Petition — Missouri v. Counselman

—_—

No. 80-754

Supreme Court, U.S,

FILED

Noy & 1960

MICHAEL RODAK, JR., CLERI

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF MISSOURI,

Petitioner,

v

WILLIAM D, COUNSELMAN, JR.,

Respondent,

STATE OF MISSOURI,

Petitioner

Vv. ;

BOBBY JOE MCGEE,

Respondent,

STATE OF MISSOURI,

Petitioner,

Vv.

MARLON PAYNE,

Respondent,

STATE OF MISSOURI,

Petitioner,

Vv.

MICHAEL WHITE,

Respondent,

STATE OF MISSOURI,

Petitioner,

Vv.

JOHNNY W

Respondent,

PETITION FOR WRITS OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

JOHN ASHCROFT

Attorney General

Pau Rosert Orro

Assistant Attorney General

Su Court Building

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner.

LN NL

KELLY PRESS, INC., 201 South Eighth Street, Columbia, Missouri Dial 449-4163

are Al

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 courts are bound by Brintley

v. Michigan, U.S. , 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 Missouri Supreme Court’s most recent

decision in Sours v. State, 593 S.W.2d 208 (Mo. banc 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, conflicts with this

Court’s decision in Brintley v. Michigan, U.S. ,

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 Court of Appeals, Eastern District, the

parties were as follows:

State of Missouri, respondent, and Wallace D. Counsel-

man, Jr., appellant, in cause No. 41,088;

State of Missouri, respondent v. Bobby Joe McGee, ap-

pellant, in cause No. 40,082;

State of Missouri, respondent, v. Marlon Payne, appel-

lant, in cause No. 40,983;

State of Missouri, respondent, v. Johnny Williams, ap-

pellant, in cause No. 41,095;

State of Missouri, respondent, v. Michael L. White,

appellant, in cause No. 41,276.

Ifl

TABLE OF CONTENTS

PAGE

SE er Per rer rer ery ere ee I

PERS cave eeh sr eeacbc es Kes ras edecrebekv Rees eRehed Il

TI 5s ono ce yc Debian e Na cesb0ekaweneeee was 2

POT PEST e rete er ers tre re Tey ree 2

Constitutional Provisions, Statutes and Rules Involved .. .4

nnnen OE MSO. os costed vebeserdusetaseevercers 4

Reasons for Granting the Writ ............eccesceeeees 6

Petitioner submits that writs of certiorari should

issue in each of the cases contained in this joint

petition because they are all based entirely on the

authority of the Missouri Supreme Court’s holding

in Sours v. State, 593 S.W.2d 208 (Mo. bane 1980),

rehearing en banc (August 18, 1980), which con-

flicts with recent decisions of this court ............ 6

| RDM ER ae bg eNO Sere ON 4e tee NL OPES, Sree 15

Appendices

A. State of Missouri, respondent, and Wallace

D. Counselman, Jr., appellant, in cause No.

ey POP OEE ee Oe meee A ere renee A-1

State of Missouri, respondent, v. Bobby Joe

McGee, appellant, in cause No. 40,082 ........ A-4

State of Missouri, respondent, v. Marlon Payne,

appellant, in cause No. 40,983 ............... A-12

State of Missouri, respondent, v. Johnny Wil-

liams, appellant, in cause No. 41,095 ........ A-15

State of Missouri, respondent, v. Michael L.

White, appellant, in cause No, 41,276 ......... A-22

B. Pertinent Missouri statutes ................ A-25

©. Pertinent Michigan NR es orc Pek a eee A-29

IV

TABLE OF AUTHORITIES

Cases: PAGES

Blockburger v. United States, 284 U.S. 299, 52 S.Ct.

eM US ee er ee errr e 12, 13

Briggs v. State, 573 S.W.2d 157 (Tenn. 1978) ........... 14

Brintley v. Michigan, U.S. —_, 100 S.Ct. 418,

Oe SE BEE CUED Vivek cok outer Spetawetewee res I

Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53

RAE PEE CUNO Ecos op eveus oc be evese bank ceans A-7

Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281,

oem LE. St) eee PEED OED 10

Hunter v. Delaware, No. 215 (March 15, 1980) ......... 14

Illinois v. Vitale, 27 Crim.L.Rep. 3190 ................. 12

Jones v. Commonwealth of Virginia, 235 S.E.2d 313

tc eM GL A hag Crone bari ee, ae re ae rer eee 13

Kowalski v. Parratt, 533 F.2d 1071 (8th Cir. 1976),

cert. dented, 429 U.S. 844 (1976) .........ececeees 13

Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238,

eS oc os vac ektedkwiwenkeene 10

North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755,

| er err re eee 11

Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215,

Poe UB ee eo oe ree are 10

Sours v. State, 593 S.W.2d 208 (Mo. bane

UR ery rey rer ae I, 5, 6, A-13, A-21

Sours v. State, No. 61458 (Mo. bane August 18,

REG kink eis cacnk eves ona cieeeens 6, A-3, A-6, A-24

Staie v. Frye, 283 Md. 709, 393 A.2d 1372

SE ats. sdckke be dee eres Sh R Al ce oslee bexKaes 14

State v. Pinder, 375 So.2d 836 (Fla. 1979) .............. 14

State v. Saxon, 193 Neb. 278, 226 N.W.2d 765 (1975) ..... 13

V

State v. Treadway, 558 S.W.2d 646 (Mo. bane 1977) ....A-6

State v. Valentine, 584 S.W.2d 92 (Mo. bane 1979) ...... A-2

Tyson v. State, 386 N.E.2d 1185 (Ind. 1979) ........... 14

United States v. Hearst, 412 F.Supp. 877

Sl SE: SEED 5 oA ockns dnacaveun ced as heenaeen 13

Wayne County Prosecutor v. Recorder’s Court Judge,

406 Mich. 374, 280 N.W.2d 793 (1979) ............. 13

Whack v. State, 416 A.2d 265 (Md. 1980) ............... 14

Whalen v. United States, U.S. __, 100 S.Ct.

2488, G6 1. ASA TIS (1900). ..... 60s 0s ecccvccens II, 6

Constitutional Provisions:

United States Constitution, Fifth Amendment . .I, 4, 11, A-6

Statutes:

Section 559.180, Revised Statutes of Missouri

Ds a chicas s dod ed oak ea ee 4, A-22, A-23, A-25

Section 559.190, Revised Statutes of Missouri

Ss cu hiens «06 banana oukn ees 4,5, A-4, A-6, A-25

Section 560.120, Revised Statutes of Missouri

SUE « celta is iw an dweeke kan ckee eine ee I, 5, A-25

Section 560.135, Revised Statutes of Missouri

a 8 er ane me ee

Section 559.225, Revised Statutes of Missouri

Supplement (1976) ...I, 4,5, A-4, A-6, A-22, A-23, A-26

Section 750.227(b), M.C.L.A. ....... ‘vnneta ween I, 4, 9, 10

EY SE MEMES Scr tvuciveunvdswanesnesaueees I

ee eee ee Ee rn pe 4

District of Columbia Code, § 23-112 ...............0000e 12

| No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF MISSOURI,

Petitioner,

Vv

WILLIAM D. COUNSELMAN, JR.,

Respondent,

*

‘STATE OF MISSOURI,

Petitioner,

v.

BOBBY JOE MCGEE,

Respondent,

*

STATE OF MISSOURI,

Petitioner,

v.

MARLON PAYNE,

Respondent,

+

STATE OF MISSOURI,

Petitioner,

Vv.

MICHAEL WHITE,

Respondent,

*

STATE OF MISSOURI,

Petitioner,

Vv.

JOHNNY WILLIAMS,

Respondent,

ON WRIT OF CERTIORARI TO THE

MISSOURI COURT OF APPEALS, EASTERN DISTRICT

PETITION FOR CERTIORARI

Petitioner, State of Missouri, respectfully requests that

writs of certiorari issue to review the judgments of the Mis-

souri Court of Appeals, Eastern District, in these cases.

OPINIONS BELOW

The opinions in the five cases for which the writ of

certiorari is being sought are printed in Appendix A. None

of them have yet been published. In alphabetical order the

cases are as follows:

State of Missouri v. Wallace D. Counselman, Jr., No.

41,088 in the Missouri Court of Appeals, Eastern District,

opinion filed January 8, 1980;

State of Missouri v. Bobby Joe McGee, No. 40,082 in

the Missouri Court of Appeals, Eastern District, opinion

filed April 1, 1980;

Siate of Missouri v. Marlon Payne, No. 40,983 in the

Missouri Court of Appeals, Eastern District, May 13, 1980;

State of Missouri v. Johnny Williams, No. 41,095 in the

Missouri Court of Appeals, Eastern District, filed March 4,

1980;

State of Missouri v. Michael L. White, No, 41,276 in

the Missouri Court of Appeals, Eastern District, filed

April 8, 1980.

JURISDICTIONAL STATEMENT

In State v. Wallace D. Counselman, Jr., No. 41,088, the

opinion in the Missouri Court of Appeals, Eastern District,

was filed January 8, 1980. On February 15, 1980, respond-

ent’s motion for rehearing was denied and the opinion was

withdrawn. On March 25, 1980, a new opinion was issued

in which the judgment was affirmed in part and reversed

in part. On May 19, 1980, the State of Missouri’s motion

for rehearing and application for transfer filed in the Mis-

souri Court of Appeals were denied. On September 9, 1980,

the State’s application for transfer filed in the Supreme

Court of Missouri was denied.

3

In State of Missouri v. Bobby Joe McGee, No. 40,082

the Missouri Court of Appeals, Eastern District, issued

its opinion April 1, 1980. The State of Missouri’s motion

for rehearing and application for transfer filed in that

court were denied on June 20, 1980. The state’s applica-

tion for transfer filed in the Supreme Court of Missouri

was denied September 9, 1980.

In State of Missouri v. Marlon Payne, No. 40,983, the

Missouri Court of Appeals, Eastern District, filed its opin-

ion May 13, 1980. The State of Missouri’s motion for rehear-

ing and application for transfer were denied September 15,

1980. The state’s application for transfer filed in the Su-

preme Court of Missouri was denied October 15, 1980.

In State of Missouri v. Michael White, No. 41,276, the

Court of Appeals issued its opinion April 8, 1980. The

State of Missouri’s motion for rehea: .g and application

for transfer filed in that court were denied May 19, 1980.

The State’s application for transfer filed in the Supreme

Court of Missouri was granted and the cause ordered trans-

fered to the Supreme Court June 10, 1980. The cause was

given Supreme Court No. 62243. The cause was submitted

to the Supreme Court for decision September 23, 1980,

after which the Supreme Court of Missouri transferred

the cause back to the Court of Appeals on October 1, 1980.

The Court of Appeals issued its mandate in conformance

with its previously issued opinion October 10, 1980.

In State of Missouri v. Johnny Williams, No. 41,095,

the Missouri Court of Appeals, Eastern District, issued

its opinion March 4, 1980. The State of Missouri’s motion

for rehearing and application for transfer were denied

on April 18, 1980. The State’s application for transfer

filed in the Supreme Court of Missouri was granted

June 10, 1980 and the cause was given No. 62,085 in the

Supreme Court. The Supreme Court ordered the canse

4

transferred back to the Missouri Court of Appeals on Sep-

tember 23, 1980. On September 29, 1980, the Court of Ap-

peals issued its mandate in accordance with its previously

issued opinion.

The persent petition is filed within sixty days after the

entry of final judgment in all of these cases, and this Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fifth Amendment, read»

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

shall any person be subject for the same offense to be

twice put in jeopardy of life 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.

Sections 559.180, 559.190 and 560.120, RSMo 1969, and

§ 559.225, RSMo Supp. 1976, are set forth in Appendix B.

Section 750.227(b) and 750.529, M.C.L.A. are set forth in

Appendix C.

STATEMENT OF THE CASE

This joint petition is brought as a result of the con-

tinuing controversy over the application of federal con-

stitutional double jeopardy principles to the prosecution

of criminal defendants in Missouri under the Armed Crimi-

nal Action Statute, § 559.225, RSMo Supp. 1976, and in the

5

same trial, for the felony underlying the armed criminal

action charge. In each of the five cases joined in this peti-

tion, the Court of Appeals has issued an opinion relying

on the authority Sours v. State, 593 S.W.2d 208 (Mo. bane

1980) ; vacated and remanded, 445 U.S. (1980) ; decided

upon rehearing S.W.2d __-. (Mo. bane August 18,

1980) ; petition for writ of certiorari pending in this court

under No. 80-571. This joint petition is being filed so that,

if the State of Missouri prevails in the case of Sours v.

State of Missouri, it will be able to obtain the vacation of

the reversals of the armed criminal action convictions in

the cases which are the subject of this joint petition.

The facts in each of the cases, for purposes of the

double jeopardy clause issue, are substantially the same

in that each of the respondents were prosecuted under the

armed criminal action statute, § 559.225, RSMo Supp. 1976,

and also prosecuted for the underlying felony. In the cases

of respondents Counselman, Payne and White, the under-

lying felony was robbery, first degree, § 560.120, RSMo

1969. In the case of respondent McGee, the underlying

felony was assault with intent to do great bodily harm

without malice, § 559.190, RSMo 1969. In the case of State

v. Johnny Williams, the underlying felony was assault with

intent to rape with malice aforethought under § 559.180,

RSMo 1969. He was also convicted under the same proceed-

ings of carrying a concealed weapon but that conviction

was not the underlying felony in the armed criminal action

charge and was not attacked as having violated his pro-

tection against double jeopardy.

The issues in this joint petition will be identical to

those in the petition in State of Missouri vy. William Scott

Sours, Ne. 80-571, presently pending in this court.

THE REASONS FOR GRANTING THE WRIT

Petitioner submits that writs of certiorari should issue

in each of the cases contained in this joint petition because

they are all based entirely on the authority of the Missouri

Supreme Court’s holding in Sours v. State, 593 S.W.2d 208

(Mo. bane 1980), rehearing en banc (August 18, 1980),

which 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, CS —

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 II), 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,

'The Missouri Supreme Court’s most recent hoiding in

the Sours case is identical to original holding made prior

to this Court’s granting of the State’s petition for a Writ

of certiorari.

7

if the legislature so intends, it nevertheless opined as

follows:

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 contitutional 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 I, slip opinion at 2.

In diseussing Whalen v. United States, supra, the Mis-

sour 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

8

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 take 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 cour: went on to 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 B), 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 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

9°

would abolish the traditional double jeopardy pro-

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), proseribing 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

10

element of firearms possession charge, and where (in

armed robber 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 U.S. 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 II 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 C, 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 disapproval 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, 48 L.Ed.2d 570 (1975), where

it was stated:

Id.,

441

11

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.

420 U.S. at 719. See also North Carolina v. Butler,

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

not only the specifie guarantee against double jeop-

12

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 state 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, 482 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 vy. United

States, 284 U.S. 299, 304 (1932), which in turn relied

13

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 juriclictions 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. Parratt, 533 F.2d 1071 (8th Cir, 1976), cert. denied,

429 U.S. 844 (1976); Wayne County Prosecutor vy, 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 vy.

Commonwealth of Virginia, 235 §.K.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

other jurisdictions which it felt supported its view that

14

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, 1875 (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 IL: ‘‘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-

mined and no further state grounds remain in the case.

15

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 writs and resolve the bewilderment

regarding double jeopardy not only in the State of Mis-

souri, but in every jurisdiction within this country.

CONCLUSION

For the foregoing reasons, the Petition for Writs of

Certiorari should be granted.

Respectfully submitted,

JoHn ASHCROFT

Attorney General

Pauut Rosert Orro

Assistant Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

A-1

APPENDIX A

IN THE

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION THREE

STATE OF MISSOURI,

Respondent,

v. No. 41,088

WALLACE D. COUNSELMAN, JR.,

Appellant.

Hon. Arthur Litz, Judge

OPINION FILED:

March 25, 1980

In this jury-waived case the trial court found defend-

ant Wallace Counselman guilty of first degree robbery and

armed criminal action and sentenced him to imprisonment

for concurrent eight and three year terms.

Defendant first challenges the evidentiary sufficiency

to show the statutory element of putting the victim in fear.’

We summarize the evidence. Defendant entered a res-

taurant, announced to the manager Wesley Bradley that

1Sections 569.010 and .020, L. 1977, which became effective after

this offense, omit the express element of “putting in fear”; now it suffices

to show that in overcoming the victim's resistance defendant was armed

with a deadly weapon.

A-2

his aim was robbery and pulled a loaded revolver from his

pocket. When Bradley saw the weapon he ‘‘decided to go

along’’. Defendant showed his gun to employees and on

his order Bradley got money from a safe and cash registers,

put it in a bank bag and ordered the employees into a walk-

in cooler. Defendant held his gun to Bradley’s head and

guided him out the door. Meanwhile, a departing customer

had told police a robbery was in progress; they were wait-

ing for the defendant at the door and ordered him to drop

his gun. Defendant threatened to shoot Bradley, but finally

yielded and threw down his gun.

Defendant testified the state’s testimony was correct

so far as he recalled, and gave a history of drug abuse ex-

tending to the time of the robbery.

Defendant cites portions of the victim’s testimony that

he was not scared and felt no harm would come to him. He

relies on State v. Tidwell, 500 S.W.2d 329 [6,7] (Mo.App.

1973), to support his contention there was no evidence show-

ing the necessary element of the victim’s fear. That case

held that although the victim said he was not personally

afraid when he gave his money to the defendant at gun-

point, ‘‘there could be no merit in the contention that the

victim was not motivated by fear’’. Defendant also cites

State v. Keeney, 425 S.W.2d 85 [1,2] (Mo. 1968), which

we find support the state, not defendant. The court there

held that the victim’s fear need not be expressly shown but

may be presumed from evidence showing reasonable grounds

therefor.

We deny defendant’s primary point and consider his

double jeopardy contention, arising from dual convictions

for robbery and armed criminal action. We originally denied

that contention in accord with State v. Valentine, 584 S.W.

2d 92 [6] (Mo. bane 1979), and on January 8, 1980 we

handed down our opinion affirming the judgment sentenc-

ing defendant to imprisonment for concurrent terms of eight

A-3

years for first degree robbery and three years for armed

criminal action. Then, on January 15, 1980 our supreme

court reversed Valentine and held in Sours v. State, No.

61458, where, as here, movant had been convicted of first

degree robbery and armed criminal action, and on the

ground of double jeopardy the supreme court reversed that

part of the Sours judgment convicting the movant of armed

criminal action. So it is here,

Defendant has now moved for a rehearing. We order

that denied but on our own motion we withdraw our original

opinion. We now affirm the judgment convicting defend-

ant of first degree robbery and sentencing him to eight

years imprisonment therefor, but we reverse that part of

the judgment convicting defendant of armed criminal action

and sentencing him to a concurrent term of three years

imprisonment for armed criminal action.

JAMES D. CLEMENS, Senior Judge

Robert G. Dowd, Presiding Judge, concurs; James R. Rein-

hard, Judge, concurs; Robert E. Crist, Judge, concurs.

A-4

IN THE

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION ONE

STATE OF MISSOURI,

Plaintiff-Respondent,

vs. > No. 40082

BOBBY JOE McGEE,

Defendant-A ppellant.

Appeal from the Circuit Court City of St. Louis

Hon. Michael F. Godfrey, Judge

OPINION FILED:

April 1, 1980

Appellant Bobby Joe McGee was convicted of assault

with intent to do great bodily harm without malice,

§ 559.190, RSMo 1969, and armed criminal action, § 559,225,

RSMo Supp. 1976. He was sentenced to terms of five and

three years’ imprisonment to be served consecutively.

On appeal he alleges the trial court erred because it:

(1) denied his motion for a judgment of acquittal for lack

of a submissible case; (2) subjected him to double jeopardy

in overruling his motion to dismiss the armed criminal

action charge; (3) refused to give to the jury alibi instruc-

tion MAI-CR 3.22 requested by him; and (4) allowed into

evidence testimony concerning blood stains and a knife

found in his automobile, neither having been shown to be

connected with the assault,

A-5

Reversed as to the armed criminal action conviction

because appellant was subjected to double jeopardy; re-

versed and remanded as to the assault conviction because

the trial court’s refusal to give the alibi instruction re-

quested by appellant was prejudicial error.

The victim was walking from a bar to her home in

south St. Louis when she was assaulted by a man who forced

her into her car by threatening her with a knife and cutting

her hands, He then drove off with her. When the car slowed

for an intersection the victim opened the door, started to

get out, but was held in the car by her assailant while the

car moved along with her feet dragging on the ground.

The driver finally stopped the automobile, the victim fell

to the ground and her assailant stood over her threatening

her with a knife if she did not get back in the car. He then

stabbed the victim in the chest and side as she fought against

being dragged back into the car.

Two men in another automobile had seen the victim

hanging out of the car, followed it until it stopped, then

drove up and stopped about thirty feet behind it. As the

two men started to approach the scene on foot, the assailant

re-entered his car and drove off, leaving his victim lying

on the ground. One of the witnesses obtained the license

number.

A license check revealed appellant’s father owned the

vehicle. Appellant had been driving it at the time of the

assault and was arrested for the crime. He was positively

identified by the victim as her assailant. Appellant’s de-

fense was alibi. He claimed to have been at the River’s

Kdge tavern in Fenton and there was evidence to support

his claim, The trial and conviction followed.

Appellant argues the trial court erred in denying his

motion for a judgment of acquittal because the state failed

to make a submissible case,

A-6

In determining whether a submissible criminal case

has been made, an appellate court considers as true the

evidence and reasonable inferences most favorable to the

state and disregards evidence and inferences to the contrary.

State v. Franco, 544 S.W.2d 533, 534[1-4] (Mo. bane 1976);

State v. Longmeyer, 566 S.W.2d 496, 499[1-8] (Mo.App.

1978).

The positive identification of appellant by the victim,

and the recording of the license number of appellant’s car

by a witness, constituted substantial evidence from which

the jury could have found appellant guilty. It is true that

conflicting descriptions of appellant and his automobile

were testified to by witnesses. But the weight to be given

this testimony was for the jury. State v. Brager, 497 S.W.

2d 181, 182[2] (Mo. 1973); State v. Tilley, 569 S.W.2d 346

[2,3] (Mo.App. 1978). There was sufficient evidence when

considered in the light most favorable to the state to make

a submissible case. State v. Franco, State v. Longmeyer,

supra.

Appellant next claims he was placed in double jeopardy

in violation of his common law and Fifth Amendment rights

because he was convicted of both assault with intent to

do great bodily harm without malice’ and armed criminal

action.” This point is well taken.

The conviction for armed criminal action required that

the appellant first be found guilty of the offense of assault

with intent to do great bodily harm without malice and,

second, be found to have committed the crime with a knife.

All of the elements of the underlying felony had to be

proved in order to find appellant guilty of the offense of

armed criminal action, Therefore, he was subjected to dou-

ble jeopardy for the same offense. Sours vy. State, No, 61458

1§ 559.190, RSMo 1969.

2§ 559.225, RSMo Supp. 1976.

A-7

(Mo. bane January 15, 1980). See also State v. Morgan,

No. 61504 (Mo. bane January 15, 1980). In Sours the su-

preme court found that armed criminal action and the un-

derlying felony, in that case robbery in the first degree,

were the same offense for double jeopardy purposes, spe-

cifically overruling, on this point, State v. Treadway, 558

S.W.2d 646 (Mo. bane 1977), cert. denied 439 U.S. 838

(1978), which is relied upon by the state in its brief.

The supreme court in Sours followed Harris v. Okla-

homa, 433 U.S. 682 (1977) reversing Harris v. State, 555

P.2d 76 (Okl. Cr. 1976). The court interpreted Harris as

requiring a finding that armed criminal action under the

statute and the underlying felony, even though it violated

a different statute, constitute only one offense and not two.

In Sours the state was required to prove all of the ele-

ments of robbery first degree in order to prove the defend-

ant guilty of armed criminal action. Similarly, in the case

under review, it was necessary to prove all of the elements

of intent to do great bodily harm in order to prove armed

criminal action. Therefore, the conviction for armed crimi-

nal action must be reversed.

Appellant next contends the trial court erred in refus-

ing to give to the jury alibi Instruction No. ‘‘A’’ requested

by him in the form set out as MAI-CR 3.22:

INSTRUCTION NO. ‘‘A”’

(In pertinent part. The first two paragraphs are the

same as those in MAI-CR 3.20 given by the court and quoted

below.)

‘*2. If the defendant was at the River’s Edge

Lounge, 4 Gravois Road, Fenton, Missouri, 63026, at

the time the alleged offense was committed or if you

do not find and believe from the evidence beyond a

A-8

reasonable doubt that the defendant was present at

the time and place the offense is alleged to have been

committed, then you must find the defendant not

guilty.”’

Instead, the court gave MAI-CR 3.20:

‘INSTRUCTION NO. 11

One of the issues in this case is whether the de-

fendant was present at the time and place the offenses

are alleged to have been committed. On that issue you

are instructed as follows:

1. The state has the burden of proving beyond a

reasonable doubt that the defendant was present at

the time and place the offenses are alleged to have

been committed.

9. If the evidence in this case leaves in your mind

a reasonable doubt regarding the defendant’s presence

at the time and place the offenses are alleged to have

been committed, then you must find the defendant not

guilty.’’

The trial court erred in refusing to give the alibi in-

struction requested by appellant, the error was prejudicial,

and the cause must be reversed and remanded for a new

trial on the assault charge.

MAI-CR 3.20 must be given, if requested in the manner

provided in Rule 28.02, formerly 20.02, unless MAI-CR 3.22

is requested by a defendant.’ By requesting MAI-CR 3.22

a defendant submits to the jury in a positive way that he

was at a specific place other than the scene of the crime

at the time the crime was committed. Notes on Use 2,

3Notes on Use 1, Instruction MAI-CR 3.20.

—

A-9

Instruction MAI-OR 3.22* A defendant accepts the risk of

the burden of proof of his alibi when he requests this af-

firmative type submission. This the appellant attempted

to do here.

The affirmative submission was supported by the evi-

dence, The victim’s testimony was that the attack occurred

sometime before 10:20 p.m. and ended at approximately

that time. The police report showed the attack occurring

at 10:30 p.m. Witness Bohnert’s testimony placed appellant

at the River’s Edge Lounge in Fenton at 10:45 p.m. and

the appellant said that he left River’s Edge at 10:50 p.m.

to drive to the Hee Haw Club in South St. Louis.

The purpose of having the two alibi instructions is

to allow a defendant to choose to submit the one designating

a specific place, and to take the risk of proving that he

was at the designated alibi place when the crime was com-

mitted, not at the scene of the crime. Appellant had the

right to request MAI-CR 3.22 under the evidence.

The choice of which instruction to give is committed

to the defense and not the trial court. It was appellant’s

prerogative to submit the case to the jury so as to focus

4Notes on Use, Instruction MAI-CR 3.22:

“Notes on Use

1. See Notes on Use under MAI-CR 3.20.

2. The difference between this instruction and MAI-CR 3.20

is the first part of paragraph 2. This instruction would be reversi-

ble error if given without a specific request for it from the defend-

ant, since the first half of paragraph 2 may be construed as placing

the burden of proving the defense on the defendant. State v. Taylor,

118 Mo. 153, 24 S.W. 449 (1893).

But a defendant may wish to ignore the burden of proof

implicit in an affirmative type of submission. He may wish to re-

quest this instruction so as to submit in a positive way that he was,

say, in Kansas City and not in St. Louis where the crime was com-

mitted—rather than having the jury be told in a negative manner

that it cannot convict unless it finds that he was in St. Louis. Com-

pare, for example, the alternative forms of converses in MAI-CIVIL.”

A-10

its attention on the testimony placing appellant at the Fen-

ton tavern at the time of the assault. The refusal of the

MAI-CR 3.22 instruction prevented the appellant from di-

recting the jury’s attention to the evidence he felt bolstered

his ease the most. Under the pattern instructions he is

permitted to take the risk of the burden of proof. The refusal

was therefore error.

To find the error harmless would render the Notes on

Use of the two instructions meaningless by permitting the

trial court, rather than the appellant, to decide which in-

struction to give, even though there is evidence to support

the giving of MAI-CR 3.22. No cases have been cited by

either party and none have been found which rule on this

specific point. It is difficult to conceive of a case, however,

in which MAI-CR 3.20, the general alibi instruction, would

not adequately instruct the jury even when there is sub-

stantial evidence of the defendant’s presence at a specific

place other than the scene of the crime. Therefore, to give

meaning to the two alibi instructions and the Notes on

Use as promulgated by the supreme court it is necessary

to find that the trial court’s refusal to give Instruction MAI-

CR 3.22 was prejudicially erroneous.

The state argues that the appellant could have been

en route from Fenton to the Hee Haw Club at the time of

the attack instead of at River’s Edge. If so, the state con-

eludes, the instruction placing appellant definitely at River’s

Edge at the time of the crime was erroneously given, The

evidence as to times was conflicting but the earliest time

of arrival at the Hee Haw Club in the testimony was

10:50 p.m. According to the victim the assault began at

approximately 10:10 p.m. and ended at approximately

10:20 p.m., although the police report, hearsay evidence,

place the time at 10:30 p.m. Appellant testified the time

required to drive from River’s Edge to the Hee Haw Club

was twenty to twenty-five minutes. To arrive at the Hee

A-11°

Haw Club at 10:50 p.m., therefore, he could have left River’s

Edge no earlier than 10:25 p.m., after the assault had al-

ready occurred or was in progress, There was no substantial

evidence that appellant was en route from River’s Edge

at the time of the crime.

The state relies on State v. Reynolds, 517 S.W.2d 182

(Mo.App. 1974) to support its contention that the refusal

to give appellant’s Instruction No. ‘‘A’’ was not prejudicial

error. Reynolds was submitted prior to the effective date

of the MAI-CR instructions, and although the logic of

Reynolds might be found applicable here, the Supreme

Court Rules and Notes on Use of the MAI-CR Instructions

must be followed.

Finally, appellant claims that the trial court erred in

admitting into evidence testimony concerning bloodstains

found in his car and a knife which was found in the trunk

of the automobile. This point has not been preserved for

appellate review because no proper objection was made when

the evidence was introduced and will not be addressed on

this appeal. The problem may not arise in the same manner

upon retrial.

The judgment of conviction of armed criminal action

is reversed; the judgment of conviction of assault with

intent to do great bodily harm without malice is reversed

and remanded for a new trial.

ROBERT O. SNYDER, Judge

Jolin J. Kelly, Jr., Presiding Judge, concurs; Joseph G.

Stewart, Judge, concurs.

A-12

IN THE

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION THREE

STATE OF MISSOURI,

Plaintiff-Respondent,

: vs. No. 40983

MARLON PAYNE,

Defendant-Appellant.

—oooOooOOOO——OOOOOOOOOOOOOOOwDSSSS aa

Appeal from the Circuit Court of the City of St. Louis

Hon. Richard J. Brown, Judge

OPINION FILED:

May 13, 1980

Marlon Payne, defendant herein, appeals from his con-

viction of robbery first degree and armed criminal action.

A jury assessed his punishment at five years and three

years imprisonment, terms to run concurrently.

The evidence indicates that D. L. Adams picked up

the defendant and two other males in his taxi. Adams drove

the three men to a location in the City of St. Louis where

they instructed him to stop the cab. One of the three men

got out of the cab leaving some money with the two remain-

ing passengers. Adams informed the two passengers that

they owed him $3.95. Each of them gave him $1.32 and a

discussion ensued concerning the amount owed, Subsequent-

ly one of the remaining passengers later identified as Mar-

lon Payne, the defendant, got out of the cab, pulled out

A-13

a gun and demanded that Adams give him ‘‘that money’’.

Adams gave the gunman $2.64 and was attempting to drive

away when the defendant instructed him not to move or he

would ‘‘blow (Adam’s) head off.’’ At that moment a police

car rounded the corner and arrested the defendant who was

running from the scene. The arresting officer confiscated

the defendant’s clothing and $3.39 from his person.

Defendant complains in his sole point on appeal that

the trial court erred in allowing the $3.39 to be admitted

into evidence. It is defendant’s position that because the

taxidriver did not identify the money as that which was

taken from him it was error to admit the money into evi-

dence, Defendant claims that this error prejudiced him in

the eyes of the jury because it necessarily inferred that the

money seized from him was that taken in the robbery.

We agree with defendant that mere possession of a

quantity of money is not relevant to the issue of whether

defendant stole the money. State v. Ball, 339 S.W.2d 783,

786 (Mo. bane 1960). In a case such as the one we are

presented with here, however, where there is a short period

of time between the commission of the crime and arrest,

and the amount of money taken from the victim is similar

to the amount of money found in the defendant’s possession

at the time of arrest, evidence of the amount seized is

relevant, and, therefore, admissible. State v. Harris, 539

S.W.2d 793, 794 (Mo.App. 1976) ; State v. Britt, 504 S.W.2d

38, 42 (Mo, 1974). We find no error in the admission of

the money into evidence. In any event, the alleged error

could have only been harmless in light of the overwhelming

weight of the evidence. State v. Epperson, 571 S.W.2d

260, 268 (Mo. bane 1978), Defendant’s claim of error is

without merit.

The defendant in this case was convicted of robbery

first degree and armed criminal action, In Sours vy, State,

593 S.W.2d 208 (Mo. bane 1980) the Missouri Supreme

A-14

Court held that convictions for both robbery first degree

and armed criminal action arising out of the same occur-

rence violated prohibitions against double jeopardy. Id.

at 210. We are bound by the Sours case and therefore re-

verse the conviction for armed criminal action. The con-

viction of robbery first degree stands affirmed.

ROBERT G. DOWD, Presiding Judge

Robert E. Crist, Judge, concurs; James R. Reinhard,

Judge, concurs.

A-15

IN THE

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION THREE

STATE OF MISSOURI,

Respondent,

Vv. No. 41276

MICHAEL L. WHITE,

Appellant.

Appeal from the Cireuit Court City of St. Louis

Hon. Thomas W. Challis

OPINION FILED:

April 8, 1980

Defendant was convicted by a jury of the offenses of

robbery first degree and armed criminal action. The jury

assessed his punishment at five years for the robbery charge

and three years for the armed criminal action charge. The

court entered judgment in accordance with the jury’s verdict

and assessment of punishment and ordered said sentences

to run consecutively.

The victim was a cab driver. Defendant entered the

victim’s car at the Chase Park Plaza Hotel and shortly

thereafter pulled a revolver on the victim and indicated

that ‘‘it was a stickup.’’ The victim gave defendant a ten

dollar bill, a five dollar bill, and some change. Defendant

ordered the victim to drive to victim’s home to get more

money. While on the way, the victim saw some police cars

A-16°

waiting at a light at West Florissant and Calvary. The

victim started blowing his horn, jumped out of the cab,

and told the officers that the man in his car had held him up.

Officer Johnson testified that he placed defendant

under arrest and recovered $20.15 in defendant’s pocket,

consisting of a ten dollar bill, a five dollar bill, and $5.15

in change. He further testified that he saw defendant get

out of the car and throw a weapon under the automobile

which was seized by Officer Jackson.

Officer Jackson testified that he seized a PPL 380

automatic weapon from under the cab. This weapon was

recovered in evidence as Exhibit No. 1.

Defendant’s first two points refer to questions relating

to defendant’s possession of a gun at a time other than at

the time of the offense charged. He first contends that the

trial court erred in failing to grant a mistrial when prose-

cuting attorney ‘‘asked Defendant whether he had a gun

at another location four days prior to the robbery for which

he was on trial as said question goes beyond the scope of

proper cross examination, was improper impeachment and

was improper and highly prejudicial evidence of prior erimi-

nal behavior for which no conviction resulted. .. .”’

On direct examination defendant denied that he had

a gun with him on the date of the alleged offense. On cross-

examination, defendant stated that he did not own a gun

and that State’s Exhibit No. 1 was not his gun. Further,

he testified that he had never owned a gun that was similar

to State’s Exhibit No. 1. The prosecuting attorney then

asked: ‘‘Isn’t it a fact that you had a gun similar to that

gun [State’s Exhibit No. 1] four days before that [May 9,

1978, the day of the robbery]? Before defendant could an-

swer, defense attorney objected to the question and moved

for a mistrial. The court sustained the objection, instructed

the jury to disregard it, and denied the mistrial. The ques-

tioning then continued:

©

A.

Q.

ae

A-17

Mr. White, is it your testimony you did not have

this gun in your possession on May the 5th, 1978?

Yes.

You did not?

No.

Did you have a gun similar to this in your posses-

sion on May the 5th, 1978?

No.

Did you have a gun, any gun similar to this in

your possession prior to May the 5th, 1978?

No.

Did you have a gun similar to that in your posses-

sion on May the Ist, 1978?

No.

Did you have a gun similar to that in your—?

At this time, defendant again objected. A discussion was

conducted outside the hearing of the jury and thereafter

the court overruled defendant’s objection. The following

questioning ensued:

Q.

Q.

(By Mr. Hoag) It is your testimony on May the

Ist, 1978, you did not have a gun in your possession

similar to that? [State’s Exhibit No. 1]

Yes.

Is it your further testimony you did not have a

gun similar to that at 4903 Goodfellow, at approxi-

mately 10:30 p.m.?

Yes. . . .

You did not have a gun in your possession at that

time, 10:30 p.m., at 4903 Goodfellow?

A-18

A. I did not.

Q. 4903 Goodfellow, which is a Shell Service Station,

you did no thave a gun similar to that in your

possession ?

A. I did not.

Defendant’s sole ground for objection was that the

questions were evidence of other criminal activity. Defend-

ant’s other complaints which he has raised here on appeal

were not stated at the time of the objection. On appeal, a

defendant may not broaden the scope of his trial objec-

tions. State v. Williams, 575 S.W.2d 838, 840 (Mo.App.

1978). We therefore examine only defendant’s contention

that the questions asked as to his possession of a similar

weapon at another time constituted evidence of other crimi-

nal activity. We recognize that proof of commission of a

separate and distinct crime is not admissible unless such

proof has a legitimate tendency to directly establish de-

fendant’s guilt or comes within one of several exceptions.

State v. Holbert, 416 S.W.2d 129, 132 (Mo. 1967); State v,

Reese, 364 Mo, 1221, 274 S.W.2d 304, 307 (bane 1954). It

is not a crime to possess a gun and we cannot say that a

question asking if the defendant was in possession of a

gun four days prior to the offense for which he was charged

constitutes evidence of another crime. This point is without

merit.

Defendant next contends that the court erred in per-

mitting the state to produce the rebuttal testimony of La-

mont Williams because it was improper impeachment evi-

dence and was evidence of another crime. Williams testified

that he saw defendant with a gun at the Shell Service Sta-

tion where he worked at 10:30 p.m. Defendant’s attorney

did not object to any specific questions asked of Williams.

His only objection was that the testimony constituted evi-

dence of another crime. Because we addressed this issue

A-19

under the previous point, we need not discuss it here. We

believe that the evidence was proper rebuttal. A police

officer saw defendant throw a weapon under the car. State’s

Exhibit No. 1 was found under the car. Defendant denied

the possession of a gun on the night of the crime May 5th.

He denied any knowledge of State’s Exhibit No, 1. Further,

he denied having a similar weapon in his possession May 1.

Witness Williams testified that he saw defendant on the

night of May 1 at the Shell Service Station with a gun in

hiy possession. He identified State’s Exhibit No. 1 as the

gun which defendant possessed. This was proper rebuttal.

The jury could not reasonably have inferred from the state’s

rebuttal evidence that appellant had been involved in prior

criminal activity. See State v. Whitt, 592 S.W.2d 316, 317

(Mo.App. 1979). Because this was proper rebuttal,’ we

find no error here,

Defendant finally contends that the court erred in

failing to grant a mistrial because the prosecuting attorney

told the jury in the opening statement that defendant

planned to take the victim to the victim’s house and have

sexual intercourse with his wife. Defendant claims that

evidence relating to this statement was excluded at the

trial and the state knew or should have known that it would

be so excluded. The only portion of the opening statement

in the record is the following:

Mr. Hoag: The state’s evidence will further show a

conversation ensued, the defendant wasn’t happy with

the amount of money he had, and he asked Mr. Kranz

if he had some money at home. The conversation ensued

when Mr. Kranz said he did, and in addition a color

T.V. was mentioned, and the defendant ordered him

‘We note that at the time of his objection to the cross-examination

of defendant, defense counsel said: “If Mr. Hoag has rebuttal evidence,

he could bring in rebuttal as to gun ownership or someone who saw

him with a gun.”

A-20

to drive to his house, which was in Spanish Lake, and

he indicated at that time he was going to perform an

act of sexual intercourse with his wife.

No objection was made at the time of the opening state-

ment, but at the end of the defendant’s case defendant asked

for a mistrial because of the failure of the state to connect

up that portion of the state’s opening statement relating

to the proposed sexual intercourse with the victim’s wife.

Initially, we note that defendant was charged with

the offense of sodomy on the victim as well as those charges

of which he was convicted. The jury acquitted him of the

charge of sodomy. The state asked the victim: ‘*Was there

any conversation with respect to your wife; about your

wife??? The defendant’s attorney objected claiming the

question was leading and the court sustained the objection.

The state therefore did not produce any testimony as to

the comment of the proposed sexual intercourse with vie-

tim’s wife.

When the prosecuting attorney has reasonable grounds

to believe that the facts stated in his opening statement

can be proved, such statement is not improper, although the

facts are not followed with proof because the evidence is

either excluded or omitted. State v. Underwood, 530 S.W.2d

261, 263 (Mo.App. 1975). The trial court is vested with wide

discretion in determining whether prosecuting attorney

acted in good faith in making the statement. Jd. Defendant

admits that he was furnished the police report which in-

cluded a statement by victim that defendant made the

complained of statement to him. We find no evidence of

bad faith. If the victim had testified as to what the de-

fendant had said, such evidence would have been admissible

as part of the ‘‘res gestae.’’ Regardless, defendants failure

to object at the first opportunity constituted a waiver.

This point also is without merit.

A-21

Subsequent to the filing of the briefs in this case the

Supreme Court determined that convictions of robbery first

degree with a dangerous and deadly weapon and armed

criminal action violated the prohibition against double

jeopardy. Sours v. Sta‘e, 593 S.W.2d 208 (Mo. bane 1980).

Therefore, we are compelled to reverse defendant’s convic-

tion of the offense of armed criminal action.

The conviction and judgment is reversed outright with

respect to Count IIT, armed criminal action. The conviction

and judgment in Count I, robbery first degree, is affirmed.

JAMES R. REINHARD, Judge

Robert G. Dowd, Presiding Judge, concurs; Robert E. Crist,

Judge, concurs.

A-22

IN THE

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION THREE

STATE OF MISSOURI,

Respondent,

V. . No. 41095

JOHNNY WILLIAMS,

Appellant.

—_—X—____—_—«x«€[==[—[—[—[—[—[[[[DUSGSDanpyuD)"=xxxx—=>>>»DDD==

Appeal from the Circuit Court of the City of St. Louis

Hon. Lackland Bloom, Judge

OPINION FILED:

March 4, 1980

Double jeopardy case.

On October 18, 1978, defendant was convicted by a

jury of the following: (1) assault with intent to rape with

malice aforethought under § 559.180, RSMo 1969 (Count I) ;

(2) armed criminal action under § 559.225, RSMo Supp.

1976 (Count Il); and (3) carrying a concealed weapon under

§ 564.610, RSMo 1969 (Count LIL). He was sentenced to 20

vears on Count I, 3 years on Count II, and 5 years on Count

III. The sentences are to run concurrently. We reverse his

conviction and sentence under Count II by reason of double

jeopardy. We affirm his convictions and sentences under

Counts | and III.

The victim, age 15 at the time of the occurrence, Jan-

,

uary 31, 1978, had to walk 3 or 4 blocks from her bus stop

A-23

to her home. While en route, defendant grabbed her and

pulled her into an alley. Screaming and struggling, she was

told by defendant he would kill her if she did not stop.

Defendant put a gun to her head and ‘‘clicked”’ it twice.

The victim continued to scream and struggle. Defendant

put the gun away and hit her in the jaw. Defendant tried

to open her coat. He held her on the ground and asked her

if she was going to have sex with him.

When Officers Morris and Hampton arrived on the

scene, defendant has his arm around the victim and had

her up against a wall. She broke away from defendant and

ran to Officer Morris. She was hysterical and seemed to

be in pain. She could not talk to him because her jaw was

locked. She had scratches on her neck. When other police

officers arrived, she was able to tell them defendant struck

her, tried to rape her, and had a gun. She was taken to

city hospital for treatment of her jaw and the scratches

on her neck.

Defendant correctly argues that he has been put in

double jeopardy. Although the sentences are to run con-

currently, the conviction and sentence under the armed

criminal action charge causes defendant to be ineligible for

parole, probation, or conditional release for three years.

Section 559.180, RSMo 1969, provides in pertinent part:

Every person who shall, on purpose and of malice

aforethought, shoot at or stab another, or assault or

beat another with a deadly weapon, or by any other

means or force likely to produce death or great bodily

harm, with intent to... ravish ... such person... ,

shall be punished by imprisonment in the penitentiary

not less than two years.

Section 559.225(1) RSMo Supp. 1976, provides in perti-

nent part:

[A|ny person who commits any felony under the laws

of this state by, with, or through the use, assistance,

A-24

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 armed criminal action and the underlying felony

of assault with intent to rape with malice aforethought are

the same offense for double jeopardy purposes. Convictions

and sentences for both constitutes prohibited multiple pun-

ishments. There was in law and fact only one crime. The

elements of armed criminal action include all of the ele-

ments of assault with intent to rape. Sours v. State, No.

61458 (Mo. bane Jan. 15, 1980). The conviction and sen-

tence for the armed criminal action, therefore, must be

reversed.

Defendant questions whether the evidence was suffi-

cient to support the conviction of assault with intent to

rape. He predicates this argument on the proposition that

there was such a conflict in testimony that corroborating

evidence of the crime was necessary. He relies on State

v. Platt, 496 S.W.2d 878 (Mo.App. 1973). We disagree.

While there were some conflicts in the testimony, the vic-

tim told a positive and unshaken story of sexual outrage.

Her story was entirely possible and not contrary to human

experience. Accordingly, the truth of her story was for

the jury to decide. State v. Neal, 484 S.W.2d 270, 272 (Mo.

1972).

We reverse defendant’s conviction and sentence for

armed criminal action. We affirm his convictions and sen-

tences for assault with intent to rape with malice afore-

thought and for carrying a concealed weapon.

ROBERT E., CRIST, Judge

Robert G. Dowd, Presiding Judge, concurs; James R. Rei:

hard, Judge, concurs.

A-25

APPENDIX B

Section 559.180, RSMo 1969, read as follows:

909.180. Assault with intent to kill_—Every person

who shall, on purpose and of malice aforethought, shoot at

or stab another, or assault or beat another with a deadly

weapon, or by any other means or force likely to produce

death or great bodily harm, with intent to kill, maim, ravish

or rob such person, or in the attempt to commit any bur-

glary or other felony, or in resisting the execution of legal

process, shall be punished by imprisonment in the peni-

tentiary not less than two years.

Section 559.190, RSMo 1969, read as follows:

999.190. Felonious assault without malice aforethought.

—KEvery person who shall be convicted of an assault with

intent to kill, or to do great bodily harm, or to commit any

robbery, rape, burglary, manslaughter or other felony, the

punishment for which assault is not hereinbefore prescribed,

shall be punished by imprisonment in the penitentiary not

exceeding five years, or in the county jail not less than six

months, or by a fine not less than one hundred dollars and

imprisonment in the county jail not less than three months,

or by a fine of not less than one hundred dollars.

Section 560.120, RSMo 1969, reads as follows:

560.120. Robbery in first degree—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, ser-

vant, clerk or agent, or by putting him or her in fear of

A-26

some immediate injury to his or her person, shall be

adjudged guilty of robbery in the first degree.

Section 560.135, RSMo 1975 Supp., reads as follows:

560.135. Armed robbery, punishment for.—Every per-

son convicted of robbery in the first degree by means of

a dangerous and deadly weapon and every person con-

victed 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 con-

victed of robbery in the second degree shall be punished

by imprisonment by the division of corrections not exceed-

ing five nor less than three years; every person convicted

of robbery in the third degree shall be punished by im-

prisonment by the division of corrections not exceeding

five years.

Section 559.225, RSMo 1976 Supp., reads as follows:

559.225. Armed criminal action—penalty—exceptions.

—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 punishment

imposed pursuant to this subsection shall be in addition

to any punishment provided by law for the crime com-

mitted 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 execu-

tion of sentence for a period of three calendar years.

2. Any person convicted of a second offense of armed

criminal action shall be punished by imprisonment by the

division of corrections for a term of not less than five

A-27

years. The punishment imposed pursuant to this sub-

section 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 weap-

on. No person convicted under this subsection shall be

eligible for parole, probation, conditional release or sus-

pended 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 pur-

suant to this subsection shall be in additon to any punish-

ment 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 subsec-

tion shall be eligible for parole, probation, conditional re-

lease 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-29

APPENDIX C

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

750.529. Armed robbery; aggravated assault—Any

person who shall assault another, and shall feloniously

rob, steal and take from his person, or in his presence, any

money or other property, which may be the subject of

larceny, such robber being armed with a dangerous weapon,

or any article used or fashioned in a manner to lead the

person so assaulted to reasonably believe it to be a dan-

gerous weapon, shall be guilty of a felony, punishable by

imprisonment in the state prison for life or for any term

of years. If an aggravated assault or serious injury is in-

flicted by any person while committing an armed robbery

as defined in this section, the sentence shall be not less

than 2 years’ imprisonment in the state prison. As amended

P.A. 1959, No. 71, § 1, Eff. March 19, 1960.

Michigan Compiled Laws Annotated, 750.227b, reads

as follows:

Michigan Compiled Laws Annotated, 750.227b. Pos-

session at time of commission or attempted commission of

felony; additional sentence, punishment—

‘See. 227b (1) <A person who carries or has in his

possession a firearm at the time he commits or attempts to

commit a felony except the violation of section 227 or

section 227a', is guilty of a felony, and shall be imprisoned

for 2 years. Upon a second conviction under this section,

the person shall be imprisoned for 5 years. Upon a third

or subsequent conviction under this section, the person

shall be imprisoned for 10 years.

‘*(2) The term of imprisonment prescribed by this

section shall be in addition to the sentence imposed for

the conviction of the felony or the attempt to commit the

PREVIOUS PAGE WAS BLANK

j

4

A-30

felony, and shall be served consecutively with and pre-

ceding any term of imprisonment imposed for the convic-

tion of the felony or attempt to commit the felony.

‘¢(3) The term of imprisonment imposed under this

section shall not be suspended. The person subject to the

sentence mandated by this section shall not be eligible for

parole or probation during the mandatory term, imposed

pursuant to subsection (1). P.A. 1931, No. 328, § 227b,

added to P.A. 1976. No. 6, § 1, Eff. Jan. 1, 1977.’’ [Footnote

omitted. |