembly clearly intended that both
§ 959.225.1, RSMo Supp. 1976 (now § 571.015, RSMo 1978)
and the statute defining the underlying felony be applied
Footnote continued
plurality’s action in vacating part of petitioner's fine. Justice Stevens
was joined by Justices Brennan, Stewart, and Marshall, in an opinion
that concurred in the judgment to the extent that it vacated the cumu-
lative fines, but dissented from the affirmance of the conviction. Justice
Stevens stated that “[iJt is quite clear . . . that petitioner has been
denied his constitutional rights,” and argued that one fact that “clinch[ed]
the double jeopardy claim” was that “petitioner was not only twice
tried, but also twice punished for the same offense.” Id. at 159 n. 5.
Justice Stevens and the three concurring justices would have reversed
the subsequent conviction for the greater offense of continuing criminal
enterprise, Thus, eight justices voted to vacate petitioner’s sentence at
last to the extent it exceeded the maximum punishment for the greater
offense.
A-64
to a defendant in a prosecution arising out of a single
transaction, The statute expressly provides that ‘‘any per-
son who commits any felony under the laws of this state
by, with, or through the use, assistance, or aid of a danger-
ous or deadly weapon is also guilty of the crime of armed
criminal action... and shall be punished . . . . in addition
to any punishment provided by law for the [underlying]
erime.’’ (Emphasis added.) Thus, section 560.225.1, RSMo
Supp. 1976 provides for more than merely an enhanced
sentence, In this respect, the armed criminal action statute
is different from, and raises double jeopardy problems not
raised by, punishment enhancement provisions such as
those contained in § 558.016, RSMo 1978 for persistent
or dangerous offenders. The armed criminal action statute
calls for conviction of a second crime and for the imposition
of a second sentence. Consequently, the question whether
the two crimes are the ‘‘same offense’’ for double jeop-
ardy purposes cannot be avoided.
In two recent cases, this Court addressed the question
whether convicting and punishing a person of both robbery
first degree and armed criminal action constitutes double
jeopardy. State v. Valentine, 584 S.W.2d 92 (Mo. banc
1979) ; and State v. Treadway, 558 S.W.2d 646 (Mo, bane
1977), cert. denied, 439 U.S. 838 (1978). In State v. Tread-
way, 558 S.W.2d 646 (Mo. bane 1977), the defendant was
convicted in one count of robbery first degree and in a
second count of armed criminal action. The defendant
moved to dismiss the armed criminal action count of the
information on the ground that prosecution for both rob-
bery first degree and armed criminal action subjected
him to multiple punishments for the same offense. The
motion was denied and the defendant appealed his con-
victions. The Court observed that Missouri follows the
“separate or several offense rule’’ and not the ‘‘same
A-65
transaction rule,’’ in determining whether a defendant
charged with two crimes has been placed in double jeop-
ardy. Id. at 651. If ‘‘each offense snecessitates proof of
an essential fact or element not required by the other’’
there is no identity of offense, Id.; State v. Chambers,
524 S.W.2d 826, 829 (Mo. bane 1975), cert. denied, 423
U.S. 1058 (1976); State v, Carter, 535 S.W.2d 537, 538
(Mo. App. 1976). Cf. Blockburger v. United States, 284
U.S. 299, 304 (1932). The Court held that first degree
robbery and armed criminal action are not the same offense
under this test. Robbery first degree does not require
proof of the use of a dangerous and deadly weapon; any
means of the production of fear will sustain a robbery
conviction, Armed criminal action does require proof of
the use of a dangerous and deadly weapon. From these
considerations, the Court concluded that ‘*[sjince the two
offenses are not the same in law, appellant’s double jeop-
ardy protection has not been abrogated.’’ Td. at 652.° Tt
is not clear that the analysis in Treadway applied both
halves of the Blockburger test. The Court considered only
whether armed criminal action included elements not in
‘Appellant seeks to distinguish Treadway on the ground that the
defendant in Treadway was charged with robbery first degree and
armed criminal action whereas Count I of the information in this case
charged appellant with armed robbery, § 560.135, RSMo Supp. 1975
and robbery first degree by means of a dangerous and deadly weapon,
§ 560.120, RSMo 1969, This effort to distinguish Treadway cannot
succeed, The allegation that the fear required under § 560,120, RSMo
1969 was produced by a dangerous and deadly weapon is not an element
of robbery first degree and is mere surplusage, Keeny v. State, 46]
S.W.2d 731, 782 (Mo. 1971); State v. Pope, 364 S.W.2d 564, 568 (Mo.
1963); State v. Vigus, 66 S.W2d 854, 857 (Mo 1938); State v. Shuls,
329 Mo. 245, 44 S.W.2d 94, 96 (1931). Accord, State v. Braddock,
558 S.W.2d 776, 779 (Mo.App. 1977); State v. Long, 589 S.W.2d
592, 594 (Mo.App. 1976); State v. Nelson, 532 S.W.2d 855, 856 (Mo.
App. 1975). Consequently, if Treadway’s holding that robbery first
degree is not included in armed criminal action is valid, appellant's
motion for postconviction relief cannot be sustained,
A-66
robbery, and did not consider whether robbery contained
any elements not contained in armed criminal action.*
Although Treadway did not apply.the second half of
the Blockburger criterion for sameness of offense, cases
from other jurisdictions have found that armed robbery
and the use of a firearm in the commission of that felony
are distinct offenses under the Blockburger test because
robbery contains elements not necessarily included in the
felony-firearm offense. State v. Saxon, 193 Neb. 283, 226
N.W.2d 765 (1975), habeas corpus relief denied, Kowalksi
v. Parratt, 533 F.2d 1071 (8th Cir. 1976), cert. denied, 429
U.S, 844 (1976); Wayne County Prosecutor v. Recorder’s
Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979); Jones
v. Commonwealth, 218 Va, 18, 235 S.1.2d 313 (1977).
See also, United States v. Hearst, 412 F.Supp. 877 (N.D.
Cal. 1976).°
‘Treadway did quote language found in Kowalski v. Parratt, 533
F.2d 1071 (8th Cir, 1976) that the “gist” of each offense was different
from that of the other, Kowalski found that robbery and robbery with
firearm were not the “same offense” because the Nebraska weapons
offense could be shown by proof of “any felony” (and thus, robbery
has elements not necessarily in felony-firearm). Valentine does not ex-
pand on the analysis used in Treadway. Valentine neither cites Block-
burger nor attempts to state what elements of robbery are not in armed
criminal action, Valentine merely cites Treadway for the claim that “each
crime contained elements not found in the other.” 584 S.W.2d at 96.
Neither opinion analyzed the impact of Harris v. Oklahoma, 433 U.S.
682 (1977) on the proper application of the Blockburger criterion to
the type of “felony-plus” statute involved here.
5Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich.
374, 280 N.W.2d 793 (1979) reversed the dispositions given two cases
by separate panels of the Michigan Court of Appeals. In one case, the
defendant was convicted in a single trial of second degree murder and
of a violation of Michigan's felony-firearm statute, Mich. Comp. Laws
Ann. § 750.227b (Supp. 1979); in the other, the defendant was con-
victed in a single trial of armed robbery and felony-firearm. The court
of appeals vacated the defendants’ respective convictions for felony-
firearm. The Michigan Supreme Court reversed the court of appeals in
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In each of these cases there is no difficulty with the
claim that the felony-firearm statute includes an element
not in the underlying felony, i.e., the use or possession of
a dangerous weapon. The central problem is whether the
underlying felony has any elements which are not incorpo-
rated into the weapons offense, Wayne County, Jones,
Kowalski, and Hearst each single out the distinguishing
element of the particular felony involved, and stress that
the weapons offense need not include that element, but
may be committed by the use of a weapon in connection
with any felony. This manner of applying the Blockburger
test m
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