Opposition Brief — Armontrout v. Moore

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CiuGiNA

NO. 85-968

IN THE

SUPREME. COURT OF THE UNITED STATES

WARDEN, MISS

BRIAN KEITH MOO

Respondent

fry

ar rt

for Re

QUESTIONS PRESENTED

Whether 28 U.S.C. § 2254(d) requires a federal court to

presume that the Missouri appellate court correctly

interpreted the fourteenth amendment's due process clause

when it retroactively applied to respondent an expanded and

unforeseeable interpretation of Missouri's felony-murder

statute?

Whether a federal court must defer to the M

appellate court's interpretation of the federal

constitution which permitted a retroactive application of

an expanded and unforeseeable interpretation of Miss

pre on of i's

’ = >

felony-murcer statute

resr Jent due process of law as required py the f teent

TABLE OF CONTENTS

TATUTORY PROVISIONS l

w”

Bad

I Factual Background l

T Procedural History

SUMMARY F THE AR ™ 4

ARGUMENT 4

I THE FEDERAL HABEAS STAT

2254(d), DOES NOT REQUI T

PRESUME iAT THE MISSOURI

RR INTERPRETED THE F

AME NT'S DUE PROCESS CLAI

RETROACTIVELY APPLIED TO RE

EXPANDED AND UNFORESEEABLE OF

MISSOURI'S FELONY-MURDER ST 6

x The Missouri Court Of Appeals’ In 2

Of B , ity of Columbia °|

ments 1e@ Process

trued As A la

ivit Iss

ixec Ques

atutory P n

4(d) Doe

y mT oT TUE

Ss I ATION OF

WHIC S TT A

F AN EXPANDED ANT

ION OF MISSOURI'S

)

1 -1/G))0

ilate

B Tr 2 =)

onflict With Wainwright v. Goode 10

THE EIGHTH CIRCUIT CORRECTLY INTERPRETED

BOUIE WHEN IT HELD THAT THE MISSOURI SUPREME

COURT RETROACTIVELY APPLIED AN EXPANDED AND

UNFORESEEABLE INTERPRETATION OF MISSOURI'S

FELONY MURDER STATUTE TO AFFIRM RESPONDENT'S

CONVICTION AND THEREBY DENIED RESPONDENT DUE

PROCESS OF LAW AS REQUIRED BY THE FOURTEENTH

AMENDMENT . 4 ‘ ‘ — .

A. The Eighth Circuit Correctly Interpreted

And Applied Bouie's Due Process Test

Which It Defined In Terms Of "Fair

Warning," "Fair Notice," And

“Forseeability” Of The State Court's

Change In its Criminal Law is

B Petitioner, The Missouri Court of

Appeals (Moore III) And The Eighth

Circuit Dissenting Judge Have Applied

An Erroneous Interpretation Of Bouie

The Language of Missouri's Felony-Murder

Statute And The Law Of Other States Did

Not Give Respondent Fair Warning Of The

Missouri Supreme Court's Reversa! Of

Its Former Interpretation Of Missouri's

Felony-Murder Statute

iTH CIRCUIT'S OPINION DOES NOT

WITH ANY SUPREME COURT OR CIRCUIT

DOES NOT ESTABLISH ANY NEW

AND, THEREFORE, DOES NOT MERIT

REVIEW

CONCLUSION

a Text of 28 U.S.C 2254(d)

Text of State Moore, } 38,783

slir (M Ct App. June 2 1978

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Respondent, Brian Keith Moore, respectfully requests this

Court to deny the petition for certiorari to review the judg-

’

f the Court of Appeals for the Eighth Circuit

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Petitioner failed to inciude the provisions of 28 U.S.C

§ 2254(d) which respondent has included in Appendix A to this

brief

STATEMENT OF THE CASE

I Factual Background

Petitioner and respondent have never disputed the relevant

facts during the litigation of respondent's habeas petition

The disagreement between the parties rests solely on legal

grounds the proper interpretation and application of the

fourteenth amendment's due process ciause to the facts of this

case

On June 28, 1975, respondent, Brian Keith Moore, and tw

accomplices attempted to rob the Emergency Room Lounge in the

City of St. Louis During the course of the attempted robbery,

Albert “Rip” Williams, a patron of the Lounge, exchanged gun-

shots with Moore and his accomplices In the exchange of

gunfire, Rip Williams shot and killed Lawrence Meadows, another

patron of the Lounge Petitioner has never disputed at trial

during any appeal that Williams, a non-participant in the

robbery, fired the shots which killed Meadows

The State cf Missouri charged Moore with murder in the

taal

ra)

1c)

st degree and attempted robbery ir

Moore's first trial on these charges resulted in a hung jury

On November 15, 1976, a second jury convicted Moore of both the

murder and attempted robbery charges

II rocedural History

Moore appealed his convictions to the Missouri Court of

Appeals for the Eastern District He contended that the State

improperly convicted him of felony-murder

§ 559.010 (1969) (cepealed Sept. 28, 1975)

uncer !

Rev

, because neithe

nor one of his accomplices fired the bullet that killed Me

The Missouri Court of Appeals agreed with Moore That

fo that the Missouri Supreme Court in State v. Majors,

S.W. 486 (Mo. 1922), had interpreted Missouri's felony-mur

a case involving facts that wer

In Majors

felony-murder statute

Supreme Court

>plied where a

homicide was committed by the defendant or his accomplice

State v. Moore, No. 38,783, slip op. at 7 (M Ct. App

1978) (Respondent's Appendix at A-10) (hereinafter referre

as “Moore I").' Moore I held that “({u)nder the holding of

Majors and under the facts of this case, defendant could n

found guilty of the felony murder of the victim as he was

act 37 in concert wit! Rip’ Willi fired

fata shot Id. at 7-8 (Respond A-11)

The Missouri Court of Appeals e to

Mis iri Supreme Court pursuant tc = the

M C stituti which permits transfer t the Missou

Supreme ur »9r the purpose of re-examining the existin

aw (emphas adde see al M S. Ct R. 30.27 an

83 2 The ~ irt oT 1eEd

There las bee n further nceement £ the

supreme court on the precise issue before us

Since the 1922 Majors ca and © believe ts

holding should be re-examined

While we w ar $

conviction of

State v. M ase tx

the Suprem

Stat

adow

Respondent has reproduced

Moore I opinion in Appendix B

not confuse respondent's ident

Eighth Circuit's different iden

Missouri Supreme Court's opinion concerning Moore's appea

50 S.W.2d 1049 (Mo. 1932) (defendant, who commit-

ted an arson-homicide., held liable for felony-

murder)], we think that since the victim's death

was the natural and proximate result of defen-

@ant's actions, movant was put om notice that his

conduct would be considered first degree murder.

Consequently, the construction put on § 559.010

~ the Missouri Supreme Court could not be con-

dered to be either ‘unexpected’ or ‘indefensi-

ble’ and can be given retroactive application to

defendant without violating the due process

clause of the United States Constitution. Id.

The Eighth Circuit determined that the Moore III court

misinterpreted and misapplied Bovie. Moore v. Wyrick. 766 F 2d

1253 (8th Cir. 1985) (hereinafter referred to as “Moore IV");

Petitioner's Appendix A (hereinafter referred to as “P.A.") at

A-1. The Eighth Circuit therefore vacated Moore's felony-

murder conviction, and held that Moore did not have fair warn-

ing of the Missouri Supreme Court's unfores>eable interpreta-

tion of Missouri's felony-murder statute. Id.*

SUMMARY OF THE ARGUMENT

Bouie v. City of Columbia held that a state may not retro-

actively apply an unforeseeable interpretation of a state's

criminal statute. The Eighth Circuit applied the Bouvie due

process test to vacate respondent's conviction. The court held

that the Missouri Supreme Court's decision to apply retroac-

tively a new and unforeseeable “proximate cause” theory of

*The Eighth Circuit ordered Moore's release dependent

upon the completion of his attempted a conviction.

Moore IV, P.A. at A-1l1. The court presumably desired to give

the State of Missouri an opportunity to request a state court

to reinstate Muore'’s attempted robbery conviction which had

previously been vacated on double jeopardy grounds in light of

Moore's felony-murder conviction. The issue is moot, however.

because Moore has already completed serving his sentence for

attempted robbery.

Moore was incarcerated for more than ten years before he

was released in accordance with the Eighth Circuit's order.

Petitioner did not make any effort to obtain a stay of the

Eighth Circuit's order.

and its progeny. Accordingly, this Court should deny the

petition for writ of certiorari to the Court of Appeals for the

Eighth Circuit.

ARGUMENT

a THE FEDERAL HABEAS STATUTE, 28 U.S.C. § 2254(d), DOES

NOT REQUIRE A FEDERAL COURT TO PRESUME THAT THE

MISSOURI APPELLATE COURT CORRECTLY INTERPRETED THE

FOURTEENTH AMENDMENT'S DUE PROCESS CLAUSE WHEN IT

RETROACTIVELY APPLIED TO RESPONDENT AN EXPANDED AND

UNFORESEEABLE INTERPRETATION OF MISSOURI'S FELONY-

MURDER STATUTE.

A. The Missouri Court Of Appeals’ Interpretation Of Bouie

v. Cicy of Columbia And The Fourteenth Amendment's Due

Process Clause Cannot Be » Construed As A_ "Factual"

Issue.

The Missouri Supreme Court never addressed the issue of

whether it could retroactively apply to Moore its new interpre-

tation of Missouri's felony-murder statute in Moore I. The

Missouri Court of Appeals held, however, that the Missouri

Supreme Court's affirmance of Moore's felony-murder conviction

did not violate Moore's due process rights. Moore III, 651

S.W.2d at 578. The court based its holding solely on its

interpretation of Bouie. Id. The constitutional issue under

Boule was purely a legal question which did not include any

factual determinations. The resolution of this issue required

the Missouri Court of Appeals to apply the Bouie due process

standard to various Missouri Supreme Court opinions which had

previously interpreted Missouri's felony-murder statute.

Factual assertions generally involve "inquiries about who,

when, what, and where." Monaghan, Constitutional Fact Review,

85 COLUM. L. REV. 229, 235 (1985). These issues were resolved

at Moore's trial and have never been disputed throughout the

course of Moore's habeas litigation.

The federal habeas statute, 28 U.S.C. § 2254(d), only

requires a federal court to presume that a state court correctiy

decided factusl issues. Thus, the habeas statute presumes

that the state court's findings are correct only if they are

based on "a determination after a hearing on the merits of th>

factual issue." Id. The Missouri courts did not hold and

could not have held an evidentiary hearing to resolve Moore's

constitutional claims which required a determination of purely

legal issues.

B. Even If The Retroactivity Issue Were Characterized As

A Mixed Question Of Law And Fact, The Statutory

Presumption Under 28 U.S.C. § 2254(d) Does Not Apply.

Even if one characterized the constitutional retroactivity

issue as a "mixed question of law and fact" or a resolution of

an “uitimate constitutional question,” the statutory presumption

under 28 U.S.C § 2254(d) does not apply. Sumner v. Mata, 455

U.S. 591, 597 and n. 10 (1982) (per curiam). Thus, the Eighth

Circuit had not only the right but also the duty to review

independently the Missouri Supreme Court's and the Missouri

Court of Appeals’ decisions in Moore II and III.

This Court's recent decision in Miller v. Fentcn,

No. 84-5786, slip op. (U.S. Dec. 3, 1985) offers additional

justification for the Eighth Circuit's independent constitu-

tional review in Moore IV. The Miller Court acknowledged that

“the decision to label an issue a ‘question of law,' ‘a question

of fact,' or a ‘mixed question of law and fact' is sometimes as

much a matter of allocation as it is of analysis." Miller,

slip op. at 9. Thus, this Court has deferred to a state judge's

factual determination when the issue involves an “inquiry into

state of mind." Id. at 9 (citing Maggio v. Fulford, 462 U.S.

111 (1983) (per curiam) (cetermination of defendant's competency

to stand trial)). Similarly, this Court has deferred to a state

trial judge's determination of the credibility of witnesses

which invoives the subjective evaluation of an individual's

demeanor. Miller, slip op. at 10 (citing Patton v. Yount, 467

U.s. , 81 L. Ed. 2d 847 (1984) ,determination of a juror's

impartiality); Wainwright v. Witt, 469 U.S. ___,. 83 L. Ed. 2d

841 (1985) (determination that a juror in a capital murder case

was biased and, therefore, properly excluded for cause); see

also Rushen v. Spain, 464 U.S. 114 (1983) (per curiam) (evalua-

tion of juror's misconduct); Marshall v. Lonberger, 459 U.S. 422

(1983) (voluntariness of guilty plea).

None of the issues in the case at bar depend on a trial

judge's subjective evaluation of an individual's state of mind

or demeanor. No special justification exists, therefore, for a

federal court to presume that the Missouri Court of Appeals

correctly adjudicated Moore's constitutional claim in Moore III.

Miller also recognized that when the “state-court judge is

not in an appreciably better position than the federal court,"

the federal court should independently apply tne constitutional

standard to the facts. Miller, slip op. at 13. This Court

expressed special concern about “strip[ping] a federal court of

its primary function as expositor of law." Id. at 10. In

contrast to the views expressed in Miller, petitioner suggests

that the federal courts should abdicate their responsibility to

interpret the Constitution to the state courts. Miller has

soundly rejected petitioner's theory.

Even if one could somehow characterize the constitutional

due process retroactivity issue as a factual issue, the habeas

statute would still not allow a federal court to presume that a

state court correctly decided the issue. 28 U.S.C. § 2254(d)(7)

directs the federal nabeas court not to presume that a state

court's factual finding is correct when the "applicant was

otherwise denied due process of law in the State court proceed-

ing." Moore's due process claim triggers this statutory excep-

tion to the presumption rule and authorizes independent federal

review of the Missouri courts’ findings.

II. A FEDERAL COURT SHOULD NOT DEFER TO THE MISSOURI

APPELLATE COURT'S INTERPRETATION OF THE FEDERAL

CONSTITUTION WHICH PERMITTED A RETROACTIVE APPLICATION

OF AN EXPANDED AND UNFORESEEABLE INTERPRETATION OF

MISSOURI'S FELONY-MURDER STATUTE.

A. Bouie v. City of Columbia and Weaver v. Graham Support

the Eighth Circuit's Independent Review of the Missouri

Appellate Court's Constitutional Application of the

Fourteenth Amencment's Due Process Clause.

The Missouri Supreme Court did not address Moore's four-

teenth amendment argument in Moore I. The Missouri Court of

Appeals, however, denied Moore's constitutional claim based on

its analysis of the due process clause and its understanding of

Bouie. Moore III at 581. That court held that the Missouri

Supreme Court's application to respondent of the proximate

cause theory of Missouri's felony-murder statute “could not be

considered to be either ‘unexpected’ or ‘indefensible’ and can

be given retroactive application to defendant without violating

the due process clause of the United States Constitution.”

Id.*

The Eighth Circuit independently applied Bouie's due process

test to vacate the Missouri Supreme Court's affirmance of

Moore's felony-murder conviction. Moore IV, P.A. at A-10. The

Eighth Circuit vacated Moore's conviction because it held that

he did not have fair warning or notice of the Missouri Supreme

Court's unforeseeable expansion of Missouri's felony-murder

statute. Id. at A-3, A-10.

The due process test established in Bouie requires a federal

court to decide whether a state court has retroactively applied

a new or expanded interpretation of a state criminal statute.

“The use of the term "unexpected" and indefensible”

suggests that the Missouri Court of Appeals, the Eighth Circuit

dissenting judge, and petitioner have misunderstood Bouie's due

process test. The Eighth Circuit majority correctly described

the test in terms of “unforseeability,” “fair notice" and “fair

warning." Moore IV, P.A. at A-3; see also § III infra.

In Bouie, the Court analyzed the South Carolina Supreme Court's

in*erpretations of South Carolina's trespass statutes. 378

U.S. at 356-60. Similarly, before the Eighth Circuit found a

constitutional violation, it examined the Missouri Supreme

Court's pre-Moore II interpretations of Missouri's felony-

murder statute.

Bouie based its due process holding on the proposition that

“an unforeseeable judicial enlargement of i criminal statute,

applied retroactively, operates precisely like an ex post facto

law, such as Art. I, § 10, of the Constitution forbids." 378

U.S. at 353; see also id. at 362. This Court has repeatedly

held that “(w)hether a retrospective state criminal statute

ameliorates or worsens conditions imposed by its predecessor is

a federal question.” Weaver v. Graham, 450 U.S. 24, 33

(1981). The holding in Weaver should also apply to a federal

court's due process analysis of whether a state court has

retroactively applied a new interpretation of the state's

criminal law. Accordingly, the Eighth Circuit had a duty to

independently apply the Bouie due process standard without

deferring to the Missouri Court of Appeals’ constitutional

analysis.

B. The Eighth Circuit's Ruling Does Not Conflict With

Wainwright v. Goode, 464 U.S. 78, 84 (1983) held that a

federal court should generally defer to a state court's

interpretation of a question of state law. The Court found

that a federal habeas court should have accepted the Florida

Supreme Court's holding that a state trial judge did not rely

on an improper factor in imposing the death penalty under

Florida law. Id. This Court, therefore, reversed the Eleventh

Circuit's finding of an eighth amendment violation which

depended upon the resolution of an independent and distinct

question of Florida law.

ate

In contrast to the issue presented in Goode, the Bouie due

process test requires a federal court to apply a constitutional

standard which is inextricably connected with an examination of

state law.* In applying the Bouie test, the federal court

does not decide any questions of state law. It merely applies

a federal constitutional standard to an existing body of state

law.‘

The Eighth Circuit applied Bouie's constitutional standard

when it held that the Missouri Supreme Court retroactively

applied to Moore an expanded version of Missouri felony-murder

statute. If the court had deferred to the Missouri Court of

Appeals on this issue, it would have abdicated its constitu-

tional duty to interpret and apply federal constitutional

law.’

Even if one assumes that the Eighth Circuit should have

given some deference to the Missouri appellate courts, one

wonders whether the federal court should have given greater

deference to the Moore I or Moore III panel. The Moore I panel

found that the pre-Moore state law compelled the court to

reverse Moore's felony-murder conviction. On the other

‘Cf. Caldwell v. Mississippi, 472 U.S. ______, 86 L. Ed.

2d 231, 238 (1985) (“we will not assume that a state court

decision rests on independent and adequate state grounds when

the ‘state court decision appears to rest primarily on federal

law, or to be interwoven with the federal law, and when the

adequacy and independence of any possible state law is not

clear from the face of the opinion.'" (citation omitted).

‘The Missouri Court of Appeals conceded that the Missouri

Supreme Court had “retroactively applifed]" to Moore its

expanded interpretation of Missouri's felony-murder statute.

Moore III at 581. The court's holding rested solely on its

contention that the Missouri Supreme Court's retroactive ruling

was neither “unexpected” nor “indefensible” under Bouie. Id.

"The Eighth Circuit and respondent have never questioned

the Missouri Supreme Court's constitutional right to apply

prospectively its new proximate cause theory of Missouri's

felony-murder statute.

" -11-

~ —_

hand, the Moore III panel Hera that the Missouri Supreme Court's

affirmance of Moore's conviction was not based on an unexpected

development of Missouri law and did not, therefore, require that

court to reverse the conviction. Petitioner's deference argu-

ment is rendered meaningless by the contradictory decisions of

the Missouri Court of Appeals in Moore I and Moore III.

Eit. THE EIGHTH CIRCUIT CORRECTLY INTERPRETED BOUIE WHEN

IT HELD THAT THE MISSOURI SUPREME COURT RETROACTIVELY

APPLIED AN EXPANDED AND UNFORESEEABLE INTERPRETATION

OF MISSOURI'S FELONY MURDER STATUTE TO AFFIRM

RESPONDENT'S CONVICTION AND THEREBY DENIED RESPONDENT

DUE PROCESS OF LAW AS REQUIRED BY THE FOURTEENTH

AMENDMENT .

A The Eighth Circuit Correctly Interpreted And Appiied

Bouie’ s Due Process Test Which It Def ined In Terms Of

“Fair Warning,” “Fair Notice,” And _"Unforeseeability”

Of The State Court's Change In Its Criminal Law.

Bouie held that "“[w]jhen [an] . . . unforeseeable state-court

construction of a criminal statute is applied retroactively to

subject a person to criminal liability for past conduct, the

effect is to deprive him of due process of law in the sense of

fair warning that his contemplated conduct constitutes a crime."

378 U.S. at 354-55; see also Moore IV, P.A. at A-2 to A-3. The

Bouie Court characterized the due process test in terms of “fair

warning” ten times throughout its opinion. Subsequent Supreme

Court cases have described the test in terms of "fair warning,”

“fair notice," or “unforseeability.” See Marks v. United

States, 430 U.S. 188, 192 (1977); Hamling v. United States, 418

U.S. 87, 116 (1974); and Douglas v. Buder, 412 U.S. 430, 432

(1973) (per curiam).'

The Eighth Circuit correctly applied Bouie's due process

test to the Missouri Supreme Court's decision in Moore II which

*Cf. Kolender v. Lawson, 461 U.S. 352, 357 (1983) ("[the]

void-for-vagueness doctrine [under the due process clause]

requires that a penal statute define the criminal offense with

sufficient definiteness that paces Gnd people can understand

what conduct is prohibited ‘)

~}]2-

affirmed respondent's felony-murder conviction by adopting an

expanded interpretation of Missouri's felony-murder statute.

The Eighth Circuit concluded that the Missouri Supreme Court in

Moore II unforseeably changed the law and retroactively applied

the change to affirm respondent's conviction. P.A. at A-3,

A-10.

In analyzing the due process issue, the Eighth Circuit

observed that the Missouri Supreme Court's decision in Moore II

to adopt a “proximate cause" theory of Missouri's felony-murder

statute represented a change in Missouri law. To embrace its

new interpretation, the Missouri Supreme Court was compelled to

overrule its long-standing precedents of State v. Majors, 237

S.W. 486 (Mo. 1922) and State v. Glenn, 429 S.W.2d 225 (Mo.

1968) which had established the “agency” theory of Missouri's

felony-murder statute. Under that theory, the Moore I court

recognized it was “obliged” to reverse Moore's felony-murder

conviction. See Moore II at 753; Moore I at 8-9°

(Respondent's Appendix at A-13)

The Eighth Circuit concluded that the Moore II court

retroactively applied an unforeseeable change in Missouri

law. In summarizing the reasons for its conclusion, the court

wrote:

First, both the state court of appeals and the

state supreme court recognized that State v

Majors was indistinguishable from the present

case. Second, the court of appeals concluded

*The Eighth Circuit's dissenting ovinion suggests that

the Missouri Supreme Court “did not ‘explicitly overrule’

Majors ...." P.A. at A-13 (Gibson, J., dissenting). The

language of the Missouri Supreme Court's opinion contradicts

this analysis. Moore II, 580 S.W.2d at 753. Moreover, a

subsequent Missouri Court of Appeals decision acknowledges that

Moore II “overruled” Majors. State v. Blackmon, 587 S.W.2d

292, 293 (Mo. Ct. App. 1979).

that Majors represented the existing end control-

ling law and transferred Moore's case to the

state supreme court for the express purpose of

re-examining that law. Third, in adopting the

proximate cause theory, the state supreme court

recognized that no case other than Majors pre-

sented the precise question involved and then

specifically overruled Majors. In so doing the

court significantly expanded the scope of the

state's felony-murder statute. Finally, no case

arising between Majors and Moore [II] undermined

the authority of Majors. P.A. at A-10 to A-1l.

In light of Majors and Glenn, petitioner and the dissenting

Eighth Circuit judge were compelled to concede the “unsettled”

or “ambiguous” nature of Missouri's pre-Moore II case-law.

P.A. at A-15 (Gibson J., dissenting); Petition at 14. Respon-

dent could not have had fair notice of prohibited criminai

conduct clouded in such judicial confusion.

B. Petitioner, The Missouri Court of Appeals (Moore III)

And The Eighth Circuit Dissenting Judge Have Applied

An_Erroneous Interpretation Of Bouie.

The Missouri Court of Appeals (Mocre III) and the Eighth

Circuit dissenting judge understood Bouie as establishing a test

in which a due process violation occurs only if the retroactive

judicial construction of the state criminal statute is “unex-

pected and indefensible." P.A. at A-15; see also Moore III at

581 The “unexpected and indefensible" language appears only

once in Bouie when the court quotes from a textbook on criminal

law 378 U.S. at 354. As reflected by the post-Bouie Supreme

Court cases, the Eighth Circuit majority's “unforeseeability-

fair warning” test represents the correct interpretation of

Bouie and its due process standard. See §III(a) supra.

The Eighth Circuit dissenting opinion and the Moore III

court also erroneously suggest that Bouie mited its due

process rule when it stated in dicta that “[a]pplication of

this rule is particularly compelling where, as here, petition-

er's conduct cannot be deemed improper or immoral.” 378 U.S

at 362; see P.A. at A-15 (Gibson, J., dissenting); Moore III

-14-

651 S.W.2d at 581. Articulating a more accurate description of

the role which subjective moral values play in its due process

analysis, the Bouie Court wrote:

{In the] last analysis the case is con-

trolled, we think, by the principle which Chief

Justice Marshall stated for the Court in United

States v. Wiltberger, 5 Wheat 76, 96, 5 L. Ed.

37-42 [(1820)]. . . ‘It would be dangerous,

indeed, to carry the principle, that a case which

is within the reason or mischief of a statute, is

within its provisions, so far as to punish a

crime not enumerated in the statute, because it

is of equal atrocity, or of kindred character,

with those which are enumerated.

Bouie, 378 U.S. at 362-63.

One could debate at length the competing moral principles

which underlie the “agency” vs. the “proximate cause” theories

of the felony-murder doctrine. A state's criminal statutes, as

interpreted by a state's courts. ultimately establish the legal

moral standards which guide every citizen's life. Thus, the

Missouri Supreme Court's adoption of the agency theory of

felony-murder in Majors and Glenn represented the state law's

"morality" until the Supreme Court adopted the new proximate

The State of Missouri has punished Moore for his attempted

robbery offense. Moore was incarcerated for more than ten

years The Constitution prohibits a state from retroactively

applying new sanctions on personal behavior. A state's retro-

active application of a new or expanded interpretation of its

criminal law represents a form of tyranny which the American

constitutional system of justice has refused to countenance.

€. The Language of Missouri's Felony-Murder Statute And

The Law Of Other States Did Not Give Respondent Fair

Warning Of The Missouri Supreme Court's Reversal Of

Its Former Interpretation Of Missouri ‘s Felony-Murder

Statute.

The ambiguous language of Missouri's felony-murder statute

did not give respondent fair warning that the Missouri Supreme

Court would reverse its former interpretation of the statute.

-15-

Moore was entitled to rely on the Missouri Supreme Court's

opinion in Majors which adopted the agency theory of Missouri's

felony-murder statute. The Eighth Circuit correctly observed

that “in light of Majors, which narrowed the scope of the felony

murder statute, we are not confronted with the statute ‘as

written’ but rather as judicially construed." Moore IV, P.A.

at A-8. One may analogize the Missouri Supreme Court's opinion

in Majors with the trespass statute in Bouie. The Majors

opinion and the Bouie statute both represented the state of the

law until the supreme courts of Missouri and South Carolina

expanded the judicial interpretation of those statutes.

In Rose v. Locke, 423 U.S. 48, 53 (1975) (per curiam), this

Court found that the narrow judicial interpretation of an

ambiguous state criminal statute gave the defendant adequate

notice that the statute prohibited a specific type of sexual

conduct. In the case at bar, one must determine Missouri's

criminal law based upon the judicial interpretation of

Missouri's felony-murder statute, not the language of the

Statute itself.

The Missouri Supreme Court's adoption of the proximate

cause theory of felony-murder cannot be judged as foreseeable

by reference to the law of other jurisdictions. Moore was sub-

ject to Missouri's criminal law and Missouri must be bound by

its own law. See Bouie, 378 U.S. at 359-60 (meaning of statutes

other states is not relevant to a determination of the South

Carolina Supreme Court's express pronouncement of its criminal

law).

iv. THE EIGHTH CIRCUIT'S OPINION DOES NOT CONFLICT WITH

ANY SUPREME COURT OR CIRCUIT COURT OPINION, DOES NOT

ESTABLISH ANY NEW PRECEDENT, AND, THEREFORE, DOES NOT

MERIT THIS COURT'S REVIEW.

The Eighth Circuit's well-reasoned opinion rests primarily

on Bouie and its progeny. No circuit court opinion conflicts

-16-

TEXT OF 28 U.S.C. § 2254(d)

(a) In ary proceeding instituted in a Federal court by an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination

after a hearing on the merits of a factual issue, made by a

State court of competent jurisdiction in a proceeding to which

the applicant for the writ and the State or an officer or agent

thereof were parties, evidenced by a written finding, written

opinion, or other reliable and adequate written indicia, shall

be presumed to be correct, unless the applicant shall establish

or it shall otherwise appear. or the respondent shall admit--

(1) that the merits of the factual dispute were

not resolved in the State court hearing:

(2) that the factfinding procedure —

the State court was not ebupeste to afford a full

and fair hearing;

(3) that the material facts were not adequately

Geveloped at the State court hearing;

(4) that the State court lacked jurisdiction of

the subject matter or over the person of the

applicant in the State court proceeding;

(5) that the applicant was an indigent and the

State court, in deprivation of his constitutional

right, failed to appoint counser to represent him

in the State court proceeding;

(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court

proceeding; or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or unless that part of the record of the

State court proceeding in which the determination

of such factual issue was made, pertinent to a

determination of the sufficiency of the evidence

to support such factual determination, is produced

as provided for hereinafter, and the Federal

court on a consideration of such part of the

record as a whole concludes that such factual

—a<-* ccc, is not fairly supported by the

recor

APPENDIX B

Text of State v. Moore, No. 38,783,

slip. op. (Mo. Ct. App. June 27, 1978)

IN THE MISSOURI COURT OF APPEALS

ST. LOUIS DISTRICT

DIVISION THREE

STATE OF MISSOURI, Cause No. 38,783

Appeal from the Circuit Court

of the City of St. Louis

Plaintiff-Respondent,

Vv.

Hon. P.F. Palumbo, Judge

BRIAN KEITH MOORE,

OPINION FILED

Defendant-Appellant.

~—~wSewewewewewew ww

June 27, 1978.

Defendant was convicted of first degree murder and

attempted robbery in the first degree by means of a dangerous

and deadly weapon. Defendant's appeal charges that the trial

court erred: (1) in failing to discharge him on the ground

that his arrest was without warrant or probable cause; (2) in

failing to suppress certain evidence and identification

testimony allegedly procured by illegal means; (3) in failing

to instruct the jury on second degree murder and manslaughter.

Our review of the pertinent law leads us to the conclusion that

the first degree murder conviction must be reversed. But for

the reason hereafter set forth, we transfer the case to the

Supreme Court.

Defendant's conviction stems from a robbery attempt in the

Emergency Room Lounge in St. Louis. On the evening of July 28,

1975, three young men entered the lounge and announced their

intention to commit robbery. The defendant, later identified

as one of the robbers, carried a shotgun, and one of his

companions, Ross Hogan, displayed a pistol. The plans for an

unmolested robbery went awry when a customer, Alfred "Rip"

Williams, drew a .38 caliber pistol from his trousers. Hogan

fired at Williams and missed, but Williams, shooting twice,

wounded Hogan. A shotgun blast felled Williams, who, while

lying on the floor, saw the foot of a man standing over him.

Fearing that he would be shot again, Williams fired at the

foot, striking it. Retreating from their nefarious incursion,

the robbers maintained an enfilade of gun fire, wounding

Williams once more.

As the robbers fled the lounge, one was observed to be

' limping and another holding his side. They were seen

discarding the shotgun and pistol from a speeding car as they

left the scene of the aborted robbery attempt. The weapons

were later recovered by police.

When the violence of the night had subsided, a customer,

Lawrence Meadows, was found mortally wounded from a bullet in

his brain. Ballistic tests proved that the lethal missile had

been fired from the gun of Rip Williams in his ill-considered

effort to frustrate the robbery. Two days after the incident,

two detectives contacted an informant with whom they had never

worked, but about een they were familiar. The informant told

the detectives that he had learned from a relative of the

defendant that the perpetrators of the attempted robbery were

Ross Hogan, a man named Carl, and the defendant. The police

were aware of Hogan's involvement, as he had been arrested and

was hospitalized for treatment of shotgun wounds. The

informant advised the police that the defendant had been shot

in the right foot and was on crutches; that he could be found

in either the 4100 block of Ashland Avenue or the 4300 block of

Labadie. The same day they received the information, the two

detectives saw defendant in the 4100 block of Ashland with a

bandaged right foot and walking with the aid of crutches. When

approached, the defendant was nervous, gave the alias of Joseph

Madison and stated that he was 17 years old. He possessed no

identification. He attributed his injury to stepping on a

rusty nail. The police removed his shoe and noticed two

wounds, one on each side of his ankle. Defendant was arrested

and taken to a hospital for treatment. His shoe. which was

confiscated for evidence, was punctured in the places

corresponding to his wounds in the ankle.

A physician at the hospital confirmed that defendant's

ankle injury was a gun wound. Defendant then gave his correct

name and admitted his participation in the robbery but denied

any shooting. When police learned from his mother that the

defendant was only 16 years old he was immediately taken to the

Juvenile Detention Center. Defendant was subsequently placed

in a line-up and identified by two witnesses as one of the

robbers.

Defendant initially argues that the trial court erred in

failing to “discharge” him by reason of the State's failure to

establish probable cause for his warrantless arrest. This

point is without merit.

“Probable cause" exists where the facts and circumstances

within the officers’ knowledge and of which thoe have reliable

and trustworthy information would warrant a man of reasonable

caution to believe that the person being arrested had committed

the offense for which he has been Placed in custody. Ker v.

California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed. 2d 726 (1963);

Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 92

L.Ed. 1879 (1949); Carroll v. United States, 267 U8. 132, U5

132, 45 S.Ct. 280, 69 L.Ed. 543 (t925); State v. Wiley, 522

S.W.2d 281 (Mo. banc 1975).

Defendant argues that there was no reasonable ground extant

for his warrantless arrest, particularly since the arresting

officers had not personally known the informant nor had

personal experience with him. We disagree with defendant's

contentions. As stated in State v. Wiley, supra at 288:

There is no absolute requirement that the

informant be one of previous reliability. United

States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29

L.Ed. 2d 723 (1971).

The true inquiry therefore is whether the

informant's present information is reliable. As

long as the corroboration of the information

through other sources, even though the matters

are innocuous, reduces the changes of a “reckless

or prevaricating tale," the information, even

though hearsay, may form the basis of probable

cause for an arrest.

Under the circumstances of this case, we have no doubt that

probable cause existed for defendant's arrest. The arresting

officers had been assigned the specific task of investigating

the crime which had occurred two days earlier involving three

youths, one of whom had been shot in the foot and had been

observed limping from the crime scene. Another of the robbers

was already in police custody. The informant had dealt with

police previously, albeit not the particular arresting

officers, tut they were aware of his past contributions. The

informant, attributing his information to a relative of the

defendant, advised the police that the defendant had been shot

in the right foot, was on crutches and could be found in the

4100 block of Ashland. And exactly as told, the police found

defendant, complete with crutches and bandaged right foot, in

the 4100 block of Ashland. He gave an implausible explanation

for his injury and fit the general description of one of the

robbers. The information accurately detailed by the informant

was fully corroborated by the personal observation of the

arresting officers. The accusation of defendant is thus

readily distinguished from the rumor or vague circumstances

decried in Wong Sun v. United States, 371 U.S. 471, 83

S.Ct. 407, 9 L.Ed. 2d 441 (1963), upon which defendant

relies. The arrest was lawful. State v. Grady, 548

S.W.2d 601 (Mo.App. 1977); State v. Kent, 535 S.W.2d 545

(Mo.App. 1976); State v. Wiley, supra.’

Defendant's second contention is that certain evidence

defendant's shoe with the bullet punctures--and

identification testimony should have been suppressed as

- having been obtained as the result of an illegal arrest.

We have already ruled that probable cause existed for

defendant's arrest and that it was lawful. Hence, the

seizure of the evidence and its use at trial was lawful.

United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39

L.Ed. 2d 771 (1974); State v. Webb, 560 S.W.2d 318

(Mo.App. 1977); State v. Williams, 554 S.W.2d 524 (Mo.App.

1977); State v. Gordon, 527 S.W.2d 6 (Mo.App. 1975). This

is particularly true where the items seized--in this case,

defendant's shoe with apparent bullet holes--was in plain

view of the arresting officers. Harris v. United States,

390 U.S. 234, 88 S.Ct. 992, 19 L.E@. 2d 1067 (1968); State

v. Hall, 534 S.W.2d 508 (Mo.App. 1976); State v. Achter,

512 S.W.2d 894 (Mo.App. 1974).

Defendant also asserts State v. Wade, 531 S.W.2d 726

(Mo. banc 1976), as a purported barrier to the use by the

State of his shoe and identification testimony linking him

to the crime. Wade holds that it is reversible error to

‘Of course, an alleged illegal arrest forms no ground for

relief on collateral attack once a defendant is convicted, nor

does it affect the trial court's jurisdiction to try the case.

State v. French, 528 S.W.2d 170 (Mo.App. 1975). So there is no

materiality here to the issue of legal arrest.

admit testimony regarding a confession of a juvenile offender

made prior to being taken to the juvenile authorities. Wade is

not apt here, as the State absolutely refrained from introduc-

ing or using defendant's inculpatory statements. The shoe, as

discussed, was admissible as being in plain view and having

been taken as a result of a lawful arrest.

Defendant cites State v. Ross, 516 S.W.2d 311 (Mo.App.

1974), and argues that the shoe should have been excluded as

having been obtained as a result of his inadmissible

confession. Ross is readily distinguishable, because the

taking of the shoe bore no relationship to defendant's

confession which was excluded. The shoe with the bullet holes

was suspicious on its face and in plain view, whereas in Ross,

police were led to evidence only by reason of the juvenile's

confession. Here, we have ruled the shoe admissible, seized

pursuant to a lawful arrest. It was not obtained by reason of

anything said or illegally gained.

The in-court identification testimony, challenged by

defendant, was admissible as it was sustained by ample

independent sources. State v. Radford, 559 S.W.2d 751 (Mo.App.

1977).

Defendant's final point is that the trial court erred in

failing to give murder second degree and the manslaughter

instructions. This precise contention was raised and rejected

in the appeal from the conviction of Ross Hogan, defendant's

partner in the Emergency Room Lounge robbery, where the court

said:

"His [Ross Hogan's] first contention is that

the trial court should have instructed on Count I

on second degree murder and manslaughter. Ina

felony-murder case such instructions are to be

given only ‘where there is evidence warranting a

finding that the murder was not committed in the

perpetration or an attempt to commit the felony

relied upon to authorize a felony murder

instruction.’ MAI-CR 6.02 caveat a.; State v.

Tyler 556 S.W.2d 473 (Mo.App. 1977). The killing

of Meadows was solely the product of the

attempted robbery and the predictable, although

ill-considered, attempt of Williams to thwart

it. There is no evidence to support the giving

of instructions on lesser offenses of homocide.

Defendant was either guilty of felony-murder or

he was guilty of nothing.” State v. Hogan, a

S.W.2d __, No. 38533 (Mo.App.St.L., May 2, 1978).

Defendant contends that the evidence was not clear to

establish that he had exhibited the requisite element of

deliberation to establish first degree murder. This argument

ignores the basic purpose of the felony-murder doctrine: to

permit the felonious intent required for a murder conviction to

be shown by the perpetration or attempt to perpetrate a

felony. State v. Chambers, 524 S.W.2d 826 (Mo. bane 1975).

Inquiry into the actual intent of the perpetrator is

irrelevant. If a homocide is committed during the actual or

attempted perpetration of one of the felonies enumerated in

§559.010 RSMo. 1969 (repealed by Laws 1975, p. 408, H.B. No.

150, §2),* proof of the commission or attempt to commit that

felony authorizes a finding of first degree murder. State v.

lindsey, 507 S.W.2d 1 (Mo. banc i975); State v. Ford, 495

S.W.2G 408 (Mo. banc 1973). Homocide committed in connection

with felonies other than those enumerated is murder in the

second degree, absent a finding of the elements of tthe first

degree. State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972).

Consequently, the allegation that defendant attempted robbery

in the first degree, a felony enumerated in § 559.010 RSMo.

*Section 559.010 RSMo. 1969, as repealed by Laws 1975,

subsequently evolved into §559.007 RSMo. Supp. 1975, which has

been repealed by Laws 1977, P. ___. H.B. No. 90, §2, effective

May 26, 1977 as §565.003 RSMo. Supp. 1977.

Defendant was tried under §559.010, as the date of the

crime was July 28, 1975.

1969, justifies the submission of the instruct‘ons for murder

in the first degree. If the jury failed to find the defendant

guilty of attempted robbery, he could not be found guilty of

murder in any degree. State v. Ford, supra. Thus, defendant

was not entitled to have instruction on a lesser degree of

murder. Jackson v. State, 558 S.W.2d 816 (Mo.App. 1977).

Defendant asserts that the felony-murder doctrine cannot

apply. “in that a bullet from Defendant's gun did not take the

victim's life, and in order to be guilty of a homicide, the act

of a homicide must be done by the Defendant.” Defendant's

assertion is inaccurate. Under the felony-murder doctrine,

there need be no proof that defendant fired the fatal shot.

Participation in a felony--in this case--attempted robbery--is

sufficient to support conviction for murder. State v. Ford,

supra; Dickson v. State, 449 S.W.2d 576 (Mo. 1970); State v.

Francis, 544 S.W.2d 306 (Mo.App. 1976).

But the question in this case is whether defendant can be

held liable for a killing by one with whom he is not acting in

concert. The only Missouri case dealing directly with this

issue is State v. Majors, 237 S.W. 486 (Mo. 1922), which holds

that a defendant may not be held guilty for a death in such

circumstances. The facts in Majors are remarkably similar to

those in the instant case. Majors and two companions

participated in the hold up of a gambling house in Kansas

City. The robbery attempt was interrupted when one of the

gambling house guests, Richard Wade, opened fire on the

robbers. A gun battle ensued and one of Wade's bullets went

astray, striking and killing another guest, Frank Gardner.

Majors was charged with Gardner's murder. In Majors, the

deferdant offered the following two instructions which were

refused by the trial court:

(B) The court instructs the jury that if

you find and believe from the evidence that the

shot that killed Frank Gardner was not fired by |

the defendant, or by some one with whom he was

acting in concert, if any, then you must find the

defendant not guilty.

you find and believe from the evidence in this

case that Frank Gardner was killed by a shot

fired from a revolver by one Richard Wade, or if

you are unable to determine from the evidence

beyond a reasonable doubt that said shot was not

fired by said Richard Wade, then you must find

the defendant not guilty, unless you further find

and believe from the evidence beyond a reasonable

doubt that the defendant acted in concert with

the said Wade to do an unlawful act, and that the

death of said Frank Gardner happened and was

occasioned by the doing or attempting to do such

unlawful act.

In reversing Major's conviction and referring to the first of

the goregoing instructions, the Supreme Court stated, l.c. 488:

“This instruction was the converse of instruction

given for the state, and told the jury that if it

found and believed from the evidence that the shot

that killed the deceased was not fired by the

defendant or by some one who was acting in concert

with him, then he should be acquitted. This was a

correct declaration of law, and such an instruction

was warranted upon the evidence adduced by the

state." (emphasis added)

The court also held that the second of Majors' offered

instructions should have been given as involving the same

Principle of law. Therefore, under the holding of Majors and

under the facts of this case, defendant could not be found

guilty of the felony murder of the victim as he was not acting

in concert with Rip Williams, who actually fired the fatal shot.

There has been no further pronouncement by the Supreme

Court on the precise issue before us since the 1922 Majors

case, and we believe that its holding should be reexamined. At

the time the victim was killed by Rip Williams'bullet,

defendant was engaged in criminal activity amounting to a

felony. Defendant, in perpetrating an attempted robbery,

initiated the chain of events which led to the victim's death

at the hand of Rip Williams. The death was well within the res

gestae of the initial issue, and the causal connection between

the death and the robbery attempt would justify holding

defendant criminally responsible. State v. Hogan, supra.’

See State v. Adams, 339 No. 926, 98 S.W.2d 632 (1936); State v.

Mullen, 532 S.W.2d 794 (Mo.App. 1975); State v. McClain, 531

S.W.2d 40 (Mo.App. 1975). It would appear reasonable to find

that defendant's felonious activity triggered the felony-murder

doctrine, and he should tear the forseeable consequences

flowing from his unlawful conduct. Reference is made to 56

A.L.R. 3d 239 (1974) for a thorough study and collection of

cases dealing with the application of the felony-murder

doctrine to a person engaged in a felonious act for a homicide

committed by another resisting the act.

Recently, in State v. Phillips, _ S.W.2d , No. 37403

(Mo. St.L., May 23, 1978), this court upheld the application of

the felony-murder doctrine to a defendant in the situation

where defendant and another person were engaged in a shoot-out

between each other with an innocent bystander being killed and

with the State being unable to determine which of the

participants had fired the fatal shot. In Phillips, the

felony-murder doctrine appiied because the defendant was

engaged in felonious conduct at the time of the killing

irrespective of the fact that he might not have shot at the

innocent bystander. It would logically follow that the

felony-murder doctrine would apply here, for, after all,

*The applicability of the felony-murder rule in the

Situation where a party not acting in concert with a defendant

fires the shot killing an innocent bystander was not raised in

State v. Hogan, supra.

defendant was in the process of attempting an armod robbery,

and Rip Williams'effort to thwart the robbery--although

unwise--was reasonably forseeable.

Therefore, while we would be obliged to reverse defendant's

conviction for first degree murder by reason of State v.

Majors, supra, we certify this case to the Supreme Court for

reconsideration of the felony-murder doctrine as it would apply

to @ person who perpetrates a felony where another is killed by

someone resisting the felony

Of course, defendant's conviction for an attempted first

degree robbery should be affirmed

/s/ GEORGE F. GUNN, JR.

PRESIDING JUDGE

/s/ Harry L. C. Weier Judge - —Concurs

/s/ John J. Kelly ss Judge __ Concurs

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.