# Petition — Missouri v. Counselman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0761%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 990 ## Text —_— 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)