Petition — Missouri v. Greer

nr N, tet

Supreme Court, U.S,

80-997 - FILED

2EC 18s 1980

No.

SAT Lan os HVA,

MIVMACL XULAK 12 Creeps

, . : ~ » ‘

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF MISSOURI,

Petitioner,

Vv.

DONALD GREER,

Respondent,

i

STATE OF MISSOURI,

Petitioner,

Vv.

TOMMY BRYANT KENDRICK,

Respondent,

+

STATE OF MISSOURI,

Petitioner,

v.

ROLLAN ANTHONY WILLIAMS,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

PETITION FOR CERTIORARI

Petitioner, State of Missouri, respectfully requests that writs of cer-

tiorari issue to review the judgments of the Supreme Court of Missouri

in these cases.

JoHN ASHOROFT

Attorney General

Pavut Rosert Orto

Assistant Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

eee ee

KELLY PRESS, INC., 201 S. Eighth St., Columbia, Missouri Dial 314/449-4163

QUESTIONS PRESENTED

1. Whether the double jeopardy clause of the Fifth

Amendment to the United States Constitution is violated

by convicting a defendant, in one proceeding, of both first

degree robbery, § 560.120, RSMo 1969, and § 560.135, RSMo

Supp. 1975, and armed criminal action, § 559.225, RSMo

Supp. 19°6, 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. bane 1980),

rehearing en banc, (August 18, 1980), wherein that court

held that convicting respondent in a single proceeding of

both first degree robbery and armed criminal action vio-

lates the double jeopardy clause of the Fifth Amendment

to the United States Constitution, eonflicts with this

Court’s decision in Brintley v. Michigan, __ US. 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, § 750.529, 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 Sovirs v. State, 5923 S.Wizd 2O8 (Mo. bane 1980),

,

Il

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 Supreme Court of Missouri, the parties were as

follows:

State of Missouri, respondent, and Donald Greer, ap-

pellant, in cause No. 61548;

State of Missouri, respondent, v. Tommy Bryant Ken-

drick, appellant, in Supreme Court No. 61936;

State of Missouri, respondent, v. Rollan Anthony Wil-

liams, appellant, in Supreme Court No. 61595.

{Il

TABLE OF CONTENTS

PAGE

Ci UNE. ous a ar eckua un peenweteeues hue eres I

Sore aan ee oh eC meres een rye II

oD ST eee TT TEC ERECT OTT ee ee TET reer ]

PEE eee eT ere re ere Tae Pe ‘im

Constitutional Provisions, Statutes and Rules Involved ..3

ee EG CO 5 oi x vs ns oe ews ea tas ae badenes 3

Reasons for Granting the Writ ...........ccscceceeeecs 4

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 ............ 4

IE en ry ee ee ee 14

Appendices

A. State of Missouri, respondent and Donald

Greer, appellant, in cause No. 61548 and order

overruling motion for rehearing ............ A-]

State of Missouri, respondent, v. Tommy

Bryant Kendrick, appellant, in Supreme Court

No. 61936 and order overruling motion for

Se Pe rE FeO eet tT eae A-10

State of Missouri, respondent v. Rollay An-

thony Williams, appellant, in Supreme Court

No. 61595 and order overruling motion for re-

Tite SP ye: tae chal tig tee eet oa party SER Wyeast ao) A A-18

B. Pertinent Missouri statutes ................4 4-23

C. Pertinent Michigan statutes ...............4 A -27

IV

TABLE OF AUTHORITIES

Cases: PAGES

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

160, 76 En Bid. BOG (IGGZ) oer e ev ieeveees, 11, 12

Briggs v. State, 573 S.W.2d 157 (Tenn. 1978) .......... 13

Brintley v. Michigan, U.S. ___, 100 S.Ct. 418,

gh Rk Gok ge) o: | eee eee I, 5, 8, 9, 12

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

Oe Bae ee A occa es ore seit eeuleee 9

Hunter v. Delaware, No. 215 (March 15, 1980) ......... 13

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

Jones v. Commonwealth of Virginia, 235 $.K.2d 313

Fy aera ratte yeti Perr re eee ee eee ere ree 12

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

cert. dented, 429 U.S. 844 (1976) ............ enue, 12

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

53 L.Ed.2d 199 (1977) ......... Lee ee Were eee 9

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

pm ee Be | ee ere 10, A-19

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

ee Wa Oe Co ion ena ha ok ks ase eee 9

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

ER ro eee wren eetan he eas I, 4, 5, A-8, A-11, A-17

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

| INDIR aan, pate are arc per eireae 5, A-11, A-17, A-19

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

bo reer eee rT ter ee Pree rere ee 13

State v. Greer, No. 61548 (Mo. September 9, 1980) .. II, 1, 2

State v. Kendrick, No. 61936 (Mo. October 15, 1980) ..II, 2

State v. Pinder, 375 So.2d 836 (Fla. 1979) .............. 12

V

State v. Saxon, 193 Neb. 278, 226 N.W.2d 765 (1975) ....12

State v. Williams, No. 61595 (Mo. October 15, 1980) ..IT, 2

Tyson v. State, 386 N.E.2d 1185 (Ind. 1979) ........... 12

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

(N.D.Calif. 1976) ...... 0... ccc ccc cee eee 12

Wayne County Prosecutor v. Recorder’s Court Judge,

406 Mich. 374, 280 N.W.2d 793 (1979) ............. 12

Whack vy. State, 416 A.2d 265 (Md. 1980) .............. 13

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

1432, 63 L.Ed.2d 715 (1980) ......... Il, 5, 6, 10, 11

Constitutional Provisions:

United States Constitution, Fifth Amendment ........ L3

Statutes:

Section 560.120, Revised Statutes of Missouri

GRU RWikwh ease ce secencceasccceses I, 3, 4, A-23

Section 560.135, Revised Statutes of Missouri

Supplement (1975) ...............00005. I, 3, 4, A-23

Section 559.225, Revised Statutes of Missouri

Supplement (1976) ............0.0...0.... I, 3, 4, A-24

Section 565.004, Revised Statutes of Missouri

SE GRC 6SS Sen ceeeeccceseccscsscasssdy A-2

Section 750.227(b), M.C.L.A. .... 0000000... I, 3, 8, 9, A-27

Section 750.529, M.C.L.A. 2.0.0... 0. eee cee I, A-27

BO UTC. § 1287 2... ccc ccc ccc cece c cece cece 3

District of Columbia Code, § 23-112 .................. 11

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF MISSOURI,

Petitioner,

Vv.

DONALD GREER,

Respondent,

*

STATE OF MISSOURI,

Petitioner,

Vv.

TOMMY BRYANT KENDRICK,

Respondent,

.

STATE OF MISSOURI,

Petitioner,

Vv.

ROLLAN ANTHONY WILLIAMS,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

PETITION FOR CERTIORARI

Petitioner, State of Missouri, respectfully requests that writs of cer-

tiorari issue to review the judgments of the Supreme Court of Missouri

in these cases.

OPINIONS BELOW

The opinions in the three 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. Donald Greer, Supreme Court No.

61548, opinion filed September 9, 1980;

2

State of Missouri v. Tommy Bryant Kendrick, Su-

preme Court No. 61936, opinion filed October 15, 1980;

State of Missouri v. Rollan Anthony Williams, Su-

preme Court No. 61595, opinion filed October 15, 1980.

JURISDICTIONAL STATEMENT

In State of Missouri v. Donald Greer, No. 61548, the

opinion in the Supreme Court of Missouri was filed Sep-

tember 9, 1980. The opinion affirmed convictions for mur-

der, second degree, and armed criminal action, for each of

which Greer was sentenced to life imprisonment, the sen-

tences to run concurrently. On October 15, 1980, the Su-

preme Court overruled motions for rehearing filed by the

State of Missouri and by Greer. The order overruling the

motion is included in Appendix A directly after the opinion

in this cause.

In State of Missouri v. Tommy Bryant Kendrick, No.

61936, the opinion was filed October 15, 1980. The court af-

firmed a judgment for robbery in the first degree, for

which Kendrick was sentenced to thirty years imprison-

ment, and reversed four convictions for armed criminal

action for each of which Kendrick had been sentenced to

life imprisonment, all sentences to run concurrently. Mo-

tion for rehearing filed by State of Missouri was overruled

on November 12, 1980. The order overruling the motion

is reprinted in Appendix A immediately after the opinion

in this cause.

In State of Missouri v. Rollan Anthony Williams, No.

61595, the opinion was filed October 15, 1980. The court af-

firmed convictions for two counts of robbery in the first

degree for each of which appellant had been sentenced to

life imprisonment, and reversed two convictions for armed

criminal action, for each of which appellant had been sen-

tenced to life imprisonment, all sentences had been directed

3

to run concurrently. The State of Missouri’s motion for a

rehearing was overruled November 12, 1980. The order

overruling the motion is reprinted in Appendix A immedi-

ately after the opinion in this cause.

The present 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, reads

as follows:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in eases 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 560.120, RSMo 1969; 560.135, RSMo Supp.

1975; 960.004, RSMo 1978; and 559.225, RSMo Supp. 1976,

are set forth in Appendix B. Sections 750.227(b) and

750.529, M.C.L.A., are set forth in Appendix C.

STATEMENT OF THE CASE

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

tinuing controversy over the application of federal consti-

tutional double jeopardy principles to the prosecution of

eriminal defendants in Missouri under the Armed Crim-

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

4

same trial, for the felony underlying the armed criminal

action charge. In each of the three cases joined in this

petition, the Supreme Court of Missouri has issued an

opinion relying on the authority of Sours v. State, 593

S.W.2d 208 (Mo. bane 1980); vacated and remanded, 445

US. (1980); decided upon rehearing, S.W.2d

(Mo. bane August 18, 1980); petition for writ of

certiorari now 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, it will be

able to obtain the vacation of the reversals of the armed

criminal action convictions in the cases which are the sub-

ject of this joint petition.

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

double jeopardy clause, 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 case

of respondent Greer, the underlying felony was murder,

second degree, § 565.004, RSMo 1978. In the case of respond-

ent Kendrick, the underlying felony was robbery in the

first degree by means of a dangerous and deadly weapon,

§§ 560.120, RSMo 1969, and 560.135, RSMo Supp. 1975.

In the case of respondent Williams, the underlying felony

was robbery in the first degree, § 560.120, RSMo 1969.

The issues in this joint petition will be identical to

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

Sours, No. 80-571, presently pending in this court, and in

the subsequently filed petition in State of Missouri vy.

Wallace D. Counselman, Jr., No. 80-754.

THE REASONS FOR GRANTING THE WRIT

Petitioner submits that writs of certiorari should issue

in each of the eases contained in this joint petition because

4)

they are all based entirely on the authority of the Missouri

Supreme Court’s holding in Sours vy. 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, US. , 100

S.Ct. 1432, 63 L.Ed.2d 715 (1980). The Missouri Supreme

Court responded to this Court’s directive by rendering

an opinion in Sours v. State, No. 61458 (August 18, 1980)

(hereinafter referred to as Sours IL), wherein the Missouri

Supreme Court, after determining unequivocally that the

Missouri legislature clearly intended that punishment be

imposed for both armed criminal action and its underlying

felony, incorporated by reference its analysis on the Fifth

Amendment issue made in Sours I. See Sours II, slip

opimion at 18.

Although the Missouri Supreme Court was presented

with the argument that the combined wisdom of both

Whalen v. United States, supra, and Brintley v. Michigan,

supra, expressed this Court’s definitive determination that

a defendant can be convicted in one proceeding of two

crimes even where the proof required to establish a viola-

tion of the first is necessarily required to prove the second,

if the legislature so intends, it nevertheless opined as

follows:

The United States Supreme Court has never de-

cided whether imposing separate punishments in a

single proceeding both for the offense of committing

'The Missouri Supreme Court's most recent holding 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.

6

a felony by means of a dangerous and deadly weapon

and for the commission of the felony violates the dou-

ble jeopardy clause of the federal constitution. The

Court expressly declined to rule on this issue in Simp-

son v. United States, [citation omitted] C.F. Whalen

v. United States [citation omitted]. Each time a dou-

ble jeopardy question has been before the United

States Supreme Court, it has found it unnecessary

to address the constitutional question, because it has

been able to find that the legislature did not intend

to separately punish the two offenses involved. Whalen

v. United States, [citation omitted] ; Simpson v. United

States, [citation omitted], Jannelli v. Umted States

[citation omitted]. See Jeffers v. United States [cita-

tion omitted]. No United States Supreme Court opinion

has considered a statute that contained wording simi-

lar to, or identical to, that found in Missouri’s Armed

Criminal Statute.

Sours II, slip opinion at 2.

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

souri Supreme Court stated:

The Court expressly reserved the question whether,

had Congress clearly imposed multiple punishments

for the same offense, the imposition would violate the

double jeopardy clause. Before holding that the Court

would decide the question of statutory interpretation

without deferring to the interpretation of the District

of Columbia Court of Appeals, the Courf carefully

distinguished the question of statutory interpretation

from the constitutional question. ... \ccordingly, since

the Court did not reject the petitioner’s statutory

claim, it did not reach the constitutional issue pro-

sented. [footnote omitted }

Sours II, slip opinion at 3.

7

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 court went on to say that neither case

law nor legislative enactment conflicted with the Missouri

General Assembly’s unequivoeal 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 in-

tent 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 [sie] to adopt

the view that the General Assembly is free to impose

separate punishments for two crimes that constitute

the same offense under the traditional same evidence

test, we are unable to so read Whalen and we are not

prepared to take that step. We believe that the

United States Supreme Court has heretofore reserved

that question as noted above. We believe that such a

ruling would abolish the traditional double jeopards

protection against multiple punisliments for the same

offense. It would require bifureation of the meaning

of ‘same oftense’ under the double jeopardy clause

8

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 estabitsh 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

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.

_——_

9

26 Crim.L.Rep. 4118. (§ 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 222 (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 or 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 IL.

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 vy. Hass,

420 U.S. 714, 95 S.Ct. 1215, 48 L.Nd.2d 570 (1975), where

it was stated:

A state is free as a matter of its own law to impose

greater restrictions on police activity than those this

Court holds to be necessary upon federal constitutional

standards. [citation omitted]. But, of course, a state

10

may not impose such greater restrictions as a matter

of federal constitutional law when this Court specifi-

eally refrains from imposing them.

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

441 U.S. 369, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286 (1979).

Petitioner submits that the Missouri Supreme Court

misinterpreted this Court’s decision rendered in Whalen

v. United States, supra. The Missouri Supreme Court quite

clearly disregarded the Court’s conclusion, reached in

Whalen, that:

In the present case, therefore, if Congress has not

authorized cumulative punishment for rape and for

an unintentional killing committed in the course of

the rape, contrary to what the Court of Appeals be-

lieved, the petitioner has been impermissibly sentenced.

The dispositive question, therefore, is whether Con-

gress did so provide.

Whalen v. United States, 100 S.Ct. at 1436. (Emphasis

added). It appears tat 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 proseribe

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 specific guarantee against double jeop-

ardy but also the Constitutional principle of separa-

tion of powers in a manner which trenches partieu-

larly hershly on individual liberty.

11

Whalen vy. United States, 100 S.Ct. 1436-1437 [Citations

and footnote omitted.| [Hmphasis 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

“ode. 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, wnless else-

where specifically authorized by Congress.

Whalen v. United States, 100 S.Ct. at _ [Emphasis

added.] That the Missouri Supreme Court misapplied the

Blockburger rule is further evidenced by this Court’s recent

opinion in Illinois v. Vitale, 27 Crim.L.Rep. 3190, wherein

the test is characterized as follows:

In Brown v. Ohio, 432 U.S. 161 (1977), we stated

the principal test for determining whether two ef-

fenses are the same for purposes of barring successive

prosecutions. Quoting from Blockburger v. United

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

on Gavieres v. Umted States, 220 U.S. 338, 342-343

(1911), we held that

‘The applicable rule is that where the same aet

or transaction constitutes a violation of two distinet

12

statutory provisions, the test to be applied to deter-

mine whether there are two offeuses 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 con titutional 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 Highth Cireuit Court

of Appeals.

The following cases from other jurisdictions have

found that armed robbery and the use of a firearm in the

commission of a felony are distinct offenses under the

tests set forth in Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932), because it was

held that the charge of robbery contains clements not

necessarily included in the felony firearms offense. State

v. Saxcn, 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 v. Record-

er’s Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979)

(decision of the Michigan Supreme Court giving rise to

this Court’s decision in Brintley v. Michigan); Jones vy.

Commonwealth of Virginia, 235 8.K.2d 313 (1977); United

States v. Hearst, 412 F.Supp. 877 (N.D.Calif. 1976).

The Missouri Supreme Court reeognized but neglected

the foregoing authority and chose to follow cases from

other jurisdictions which it felt supported its view that

the double jeopardy clause prohibits punishing a person

twice for the same offense in a single prosecution. State

v. Pinder, 375 So.2d 836, 838 (Fla. 1979); Tyson v. State,

13

386 N.E.2d 1185, 1193 (Ind. 1979); State v. Frye, 283 Md.

709, 393 A.2d 1872, 1375 (1978); Briggs v. State, 573

S.W.2d 157, 159 (Tenn. 1978).

The dire need for a decision of this Court in regard

to this federal constitutional issue is exemplified by recent

decisions of certain state supreme courts which conflict in

their interpretation of the federal double jeopardy clause.

In Whack v. State, 416 A.2d 265 (Md. 1980), the Court of

Appeals of Maryland (highest state court) held that im-

vosition 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 vy. Delaware,

No. 215 (March 15, 1980), held that the double jeopardy

clause prevented imposing punishment for both assault in

the first degree and the separate crime of possession of a

deadly weapon during the commission of a felony.

An immediate decision on this federal constitutional

issue is necessary; even the Missouri Supreme Court so

stated in Sours II: ‘‘Following the original Sours opinion

our prosecutors and penal authorities indicated informally

to this Court [sic] that they believed that as many as four-

hundred to six-hundred prior convictions might be affected

by the opinion.’’ Sours II, slip opinion at 12.

Every jurisdiction in this country is anxiously await-

ing a definitive decision by this Court in this ease heeause

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 ease.

Finally, a decision is necessary because there exist decisions

of this Court conflicting with the Missouri Supreme Court’s

decision in Sours LL. Therefore, it is respectfully requested

14

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

Paut Rosert Otto

Assistant Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitione:

A-1

APPENDIX A

IN THE

SUPREME COURT OF MISSOURI

DIVISION TWO

5

STATE OF MISSOURI,

Respondent,

v. - No. 61548

DONALD GREER,

Appellant.

——

—

DUPLICATE OF FILING ON SEPT. 9, 1980,

IN OFFICE OF CLERK SUPREME COURT

APPEAL FROM THE CIRCUIT COURT

OF JACKSON COUNTY

THE HONORABLE GENE R. MARTIN, JUDGE

Appellant, Donald R. Greer, was charged by indict-

ment in two counts with murder in the second degree and

armed criminal action. He was found guilty by a jury

which fixed the punishment at life imprisonment for each

offense. The trial court imposed sentences pursuant to

the jury verdict and directed that the two sentences run

concurrently.

Appellant does not challenge the sufficiency of the

evidence as to either count, and we need not relate in de-

tail the facts. It is sufficient to state that a jury reasonably

could find from the evidence offered by the State that on

February 6, 1978 appellant shot and killed Calvin Sand-

ridge.

A-2

By his first point appellant asserts that it was error

for the trial court to permit the trial to proceed over his

objection when there was no record made of the proceed-

ings of the grand jury which indicted him. It is admitted

that in this case there was no record made of the proceed-

ings before the grand jury pertaining to appellant, and

that it is the practice in Jackson County not to make a

record of grand jury proceedings. Appellant further asserts

that he was thereby denied due process and equal protection

of law. He points out if he had been charged by informa-

tion with having committed a homicide a preliminary hear-

ing would have been required at which the evidence given

by the several witnesses would have been reduced to writ-

ing, § 544.370 RSMo 1978, and would have been available

to him to be used at trial to cross-examine those witnesses

who testified at the preliminary hearing. § 544.390 RSMo

1978.

In some states by court rule, McMahon vy. Office of

City and County of Honolulu, 51 Haw. 568, 465 P.2d 549

(1970); People v. Dunean, 388 Mich. 489, 201 N.W.2d 629

(1972), or by statute, Seim v. State, 95 Nev. 89, 590 P.2d

1152 (1979), the recording of testimony before a grand

jury is mandated. However, there is no requirement in

this state that the proceedings before a grand jury must

be recorded in every case. State ex rel Dunlap v. Hanna,

561 S.W.2d 411 (Mo. App. 1978); State v. Shives, 601

S.W.2d 22 (Mo. App. 1980). Section 540.105 RSMo 1978,

gives to the circuit court the discretion to direct that the

testimony before a grand jury in a particular case be tran-

scribed, and § 56.190 RSMo 1978, gives the same discretion

to the prosecuting attorney in counties of Class One. Ap-

pellant does not attempt to demonstrate that because of

the nature of this case the failure to direct that the testi-

mony be transcribed constituted an abuse of discretion. As

stated in State v. Delgado, 161 Conn. 536, 290 A.2d 338

A-3

(1971), it is the general practice in most states not to re-

quire a stenographic record of grand jury proceedings, and

it is not required under the Federal Rules of Criminal Pro-

cedure. United States v. Caruso, 358 F.2d 184 (2nd Cir.

1966). See United States v. Schrenzel, 462 F.2d 765 (8th

Cir. 1972) in which it was held that there is no constitu-

tional requirement that a grand jury record its proceed-

ings. See also United States v. Biondo, 483 F.2d 635 (8th

Cir. 1973) cert. den. 415 U.S. 947, 945, Ct. 1468, 39 L.Ed 563.

The failure to transcribe the grand jury proceedings

pertaining to the charges against appellant did not violate

any statute, rule, or constitutional mandate.

In support of his contention that he was denied equal

protection of law appellant asserts that if he had been

charged by information he would have been entitled to

have counsel present at the preliminary hearing to de-

termine probable cause, and that a transcript of the hearing

would have been made which would have been available to

him for use at his trial. He contends that these rights were

arbitrarily cut off when the prosecuting attorney initiated

the prosecution by grand jury indictment.

Mo. Const. Art. I, § 17 provides: ‘That no person shall

be prosecuted criminally for felony or misdemeanor other-

wise than by indictment or information, which shall be

concurrent remedies, * * *.’’ *.’’ The indictment-informa-

tion procedure does not violate any of appellant’s rights

under the Missouri Constitution because that is the source

of the procedure. See also Beeman vy. State, 502 S.W.2d

204 (Mo. 1973); State v. Martin, 395 S.W.2d 97 (Mo. 1965):

and State v. Cooper, 344 S.W.2d 72 (Mo. 1961). Therefore,

if there is merit to appellant’s assertion that he was denied

equal protection of law, it must be by reason of the equal

protection of law clause in the Fourteenth Amendment of

the Constitution of the United States.

A-4

Missouri by its Constitution has provided two com-

pletely different and alternative methods of initiating a

criminal proceeding. One method is by indictment returned

by a grand jury. Prior to the adoption of the Constitution

of 1875 no person could be prosecuted for an indictable of-

fense except by an indictment returned by a grand jury.

Art. ITI, § 14 Mo. Const. 1820. This was changed by Art. IT,

§ 12, Const. 1875 to permit prosecution by information as

well as by indictment.

The grand jury is of ancient origin, and, in general

terms, its purpose is to inquire into the commission of

crimes, and to return indictments when it determines that

a crime has been committed and that there is probable

cause to believe that it was committed by the indicted per-

son. One of its purposes is to insure against arbitrary prose-

eution and to protect citizens against unfounded accusa-

tions, Conway v. Quinn, 168 S.W.2d 445 (Mo. App. 1942),

or as stated in Hoffman v. United States, 341 U.S. 479, 71

S.Ct. 814, 817, 95 L.Ed. 1118 (1951), *‘to stand between the

prosecutor and the accused.’’ Generally, the proceedings

of a grand jury are secret except as specifically modified

by statute, State v. MeDonald, 342 Mo, 998, 119 S.W.2d

286 (1938), and the accused has no absolute right to appear

before the grand jury or to have his counsel present. United

States v. Smith, 552 F.2d 257 (8th Cir. 1977).

The alternate method of initiating a criminal proceed-

ing is by information. Any person having knowledge of

the commission of a crime may make his affidavit and file

it with the Clerk of the Court having jurisdiction of the

offense, or he may deposit it with the prosecuting attorney,

who in a reasonable exercise of discretion may determine

whether the complaint warrants prosecution, State ex rel

Schultz v. Harper, 573 S.W.2d 427 (Mo. App. 1978). A pre-

liminary hearing before a judge is required which the

accused is entitled to attend, introduce evidence in his be-

A-5

half, and cross-examine witnesses against him. If from the

evidence introduced at the preliminary hearing it appears

to the judge that there is probable cause to believe that a

felony has been committed and that the defendant has

committed it, Rule 22.07(¢c), an information may be filed

by the prosecuting attorney, and the proceedings there-

after are the same as when an indictment is returned by a

grand jury. The purpose of the preliminary hearing is to

prevent unreasonable or arbitrary prosecutions, and to have

an independent judicial determination of the issue of prob-

able cause.

The procedures are not intended to be identical, and

the differences are based on the fundamental nature of

the two independent methods of initiating a criminal pro-

ceeding.

The purpose of the equal protection clause of the Four-

teenth Amendment to the United States Constitution is to

prohibit class legislation which discriminates against some

citizens and favors others. But, the Missouri indictment-

information procedure does not define a class to which one

or the other alternate procedures is applicable to the ex-

clusion of the other. There is no class created which is

favored under the law over another, Inequality arising

from permissible discretion in the administration of a law

does not result in a violation of the equal protection of law

clause of the Federal Constitution. This issue was con-

sidered at length in San Antonio Independent School Dis-

trict v. Rodriquez, 411 U.S. 1, 17, 94 S.Ct. 1278, 36 L.Ed. 16

(1973). There a challenge was made to the Texas system

of financing publie education. The Supreme Court first

stated that it was necessary to decide whether the Texas

system ‘‘operates to the disadvantage of some suspect class

or infringes upon a fundamental right explicitly or im-

plicitly protected by the Constitution, thereby requiring

strict Judicial serutiny.’’ It was held that the svstem did

A-6

not, and in the case now before us it is clear that the Mis-

souri indictment-information procedure does not purport

to operate to the disadvantage of some ‘‘suspect class’’ or

infringe upon a fundamental right protected by the Con-

stitution. An accused has no constitutional right to be

charged with a crime only by information. The United

States Supreme Court then held that there was no evi-

dence that the administration of the Texas system dis-

criminated against any definable category of people, or

that it resulted in absolute deprivation of education as to

any definable group. In the pending case, there is no de-

finable group that may be charged only by indictment or

only by information.

The fact that a prosecutor can exercise some discre-

tion as to whether to proceed by information or present

evidence to a grand jury for its consideration does not re-

sult in a violation of the equal protection clause. We do

not have before us the situation where the State has de-

liberately and intentionally resorted to the indictment pro-

cedure as to all persons of a certain race or some other

definable class to the exclusion of others. Without a pur-

poseful classification in the enforcement procedure or the

administration of the law, there can be no denial of equal

protection of the laws. For example, in Missouri and in

most other states the prosecutor is vested with discretion

whether to invoke the habitual criminal provisions. In Oy-

ler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.d.2d 446 (1962),

it was held that defendants’ prosecution under the habitual

criminal statutes of West Virginia did not violate the Fed-

eral equal protection of laws clause even though in the

exercise of discretion the State had applied the law to only

a minority of those subject to its provisions. The Court

stated: ‘‘{T]he conscious exercise of some selectivity in

enforcement is not in itself a federal constitutional viola-

tion.’’? See Taylor v. State, 423 P.2d 473, 474 (Okla. Crim.

A-7

App. 1967) in which it was held that ‘‘The Oklahoma ha-

bitual criminal statute applies equally and impartially to

all persons charged under it, and the fact that indietments

or informations do not always charge violation of such

statute where accused has had prior felony convictions,

does not invalidate [the] statute as denving equal protee-

tion of the laws.’’ See also State v. Sheppard, 371 So.2d

1135 (La. 1979), where the grant of discretion to try a minor

for manslaughter as an adult did not result in a denial of

equal protection of the laws, and People v. Lawrence, 26

lil. App.3d 685, 325 N.E.2d 363 (1975), where the exercise

of discretion not to treat a 17-year old accused as a minor

did not result in a violation of equal protection of the law.

Prior decisions in this State have not specifically ad-

dressed the issue presented here, but it was stated in Bee-

man v. State, supra. at p. 255, that ‘The provision of Mo.

Const. Art. I, § 17, V.A.M.S., authorizing persons to be

prosecuted for felony by indictment or information, which

specifically states that these are concurrent remedies. ‘is

not violative of the due process and equal protection of

the laws clauses of the Federal Constitution, Amend. 14,’ ”’

citing State v. Cooper, 344 S.W.2d 72 (Mo. 1961): State vy.

Jones, 168 Mo. 398, 68 S.W. 566 (1902): Lyle v. Eidson, 182

F.2d 344, (8th Cir. 1950); and Hurtado v. California. 110

016, 4 S.Ct. 111, 28 L.Ed 232 (1884). In other jurisdictions

the issue has been specifically presented in several cases.

and in no case has it been ruled that a procedure compar-

able to that in this State violates the equal protection clause

of the Federal Constitution. See State v. Cousino, 18 Ariz.

App. 158, 500 P.2d 1146 (1972); State v. Hinkle, 26 Ariz.

App. 961, 550 P.2d 115 (1979); Burke v. Superior Court in

and for County of Pima, 3 Ariz. App. 576, 416 P2d 997

(1966); State v. Kanistanaux, 68 Wo2d 652, 414 Pied Ts4

(1966): State vy. Bojorquez, 11) Ariz. 549, 535 Ped 6 (1975).

People v. Franklin, 80 Ill App. 128, 398 N.B2d 107}

A-8

(1980); Seim v. State, supra; Gasaway v. Page, 448 P.2d

284 (Okla. Crim. App. 1968); Falgout v. People, 170 Col.

32, 459 P.2d 572 (1969); Chung v. Ogata, 53 Haw. 395, 499

P.2d 26 (1972); Commonwealth v. Morris, 406 A.2d 1091

(Pa. Super 1979); State v. Mastrian, 285 Minn. 51, 17]

N.W.2d 695 (1969).

The law pertaining to grand jury proceedings apply

equally to all who are indicted by a grand jury, and the

fact that appellant was charged by a grand jury instead

of way of an information did not result in a denial of the

equal protection of law under either the Missouri or Fed-

eral Constitution.

Appellant also challenges the validity of his convic-

tion of the offense of armed criminal action which admit-

tedly arose out of the occurrence which constituted murder

second degree. This contention must be sustained. Sours

v. State, ___S.W.2d (Mo. bane Aug. 18, 1980).

That part of the judgment pertaining to second degree

murder is affirmed; that part pertaining to armed crimi-

nal action is reversed and the sentence vacated.

ALDEN A. STOCKARD, COMMISSIONER

PER CURIAM: The foregoing opinion by Stockard, C., is

adopted as the opinion of the court. All of the judges concur.

A-9

CLreRK OF THE SUPREME Col au

STATE OF MISSOLRI

POST OFFICE BOX 15O Reece cee

THOMAS F SIMON JEFFERSON City, Missouri

CLERK 65102

TELEPHONE

(914) 751 4144

October 15, 1980

The Hon. John Ashcroft Mr. Philip H. Schwarz

Attorney General 1125 Grand - Ste. 1510

P.O. Box 899 Kansas City, Missouri 64106

Jefferson City, Missouri 65102

In re: State of Missouri vs. Donald Greer

Supreme Court No. 61548

Dear General Ashcroft and Mr. Schwarz:

This is to advise that the Court this day entered the

following order in the above entitled cause:

"Respondent's motion for rehearing overruled."

"Appellant's motion for rehearing overruled."

veryfArruly yo

onae Oe an

Ci

A-10

IN THE

SUPREME COURT OF MISSOURI

DIVISION II

STATE OF MISSOURI,

Respondent,

v. No. 61936

TOMMY BRYANT KENDRICK,

Appellant.

eee

DUPLICATE OF FILING ON OCT. 15, 1980,

IN OFFICE OF CLERK SUPREME COURT

APPEAL FROM THE CIRCUIT COURT OF

JASPER COUNTY

THE HONORABLE HERBERT C. CASTEEL, JUDGE

Appellant was charged by indictment with four counts

of robbery in the first degree by means of a dangerous

and deadly weapon, and with four counts of armed criminal

action, each based on the use of a dangerous instrument

or deadly weapon in the commission of one of the charged

robberies. Trial before a jury was had on Count V (armed

robbery) and Count VI (armed criminal action), and after

a finding of guilty as to each count, appellant was sen-

tenced to imprisonment for thirty years for robbery and

to life imprisonment for armed criminal action, the sen-

{ences to be served concurrently. Thereafter, appellant

entered a plea of guilty to each of the remaining three

counts of robbery, and was sentenced to imprisonment for

thirty years on each count to be served concurrently. As to

the remaining three counts of armed criminal action, ap-

A-11

pellant waived jury trial, entered into a stipulation of

facts pertaining to each, and was found guilty by the trial

court and sentenced to concurrent life imprisonment on

each count.

The notice of appeal was from the judgment entered

on Count V (robbery in the first degree), and on Counts

IT, LV, VI and VIII (each based on armed criminal] action).

However, there is no point in appellant’s brief pertaining

to the judgment entered on Count V, and the appeal as

to that count is abandoned. State v. Sykes, 436 S.W.2d

32 (Mo. 1969); State v. Reese, 364 Mo. 1221, 274 S.W.2d

504 (bane 1954).

Appellant’s challenge to the judgment entered on the

counts charging the offense of armed criminal action must

be sustained. Sours vy. State, 593 S.W.2d 208 (Mo. bane

1980); vaeated, Missourj v. Sours, __. U.S. Bare

—, 64 L.Md.2d 820 (1980); on remand, Sours y. State,

S.W.2d____ (Mo. bane No. 61458, August 18, 1980).

The judgment of conviction on Count V for robbery in

the first degree is affirmed. The judgment on conviction

on Counts II, IV, VI and VIII (each based on armed erim-

inal action) is reversed.

ALDEN A. STOCKARD, COMMISSIONER

PER CURIAM: The forevoing opinion by

Stockard, C., is adopted as the opinion

of the Court. All of the Judges coneur.

CLERK OF THE SUPREME CouRT

STATE OF MISSOURI

POST OFFICE BOX 150

THOMAS F SIMON JEFFERSON City, Missouri

CLERK ~ TELEPHONE

65102 (314) 761-4144

November 12, 1980

The Hon. John Ashcroft

Attorney General

Box 899

Jefferson City, Missouri 65102

In re: State of Missouri vs. Tommy Bryant Kendrick

Supreme Court No. 61936

Dear General Ashcroft:

This is to advise that the Court this day entered the

following order in the above entitled cause:

"Respondent's motion for ‘cehearing overr'iled."

Very truly yours,

4

Clerk.

cc: Mr. David Robards

A-13

IN THE

SUPREME COURT OF MISSOURI

DIVISION I

STATE OF MISSOURI,

Respondent,

vs. No. 61595

ROLLAN ANTHONY WILLIAMS,

Appellant. |

as

APPEAL FROM THE CIRCUIT COURT OF

ST. LOUIS COUNTY

HONORABLE PHILIP SWEENEY, JUDGE

A jury in the St. Louis County Cireuit Court found

Rollan Anthony Williams guilty on two counts of robbery

in the first degree and two counts of armed criminal ac-

tion. The court, acting under the Second Offender Act,

sentenced the defendant to life imprisonment on each of

the four counts, the sentences to run concurrently. This

appeal followed.

The state’s evidence showed that, on April 28, 1978, at

around 6:45 P.M., Williams entered Hartwie’s Tavern in

Creve Coeur, St. Louis County, took a seat at the bar and

was served a bottle of Budweiser beer. A short time later

a second person entered the tavern and requested and was

served a glass of water at the bar. Williams ordered a

second beer and after he had been at the bar for about 15

minutes, he and the man to whom the water had been served

pulled pistols and announced a holdup to the bar manager

A-14

and other customers. Money belonging to the tavern owner

was taken and the billfolds of at least two customers.

On May 18, 1978, Williams was arrested for the rob-

bery and identified at a line-up by the bar manager. The

bar manager identified Williams at his trial. Fingerprint

technicians found Williams’s palm print on one of the beer

bottles from which he drank at the tavern.

Williams was charged with robbery in the first degree.

One count was directed at the taking of the tavern money,

the second at the taking of a customer’s wallet and money.

A charge of armed criminal action was filed to each of

the two robbery counts.

Williams offered two witnesses who testified to an

alibi. The jury found the defendant guilty of each of the

four counts.

In this Court, appellant complains of the trial court’s

refusal to allow his attorney to amend his peremptory

challenges after he advised the court that he had incor-

rectly transcribed the strikes from his list to the list

given to the bailiff. Appellant complains that the court’s

ruling denied appellant his statutory right to exercise of

his peremptory challenges.

Appellant’s brief states that the error involved came

to his attention when Venireman McKenna was instructed

by the bailiff to take seat No. 2 in the jury box. The brief

states that appellant had intended to strike McKenna and

that his attorney immediately notified the court of his

mistake. However, the transcript which must be the basis

for this Court’s review shows that 12 jurors and one al-

ternate were seated and that defense counsel thereafter

advised the court of his error, that he had intended to

strike McKenna and ‘‘* *

my part I didn’t write it down on my list and consequently

* that because of the error on

I strike an extra person.’’ He requested leave of court to

A-15

amend his strike to remove McKenna and to take off one

of the strikes he had given the bailiff. The court overruled

the request.

A request to permit amendment of peremptory strikes

before a jury is sworn is addressed to the trial court’s dis-

cretion. State v. Brown, 554 S.W.2d 574, 578[7] (Mo. App.

1977); State v. Blankenship, 536 S.W.2d 520, 921-522[7]

(Mo. App. 1976); State v. Harris, 356 S.W.2d 889, 890-

891[2] (Mo. 1962).

Appellant has shown no abuse of discretion in this

situation. Although tle record indicates that the jurors not

selected had not been excused, contrary to the situation in

Harris, the trial court’s ruling is not for that reason an

abuse of discretion. In view of the timing of the request

as shown by the transcript, the trial court might well have

felt that a change at that juncture would have presented

problems. Appellant’s complaint is that the trial court’s

action denied him the right to make his peremptory chal-

lenges as he saw fit. However, he acknowledges that he

can demonstrate no prejudice as a result of the court’s rul-

ing. He acknowledges that there was no basis for a challenge

for cause against McKenna and relies upon a feeling, based

on voir dire, that McKenna would not be a favorable

juror. Appellant’s cases involving the seating of a juror

who should have been disqualified for cause are not in

point.

No abuse of discretion and no prejudice having been

demonstrated, this claim of error is rejected.

Appellant complains of the trial court’s denial of his

request for a mistrial because a police officer testified

that a woman (presumably the tavern manager) picked ap-

pellant out of a line-up. Objection to the testimony was

promptly sustained and the jury instrueted to disregard

it but the request for a mistrial was denied. Appellant con-

A-16

tends that State v. DeGraffenried, 477 S.W.2d 57 (Mo.

1972), and State v. Johnson, 538 S.W.2d 73 (Mo. App.

1976), required a mistrial because of this testimony.

Johnson applied the DeGraffenried test for determin-

ing the prejudicial effect of the erroneous admission of

testimony. The question here is whether Degraffenried

required a declaration of a mistrial because the testimony

had been heard by the jury.

Degraffenried is distinguishable because the objec-

tion was overruled to the police officer’s testimony re-

garding a state’s eyewitness’s line-up identification of the

defendant. Although under Degraffenried the fact that

the eyewitness herself had previously testified to her line-

up identification of the defendant would not necessarily

have rendered the officer’s testimony harmless error had

it been allowed to stand, over objection, the trial court

could properly take that fact into consideration in de-

termining the corrective measure called for. Given the

drastic nature of the remedy of a mistrial, DeGraffenried

does not require a mistrial on every case where such testi-

mony slips into a trial. A proper exercise of discretion is

still allowed insofar as declaring a mistrial is concerned

and the trial court here did not abuse its discretion. See

State v. Brown, 528 8.W.2d 503, 506[7] (Mo. App. 1975) ;

State v. Washington, 549 S.W.2d 547-549[3] (Mo. App.

1977).

Appellant contends that he was unconstitutionally

penalized for exercising his right to a jury trial in that

the court, on the state’s recommendation, imposed four

life sentences, whereas the state, prior to trial, had of-

fered a sentence of four 15-year terms in return for a

plea of guilty. Appellant relies upon People v. Dennis,

28 Til. App.3d 74, 328 N.K.2d 135 (1975), as closely paral-

A-17

lelling his case. In Dennis, in pretrial plea bargaining, par-

ticipated in by the court with full knowledge of the defend-

ant’s past record and the state’s pending case, the court

had stated its willingness to accept the state’s recom-

mendation of a two to six-year sentence in return for a

guilty plea. The defendant rejected that offer and when

found guilty on a jury trial, the court, following the state’s

recommendation, imposed a 40 to 80-year sentence. Upon

post-conviction review, the court upheld the defendant’s

contention that the heavier sentence had been imposed for

the defendant’s exercise of his right to jury trial. The court

noted the absence of anything in the reeord to justify

the heavy sentence imposed.

The distinguishing feature between that case and

this is the judge’s participation in the plea bargaining in

Dennis. In this case, the trial judge was not a party to

the plea bargaining. The fact that his sentences coincided

with the state’s recommendation does not charge him with

responsibility for or approval of the pre-trial offer. Den-

nis recognizes the distinction between this situation and

that presented in Dennis and notes that “ * * * a mere

disparity between the sentence offered during plea bar-

gaining and that ultimately imposed, of itself, * * * ”

does not provide a basis for relief. 328 N.E.2d 138[5].

Appellant has not demonstrated that the trial court’s

sentence was retaliatory for the defendant’s exercise of

his right to trial by jury. State v. Volner, 569 S.W.2d 78]

(Mo. App. 1978).

Under Sours vy. State, 593 S.W.2d 208 (Mo. bane 1980)

.

,

vacated, Missouri v. Sours, = ~U.S. |, , 64 L.Kd.2d 820

(1980) ; on remand, Sours v. State, S.\W2d (Mo.

bane No. 61458, \ugust 18, 1980), the convietions for armed

criminal action cannot stand.

A-18

Judgment affirmed as to Counts I and III; reversed

as to Counts II and IV.

Robert R. Welborn, Commissioner

Morgan, J., concurs; Donnelly, J., concurs in separate con-

curring opinion filed; Rendlen, P.J., concurs in result.

A-19

IN THE

SUPREME COURT OF MISSOURI

DIVISION I

STATE OF MISSOURI,

siege

vs. No. 61595

ROLLAN ANTHONY WILLIAMS,

Appellant.

J

CONCURRING OPINION

Kew would contend that the position of the United

States Supreme Court, reference the National Double

Jeopardy Clause, is presently coherent, See Westen and

Drubel, Toward a General Theory of Double Jeopardy;

1978 The Supreme Court Review 8] (Chicago: The Univ.

of Chicago Press, 1979).

In this circumstance, the attempt of the majority in

Sours v. State, _. —s§ S. W2d (Mo. bane No. 61458,

August 18, 1980) to follow the twists and turns of the

United States Supreme Court in this area of the law is

almost masochistic. In North Carolina vy. Butler, 441 U.S.

369, 376 (1979) the Court stated that it will ‘faccept what-

ever construction of a state constitution is placed upon if

by the highest court of the State.”’

First, | would disentangle and hold:

(1) That Mo. Const. art. I, <§ 19 proseribes a second

prosecution for the same offense after acquittal,

(2) That to cause a person to be twiee prosecuted

A-20

for the same offense after conviction is to deprive that

person of due process of law. Mo. Const. art. I, § 10.

(5) That to cause a person to be twice punished for

the same offense is to deprive that person of due process

of law. Mo. Const. art. I, § 10.

Second, I would implement (1) and (2), supra, by ap-

plying Mr. Justice Brennan’s ‘‘same transaction’’ test and

require ‘‘the prosecution, except in most limited circum-

stances, to join at one trial all the charges against a defend-

ant that grow out of a single criminal act, occurrence, epi-

sode, or transaction.’’ Ashe v. Swenson, 397 U.S. 486, 403,

454 (1970). (Brennan, J., concurring). See also ALI, Model

Penal Code, Proposed Official Draft §§ 1.07, 1.08, 1.09

(1962).

Third, I would implement (3), supra, by proseribing

punishment in excess of what the Missouri General As-

sembly intended.

I coneur under the compulsion of Sours, supra,

i

Robert T. Donnelly, Judge

CLERK OF THE SUPREME Courr

STATE OF MISSOURI

JEFFERSON City, Missour!

S F. SIMON 65101 TEL tenons

can jta 5 ee

November 12, 1980 ions

Mr. Michael J. Gorla Mr. Lew A. Kollias

111 South Bemiston Asst. Attorney General

Suite 211 P.O. Box 899

Clayton, MO 63105 Jefferson City, MO 65102

In Re: State of Missouri, resp., vs.

Rollan Anthony Williams, app.

Supreme Court No. 61595

Gentlemen:

This is to advise that the Court this day has mad

following order in the above-entitled cause:

“Respondent's motion for rehearing overruled."

Very truly yours,

/ aS?

J, ian (“—?

— fy ; oo a aa ——

ae . ~~ —

SN Les we LEI lés meee

Ria

A-23

APPENDIX B

Section 060.120, RSMo 1969, is as follows:

Robbery in first degree.—[very 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 per-

son of his wife, servant, clerk or agent, in charge thereof,

and against the will of such wife, servant, clerk or agent

by violence to the person of such wife, servant, clerk or

agent, or by putting him or her in fear of some immediate

injury to his or her person, shall be adjudged guilty of

robbery in the first degree.

Section 560.135, RSMo 1975 Supp. is as follows:

560.135. Armed robbery, punishment for.—lvery

person 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 cor-

rections for not less than five years; every person convicted

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

prisonment by the division of corrections not exceeding five

nor less than three years; every person convicted of rob-

bery in the third degree shall be punished by imprisonment

by the division of corrections not exceeding five years.

Section 565.004, RSMo 1978, is as follows:

*965.004. Murder in the second degree.—All other

kinds of murder at common law, not herein declared to be

manslaugliter or justifiable or excusable homicide, shall be

deemed murder in the second degree.

PRECEDING PAGE WAS BLANK

a —

A-24

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

559.225. Armed criminal action—penalty—exceptions.

—l. 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 pun-

ished by imprisonment by the division of corrections for a

term of not less than three years. The punishment imposed

pursuant to this subsection shall be in addition to any

punishment provided by law for the crime committed by,

with, or through the use, assistance, or aid of a dangerous

or deadly weapon. No person convicted under this subsec-

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

lease or suspended imposition or execution 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 years.

The punishment imposed pursuant to this subsection shall

be in addition to any punishment provided by law for the

crime committee by, with, or through the use, assistance,

or aid of a dangerous or deadly weapon. No person con-

victed under this subsection shall be eligible for parole,

probation, conditional release or suspended imposition or

execution of sentence for a period of five calendar years.

3. Any person convicted of a third or subsequent of-

fense of armed criminal action shall be punished by im-

prisonment by the division of corrections for a term of not

less than ten years. The punishment imposed pursuant to

this subsection shall be in addition to any punishment pro-

vided by law for the crime committed by, with, or through

the use, assistance, or aid of a dangerous or deadly weapon.

No person convicted under this subsection shall be eligible

A-2d

for parole, probation, conditional release or suspended im

position or execution of sentence for a period of ten calender

years,

4. The provisions of this section shall not apply to

the felonies defined in sections 299.005, 064.590, 064.610,

064.620, 564.630, and 564.640, RSMo.

A-27

APPENDIX C

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

700.529. 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 altempted commission of

felony; additional sentence, punishment—

“See, 227b (1) A person who earries 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 seeond conviction under this section,

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

or subsequent conviction under this seetion, the person

shall be imprisoned for 10 vears. ;

(2) The term of imprisonment preseribed hv this

section shall be in addition to the sentence imposed for

the conviction of the felony or the attempt to commit the

PRECEDING PAGE WAS BLANK

A-28

felony, and shall be served consecutively with and pre-

ceding any term of imprisonment imposed for the convie-

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. ]