# Petition — Johnson v. Missouri

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1752%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1067

## Text

y

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 . ° ° °

a FSO F&F Ww NY NY NY NY FY FF

i
Oo

(1)
(2)
(6)
(7)

(12)
(13)

(20)
(22)
(25)
(27)

(33)
(34)

(35)

(36)
(37)

(51)
(52)

(55)

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 . ° ° ° ° ° .

10

(1)
(2)
(6)
(7)

(12)
(13)

(20)

(22)

(25)

(27)

(33)
(34)

(35)

(36)
(37)

(S51)
(52)

(55)

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

STATE OF MISSOURI ) | ig/f
) ss : Groner
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 _._ _~*-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 . . 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

= ; 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1752%3A1. Public record. Not legal advice.