Petition — Johnson v. Missouri

Supreme Court brief1980

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g0-517 9 RECEIVED

IN THE AUG 7 1980

FICE OF LERK

UNITED STATES SUPREME COURT apace eoumer US.

, US.

WILLIE MAE JOHNSON

Petitioner

Vv. Cause No.

STATE OF MISSOURI

Respondent

APPLICATION FOR LEAVE TO PROCEED AS A POOR PERSON

Comes now Christelle M. Adelman-Adler, on behalf of Petitioner,

Willie Mae Johnson, and informs the Court that the Petitioner was

found to be an indigent at the time she was arraigned on the charges

which lead to the conviction which is the subject of her petition

for Writ of Certiorari. The trial court granted her leave to appeal

as a poor person in the Missouri courts. She does not have the

funds or the financial resources to secure the cost or pay the fees

and expenses associated with her petition.

WHEREFORE, she respectfully prays that the Court grant her leave

to proceed as a poor person.

Respectfully submitted,

HRISTELLE M. ADELMAN-ADLER

Attorney for Petitioner

Subscribed and sworn to before me this 6 day

of Pua, wot» 1980.

Notary Public

My Commission Expires: G/o1 /e;

g0-5179

RECEIVED

AUG 7 1989

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

UNITED STATES SUPREME COURT

WILLIE MAE JOHNSON

Petitioner

wT. Cause No.

STATE OF MISSOURI

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

CHRISTELLE M. ADELMAN-ADLER

Special Assistant

Public Defender

22nd Judicial Circuit

Room 63

Municipal Courts Building

1320 Market Street

St. Louis, MO 63103

TABLE

Petition ° ° ° ° .

Opinions Below . ° ° °

Jurisdiction ° ° ° .

Question Presented . ° °

Authorities Cited . ° °

Federal Cases . ° °

Missouri Cases . ° °

Statement of the Case . °

Reasons for Granting the Writ

Conclusion ° . ° °

Appendix e ° ° ° °

OF CONTENTS

Applicable Missouri Statutes °

Jury Instructions in Trial Court.

Motion to Dismiss . ° ° °

Motion for New Trial 4 - ‘.

Notice of Appeal to the Missouri

Court of Appeals ° ° . °

Opinion of Missouri Court of Appeals

Respondent's Motion for Rehearing or

To Supreme Court e ° e °

Transfer

Respondent's Suggestions in Support of

Respondent's Motion for Rehearing or Transfer

to Supreme Court ° eerie e

Respondent's Motion for Transfer

Respondent's Suggestions in Support of Motion

for Transfer » . ‘ ‘ ‘

Letter from Clerk of Missouri Supreme Court

indicating order for Transfer .

Missouri Supreme Court order for Transfer

Letter from Clerk of Missouri Court of Appeals

indicating transfer ° ° °

Letter from Clerk of Missouri Supreme Court

indicating opinion filed ° °

Opinion Missouri Supreme Court .

Letter from Clerk of Missouri Supreme

Court acknowledging Motion for Rehearing

Petitioner's Motion for Rehearing

Letter from Clerk of Missouri Supreme

Court indicating Petitioner's Motion for

Rehearing overruled . ° ° °

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IN THE ,

UNITED STATES SUPREME COURT

WILLIE MAE JOHNSON

Petitioner

Vv. Cause No.

STATE OF MISSOURI

eee eee ee ee ee

Respondent

PETITION

Willie Mae Johnson, Petitioner, respectfully prays that a Writ

of Certiorari issue to review the judgment of the Supreme Court of

Missouri, which affirmed a ten year sentence imposed upon a

conviction for Robbery First Degree. Such conviction was imposed

after petitioner was acquitted on two counts of Felony-Murder, and

subsequently retried for the Robbery, in the course of which the

murders were alleged to have occurred. The petition is filed

because the Supreme Court of Missouri erroneously ruled that the

acquittals on Felony-Murder, of which the Robbery was an element,

did not preclude a subsequent conviction for the Robbery under the

Double Jeopardy Clause.

OPINIONS BELOW

The opinion of the Missouri Court of Appeals is not reported. A

copy of the opinion is included in the Appendix, beginning at page

13.

The opinion of the Supreme Court of Missouri is reported at

598 S.W.2d 123 (Mo. 1980). A copy of the opinion is included in the

Appendix, beginning at page 37.

JURISDICTION

The opinion of the Supreme Court of Missouri, affirming the

sentence imposed was filed on April 3, 1980, Appendix (37-50). A

timely Motion for Rehearing was filed in the Supreme Court of

Missouri, Appendix (52). That Court denied the application on

May 13, 1980, Appendix (55). This petition is filed within 90 days

of that date, and the Court's jurisdiction is invoked under 28

U.S.C. 1257.

QUESTION PRESENTED

Whether Petitioner's acquittals of Felony-Murder bar a

subsequent prosecution and conviction for Robbery First Degree which

was the felony during the course of which the felony-murders were

alleged to have been committed.

AUTHORITES CITED

FEDERAL CASES

Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469, 90 S.ct. 1189 (1960);

Blockburger v. U.S., 284 U.S. 299, 76 L.Ed. 306, 52 S.Ct. 180 (1932) .

Brown v. Ohio, 432 U.S.161, 53 L.Ed.2d 187, 97 S.Ct. 2221 (1977);

Harris v. Oklahoma, 433 U.S. 682, 53 L.Ed.2d 1054, 97 S.ct. 2912

1 3

Tannelli v. U.S., 420 U.S. 770, 43 L.Ed.2d 616, 95 S.Ct. 1284 (1975);

In re Hans Nielson, 131 U.S. 176, 33 L.Ed. 118, 9 S.Ct. 672 (1889);

U.S. v. Jorn, 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547 (1971);

State

MISSOURI CASES

Lane, 551 S.W.2d 900 (Mo.App. 1977);

State

Campbell, 551 S.W.2d 940 (Mo.App. 1977);

State

Johnson, 549 S.W.2d 627 (Mo.App. 1977);

State

Carter, 535 S.W.2d 537 (Mo.App. 1976);

State

Harley, 543 S.W.2d 288 (Mo.App. 1976);

State

Owens, 486 S.W.2d 462 (Mo. 1972).

STATEMENT OF THE CASE

Page references in this writ will be made to two separate trial

transcripts. References to pages appearing in the transcript of ap-

pellant’s first trial will be denoted (T. A. ___). References to

pages appearing in the transcript of appellant's second trial on

this charge will be denoted (T. B. _).

In January, 1977, petitioner, Willie Mae Johnson, was tried in

the Circuit Court of the City of St. Louis Missouri on four

charges. The substitute information in lieu of indictment charged

petitioner with: Count I, Murder first degree of James Bell; Count

II, Murder first degree of Gladys Gregg; Count III, Robbery first

degree of James Bell, and Count IV, Robbery first degree of Gladys

Gregg. (T. A. 2-6). During the trial the State entered a nolle

prosequi as to Count III. (T. A. 287). Petitioner was acquitted of

the felony-murders of both James Bell and Gladys Gregg. (T. A.

334). The jury could not reach a verdict on Count IV and the Court

declared a mistrial as to that count (T. A. 333-334).

Petitioner filed her Motion to Dismiss Count IV on the grounds

that any further proceeding violated petitioner's Fifth Amendment

guarantee against double jeopardy. (T. A. 335, T. B. 10-11);

(Appendix (6)). This motion was denied on February 4, 1977. (T. B.

11).

In March, 1977 the petitioner was again tried for the cobbery

first degree of Gladys Gregg and found guilty as charged.

Punishment was assessed at ten years. (T. B. 302). Petitioner's

Motion for New Trial again asserted that the subsequent trial of

petitioner for for robbery first degree violates the Double Jeopardy

Clause. (Appendix (7)). An appeal in forma pauperis was taken to

the Missouri Court of Appeals. (Appendix (12)). On June 26, 1979,

the Eastern District of the Missouri Court of Appeals found that the

subsequent prosecution violated the double jeopardy provisions and

ordered the conviction reversed and the petitioner discharged.

(Appendix (13-19)). At the request of the State the cause was

transferred to the Missouri Supreme Court. (Appendix (20-21)).

The Missouri Supreme Court held first that there was no danger

of multiple punishment here because there was no conviction and

therefore no punishment on either telony-murder; second, there was

no immunity from reprosecution here because the mistrial was not

intentionally triggered by the State; and third, the jury's

acquittal of the felony-murder charges did not impliedly acquit

petitioner of the underlying robbery. (Appendix (37-50)).

The testimony and evidence at both trials was the same. The

facts are as follows:

On August 16, 1975, the bodies of Gladys Gregg and James Bel]

were found in their respective apartments at 3969 McPherson Avenue.

(T. B. 40-49, 59). The apartments were on the same floor but

separated only by a curtain hanging in a hallway. (T. B. 42-43,

45-46, 55, 58-60, 119). The victim Gladys Gregg's apartment was ap-

parently ransacked. (T. B. 40-49). Various items of silver and a

Pillowcase were missing from Miss Gregg's apartment. (T. B. 89).

The items of silver were recovered from Sandra Ross and Ronnie

Johnson, petitioner's brother, as the result of a surveillance of

petitioner's residence on an unrelated matter. (fT. B. 67-86). Also

introduced were fingerprints identified as petitioner's found on

items discovered in the apartment of James Bell. (T. B. 196-198),

One fingerprint belonging to petitioner was also found on a beer can

in Gladys Gregg's apartment. (T. B. 169).

Charlene DeLock testified she saw Sandra Ross at James Bell's

apartment and two unidentified companions waiting in an auto nearby

on the night in question. (T. B. 166).

On September 20, 1975, the petitioner and Sandra Ross were

arrested together on Marcus Avenue. (T. B. 96-99). Petitioner was

interrogated and she told the questioning officer that she did not

recognize either the bodies of Bell or Gregg, nor did she recognize

the building in which they lived. She stated she had never been

there. (T. B. 156-157, 162-163).

On these facts the first jury found petitioner not guilty of the

felony-murder of James Bell and Gladys Gregg; and on these facts the

second jury found petitioner guilty of robbery first degree.

REASONS FOR GRANTING WRIT

The writ shoud be granted in order to address the issue

presented above and raised on appeal relating to the question of

whether an acquittal on felony-murder bars a subsequent prosecution

for the underiying felony.

The importance of this question is due to the conflict between

the Missouri Supreme Court's opinion in the instant case, that the

double jeopardy clause is not violated when there is an acquittal on

the felony-murder and a subsequent prosecution for the underlying

felony and this Court's rule set out in Harris v. Oklahoma, 433 U.S.

682, 53 L.Ed.2d 1054. The Missouri Supreme Court failed to discuss

Harris v. Oklahoma, supra in its opinion in this case.

Although the State charged Willie Mae Johnson with conventional

murder in the first degree, they elected to submit to the jury on

the felony-murder theory. When the State submits on this theory the

commission of the felony is submitted to the jury conjunctively with

the fact of the homicide. Although it has been said that the under-

lying felony does not become "an element of the felony~-murder..."

State v. Lane, 551 S.W.2d 900, 908 (Mo.App. 1977) proof of .the

underlying felony or the attempt to perpetrate it eliminates the

necessity for proving the "elements" of premeditation and de-

liberation otherwise required to support a conviction of murder in

the first degree. State v. Owens, 486 S.W.2d 462 (Mo. 1972). State

v. Harley, 543 S.W.2d 288 (Mo.App. 1976).

If a jury had found petitioner guilty of either murder, it would

have had to have found her guilty of causing the death "in robbing

Gladys Gregg." Under such circumstances, the application of the

doctrine of Harris v. Oklahoma, 433 U.S. 682, 53 L.Ed.2d 1054

(1977), would mandate reversal.

The jury here found petitioner not guilty of both felony-murders

and therefore must have found her not guilty of robbing Gladys

Gregg. Again Harris v. Oklahoma would mandate reversal.

The reasoning of the Missouri Court of Appeals citing Harris v.

Oklahoma, supra, petitioner supports theory and is submitted to be

the correct reasoning in this case.

In Harris, the defendant was convicted of felony-murder which

occurred during the course of a robbery. He was thereafter tried

and convicted of armed robbery. The words of the court at 433 U.S.

682, 53 L.Ed.2d 1056 are particularly apposite to the instant case:

When as here, conviction of a greater crime, murder, cannot

be had without conviction of the lesser crime, robbery with

firearms, the Double Jeopardy Clause bars prosecution for

the lesser crime after conviction of the greater one. In

re Hans Nielsen, 131 U.S. 176, 33 L.Ed. 118, 9 S.Ct. 2221

(1977). ‘'... [A] person [who] has been tried and con-

victed for a crime which has various incidents included in

it, ... cannot be a second time tried for one of those in-

cidents without being twice put in jeopardy for the same

offense.’ In re Nielsen, supra at 188, 33 L.Ed. 118, 9

S.Ct. 672.

It is true that where two charges arise out of a Single act,

there is no violation of the rule against double jeopardy if each

offense requires proof of an element not required by the other.

State v. Campbell, 551 S.w.2d 940, 942 (Mo.App. 1977); State v.

Johnson, 549 S.W.2d 627, 631 (Mo.App. 1977); State v. Carter, 535

S.W.2d 537, 538 (Mo.App. 1976). However, in view of the fact that

the state proceeded on the theory of felony-murder, the state sub-

mitted the issue of robbery to the jury, for the issue was at least

one of the "incidents" of the aucder charges for which she "cannot

be a second time tried ... without being twice put in jeopardy for

the same offense." Harris v. Oklahoma, Supra. A direct analogy may

be drawn between this case and Brown v. Ohio, 432 U.S. 161, 53

L.Ed.2d 187 (1977), in which it was held that the double jeopardy

clause of the Fifth Amendment, applied to the states through the

Fourteenth Amendment, prevented a subsequent prosecution for auto

theft after a conviction of a lesser offense of joyriding. For

Purposes of this determination, the following two quotations are

Particularly illuminating:

The established test for determining whether two offenses

are sufficiently distinguishable to permit the imposition

of cumulative punishment was stated in Blockburgaer v.

United States, 284 U.S. 299, 304, 76 L.Ed. 306, 52 S.Ct.

180 (1932):

"The applicable rule is that where the same act or

transaction constitutes a violation of two distinct

Statutory provisions, the test to be applied to

determine whether there are two offenses or only one,

is whether each provision requires proof of a fact

which the other does not. ...'

This test emphasizes the elements of the two crimes. ‘If

each requires proof of a fact that the other does not, the

Blockburger test is satisfied, notwithstanding a sub-

stantial overlap in the proof offered to establish the

crimes. ...' TIannelli v. United States, 420 U.S. 770, 785

n 17, 43 L.Ed.2d 616, 95 S.Ct. 1284 (1975).

* * *

Applying the Blockburger test, we agree with the Ohio Court

of Appeals that joyriding and auto theft, as defined by

that court, constitute ‘the same statutory offense' within

the meaning of the Double Jeopardy Clause. App 23. For it

is clearly not the case that ‘each [statute] requires proof

of a fact which the other does not.' 284 U.S. at 304, 76

L.Ed. 306, 52 S.Ct. 180. As is invariably true of a

greater and lesser included offense, the lesser offense --

joyriding -- requires no proof beyond that which is re-

quired for conviction of the greater -- auto theft. The

greater offense is therefore by definition the 'same' for

Purposes of double jeopardy as any lesser offense included

in it.

Id., 432 U.S. 168, 53 L.Ed. 195-196.

In the instant case, each and every element of the crime of robbery

was submitted to the jury in the first trial in connection with the

murder charges. Under the circumstances and in the interest of

finality, the state cannot properly hale the petitioner before a new

jury and relitigate the question of whether she was guilty of the

robbery alone. Cf. Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469

(1969) and United States v. Jorn, 400 U.S. 470, 27 L.Ed.2d 543, 553

(1971).

This writ should be granted so that the Missouri Supreme Court's

opinion which is contrary to the standard set forth in Harris v.

Oklahoma, supra, will not operate to deny petitioner the federally

protected right against twice being put in jeopardy for the same

offense.

CONCLUSION

Petitioner respectfully prays for a Writ of Certiorari to review

the opinion of the Missouri Supreme Court holding that a subsequent

trial on the underlying felony after an acquittal on felony-murder

does not violate the Double Jeopardy Clause.

Respectfully submitted,

CHRISTELLE ADELMAN-ADLER

Special Assistant

Public Defender

Attorney for Petitioner

22nd Judicial Circuit

Municipal Courts Building

1320 Market Street

St. Louis, MO 63103

APPENDIX.

Applicable Missouri Statutes . ° : .

Jury Instructions in Trial Court . . .

Motion to Dismiss . ° ° ° ° ° .

Motion for New Trial ° ° ° ° ° °

Notice of Appeal to the Missouri

Court of Appeals ° ° ° ° . . °

Opinion of Missouri Court of Appeals . .

Respondent's Motion for Rehearing or Transfer

To Supreme Court . . ° . ° ° °

Respondent's Suggestions in Support of

Respondent's Motion for Rehearing or Transfer

to Supreme Court ° ° ° ° ° ° °

Respondent's Motion for Transfer ° . °

Respondent's Suggestions in Support of Motion

for Transfer . ° ° e ° . . .

Letter from Clerk of Missouri Supreme Court

indicating order for Transfer . ° ° °

Missouri Supreme Court order for Transfer .

Letter from Clerk of Missouri Court of Appeals

indicating transfer . ° . . . .

Letter from Clerk of Missouri Supreme Court

indicating opinion filed ° e . e .

Opinion Missouri Supreme Court . ° ° °

Letter from Clerk of Missouri Supreme

Court acknowledging Motion for Rehearing °

Petitioner's Motion for Rehearing ° ° °

Letter from Clerk of Missouri Supreme

Court indicating Petitioner's Motion for

Rehearing c erruled . ° ° ° ° ° .

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REVISED STATUTES

of the

STATE OF MISSOURI

1969

559.010. Murder in the first degree.--Every murder which shall

be committed by means of poison, or by lying in wait, or by any

other kind of willful, deliberate and premeditated killing, and

perpetration or attempt to perpetrate any arson, rape, robbery,

burglary or mayhem, shall be deemed murder in the first degree.

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, servant, clerk or

agent, or by putting him or bee in fear of some immediate injury to

his or her person, shall be adjudged guilty of robbery in the first

degree.

560.135. Armed robbery~-punishment for robberies.--Every person

convicted of robbery in the first degree by means of a dangerous and

deadly weapon shall suffer death, or be punished oy imprisonment in

the pentitentiary for not less than five years, and every person

convicted of robbery in the first degree by any other means shall be

punished by imprisonment in the penitentiary for not less than five

years; every person convicted of robbery in the second degree shall

be punished by imprisonment in the penitentiary not exceeding five

nor less than three years; every person convicted of robbery in the

third degree shall be punished by imprisonment in the penitentiary

not exceeding five years.

APPENDIX (1) es

INSTRUCTION NO, i. 3

As to Count I, if you find and believe from the evidence

beyond a reasonable doubt:

First, that on or about August 16, 1975, in the

City of St. Louis, State of Missouri, the

defendant, acting with another, caused the

death of James Bell by binding and Sagging

him thereby causing suffication of him, and

Second, that she did so in robbing Gladeys Gregg,

and

Third, that the defendant acted either alone or

knowingly and with common purpose together

with another in the conduct referred to in

the above paragraphs,

then you will find the defendant guilty under Count I of murder

in the first degree.

‘However, if you do not find ana believe from the evidence

beyond a reasonable doubt each and all of the foregoing: you

must find the defendant not guilty under Count I of that offense,

"Robbery" is the unlawful taking of the property of another

from his person or in his presence and against his will either

by the use of violence to the person of the possessor of such

property with intent tc steal or by putting him in fear of

immediate injury to his person with intent to steal.

If you do find the defendant guilty under Connt I of murder

in the first degree you will fix pr: punishment at life imorison-

ment.

VAI-Cz 6.19 Modified by 2.12

Submitted by State

APPENDIX (2)

INSTRUCTION NO.

As to Count II, if you find and believe from the evidence

beyond a reasonable doubt:

First, that on or about August 16, 1975, in the City

of St, Louis, State of Missouri, the defendant,

acting with another, caused the death of Gladeys

Gregg by binding and gagging her thereby causing

suffication of her, and

Second, that she did so in robbi..g Gladeys Gregg, end

Third, that the defendant acted either alone or know-

ingly end with common purpose together with

another in the conduct referred to in the above

paragraphs,

then you will find the defendant guilty under Count II of murder

in the first degree.

However, if you do not find and believe from the evidence

beyond a reesonable doubt each and all of the foregoing, you

must find the defendant not guilty under Count II of that offense,

"Robbery" is the unlawful taking of property of another

from his person or in his presence and against his will either

by the use of violence to the person of the possessor of such

property with intent to steal or by putting him in fear of

immediate injury to his person with intent to steal.

If you do find the defendant guilty under Count II of murder

in the first degre you will fix her punishment at life imprison-

ment.

MAI-Ck 6.1 Modifies by 2,12

Submitted by State

APPENDIX (3)

INSTRUCTION NO. a

(Submitted at First Trial)

fs to Count IV, if you find and believe from the evidence

beyond a reasonable doubt:

First, that on or about August 16, 1975, in the City

of St. Louis, State of Missouri, Gladeys Gregg

owned a quantity of silverware, and

Second, that at that time and place the defendant,

acting with another, took the property from

Gladeys Gregg against her will by violence to

her person, and

Third, that the defendant, acting with another, took

the property with the intent to permanently

deprive Gladeys Gregg of the property and to

convert it or any part of it to the use of the

defendant and another, and

Fourth, that the defendant acted either alone or know-

ingly and with ‘common purpose together with

another in the conduct referred to in the above

paragraphs, |

then you will find the defendant guilty under Count IV of robpbery

in the first degree,

However, if you do not find and believe from the evidence

beyond a reasonable doubt each and all of the foregoing, you

must find the defendant not guilty of that offense,

If you do find the defendant guilty under Count IV of

robbery in the first degree, you will fix ‘er punishment at

imorisonment by the Department of Corrections for a term fixed

by you, but not less than five years nor more than life inorl-

*onment.

KAIeCR %.60 Modified hy 2.12

Subritted hy 3tate

APPENDIX (4)

INSTRUCTION NO.

(Submitted at — Trial)

If you find and believe from the evidence beyond a

reasonable doubt:

Pirst, that on or about August 16, 1975 in the City

‘ of St.Louis, State of Missouri, Gladys Gregg

owned various articles of silverware, and

Second, that at that time and place the defendant,

. acting with others, took the Property from

Gladys Gregg against her will by violence to

her person and by causing her to fear immediate

injury to her person, and

Third, that the defendant, acting with others, took

the property with the intent to permanently

Geprive Gladys Gregg of the property and to

convert it or any part of it to the use of

the defendant and others, and

Pourth, that the datendanh actes either alone or

knowingly and with common purpose together with

others in the conduct referred to in the above

parascraphs,

then you will find the defendant guilty of robbery in the

first degree.

However, if you do not find and believe from the

evidence beyond Aa reasonable doubt each and all of the

foregoing, you must find the defendant not guilty of that

offense.

- If you do find the defendant guilty of robbery in the

first degree, you will fix his punishment at imprisonment by

the Department of Corrections for a term fixed by you, but |

not less than five years nor more than life imprisonment.

MAI-CR 7.60 Modified by 2.12

Submitted by State

aba

toe. eh pe * ae? ies 28, J"

STATE OF MISSOURI ) ‘

> @&

CITY OF ST. LOUIS )

IN THE CIRCUIT COURT IN AND FOR THE CITY OF ST. LOUIS

STATE OF MISSOURI

STATE OF MISSOURI

Plaintiff

No. 75-2893 FEB 2 1677

Ve

Division No. 16 GEORGE HM. SOLE

Clerk. Circuit Court to taa

WILLIE MAE JOHNSON

ee ee ee et et et ee ee

Defendant

MOTION TO DISMISS

Comes now the Defendant herein, Willie Mae Johnson,

and moves the Court to dismiss this proceeding because she has

heretofore been tried and acquitted of two charges arising out

of the same incident or transaction on which Defendant stands

charged at the present time.

The previous judgments of acquittal determined the

ultimate facts which the State is attempting to relitigate in

a further lawsuit.

The rule of collateral estoppel embodied in the Fifth

Amendment guarantee against double jeopardy prohibits Defendant's

retrial in this cause.

WHEREFORE, the Defendant requests this Court enter an

order dismissing the charge in this cause for the reason that it

violates Defendant's Fifth Amendment guarantee against double

jeopardy.

Further, Defendant requests the Court enter an order

requiring the official court reporter who took the testimony

in the former trial to prepare a record of the prior proceedings

so that this Court may make a decision in this matter. Defendant -

prays that the order provide the preparation of the transcript be

without cost to the Defendant because she is indigent and unable

to afford to pay court costs of such a transcript.

Respectfully submitted,

rs : ° “ .

CHRISTELLE ADELMAN-ADLER

Rewicétant Dihlice Nafender J

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C APR r ei 10>

STATE OF MISSOURI ) | ig/f

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P UIs ) rn

CITY OF ST. LO Clerp Kreg, fe 5 OWON -

“-— Ch InnWt rn.

IN THE CIRCUIT COURT IN AND FOR THE CITY OF . LOureses

STATE OF MISSOURI

STATE OF MISSOURI,

Plaintiff Cause No. 75-2893

Vs. Division No. 19

WILLIE MAE JOHNSON,

-

oo

Defendant

MOTION FOR NEW TRIAL

Comes now the defendant herein, Willie Mae Johnson, and

moves the Court to set aside the verdict and judgment here-

tofore rendered in the aforesaid cause and requests the Court

that a new trial be granted to him and in Support of same

request respectfully states to the Court as follows:

1.. The Court erred in overruling defendant's Motion

ae sien Evidence and in overruling defendant's objection

at trial to the introduction of numerous pieces of silverware

and two pillowcases on the grounds that this physical evidence

was obtained by a Search and seizure which was made without a

Serene and without other lawful authority, and in a manner

which violated the defendant's rights under Section 15 of

Article I of the Constitution of Missouri and the Fourth and

Fourteenth Amendments of the Constitution of the United States,

2. The Court erred in overruling the Motion to Suppress

defendant's statement and the objection at trial to the intro-

duction of the statement for the reason that the Statement was

involuntarily made, it was the fruit of an illegal arrest,

it was made without adequate advice concerning defendant's

right to counsel and her right to remain Silent, and that they

were made without an intelligent waiver of her rights.

3. The Court erred in Overruling defendant's Motion

for Judgment of Acquittal at the close of State's and entire

case because the State failed to produce evidence which if

admissible constituted a submissible case of a robbery first

degree committed against Gladys Gregg.

4. The Court erred in allowing the State to adduce evi-

dence of defendant's fingerprints found in James Bell's apart-

ment in the trial of the case wherein Gladys Gregg was the

victim. The evidence was not relevant to the charge under

consideration and the charges based on the evidence found

in James Bell's apartment and relating to James Bell had pre-

viously been disposed of in favor of the defendant. The

introduction of this evidence violated defendant's rights

to due process of law and a fair and impartial trial.

5. The Court erred in failing to sustain defendant's

motion to dismiss the charge of robbery first degree committed

against Gladys Gregg for the reason that a jury had previously

determined the issues in the case in favor of the defendant.

The same evidence which had been heard at the first trial

was represented constituting a violation of defendant's

right against double jeopardy and collateral estoppel. The

defendant therefore was denied due process of law.

6. The Court erred in admitting Exhibits 16, 17, 2, 3,

4, 5, 6, and 25 because they were irrelevant to the charge

under consideration. The defendant was denied due process

of law and a fair and impartial trial by the introduction

of these exhibits.

7. ‘The Court erred in allowing the introduction of

the two boxes found in James Bell's apartment as evidence

in this case because they were irrelevant and no evidence

was presented to show that these boxes belonged in Bell's

apartment nor that they were inaccessible to the defendant

in the past. Further, the exhibits were irrelevant and

introduced to show the defendant's alleged involvement

in ancther offense of which she had previously been acquitted.

The defendant was thereby denied her rights against double

jellies

APPENDIX (8)

jeopardy, collateral estoppel, due process of law and a fair and

imparttal trial.

8. The Court erred in overruling defendant's objection in

final argument to the Assistant Circuit Attorney's statement that

whoever perpetrated the crime(s) on James Bell perpetrated the

Same crime against Gladys Gregg. This was prejudicial in that

it inferred that the defendant had committed some crime against James

Bell when in fact she had previously been acquitted of those charges

and it was an attempt to inflame the jury with evidence of the

homicides, This violated defendant's rights against double jeopardy,

collateral estoppel, and her rights to due process of law anda

fair and impartial trial.

9. The Court erred in overruling defendant's request for

a mistrial during closing argument when the Assistant Circuit

Attorney stated that he didn't have to prove defendant's guilt

beyond all doubt. The Court had previously discussed with

counsel the applicable law in this area which indicated that

such a statement could not be made. and no definition of beyond

a reasonable doubt could be given. This argument showed total

disregard for the previous ruling of the Court and denied defendant's

rights to a fair and impartial trial and due process of law.

10. The Court erred in overruling defendant's request for

a mistrial during closing argument when the Assistant Circuit

Attorney eluded to the defendant's failure to produce witnesses

or testify by saying, "You have heard of no witness to Support her

theory." This constituted a denial of due process of law and a

fair and impartial trial.

ll. The Court erred in failing to give Instruction No. A, the

lesser included offense of Stealing fifty dollars or over for the

reason that the circumstantial evidence presented did not show that the

silverware could only have been taken by force and violence from

Gladys Gregg. Since no time of death was shown and the time of the

theft of the items could not be determined, it was only speculative that

the items were taken by means of force or fear. The failure

ssf

APPENDIX (9)

to give this instruction denied the defendant of due process

of law and a fair and impartial trial.

12. The Court erred in failing to give Instruction

No. B. This instruction was a proper statement of the law

regarding an accessory after the fact. The jury could find

that the defendant did not participate as a principle and

that participation only as an accessory after the fact did not

make her guilty as a principle. The failure to give this

instruction denied the defendant's right to due process of

law and a fair and impartial trial.

13. The Court erred in failing to give Instruction

No. C which stated the standard applicable for determining

whether evidence of similar acts could be used in determining

defendant's guilt. Without an instruction guiding the jury

on the law applicable they were allowed to consider evidence

of offenses of which the defendant had previously been acquired.

The failure to give a proper instruction onwhen "similar acts"

can be considered as evidence denied the defendant a fair

and impartial trial, due process of law, and violated her

rights against collateral estoppel and double jeopardy.

14. The Court erred in giving Instruction No. 12, MAI-~

CR 3.60 as submitted by the State for the reason that this allowed

the jury to consider evidence of other crimes on the basis

that it showed a common scheme or plan. It was error for

_the Court to allow the jury to consider such evidence since

the defendant had previously been acquitted of the other

charges which allegedly constituted the "common" scheme or

plan. This denied defendant's right to a fair and impartial

trial and due process of law.

Your movant alleges that the above errors, taken indi-

vidually and cumulatively, abridged defendant's rights -

as secured to him by the case law and Constitution of Missouri

and the United States.

a

APPENDIX (10)

WHEREFORE, your movant respectfully prays this Honorable

Court to set outa and hold for naught the finding and

verdict of the jury and to discharge the movant or in the

alternative if the Court concludes a submissible case was

presented by the evidence then movant requests a new trial

or such other relief as may be appropriate.

Respectfully submitted,

tite yuh

Christelle -Adelman-Adler —

Assistant Public Defender

ie

APPENDIX (11)

Notice is given that Willie Mae Johnson + defendant herein

@ppeals from the judgment entered in this cause on the ay of

[lez L977

A was convicted of Robbery First Degree _-

a felony, Section 560.120 and 560.135 * RSMO 1969, which offense i

“STATE OF MISSOURI )

) ss

CITY OF st. Lours )

IN MIE CIRCUIT CouRT IN AND FOR THE CITY OF st. Lours

"STATE OF MISSOURI

STATE OF MISsourr,

Plaintiff

Cause No, 75-2893

vs.

Division No. 19

WILLIE MAE JOHNSON,

Defendant

NOTICE OF APPEAL TO THE MISSOURI COURT oF APPEALS

ST. LOUIS DISTRICT

not exclusively punishable by life imprisonment Or death. This appeal]

does not involve a construction of the Constitution of the United

States or the Constitution of the State of Missouri. The Missouri

Court of Appeals has jurisdiction. Article V, Section 3, Constitution

of Missouri, as amended 1970,

Permission to appeal as a poor person was i by Hon.

Judge Clyde Cahill » Judge, on the 0” ~ day of Silay

/272. oat

tag

Assistant Pub 1c Defender

22nd Judicial Circuit

1220 Market Street

St. Louis, Missouri 63103

\ewess

~\U

MAY 10 1977

Cr sen Cassis

EORGE

& Circuit Court fr

APPENDIX

ee the iHissouri Cour af Appeals

3

: or. EASTERN DISTRICT Fa se

DIVISION TWO

State of Missouri,

) Cause No. 39,242

)

° Respondent, ) Appeal from the Circuit Court

7 ) - -City of St. Louis

v. . " Hon, Clyde S: Cahill, Judge

Willie Mae Johnson, ; ans OPINION FILED - ”

| Appellant: ie “tls gone 26. 1979" 4

* ° .

+e ley . ee

ws > ° o

- vo &, . - -

ek Bafandant-vas: originally. tried- Sa: ‘Siontin 1977, on four. charges:

murder 4a the. first degree ~0f Janes Bell, murder in the-first. degree of .-

.

Gladys Gregg, robbery-of Sense Bell ind robbery -of Gladys Gregg: “She

was acquitted on both counts of murder, The state entered a nolle

ae for the robbery: of James Bell, The jury could not reach a

verdict as to the robbery of _Gladys Gregg, and the court declared a ;

mistrial on that count. ‘In March 1977, defendant was tried again for

the robbery of Gladys Gregg. She was convicted-by the jury on that

charge, §560.120, RSMo 1969, and sentenced by the court to ten years'*

imprisonment.

-- —— F © -«

On appeal defendant 3 raises tutes points. She contends that ‘the

trial court erred in denying her motion to dismiss the robbery charge

because a second prosecution on that charge constituted double jeopardy,

that the trial court erred in denying her motion to Suppress evidence

because she had standing to challenge the legality of the search and

—— by which the evidence wae obtained, and that the trial court ia

erred in Senying her ynotion for judgment of acavittal at the close of

the case because the evidence was insufficient to submit the case to

the jury. Finding merit in defendant's first point, we reverse and

orcer the defen@ant discharaca ee ee ee

uffice.

On the night of August 16, 1975, the apartment of Gladys Gregg

as ransacked and she was robbed of a substantial amount of silverware

hich she had collected over the vears. The apeutmanh was located at

969 McPherson in the City of St. Louis and consisted of the front three

ooms of the first floor. Mrs. eress’s body, bound hand and foot with

lectrical cora, was found on the morning of August 17, 1975, lying

out to her bea. At the time of her death, she was seventy-five years

ia and an invalid. The rear three rooms of the first floor comprised

he apartment of James Beil... He also was found Gaae, his hands bound

ehind him, ‘his feet. bound~and his head wrapped- ina plastic bag. _He

as:lying-. on his=bed ;- - face’ -down ~~ °The “two “apartments -were- = separated by

nly “a curtain. in a ‘hallway ;--both apartnents were in_ disarray. - oat"

Defendant ‘s fingerprints were-found on a beer « can “recovered from

e premises,.-on a blue.plastic-box.and-on ‘a-check—box located in

ell's apartment. i, ae oe ae ears et

‘A tenant of a basement apartment at 3969 McPherson, Charlene Deloch,

estified that she had. ‘last-seen Mrs: ‘Gregg. alive. at about 7:30 p.m. on

ygust 16, 1975. | Ms. Deloch then left the premises. for several hours.

pon her. return at a about _10:30 p-m., she encountered Sandra Ross, whom

eloch-had known since Ross was a child. ~--Sandra was Walking around

oward the rear of the building and the door of Mr. Bell's apartment.

ey conversed briefly before Sandra knocked on the door of Mr. Bell's

partment and was admitted. Ms. Deloch saw a dark colored automobile

ccupied by two persons parked near the side of the building. She

ould not see them well enough to determine whether they were oule or

emale. Ms. Deloch entered her own apartment; and, in about thirty

inutes, Sandra Ross “hollered in my window and told me she would see

e in the morning", a promise which was not kept. Ms. Deloch had seen

andra at Mr. Bell's apartment approximately four times previous to

is occasion and understood they were friends.

On the day after Mrs. Gregg and M>. Bell were found dead, August 18,

surveillance of the Premises at 4752 Ashland, defendant Willie Mae

Johnson's residence at the time. As they watched, a man and a

oman —- defendant's brother, Ronnie Johnson and Sandra Ross - walked

ut of the house Carrying pillowcases filled with items and entered an

utomobile. Since neither of the persons was the object of the sur-

anes, the detectives did not confront them but placed . a radio call

° Sergeant Charles McCrary who was parked several blocks away as a

sackup to the detectives.

At their request, McCrary stopped the

cle, a black over maroon 1968 or 1969 Pontiac, driven by Ronnie

johnson. On the floorboard in front of Sandra Ross were two pillow-

aues~-containing-numerous .articles of. silverware .in Plain view. McCrary

eadquarters ‘for questioning.” “The pillowcases were*identified by Mrs.

regg's maid-as- -belonging ‘to the’ -victim:- The silverware-in the pillow-

ases was identified by both=-the-maid-.and ‘Mrs.-

ng to Mrs, Gregg. pies : : ; = Pica iy 2 ; ey

. At 1:00 a.m. on September 20, 1975, St. Louis Police detectives

aintaining | a surveillance. at. 2714 Marcus observed Sandra Ross and

efendant Johrison ‘alight from an automobile. The detectives approached

he two women and identified init as police officers, ee

: women attempted: ‘to flee... The officers gave .chase, apprehended the

men and took them into custody, Having been read her Miranda rights,

fencgant stated to an investigating officer that she did not recognize

otographs of the premises at 3969 McPherson, that she had never been

those premises, that she did not know Gladys Gregg, or James Bell or

cognize their names. She also Stated that she and Sandra Ross were

“substitute information in lieu of indictment" upon which defen-

t was tried the first time charged that she, acting with another,

‘ '

eloniously, willfully, premeditatedly, deliberately, on purpose and

hec malice aforethought did make an assault upon one Gladys Gregg,

th a plastic bag, and then ana there feloniously, willfully,

premedi-

APPENDTY (16) .

.

£ .

tatedly, deliberately, on purpose and of her malice aforethought did

strangle and suffocate the body of the saia Gladys Gregg ...” thus

causing her death. “However, at the conclusion of the’trial and over

ry -

defense counsel's objection, the trial court refused to give a "conven-

tional murder first degree" instruction. Rather, the murder charges

were submitted to. the jury under the felony-murder doctrine, thus direc-

bine the jury to find defendant guilty of the murders of James Bell

and Gladys Gregg if it found that she caused the death of each victim

eee Second, that she did so in robbing Gladys Gregg, cool As

pointed out above, defendant was acquitted of both of the murder charges

“After a mistrial was declared as to the.charge-of. robbery of Gladys

sregg,defendant:filed-a motion —to dismiss ‘the>charge;_alleging:that a

ce-trial on Such -charge.would-.violate-defendant's right against double

jeopardy. The motion’ was denied ‘by the trial: court... After the-second-

.

ts Except for-the name of the deceased, both instructions are identica:

The one hypothesizing the-death of Gladys Gregg reads’as follows:

"As to Count II, if you find and believe. from the evidence

beyond a reasonable doubt: R

First, that on or about August 16, 1975, in the City of St.

Louis, State of Missouri, the defendant, acting with another,

caused the: death of Gladys Gregg by binding and gagging her

thereby causing suffocation’of her, and — tare

Second, that she did so in robbing Gladys Gregg, and

Third, that the defendant acted either-alone or knowingly

and with common purpose ‘together with ‘another in the conduct

referred to in the ‘above paragraphs, then you will find the

defendant guilty under Count If of murder in the first degree.

However, if you do not find and believe from the evidence be-

yond a reasonable doubt each ‘and all of the foregoing, you must

find the defendant not guilty under Count II of that offense.-- |

"Robbery" is the unlawful taking of property of another from

his person or in his presence and against his will either .

hy the use of violence to the person of the pessessor of

such property with intent to steal or by putting him in fear

of immediate injury to his person with intent to steal. ,

Tf you do find the defendant guilty under Count Il of murder

in the first degree you will fix her punishment at life

imprisonment," .

APPENDIX (16)

- Eee oo ore URE

t oui , rer ‘ “* ~ ‘ ay : ‘

a 2

Under the peculiar Stusitieaiats aan this case, we believe that defen- .

dant's right not to be put in jeopardy twice for the same offense

was violated by her second trial for the robbery of Mrs. Gregg.

In the first trial, the state elected to submit to the jury on

the theory of felony-murder although defendant had been charged with :

?.

conventional murder in the first degree. It is, of course; permissible

for the state to plead conventional first degree murder and then to

prove and submit felony-murder. State v. Owens, 486 S.W. 2a 462,

467[7] (Mo. 1972); State v. Harley, 543 S.w. 2a 288, 293 (Mo. App. a

1976) = . However ,=when_it ‘does .so,-the commission -or attempted commis-

ae ae

sion -of one of the felonies enumerated~in -§559..010, RSMo’ 1969,-is —— ss

submitted to the =jury conjunctively-with-thesfact-of. the:homicide."~~~ ~

lthough it has. been -said-that..the underlying‘ felony-does not become _._ _~*< =

an element of the felony-murder wong State.v. Lane, 551 S.W. 2d

00, 908. (Mo.App. 1977), proof.of the underlying -felony or-the attempt +_

© perpetrate it eliminates the necessity for proving-the "elements" Tam

f premeditation and deliberation otherwise required to support a con- -

iction of murder in the first degree. State -v. Owens;~supra, 466; -

tate v. Harley, supra, 293.

- In order.-for the jury to have found ‘defendant. -guilty -of either. ~~ *

~acigmaalla would have: had to have found her guilty of causing the

Jeath “in robbing Gladys Gregg." Under such circumstances, we believe

that application of the doctrine of Harris v. Oklahoma, 433 U.S. 682,

53 L.Ed. 2d 1054 (1977), mandates reversal. In Harris, the defendant 5

was convicted of félony-murder which occurred during the course of a

robbery. He was thereafter tried and convicted of armed robbery. —

[fhe words of the court at 433 U.S. 682, 683, 53 L.Ed. 2d 1056 are

oarticularly apposite to the instant case:

“When as here, conviction of a greater crime, murder, cannot

be had without conviction of the lesser crime} robbery with

firearms; the Double Jeopardy Clause bars prosecution for the

lesser crime after conviction of the greater one. In re Hans

Nielsen, 131 US 176, 33 L Ed 118, 9 § Ct 672 (1889); cf. Brown

v Ohio, 432.US 161, 53 L Ed 2d 187, 97 Sct 2221 (1977). one

[A] person [who] has been tried and convicted for a crime which

‘

s4

sachin

a

‘

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

time tried for one of those incidents without being twice put

in jeopardy for the same offence.' In re Nielsen, supra, at

188, 33 L Ed 118, 9 S Ct 672." :

It, is true that where two charges arise out of a single act, there

is no violation. of the rule against double jeopardy if each offense re-

paises proof of an element not required by the other. . State v. Campbell,

S51 S.W. .2d 940, 942 (Mo. App. 1977); State v. Johnson, 549 S.W. 2d 627,

631 (Mo. App 1977); State v. Carter, 535 S.W. 24 537, 538 (Mo. App.

1976). ewan, in view of the posture in which we find this case, the

state can derive no benefit from this rule. By proceeding on the theory

Ped felony-murder ; the state submitted the issue of robbery to the

jury, “forthe issue was at least--one of the—"incidents"-of .the murder.

harges-for-.which she "cannot be a.second-time tried-:-.. without being

wice put ‘in jeopardy for. the .same-offence:" ‘Harris-y. Oklahoma,-supra.

direct analogy may be drawn Letween this case and Brown v. Ohio, 432°~--°

U.S. 161,-53 L:Eaz-2d 187 (1977); in which-it was-held that-the double -

jeopardy clause-of the fifth amendment, applied to the states through

the fourteenth, prevented a subsequent prosecution for auto theft after

a Reuptotion’ of a’ lesser offense’ of joyriding. For-our purposes, -the |

following tne qutatbenn’ ane pexttodecty illuminating:

: .

. “The established test for determining whether. two offenses are

sufficiently distinguishable to permit-the ‘imposition of cumula-

tive punishment was stated in Blockburger v. United States, 284.

US 299, 304, 76 L Ed 306, 52 S Ct isu (1932):

‘The applicable rule is that where the same act or trans- PO.

. action constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each pro-

vision requires proof of a fact which the other does not.

This-test emphasizes the elements of the two crimes. ‘If each

requires proof of a fact that the other does not, the Blockburger .

test is satisfied, notwithstanding a substantial overlap in the

proof offered to establish the crimes. ...' TIannelli v.United

States, 420-US 770, 785 n 17, 43 L Ed 2d 616, 95 S Ct 1284 (1975)."

Id., 432 U.S. 166, 53 L.Ed. 2d 194.

] * * *

“Applying the Blockburger test, we agree with the Ohio Court of

Appeals that joyriding and auto theft, as defined by that court,

constitute 'the same statutory offense' within the meaning of

APPENDIX (18) < ~~

the Double Jeopardy Clause. App 23. For it is Clearly not

the case that ‘each [statute] requires proof of a fact which

the other does not." 284 US, at 304, 76 L Ed 306, 52 § Ct

180. As is invariably true of a greater and lesser included

offense, the lesser offense—joyriding—requires no proof

beyond that which is required for conviction of the greater—

auto theft. The greater offense is therefore by definition the

‘same’ for purposes of double jeopardy as any lesser offense

‘included in it." Id., 432 U.S. 168, 53 L.Ed. 24 195-196.

In the instant case, each and every element of the crime of robbery was

submitted to the jury in the first trial in connection with the murcGer

charges. Under the circumstances and in the interest’ of finality, the

state could not properly hale defendant before a new jury and relitigate

the question of whether she was guilty of the robbery alone. Cf. Ashe

v. Swenson, 397 U.S. 436, 25 L.Ed. 2d' 469 (1969) and United States v..

Jorn ,—400' U.S. 470, -479, 27 L.Ed2d 543, 553 7(1971).

The judgment of conviction is reversed, and the appellant is ordered :

discharged.

Joseph G. Stewart JUDGE Concurs

John J. Kelly, Jr. JUDGE Concurs

APPENDIX (19) “

IN THE

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

STATE OF MISSOURI,

Respondent,

Vv. Cause No. 39242

WILLIE MAE JOHNSON,

Appellant.

MOTION FOR REHEARING

OR TRANSFER TO SUPREME COURT

Pursuant to Rule 83.02 and 84.17, V.A.M.R., comes now the

Senta of Missouri, respondent in the above-captioned cause, by

and through its attorneys, John Ashcroft, Attorney General, and

Weldon W. Perry, Jr., Assistant Attorney General, and moves this

court to withdraw its opinion heretofore rendered in this cause

and grant respondent a rehearing of said cause or in the alternative

transfer it to the Supreme Court of Missouri. As grounds for the

granting of said motion, respondent submits that:

1. The court's opinion as entered in this cause on June 26,

1979, conflicts with the opinion entered by this court on May 9,

1979, in State of Missouri v. Dennis Lee Morgan, Cause No. 39358,

and the opinion entered by the Missouri Supreme Court in State

v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975);

2. There is a question of general interest or importance

involved in the case; and

3. The court's opinion as entered overlooks or misinterprets

material matters of law or fact, as is more fully detailed in

the suggestions in support of this motion attached hereto and

incorporated by reference herein.

WHEREFORE, respondent prays that this court withdraw its

opinion heretofore rendered in this cause and grant respondent

a rehearing in order that the matters adverted to above may be

APPENDIX (20)

*: more fully and properly presented to this court for its consider-

ation, >-r in the alternative order this cause be transferred to

the Supreme Court of Missouri.

Respectfully submitted,

JOHN ASHCROFT

Attorney General

Wolein Eel Ferny y

WELDON W. PERRY, oe

Assistant Attorney General

Post Cffice Box 899

Jefferson City, Missouri 65102

314/751/3321

Attorneys for Respondent.

CERTIFICATE OF SERVICE

I hereby certify that a

true and correct copy of

the foregoing was mailed,

postage prepaid, this

A day of July, 1979, to:

Mr. Robert C. Babione

Public Defender

Twenty-Second Judicial Circuit

1320 Market Street

St. Louis, MO

Attorney for Appellant.

WELDON W. PERRY, JIR.G

APPENDIX €21)

~~

IN THE

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

4.

STATE OF MISSOURI,

Pespondent,

V- Cause No. 39242

WILLIE MAE JOHNSON,

Appellant.

SUGGESTIONS IN SUPPORT OF RESPONDENT'S

MOTION FOR REHEARING OR TRANSFER TO SUPREME COURT

Comes now the State of Missouri, respondent in the above-

captioned cause, by and through its attorneys, John Ashcroft,

Attorney General, and Weldon W. Perry, Jr., Assistant Attorney

General, and in support of its motion for rehearing or transfer

to Supreme Court, does submit the following suggestions for this

court's consideration:

In an opinion filed in this cause on June 26, 1979, reversing

appellant's robbery conviction under Section 560.120, RSMo 1969,

this court opined: :

"In order for the jury to have found defendant

guilty of either murder, it would have had to have

found her guilty of causing the death ‘in robbing

Gladys Gregg." Under such circumstances, we believe

that application of the doctrine of Harris v.

Oklahoma, 433 U.S. 682, 53 L.Ed.2d 1054 (1977),

mandates reversal. ...

* * *

- » »- By proceeding on the theory of felony-murder,

the state submitted the issue of robbery to the

jury, for the issue was at least oue of the

‘incidents’ of the murder charges for which she

‘cannot be a second time tried. . . without being

twice put in jeopardy for the same offense.'*

[Citation Omitted]." (Court's Cpinion at pages

5 and 6).

As entered, the court's opinion in this cause is contrary to

Missouri law as pronounced by this court in State of Missouri v.

Dennis Lee Morgan, Missouri Court of Appeals, Eastern District,

(Cause No. 39358, May 9, 1979). Furthermore, the opinion as entered

is contrary to the decision entered by the Missouri Supreme

Court in State v. Chambers, 524 S.W.2d 826, 829 (Mo. Bane 1975)

cert. denied 423 U.S. 1058 (1976). In Morgan, supra, this court

APPENDIX (22)

dealth specifically with the issue of whether or not the Fifth

Amendment's double-jeopardy clause proscribes prosecuting, convicting

and sentencing a criminal defendant for both felony-murder [murder

in the second degree) and the underlying felony [stealing over

$50]. Quoting from State v. Chambers, supra, this court in Morgan,

opined: 5

"After analyzing some general principles of

the doctrine of double jeopardy, the court phrased

the hone in Chambers, at page 829, as:

[W)hether, in the circumstances of this case, the

stealing charge is an essential element of, or

lesser included offense within, the felony-murders

as to bring the case within the prohibition of State

v. Toombs, supra, [326 Mo. 981, 34 S.W. 2d 61 (1930)]

[that a defendant may not be tried twice for the

same offense].

The key to the court's holding that the multiple

convictions did not violate the provisions against

double jeopardy is found in its conclusion that the

underlying felony is only evidence of the mental state

necessary to support conviction for the resulting

murder and is not an actual element of the murder

offense. 'The [felony-murder] rule does not make

the underlying felony on element of the felony-

murder; it merely provides an additional means of

proving the requisite felonious intent for murder.

[Citing eases}. «+ « e

Chambers is directly on point and controls the

factual situation presented here. This court is

constitutionally bound to follow the last controlling

opinion of the Supreme Court of Missouri. [Citations

omitted] .”

In reversing appellant's conviction in the instant case, this

court has failed to acknowledge or distinguish existing Missouri

authorities which have repeatedly recognized that a murder and a

robbery arising out of the same transaction or occurrence are not

to be construed either as constituting the same offense or emanating

one from another for purposes of ascertaining the existence of

APPENDIX (23).

Te eee. as * Sipe ious fy hal aes

ov “ gt ols py

State v. Moore, 33 S.W.2d 905, 906-907 (Mo. 1930);

=

double jeopardy.

dg

State v. Chambers, supra, at 829; State Vv. Dennis Lee Morgan,

Missouri Court of Appeals, Eastern District, Cause No. 39358.

WHEREFORE, under the above and foregoing authorities,

respondent respectfully excepts to the majority opinion entered

in this cause and requests that this court either grant a rehearing

or in the alternative order the cause transferred for hearing before

‘ the Supreme Court of Missouri.

Respectfully submitted,

* JOHN ASHCROFT

CERTIFICATE OF SERVICE

I hereby certify that a

true and correct copy of

the foregoing was mailed,

postage prepaid, this

Z day of July, 1979, to:

Mr. Robert C. Babione

Public Defender

Attorney General

Wil Toy, fa

WELDON W. PERRY, JR. C

Assistant Attorney General

Post Office Box 899

Jefferson City, Missouri

314/751/3321

65102

Attorneys for Respondent.

Twenty-Second Judicial Circuit

1320 Market Street

St. Louis, MO 63101

Attorney for Appellant.

APPENDIX (24)

IN THE

SUPREME COURT OF MISSOURI

STATE OF MISSOURI,

Respondent,

Vv. Cause No. 39242 :

WILLIE MAE JOHNSON,

Appellant.

' MOTION FOR TRANSFER

Comes now the State of Missouri, respondent in the above-

entitled cause, by and through its attorneys, John Ashcroft,

Attorney General of Missouri, and Weldon W. Perry, Jr},. Assistant

atecumey General, and pursuant to Rule 83.03, V.A.M.R., respect-

fully moves this Court to grant a hearing on transfer of this

cause after opinion by the Missouri Court of Appeals, Eastern

District. In support of this motion, and as grounds for the

‘granting thereof, respondent ‘submits:

1. That appellant was convicted in the Circuit Court for

the City of St. Louis of robbery in violation of Section 560.120,

RSMo 1969. | ‘

2. That on direct appeal of the aforementioned conviction

to the Missouri Court of Appeals, Eastern District, that Court

reversed appellant's conviction in an opinion filed June 26,

1979. |

Be That the Missouri Court of Appeals, Eastern District,

denied respondent's timely motion for <yediaaae or transfer to

the Supreme Court on September 17, 1979.

4. That a hearing on transfer should be granted by the

Supreme Court of Missouri in this cause, because: (1) The decision

entered by the Court of Appeals is contrary to a controlling

Opinion by the Missouri Supreme Court; (2) the decision entered

by the Court of Appeals is contrary to a previous decision of an

appellate court of this state; and (3) there is 4 question of

general interest or importance involved in the case, as is more

specifically set forth in the suggestions in support of this

motion.

ADDOWNATw +-; ae

”*

i... PP Oe te Re Rees? aes

PETS Ss. el ee ee ee eee ont TES e

yg .

:

WHEREFORE, respondent prays that this Court enter its order

transferring this cause from the Missouri Court of Appeals, Eastern

District, and granting respondent a hearing on transfer in order

that the matters referred to above may be presented to this Court -

for its consideration.

Respectfully submitted,

JOHN ASHCROFT

Attorney General

|, Hala Lay a

WELDON W. ae °

Assistant Attorney General

Post Office Box 899

Jefferson City, .MO 65102

(314) 751-3321

Attorneys for Respondent.

CERTIFICATE OF SERVICE

I hereby certify that a

true and correct copy of

the foregoing was mailed,

ee ae. Oe ;

at day of October, 1979, u

Mr. Robert C. Babione

Public Defender

Twenty-Second Judicial Circuit

1320 Market Street

St. Louis, MO 63101

‘Ms. Nancy Sachett

Chief Deputy Clerk

Missouri Court of Appeals

Civil Courts Building

12th & Market Streets

St. Louis, Missouri 63101

ANeties H. 4,

\ Ww. ,

APPENDIX (26)

Bi: ai SS tes i a

Oe SUPREME COURT OF MISSOURI

STATE OF MISSOURI,.

Respondent,

Vv. Cause No. 39242 = -3

WILLIE MAE JOHNSON,

Appellant.

. SUGGESTIONS IN SUPPORT OF MOTION FOR TRANSFER

Comes now respondent State of Missouri, by counsel, and in

support of its motion to transfer does submit the following

suggestions for the Court's consideration:

i 3 _ The operative facts from which this appeal arises are, as

Ta

1. Appellant was originally tried in the Circuit Court for

the City of St. Louis on four counts within the same information

(Tr.A 2-6). Count II charged the fe lony-murder of Gladys Gregg

* (Tr.A 3-4), and Count Iv charged the underlying robbery of Gladys

Gregg (Tr.A 5-6). ;

2. Appellant was acquitted of the felony-murder charge

(Tr.A 289,334). Due to irreconcilable differences of the jurors

on the robbery charge, the Court declared a mistrial on that

count (Tr. A 333-334).

3. Appellant's motion to dismiss the robbery count filed

upon declaration of the mistrial was overruled (Tr.A 335-339),

4. Appellant was later tried in the Circuit Court for the

ete of St. Louis for the robbery of Gladys Gregq and was found

guilty as charged with punishment assessed at tena years (Tr.B

302).

In an opinion filed June 26, 1979, the Missouri Court of

Appeals, Eastern District, relying on Harris v. Oklahoma, 433 U.S.

682, 97 S.Ct. 2912, 53 L.Ed.24 1054, reversed appellant's

robbery conviction, holding:

"In order for the jury to have found

defendant guilty of either murder, it would

have had to have found her guilty of causing

the death’ 'in robbing Gladys Gregg." Under

=. |. ..) = 7 es ih on &

** eee age Ae «©

—_— we. 886 Circumstances, we believe that application

of the doctrine of Harris v. Oklahoma, 433

U.S. 682, 53 L.Ed.24 1054 (1974), mandates

reversal. ...

* * *

By proceeding on the theory of felony-nurdez,

the state submitted the issue of robbery to the

jury, for the issue was at least one of the

‘incidents’ of the murder charges for which she

‘cannot be a second time tried . . . without being

twice put in onesauite for the same offense."

[Citation omitted]." (Court of Appeals’ Opinion

at pages 5 and 6). _ st Te ss

| Respondent respectfully submits that the Court of Appeals’

conclusion that Harris mandates reversal of appellant's robbery

conviction under the “peculiar” circumstances of this case is

erroneous both under Harris and under the current state of Missouri

law as recently pronounced by the Supreme Court of Missouri.

Initially, it should be noted that the Court's one page opinion

in Harris held only that:

"When as here, conviction of a greater .

crime, murder, cannot be had without conviction

of the lesser crime, robbery with firearms, the

Double Jeopardy Clause bars prosecution for the

lesser crime after conviction of the greater one.

[Citations omitted). '. . .[A} person [who] has

been tried eit eakehene for a crime which has

various incidents included in it, .. . cannot

be a second time tried for one of those incidents

without being twice put in jeopardy for the same

offense.'" Harris, supra at 682.

As is evidenced by reference to the above quotation, Harris

determined only that when a person is convicted of a greater crime

(murder) he cannot then be prosecuted for a lesser included offense

(robbery with firearms) without violating the consti tutional

ADDODOWAT we 4m i) Aan . ah sie _ se

he.

a guarantee against double jeopardy. Harris does not even purport to

loneceribe subsequent prosecution of an accused for the underlying

felony (robbery) ' following the accused's acquittal of felony-murder.

The Missouri Court of Appeals, Eastern District, has previously

acknowledged Harris’ inapplicability to Missouri felony-murder

Prosecutions in State v. Morgan, Cause No. 39358 (Slip Opinion, May

9, 1979, Missouri Court of Appeals, Eastern District). In Morgan,

‘ the Court of Appeals determined: ; |

"The first issue presented on appeal is

whether the double’ jeopardy clause of the

Fifth Amendment, made applicable to the

states through the Fourteenth Amendment, _ ae

a ‘ : forbids Prosecuting, convicting and sentencing

appellant for both felony-murder (murder in

the second degree) and the underlying felony

(stealing over $50).

A * *

Appellant relies Primarily on Harris v.

Oklahoma, 433 U.S. 682 (1977) which held a pro-

secution for robbery with firearms following a.

‘prosecution and conviction for felony murder in

the some transaction violated the defendant's

right not to be twiced placed in jeopardy for

the same offense. ...

This holding, however, must be interpreted

in light of the specific language of the Oklahoma

Statute involved. The Statutory section, 21 O.S.A.

§ 701 provided: ‘Homicide is murder in the following

cases. . . . 3. When perpetrated without any design

to effect death by a person engaged in the commission

of any felony.'1l

Oklahoma thus made the underlying felony an

element of the murder. The Supreme Court's ‘greater

crime‘ - "lesser crime’ analysis has no application

to Missouri's case law which makes the underlying

felony simply @ means of proving one of the elements

of murder and not actually an element of the

y offense. [Citations omitted]‘” [Emphasis

supplied). (Morgan Slip Opinion, Pages 2 and 3).

The decision entered by the Missouri Court of Appeals, eastern

District, in Morgan and the decision entered by that court “in the”

instant case are conflicting and deserving of uniform resolution

by this court under Rule 83.03, V.A.M.R.. This court has accepted

Morgan on transfer from the Missouri Court of Agpeais. Respondent

submits that in view of the importance and Similarity of the

issues involved, the instant: case should also be transferred for

consideration by this Court.

Respondent mate that this case is controlled by the opinion

entered by this Court in State v. Chambers, 524 sS.w. 2d 826, 831 (Mo.

‘Baac, 1975), wherein it was determined:

"In summary, where a homicide is prosecuted under

the felony-murder rule, the other felony does not

become, a fortiori, merged in or an element of

the offense of murder, and the defendant may be

prosecuted for both the homicide and the underlying

felony without being twiced placed in jeopardy if

the conviction of each offense requires proof of

essential elements not required for conviction of

the other.” ‘

Chambers holds that where a conviction of felony murder requires

proof of essential elements not required for conviction on the under-

lying felony, an accused's double-jeopardy guarantee is not violatee

by prosecution for both offenses. Missouri courts have repeatedly

recognized that a murder and a robbery arising out of the same trans-

action or occurrence are nonetheless comprised of different elements

and therefore cannot be construed either as constituting the same

offense or emanating one from another for Purposes of double-

Jeopardy analysis. State v. Moore, 33 S.W.2d 905, 906-907 (Mo.

1930); State v. Hicks, 530 S.W.2a 396, 400-401 (Mo.App. St.L.pD.

1975).

In State v. Bobbitt, 128 S.w. 953, 959-960 (Mo. 1910), the

court was presented with a situation very similar to the case at

APPENDIX (30) |

-

my thee

-bar.° In Bobbitt, the defendant was first charged and acquitted of

first degree murder perpetrated during an attempted arson of the

victim's house. ‘He was subsequently charged and convicted of the

attempted arson of the house. On appeal, the defendant alleged

double-jeopardy because the state had proceeded in the murder pont 4

secution on the theory that the defendant was guilty of first degree

murder for killing the victim while burning or attempting to burn

his house; therefore, the state should be barred from later pro-

secuting him for the attempted burning of the house (i.e. that the

arson was the same arson charged and offered as evidence in the prior

murder prosecution and therefore constituted a necessary element

in the murder case). The court in Bobbitt held that acquittal on

the ‘neniue charge was no bar to later prosecution of the defendant

for the underlying attempted arson. The wisdom of applying the

rule in Bobbitt, supra, to analogous situations has recently been

recognized by this Court in State v. Chambers, Supra, at 829.

The opinion entered by the Court of Appeals in this case

inferentially finds that the jury's acquittal on the felony-murder

charge necessarily determined appellant's innocence on the under-

lying robbery charge as well. One need only consider em

attendant circumstances to realize the error of such logic. The

jury acquitted appellant of the felony murder charge (Tr. A 334),

but reached irreconcilable 64 2ferences leading to a mistrial on

the underlying robbery charge (Tr.A 333-334). The disparity in

these two results clearly indicates that consideration of factors

other than a determination of guilt or innocence relative to

the underlying robbery charge prompted the jury's acquittal on

the felony murder charge. If it were otherwise, the jury would have

acquitted appellant of robbery as well. These facts certainly

weigh against the propriety of the conclusion reached by the

Court of Appeals that the underlying robbery charge constituted an

"incident" of the felony murder charge for which appellant could

not again be prosecuted without violating the constitutional guarantee

against double-jeopardy. On the contrary, as aforementioned, this

court has held that the underlying felony in a Missouri felony-

murder prosecution does not constitute an element of the felony

murder but, rather, is an additional means of proving the requisite

. APPENDTY (21) ae” ’ ers ae ns La a ahr oo

_* felonious intent for murder. Chambers, supra.

Finally, it is by now a well-settled proposition that retrial

of a defendant following a prior nisteies on the same chaxen es

to the prior jury's inability to reach a verdict does not constitute

double-jeopardy unless the trial court abused his discretion in - =}

granting the mistrial. Logan v. U.S., 144 U.S. 263, 297-298, 12

S.Ct. 617, 36 L.Ed. 429 (1891); Durham v. Wyrick, 545 F.2d 41,

43-44 (8th Cir. 1976); Ward v. State, 451 S.W.2a4 79, 81-82 (Mo.

1970). See also, Illinois v. Somerville, 410 U.S. 458, 467-468,

93 S.Ct. 1066, 35 L.Ed.2d 425, 433-434 (1973), wherein the court ex-

pressed distain at the practice of a trial court declaring a mistrial

for the sole purpose of allowing a prosecutor to strengthen the state's

case but recognized that the granting of a mistrial following a

jury’ s inability to reach a verdict rested within the discretion

of the trial court to be disturbed on appeal only in the event of

‘abuse. It is submitted that the state's retrial of appellant after

a prior mistrial for robbery under both the circumstances of this

case and the foregoing authorities, did not constitute a violation

of appellant's constitutional guarantee against double jeopardy.

WHEREFORE, for the above and forepniae reasons, respondent

respectfully excepts to the opinion entered in this cause by the

Missouri Court of Appeals, Eastern District, and requests that this

Court enter its order transferring this cause for hearing before

the Supreme Court of Missouri.

, Respectfully submitted,

‘CERTIFICATE OF SERVICE

JOHN ASHCROFT

‘I hereby certify that a Attorney General

true and correct copy of

the foregoing was mailed, Het ws 4Z, YB

472A

xp 2

postage prepaid, this Zu,

day of October, 1979, to: WELDON W. PERR

Assistant Attorney General

Mr. Robert C. Babione

Public Defender Post Office Box 899

Twenty-Second Judicial Circuit Jefferson City, Missouri 65102

1320 Market Street (314) 751-3321

St. Louis, MO 63101

Attorneys for Respondent.

Ms. Nancy Sachett

Chief Deputy Clerk

Missouri Court of Appeals

Civil Courts Building

12th & Market Street

St. Louis, Missouri 63101

Helton H- Big 1ea

APPENDIX (32).

q : err or ee

> . . 3) in

= oie ae ee te - ee © By @ ae eh "7 5 4” *

“en

Ne, CverRK OF THE SuPREME GourtT

\. STATE OF MISSOURI

JerrFerson City, Missouri

65101

TELEPHONE

THOMAS F. SIMON

(214) 760-4006

“November 14, 1979

Hon. John Ashcroft

ATTORNEY GENERAL

‘Supreme Court Building

Jefferson City, MO 65101 ,

In re: State of Missouri vs. Willie Mae Johnson - No.

61694

Dear Sir:

This is to advise that the Court this day entered

an order in the above-entitled cause, a certified copy

. of which is herewith attached.

Attachment

ces Robert C. Babione

APPENDIX (33)

EN BANC

State of Missouri, }. Respondent,

vs. TRANSFER

Willie Mae Johnson, Appellant.

THE STATE OF MISSOURI

to

the Judges of the Missouri Court

of Appeals, EASTERN District,

GREETINGS:

Now at this day, on consideration of the application

of respondent, State of Missouri,

to transfer the above-entitled

cause, No. 61694 , from the EASTERN DISTRICT, Missouri Court

of Appeals, it is ordered that said application be, and the same

is hereby sustained. . ;

Therefore, you, as Judges of the Missouri Court of Appeals,

EASTERN DISTRICT, are ordered to send to this Court on or before

the 14th day of December , 19 79 _, a full and

complete transcript of the record and proceedings in your court, .

together with copies of all records and briefs filed in your

' court in the said cause.

It is further ordered that you recall your mandate, if the

same has issued, and that you take no further action in this case.

IN TESTIMONY WHEREOF, I

have hereunto set my

hand and the Seal of

said Court, at my office

in the City of Jefferson,

this 14th day of

November , 1979

i PO ty Ae Sa

Clerk, Supreme Court of Missouri

\ Cg "Nin Dabbarnsre:, /. en

U/

APPENDTY (234) ae De SRR hy PS ee

" ‘MostrtT G. Dowo

svoce

GERALD M. SmitH

svoce

Jonn J. Keury, Jr.

svuOGE

Geonce F. Guwn, JA.

svoce

Josern G. STEWART

svoce

i

JAMES R. REINHARD

Alissourt Court of Appeals pest

4svoce

Orrice OF THE CLERK EASTERN DISTRICT Roeerr O. SNYOER

apes mene #08 CIVIL COURTS BUILDING ST. LOUIS, MO. 63101 nosane &, Casee

622-4324 suoce

Haroon L. Satz

November 19, 1979 suoce

JAMES A. PUOLOWSAI

svuoce

Mr. Paul Robert Otto Mr. George A. Peach

Assistant Attorney General Circuit Attorney

Chief Counsel-Criminal Division 320 Municipal Courts Building

Appeal Box No. 899 St. Louis, Mo. 63103

Jefferson City, Mo. 65102

Mr. Robert C. Babione

Public Defender

200 Municipal Courts Building

St. Louis, Mo. 63103

No. 39242 -- State of Missouri, Respondent, vs.

Willie Mae Johnson, Appellant.

Gentlemen

In compliance with an order made by the Supreme Court on

November 14, 1979, transferring the above styled case to said

Court, the file and papers, together with the transcript of record

(3 volumes), 11 copies of appellant's brief, 10 copies of respondent's

brief. ..

Yours truly, .

Suscha LE. hase

Michael E. Gans, Acting Clerk

gb

APPENDIX (35) 36

Ciern OF THE SuPREME CourRT

STATE OF MISSOURI

Jerrerson City, Missouri

6s'o1

: TELEPHONE

eninge epee April 3, 1980 sine vata

Ms. Christelle Adelman-Adler Mr. Weldon W. Perry, Jr.

Assistant Public Defender Assistant Attorney General

1320 Market Street P. O. Box 899

St. Louis, MO 63103 Jefferson City, MO 65102

In re: State of Missouri vs. Willie Mae Johnson

No. 61694

Gentlemen: ~

This is to advise that the court this day handed

down the opinion attached herewith in the above-entitled

cause. ‘

Motions for rehearing must be filed within 15 days

from this date (Rule 84.17). The provisions of Rule 44.01 (e)

do not apply to extend the time for filing motions for

rehearing.

Yours very truly,

THOMAS F. SIMON

eh albeth Weta

zabeth McHaney

‘vdky = Clerk, Court en Banc

Att.

APPENDIX (36) y cm

Tahisme Gourt of ee

can hance

STATE OF MISSOURI, ) On dU

) Sarees 2

Respondent, ) cM A 0IVE Ur

) ~ GEER SUPP EME COUST

vs. ) No. 61694

)

WILLIE MAE JOHNSON, )

)

Appellant. )

5 APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS

DIVISION NO. 19

HONORABLE CLYDE S. CAHILL, JUDGE

PER CURIAM ,

“This case involves double jeopardy.

Appellant was tried in January 1977 of murder in the first

degree of Gladys Gregg and robbery of Gladys Gregg. Appellant was

acquitted of the charge of murder. The jury could not reach a yver-

dict on the robbery charge and a mistrial was declared. In March

1977 appellant was tried again for the robbery of Gladys Gregg. She

was convicted of robbery by the jury and was sentenced to ten years'

imprisonment. Appellant appealed to the Eastern District of the

Missouri Court of Appeals where the judgment of conviction was re-

versed and appellant was ordered discharged. The cause was then

transferred to this Court. We decide it "the same as on Original

appeal.” Mo. Const. art. Vv, § 10.

The “substitute information in lieu of indictment” upon which

appellant was tried the first time charged that she, acting with

another, "feloniously, willfully, premeditatedly, deliberately, on

purpose and of her malice aforethought did make an assault upon ee

Gladys Gregg, with a plastic bag, and then and there feloniously,

Willfully, premeditatedly, deliberately, on purpose and of her malice

APPENDIX (37) Sa en ee

Betis

me.

- aforethought did strangle and suffocate the body of the said Gladys

Gregg * * *" thus Causing her death. However, at the conclusion of

the trial and over defense counsel's objection, the trial court re-

fused to give a "conventional murder first degree" instruction.

Rather, the murder charge was submitted to the jury under the felony-

murder doctrine, thus directing the jury to find appellant guilty of

the murder of Gladys Gregg if it found that she caused the death of

the victim “and, Second, that she did so in robbing Gladys Gregg,

* * *,." As pointed out above, appellant was acquitted of the murder

charge. |

After a mistrial was declared as to the charge of robbery of

Gladys Gregg, appellant filed a motion to dismiss the charge, alleging

that retrial on such charge would violate her right against double

,

jeopardy. The motion was denied by the trial court. After the second

trial, the point was properly preserved in the motion for new trial.

It is clear that appellant cannot again be tried for the offense

of murder, of which she was acquitted. The question is whether appel-

lant may be retried for robbery, the underlying felony, on which the

jury became deadlocked and a mistrial was declared.

In the context of this case, there are three aspects of double

jeopardy which must be considered: 1) multiple punishment; 2) multiple

prosecution; and 3) collateral estoppel of issues previously determined.

First, there is no danger of multiple punishment here, where no

conviction as to either offense was returned.

Second, although the multiple prosecution problem is applicable

here to the robbery offense, case law consistently holds that a de-

fendant is entitled to immunity from reprosecution only if he can

show that the mistrial was intentionally triggered by the state for

the tactical purpose of strengthening the prosecution's case. United

States v. Dinitz, 424 U.S. 600, 611 (1976). Since a hung jury cannot

be attributed to bad faith on the part of the prosecution, a retrial

is permissible. United States v. Sanford et al., 429 U.S. 14 (1976);

State v. Berry, 298 S.W.2d 429 (Mo. 1957); State v. Sales, 558 S.W.24

302 (Mo. App. 1977).

APPENDTY (28) a SOE al

Ps ‘The Crucial question on the collateral estoppel issue is: What

“issues does a general verdict of acquittal of felony-murder resolve?

See furner v. arkansas, 407 U.S. 366, 369 (1972). It cannot be con-

vincingly arcued that the jury's acquittal of the murder charge im-

Pliedly acquittea 4ppellant of the robbery, as in Ashe v. Swenson,

397 U.S. 436 (1969). Distinguishing this case from Ashe is the fact

that here it cannot be said that there was only a "single rationally

concéivable issue in dispute before the jury." Id. at 445. In light

of the inability of the jury in the January 1977 trial to return a

verdict on the robbery charge, we conclude that its acquittal of

murder under the felony-murder doctrine was for a reason, or on an

issue, not related to robbery.

° Appellant next contends that there was error in the trial court's

case, i.e., that @,submissible case of robbery first degree had not

been made against appellant.

Briefly, the evidence adduced consisted of 1) several fingerprints

identified as appellant's lifted from various objects at the decedent's

Premises; 2) testimony of a neighbor of the victim that one Sandra

-

Ross, admittedly appellant's lover, had been seen entering and leaving

observed beside her apartment building; 3) the Subsequent arrest of

Sandra Ross and appellant's brother in a maroon and black car, which

contained two Pillowcases full of Silverware, all identified as belong-

ing to the decedent; and 4) the flight of appellant when she was much

later approached by police Officers.

It is obvious that the State's case consisted of, and the jury's

>-onviction was based on, Circumstantial evidence. Appellant made a

statement to police after her arrest that she was unfamiliar with

lecedent's residence and did not recoonize a photo of it. At trial,

\owever, appellant attempted to lessen the impact of the damning

-3-

APPENDIX (39) ~

fingerprint evidence by Suggesting that since she was Sandra Ross's

lover and frequent Companion, it would not be unlikely that she might

have accompanied Ross to decedent's premises in the past, since Ross

was acquainted with her. Although no evidence to this effect was put

on, appellant argues that the state has not met the test of suffi-

ciency required when circumstantial evidence is relied on: that the

facts and circumstances relied upon by the state to establish guilt

must ‘be inconsistent and irreconcilable with a hypothesis of defendant's

innocence. See State v. Thomas, 452 S.W.2d 160 (Mo. 1970). We note,

however, that this test must be realistically tempered in its appli-

cation; the circumstances need not demonstrate the impossibility of

innocence; the mere existence of other possible hypotheses is not

enough to remove the case from the jury. See State v. Franco, 544

S.W.2d 533 (Mo. banc 1976), cert.denied, 431 U.S. 957 (1977).

State v. Gales, 507 S.W.2a 35 (Mo. App. 1974) is a case involving

facts very similar to those presented here. The victim lived alone

and was found dead. She was bound, her apartment was in disarray,

and defendant's fingerprints were found on her jewelry box. Articles

of personal Property which had been in defendant's possession were

identified as belonging to the victim. Similarly, in this case no

eyewitnesses to the crime were present, the victim was found dead,

bound and gagged, the Premises were in disarray, and appellant's

fingerprints were found on objects therein. Objects stolen from

decedent were found in the possession of appellant's lover and appel-

lant's brother, and a neighbor had seen three people near the house on

the night that the victim was last seen alive.

"Much of the evidence in the instant case is circum-

Stantial. But, the rule in Missouri is, that in order to

convict upon circumstantial evidence, the circumstances must

be consistent with each other and with the theory of the

defendant's guilt and inconsistent with innocence, and

must exclude every other reasonable hypothesis except for

guilt. * * #. . -

“ * * * proof that fingerprints found in the Place

=<

APPENDIX (40)

; wl

. ‘ Das .

- where a crime is committed under such circumstances that

they could only have been impressed at the time the crime

was committed--corresponding to those of the accused--may

be sufficient proof of identity to sustain a conviction.”

Id. at 37. We conclude that appellant's claim that the evidence was

insufficient for submission to the jury is without merit.

Finally, appellant contends that the court erred in overruling

appellant's motion to suppress numerous pieces of silverware and two

Pillow slips obtained by search and seizure without a warrant and

allegedly without other lawful authority. The state submits that

appellant has no Standing to raise such a Claim, and that in any

event, the arresting officer had Probable cause to stop the vehicle

in question. The ‘underlying facts giving rise to appellant's consti-

tutional claims are that a neighbor of the decedent testified that

she saw a dark colored automobile occupied by two persons parked near

the decedent's house on the night of the murder. On the day after the

decedent was found dead, detectives of the St. Louis Police Department

were maintaining surveillance of appellant Willie Mae Johnson's resi-

ee. As they watched, a man and a woman--appellant's brother, Ronnie

Johnson, and Sandra Ross--walked out of the house Suspiciously carrying

Pillowcases filled with items and entered an automobile. Since neither

of the persons was the object of the Surveillance, the detectives did

not confront them but placed a radio call to Sergeant Charles McCrary

who was parked several blocks away as a backup to the detectives. At

their request, McCrary stopped the vehicle, a black over maroon 1968

Pontiac, driven by Ronnie Johnson. on the floorboard in front of

Sandra Ross were two pillowcases containing numerous articles of

Silverware in plain view. McCrary seized the Silverware and took

Ronnie Johnson and Sandra Ross to police headquarters for guestioning.

The pillowcases were identified by Mrs. Gregg's maid as belonging to

the victim. The silverware in the Pillowcases was identified by both

the maid and Mrs. Gregg's stepson as belonging to Mrs. Gregg. f

"[T) here is no Standing to contest a search and seizure [unless

APPENDIX (41) =

~~

SER ET RIE ee ee ee ee Oe aot a Peon

Poe ee oe

ie ™

is .

appellant (a) was) on the premises at the time of the contested search

and seizure; (b) alleged [a] proprietary Or possessory interest in the

premises; [or] (c) ine) charged with an offense that includes, as an

essential element of the offense charged, possession of the seized

evidence at the time of the contested search and seizure." (Empnasis

added.) Brown v. United States, 411 U.S. 223, 229 (1973). The second

Situation is the only one relevant here. Since title is no longer the

ratio decidendi: for Standing, Jones y. United States, 362 U.S. 257

(1960), more subtle Proprietary and Possessory interests must be

examined to determine this status.

Owned the Pontiac and that it was Purchased for the use of his five

children, including appellant. Fowever, appellant did not live with

her parents.

Both parties cite In re J.R.M., 487 S.w.2a 502 (Mo. banc 1972) on

the issue of proprietary or Possessory interest. The defendant there

was a juvenile; his father owned a Corvair which the defendant had the

right to use at any time. He had his own keys to the car; he regularly

drove it to school, and he was included ia the insurance coverage on

the car. Furthermore, he lived with his Parents where the car was

kept. The court concluded that the defendant "used the car much as

he would have done if title had been in him," id. at 509, and found

the above factors sufficient to confer standing.

In State v. Csolak, 571 S.W.2d 118 (Mo. App. 1978), the court

applied the “case by case approach” of In re J-R.M. “which requires

anexamination of the facts of each case 'to determine the relationship

i proper and lawful search and seizure.'" Id. at 121. See Mancusi v.

eForte, 392 U.S. 364, 368 (1968), where this language originated.

he appellant in Csolak likewise had his own keys to the car, which

as owned by his father, and "used it regularly as if it were his own.”

-6~

APPENDIX (42) Pa eae ae

$71 S.W.2d at 121. The opinion also stressed the fact that at the time

of the search, the car was parked in front of appellant's residence,

which was different from his father's. The court indicated that this

demonstrated that the car was in appellant's possession at the time

of the search.

None of the elements stressed by these cases were present in this

case. Only appellant's father had a key to the Pontiac. Appellant's

right to use the car was vested equally with her four other brothers

and sisters, in addition to her parents, and the latter made the

decision, if there was a conflict, as to who would have use of the

vehicle. There was no Showing that appellant was listed as an insured

on the Pontiac's insurance ‘policy. Importantly, appellant was.not in

” possession of the car at the time of the questioned seizure. Further,

there was testimony that appellant rarely used the car. It was kept

at her father's home, while she lived elsewhere at another residence

also owned by her father.

It is clear that suppression of evidence can only be sought by

a person who has sufficient connection with the searched vehicle or

premises that his rights were violated; it is not enough that a person

was injured because of the damaging evidence obtained as a result of

a search. See Alderman v. United States, 394 U.S. 165 (1969); State

v. Drake, 512 S.W.2d 166, 170 (Mo. App. 1974). This issue is ruled

against appellant. Therefore, we find it unnecessary to determine

whether the arresting officers had probable cause to Stop the vehicle

in question.

The judgment is affirmed.

Rendlen, Welliver, Morgan, and Higgins, JJ., concur;

Bardgett, C.J., concurs in separate concurring opinion

filed; Donnelly, J., dissents in separate dissenting

opinion filed; Seiler, J., dissents and concurs in

separate dissenting opinion of Donnelly, J.

ae

APPENDIX (43) Es ee e

ca kane DUPLICATE

GO FILING ON

AF - B tag

STATE OF MISSOURI,

Responcent,

No. 61694 - IN OFF:l6 GF

CLERK SUPRESE COURT

vs.

WILLIE MAE JOHNSON,

— we wee wm Ow Ow

Appellant.

CONCURRING OPINION

I concur in the per curiam opinion in this case but do so on

rather narrow grounds. This case involves an original prosecution

where the defendant was charged with murder in the first degree of

Janes Bell, murder in the first degree of Gladys Gregg, robbery of

James Bell, and robbery of Gladys Gregg. These charges were brought

under § 559.010, RSMo 1969, which is our old murder-in-the-first-

degree statute and permits murder in the first degree to be submitted

to the jury upon evidence that the homicide was committed in the

perpetration or attempt to perpetrate certain felonies, among which

is robbery. The murder submission in this case was made under the

so-called felony-murder rule, which, in order to convict of murder

in the first degree, required a finding by the jury that the defendant

was engaged in the felony of robbery and in the course of the robbery

killed the deceased. A failure to find the defendant killed the

deceased in the course of the robbery waquld require a jury verdict of

not guilty on the charge of murder in the first degree. However, in

my opinion it would not preclude the jury from finding that the de-

fendant was guilty of the robbery.

APPENDIX (44)

' In this case the jury found defendant not guilty of both counts

of murder. The State. dismissed the charge of robbery of James Bell

during the course of the trial, after jeopardy attached, which would

preclude a reprosecution for that offense. However, the charge of

robbery of Glacys Gregg was submitted to the jury and the jury returned

no verdict (hung jury). Of necessity, the court then declared a

mistrial and discharged the jury.

In this case we see an instance where the proseustine tas charged

and tried the defendant for all of the crimes (robbery and murder)

arising out of that Particular event which were available for prosecu-

tion under the law and rules of this Court. What we do not have is

an instance where the prosection withheld part of the matter, i.e.,

the robbery, so as to prosecute for the robbery in the event that the

jury acquitted of the felony murder based upon the robbery. Nor do we

have an instance where the prosecutor undertook to split up the

original crime (murder in the first degree based on the robbery) and

later prosecute it piecemeal. Therefore I believe that the original

submission for felony murder was properly submitted as a homicide

committed in the course of the felony of robbery and that the jury

would have been permitted to find defendant not guilty of the first-

degree murder and guilty of the srethibniniae: At the time this case was

tried the instructions were submitted for murder in the first degree

as a homicide committed while in the course of the robbery, and

independently and conjunctively for the underlying robbery. In my

opinion the proscription against double punishment would have pre-

cluded the jury and does preclude the jury from finding the defendant

guilty of both robbery and murder in the first degree premised on the

underlying felony of robbery, and then assessing a punishment for

each of those crimes.

It is my opinion that State v. Morgan, 592 S.W.2d 796 (Mo.

banc 1980), held in essence thac if the felony relied upon to

obtain a conviction of first-degree

APPENDIX (45)

murder, vhere it is alleged that the homicide occurred during the

course of the felony, results in a conviction of first-degree murder,

the underlying felony has been "used up" and cannot become the basis

of another conviction or another punishment. This is not, in the

Ordinary sense, a lesser-included-of fense Situation. It is simply a

felony kills someone in the course of the felony the killing is

murder in the first degree. ‘It is therefore my opinion that the

felony of robbery should have been Submitted as an alternative to

felony murder in the first degree to be considered by the jury only

in the event that they found defendant not guilty of first-degree

™urder premised on that robbery.

premised on the commission of the underlying felony, then, in my

Opinion, the state would have tried to Prosecute the defendant piece-

meal. See State v. Richardson, 460 S.W.2d 537, 539 (Mo. banc 1970).

Of course there will be instances where, under the facts of a

given case, the state will not be able to proceed with the Prosecution

of the robbery haciaiins of collateral estoppel under Ashe v. Swenson,

397 U.S. 436 (1969), as well as instances where, under Rule 24.04 (a),

the underlying felony cannot be charged. However, in the instant

case the evidence of the offenses was circumstantial and it cannot be

said that the "real" issue was whether or not the defendant was

present at the scene, as was the case in Ashe v. Swenson, supra.

I therefore concur in the affirmance of the conviction.

John E. Bardoett, Chief Justice

APPENDIX (44)

om Ps

i ale, ada se ia am |

a Sepoome Cont of Messouri

en ban DUPLICATE

OF FLING ON

STATE OF MISSOURI, )

) Pee

Respondent, ) Art - B tag

am a: eke IN OFF: 26 GF

x PPAc ye ,

WILLIE MAE JOHNSON, : CLERK SUPREI4E COURT

. )

Appellant. )

CONCURRING OPINION

I concur in the per curiam opinion in this case but do sO on

rather narrow grounds. This case involves an original prosecution

Janes Bell, murder in the first degree of Gladys Gregg, robbery .of

James Bell, and robbery of Gladys Gregg. These charges were brought

under § 559.010, RSMo 1969, which is our old murder-in-the-first-

perpetration or attempt to perpetrate certain felonies, among which

is robbery. The murder submission in this case was made under the

So-called felony-murder rule, which, in Order to convict of murder

in the first degree, required a finding by the jury that the defendant

Wes engaged in the felony of robbery and in the course of the robbery

killed the deceased. aA failure to find the defendant killed the

deceased in the course of the robbery would require a jury verdict of

not guilty on the charge of murder in the first degree. However, in

my Opinion it would not Preclude the jury from finding that the de-

fendant was guilty of the robbery.

APPENDIX (47) ey

Jn this case the jury found defendant not guilty of both counts

of murder. The State dismissed the charge of robbery of James Bell

during the course of the trial, after jeopardy attached, which wovld

Preclude a reprosecution for that offense. However, the charge of

robbery of Gladys Gregg was submitted to the jury and the jury returned

nO verdict (hung jury). of necessity, the court then declared a

mistrial and discharged the jury.

tion under the law and rules of this Court. What we do not have is

an instance where the Prosection withheld part of the matter, ee

the robbery, so as to prosecute for the robbery in the event tiiat the

degree murder and guilty of the robbery. At the time this case was

tried the instructions were submitted for murder in the first degree

as a homicide committed while in the course of the robbery, and

independently and conjunctively for the underlying robbery. In my

each of those crimes.

It is my opinion that State v. Morgan, 592 S.W.2d 796 (Mo.

banc 1980), held in essence that if the felony relied upon to -

obtain a conviction of first-degree

APPENDIX (48)

murdér, where it is alleged that the homicide occurred during the

Course Of the felony, results ina conviction of first-degree murder,

the underlying felony an been "used up” and cannot become the basis

of another conviction or another Punishment. This is not, in the

Ordinary sense, a lesser-included-of fense Situation. It is Simply a

Situation created by the legislature in enacting a statute, which in

effect declares that if a person in committing a particular type of

felony kills someone in the course of the felony the killing is

murder in the first degree. It is therefore my opinion that the

felony of robbery should have been submitted as an alternative to

felony murder in the first degree to be considered by the jury only

in the event that they found defendant not guilty of first-degree

murder premised on that robbery.

Had the state not proceeded on the underlying felony in this

original Prosecution but only on the charge of first-degree murder

premised on the commission of the underlying felony, then, in my

opinion, the state would have tried to prosecute the defendant piece-

meal. See State v. Richardson, 460 S.W.2d 537, 539 (Mo. banc 1970).

Of course there will be instances where, under the facts of a

given case, the state will not be able to proceed with the prosecution

of the robbery because of collateral estoppel under Ashe v. Swenson,

397 U.S. 436 (1969), as well as instances where, under Rule 24.04 (a),

the underlying felony cannot be charged. However, in the instant

case the evidence of the offenses was circumstantial and it cannot be

Said that the "real" issue was whether or not the defendant was

present at the scene, as was the case in Ashe vy. Swenson, supra.

I therefore concur in the affirmance of the conviction.

John E. Bardgett, Chief Justice

eo

APPENDIX (49) | Fa i a pre

a Court of AMissou xe

cn banc

STATE OF MISSOURI, ) eet panne

Respondent, =

‘ vs. No. 61694 we HD

WILLIE MAE JOHNSON, . | ae ae (GE Or

SieEy SOrPREME COUFT

Appellant.

DISSENTING OPINION

In State v. Morgan, 592 S.W.2d 796, 803 (Mo. banc 1980), this

Court held that "the felony relied on to prove intent in a felony-

murder case is a lesser-included offense of the murder"--that the

felony relied on to prove intent in a felony-murder case and the

murder are, for constitutional purposes, the same offense.

Article I, § 19 of the Missouri Constitution provides that no

person shall “be put again in jeopardy of life or liberty for the same

offense, after being once acquitted by . jury; * * *,." (Emphasis

supplied). :

Appellant was tried in-January 1977 for the murder of Gladys

Gregg. The felony relied on to prove intent in the murder case was

robbery. Appellant was acquitted on the murder charge. She could

not thereafter be convicted of robbery because, under Morgan, supra,

the murder (submitted under the felony-murder doctrine) and the robbery

were the same offense and she had been acquitted by a jury of the

murder. Under the Missouri Double Jeopardy Clause, the conviction of

robbery cannot be permitted to stand.

I would order the judgment of conviction reversed and the appellant

discharged.

I respectfully dissent.

Robert T. Donnelly, Judge

CLERK OF THE SuPREME Court

STATE OF MISSOURI

POST OFFICE BOX 150

THOMAS F. SIMON JEFFERSON City, Missourt! ms

CARA 65102 (294) 751-4144

April 23, 1980

Mr. Robert C. Babione

Public Defender

1320 Market Street

St. Louis, MO 63101

‘¥ In re: State of Missouri vs. Willie Mae Johnson - No. 61694

Dear Mr. Babione:

This will acknowledge receipt of Appellant's Motion for

Rehearing filed this date in the above-entitled cause showing

service.

Very truly yours,

THOMAS F. SIMON

An

Jan Gallamore

Deputy Clerk

APPENDIX (51)

=e a athe

§ SUPREME COURT OF MISSOURI

STATE OF MISSOURI, |

Respondent

7;

WILLIE MAE JOHNSON No. 61694

Appellant 4

MOTION FOR REHEARING

Comes now Willie Mae Johnson, Appellant, and informs

the Court that:

Re Appellant was convicted by a jury of Robbery First

Degree on March 17, 1977. ‘This conviction resulted upon

presentation of the same facts and evidence which resulted in

Appellant's previous acquittal of felony-murder committed

during the perpetration of the robbery. Appellant's counsel

timely filed a Motion to Dismiss on double jeopardy grounds

which Motion was denied. On May 2, 1977, the Honorable Clyde

Cahill of the Circuit Court of the City of St. Louis, Missouri,

sentenced appellant tc 10 years in the Missouri Department of

Corrections. Appellant appealed from this judgment. ,

2. On June 26, 1979, the Missouri Court of Appeals, St.

© Louis District, reversed the conviction indicating that this

was a double jeopardy situation in which Harris v. Oklahoma,

433 U.S. 682, 53 L.Ed.2d 1054 (1977), mandated discharge of

the defendant.

3. The cause was transferred to the Supreme Court and

on April 8, 1980, the holding of the Court of Appeals was

reversed and the conviction affirmed holding that the acquittal

of felony-murder did not invalidate the Subsequent conviction

of the robbery.

4. Appellant seeks to call the Court's attention to cer-

tain matters of fact and law which its opinion has overlooked

and misinterpreted:

APPENDIX (52) 2s Le

“oa. In State v. Morgan, 592 S.W.2d 796, 803 (Mo. banc

> ; 1980), this Court held that "the felony relied on to

prove intent in a felony-murder case is a lesser-

included offense of the murder"--that the felony

/ relied on to prove intent in a ‘felony-nurder case and

the murder are, for constitutional purposes, the

same offense.

The Missouri Constitution provides that no

person shall "be put again in jeopardy of life or

liberty for the same offense, after being once acquit-

ted by a jury."

Appellant was tried in January, 1977, for the

murder of Gladys Gregg. The felony relied on to

prove intent in the murder case was robbery. Ap-

pellant was acquitted on the murder Charge. She could

not thereafter be convicted of robbery because., under

Morgan, supra, the felony-murder and the robbery -

were the sone offense and she had been acquitted by

a jury of the murder. Under the Missouri Double

Jeopardy Clause, the conviction of robbery should

not stand. :

b. In Harris v. Oklahoma, 433 U.S. 682, 53 L.Ed. 1054

ar. (1977), the United States Supreme Court held that

. when in a felony-murder. situation, conviction of the

urder cannot be had without conviction of the lesser

crime, robbery. The Double Jeopardy Clause bars pro-

secution for the lesser crime after conviction of

the greater one. This must necessarily be true after

an acquittal. A person who is tried and acquitted

for a crime which has various incidents in it, can-

not be tried a second time for one of those inci-

dents without being twice put in jeopardy for the.

same Offense. The Court's opinion fails to deal

with this problen.

a APPENDIX (53) Mets on TNE ny ae

ie ais. "iced cone +Usion, ~ appellant prays the Court to rehear this

« ause in order that a manifest injustice be rectified.

? Prise Respectfully submitted,

Aes fe Peo mt

CHRTSTELLE ADELMENCADT ER

Assistant Public Defender

A copy of the foregoing motion has been sent to the

office of the Attorney General, State Of Missouri, this

t ae of (eas » 1980.

[Cota Cota re

Attorney for Appellant

APPENDIX (54)

ww owe oe ws s

ow

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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