State v. Betts

646 S.W.2d 94, 1983 Mo. LEXIS 422

• Court: Supreme Court of Missouri
• Decided: February 23, 1983
• Docket: 62851
• Status: Published

Opinions

GUNN, Judge.

Defendant-appellant was convicted of capital murder and sentenced to life imprisonment without possibility of probation or parole for 50 years, the state having waived the death penalty.

The defendant and two others, Dennis Skillcorn and Frank Brooks, planned to burglarize the farm home of Wendell Howell. During the course of the burglary Mr. Howell was killed by a shotgun blast to the head as he lay face down on a couch. Conflicting evidence was introduced as to who shot the victim. Frank Brooks testified for the state that the defendant had announced before the burglary that he would have to kill anyone found in the house, and that defendant was the one, in fact, who had fired the fatal shot. Defendant related that it was over his protestations that Mr. Howell died at the hand of Frank Brooks, although he acknowledged that if anyone was encountered in the house, the resident would have to be “cowboyed,” i.e., frightened out of his wits.

The crime was committed on December 2, 1979, and the case tried in October 1980. The jury was instructed on capital murder, second degree murder and manslaughter but was not instructed on § 565.003, RSMo 1978, first degree murder committed in the perpetration of burglary. Initially, the cause was reversed for failing to instruct on first degree murder. But on this Court’s own motion, the submission was set aside for rehearing.

The case presents a multitude of issues: (1) whether first degree felony murder is a lesser included offense of charged capital murder, requiring instruction; (2) the question of instructional error regarding the requisite mental state for conviction of capital murder; (3) whether there was prejudicial error in a deviation from MAI-CR2d 2.12, the aider and abettor instruction; (4) alleged error in failing to define “inhabitable structure”; (5) alleged error in overruling a challenge to a venireman; (6) the effect of including the “however” clause in the state’s verdict directing instruction when an affirmative defense is submitted; (7) whether the instruction on defense by reason of abandonment was prejudicially erroneous.

We affirm the judgment of conviction.

I.

The first point — whether first degree felony murder is a lesser included offense of capital murder, requiring instruction calls for summary disposition. State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), and to the same effect State v. Woods, 639 S.W.2d 818 (Mo.1982), and State v. Blair, 638 S.W.2d 739 (Mo. banc 1982), speak directly to that point holding that first degree felony murder, § 556.046, RSMo 1978, is not a lesser included offense of capital murder. Further, it is the holding of these cases that no first degree murder instruction is required in a trial for capital murder committed after January 1, 1979. Baker was in effect at the time of trial.

II.

The next point centers on the state’s verdict director for capital murder as not properly instructing on the requisite mental state. That instruction provides:

INSTRUCTION NO. 8

If you find and believe from the evidence beyond a reasonable doubt:

First, that on December 2,1979, Dennis Skillcorn and Frank Brooks with the aid or attempted aid of defendant committed the offense of burglary of the Wendell Howell home, and

Second, that the defendant, either before or during the commission of the offense of burglary with the purpose of promoting its commission, aided such other persons in committing that offense, and

Third, that on December 2, 1979 in the County of Jackson, State of Missouri, the defendant or another caused the death of Wendell Howell by shooting him, and

Fourth, that the defendant or another intended to take the life of Wendell Howell, and

Fifth, that the defendant or another knew that he was practically certain to cause the death of Wendell Howell, and

Sixth, that the defendant or another considered taking the life of Wendell Howell and reflected upon this matter coolly and fully before doing so, and

Seventh, that such offense was committed by the defendant or such other persons to promote escape or to prevent detection for the offense of burglary, and

Eighth, that the defendant committed or knew such other persons were practically certain to commit such additional offense,

then you will find the defendant guilty of capital murder, unless you find and believe from the evidence that it is more probably true than not true that the defendant is not entitled to an acquittal by reason of Instruction No. 6.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

It is defendant’s contention in this regard that the foregoing verdict director does not hypothesize the requisite intent as it attributes the intent alternatively to defendant, Skillcorn or Brooks; that the deficiency is not cured in Paragraph Second because the mental state hypothesized there relates to burglary and not capital murder; and that Paragraph Eighth alone is an inadequate direction for the mental state in capital murder.

The verdict director in this case follows the pattern given and approved in State v. Robinson, 641 S.W.2d 423, 425 (Mo. banc 1982) and State v. White, 622 S.W.2d 989, 942—13 (Mo. banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). The only difference between the verdict directors in Robinson and White and this case is that in the former two cases the instructions hypothesized guilt on the theory that the defendant had aided and abetted another in the actual act of killing, whereas in this case the instruction hypothesized guilt on the theory that the defendant had aided and abetted another in a burglary as an initially contemplated offense, that a capital murder occurred as the legally proximate result of the burglary and that defendant knew another was practically certain to commit a capital murder. That difference, however, is inconsequential. Robinson and White determined that knowing another is practically certain to commit capital murder is a sufficient mental state to satisfy the mens rea requirements of a capital murder.

In the critical aspects of the mens rea, the jury in this case was instructed the same as in White: if the defendant knew others were practically certain to commit a capital murder in the course of conduct for which he was criminally responsible, i.e., burglary, then he had the same intent as the active participant, including knowledge, premeditation and deliberation. To know that another is practically certain to commit a capital murder is to know what that person will do and with what intent he will do it. With this knowledge, to purposely promote the commission of an offense that results in a capital murder is to possess the requisite intent. In this case all parties knew that a burglary was to be committed; and according to Brooks, defendant said that if anyone was in the house, that person would have to be killed. Finally, either Brooks or the defendant carried out the plan. Thus, defendant participated in the promotion of an offense (burglary) with evidence before the jury, though denied by defendant, that he knew fully that someone would be killed either by his own hand or by a co-participant. Evidence of the requisite intent to convict defendant of capital murder was therefore, present.

III.

Defendant argues error in the verdict director’s use of the phrase “then you will find the defendant guilty,” rather than “then you may find the defendant guilty.”

It was error to use the word “will” rather than “may”, because criminal responsibility in this case depends upon party liability and because § 562.051, RSMo 1978, applies. This statute states: “[W]hen two or more persons are criminally responsible for an offense which is divided into degrees each person is guilty of such degree as is compatible with his own mental state.... ” MAI-CR2d 2.12 is the vehicle for instructing on party liability, and Note 3 on Use thereto states that “the word ‘may’ must be used ... in any case where section 562.051 is applicable.”¹ Additionally, MAI-CR2d 2.14 must be given whenever § 562.051, RSMo 1978, applies.

Although error occurred, for the reason expressed in State v. White, 622 S.W.2d at 943-44, it was not prejudicial because the jury was otherwise adequately instructed that defendant’s liability for each degree could be considered. In this case, as in White, the jury was properly instructed on all applicable degrees of homicide and given MAI-CR2d 2.14, instructing it to find guilt only to the degree compatible with mental state.

IV.

Defendant contends that the trial court erred in failing to define “inhabitable structure” in connection with the verdict director holding him responsible for capital murder arising during the course of burglary with others. Note 5 on Use to MAI-CR2d 2.12 requires that when the 2.12 aider and abettor instruction is used, a separate instruction must be given defining the initial offense contemplated (in this ease, burglary). So, too, a definition must be given to any word which must be defined according to Notes on Use under any MAI-CR form applicable to that offense.

In this case, the jury was instructed on second degree burglary pursuant to MAI-CR2d 33.01. Note 3 on Use to MAI-CR2d 23.52 on burglary in the second degree mandates that “inhabitable structure” be defined. Therefore, error occurred in failing to define this term. The error, however, was not prejudicial. Rule 28.02(e).

The failure to define “inhabitable structure” is deemed prejudicial unless a contrary effect is shown, and verdict directing instructions must contain each element of an offense charged. The language of an instruction is the basis for determining whether it includes the necessary elements, and failure to define language of common usage that would not confuse the jury does not constitute prejudice. Finally, prejudicial error occurs where a jury “may have been adversely influenced by an erroneous instruction or by the lack of an instruction required by statute.” State v. Rodgers, 641 S.W.2d 83, 85 (Mo. banc 1982) (Citations omitted).

The jury instructions contained a definition of burglary and, in particular, the requirement that the jury find that the offense was committed in an inhabitable structure. Thus, the instruction contained this element of the crime charged. Inquiry, then, is limited to whether the term “inhabitable structure” was a term of common usage in view of the evidence of this particular case.²

In this instance, the burglary and, ultimately, the killing occurred in a house. There was no question that Wendell Howell’s house was a structure in which he lived and, thus, was an inhabitable structure. Section 569.010(2), RSMo 1978. And it is readily apparent that where the evidence pointed to a house actually inhabited at the time of the incident, the meaning of “inhabitable structure” was common and readily understood. Hence, as in State v. Rodgers, supra, it is clear that the jury could not have been adversely influenced by the failure to define the term “inhabitable structure,” and that no prejudicial error occurred.

V.

Defendant next contends that the court erred in denying his challenge of a venire-person for cause after she had stated that she would follow God’s law if it appeared to her that it conflicted with the court’s instructions.

First, a brief recital of guideposts to follow with respect to this point: In determining qualifications of a prospective juror, the trial court has very wide discretion, and its ruling will not be disturbed on appeal unless there has been a clear abuse of discretion. State v. Payne, 639 S.W.2d 597, 599 (Mo. banc 1982). An appellate court will interfere with the exercise of that discretion only when the record shows a manifest abuse of that discretion and a real probability of injury to the complaining party. State v. Pennington, 642 S.W.2d 646, 649 (Mo. banc 1982); State v. Scott, 515 S.W.2d 524, 527 (Mo.1974); State v. Reed, 629 S.W.2d 424, 426 (Mo.App.1982). A jury must have open minds and be freely able to follow the law as declared by the trial court. State v. Brown, 547 S.W.2d 797, 799 (Mo.1977). But religious affiliations do not constitute qualification or disqualification for jury service. Rose v. Sheedy, 345 Mo. 610, 134 S.W.2d 18, 19 (1940). And whatever personal opinions a juror has about the merits of the law are immaterial except when they are so unyielding as to preclude a juror from following the court’s instructions. State v. Pennington, supra; State v. Daugherty, 631 S.W.2d 637, 643-44 (Mo. 1982); State v. Haynes, 482 S.W.2d 444, 447 (Mo.1972); see also State v. Stokes, 638 S.W.2d 715, 722 (Mo. banc 1982) (defendant does not have a right to a jury indicating an inability to follow the law regarding imposition of death penalty.)

An oath, generally, is an appeal by a person to God, the rewarder of truth and avenger of falsehood. 67 C.J.S. Oaths & Affirmations § 2 (1978). And before proceeding with trial in a criminal case, the jury must be duly sworn. Section 546.060, RSMo 1978. It is also an accepted fact that the oath taken by the prospective jurors ends with the “so help me God” phrase. Thus, courts evince no incompatibility between God and the law, and if such exists, none was developed on the record during the empanelment procedures by either the state or defense. The record reveals no possibility of prejudice to the defendant by the trial court’s refusal to strike this particular venireperson for cause.

VI.

Defendant asserts that the trial court erred in including the general converse instruction in the verdict director when it also instructed the jury on the affirmative defense of abandonment.

The jury was instructed on the defense of abandonment. Note 4 on Use to MAI-CR2d 2.12 states that when the affirmative defense of abandonment is instructed upon, the general converse beginning with “however” must be omitted. See also Note 2 on Use to MAI-CR2d 2.04. It was, therefore, error to add the general converse to the verdict director. Nevertheless, no prejudicial error resulted, for the instruction given was neither a misstatement of the law nor could it have confused the jury.

Defendant argues that his only defense was abandonment, but that in this case the jury had placed before it the general acquittal language of the “however” provision³ and a separate abandonment instruction. Thus, says the defendant, the jury was misled because it was instructed on two theories of innocence while he had argued only one theory.

The instruction given, however, followed closely defendant’s theory of defense, for throughout the trial and notably so in closing argument, defendant’s counsel sought to convince the jury that the state had failed in its burden to prove capital murder, rather than emphasizing only the affirmative defense of abandonment.⁴ As a consequence, the instructions taken together fully fulfilled their purpose of informing the jury of defendant’s defense and all aspects of the case. State v. Grady, 577 S.W.2d 930, 932 (Mo.App.1979); State v. Twiggs, 553 S.W.2d 69, 71 (Mo.App.1977). See also State v. Boggs, 634 S.W.2d 447, 455 (Mo. banc 1982), holding that failure to instruct as required is not prejudicial error when the jury is apprised of all available options of defendant’s defense. Defendant’s defense in this case included both general innocence and abandonment; hence, there was no error in instructing on both.

VII.

Defendant’s final parry is also directed at the MAI-CR2d 2.16 abandonment instruction which recites:

If you find and believe from the evidence beyond a reasonable doubt that the defendant engaged in the conduct submitted in Instruction Nos. 8 [capital murder], 10, and 12, and

If you further find that it is more probably true than not true that before the commission of the offense of capital murder, murder second degree or manslaughter as submitted in Instruction Nos. 8, 10, and 12, the defendant abandoned his purpose to promote the commission of that offense and gave timely warning to law enforcement officers or otherwise made proper effort to prevent the commission of the offense, you must find the defendant not guilty of that offense.

He argues that the instruction is internally inconsistent and misstates the law. His contention is that prior to the jury’s reaching the abandonment issue, there must be an illogical finding of guilt of capital murder, the charge for which he asserts innocence by reason of abandonment. But that is not so. It is clear under § 562.041, RSMo 1978, and we so hold, that the defense of abandonment may be successfully raised on the basis that the defendant may abandon the offense before another perfects it. And, too, a defendant with requisite intent to commit a crime who has performed all the acts necessary to culpability may win acquittal if he abandons his nefarious pursuit before another completes it. The instruction properly directed the jury in this regard and did not misstate the law.

Judgment affirmed.

RENDLEN, C.J., HIGGINS, J. and HENLEY, Senior Judge, concur. DONNELLY, J., dissents. SEILER, Senior Judge, dissents in separate opinion filed. WELLIYER, J., dissents and concurs in separate dissenting opinion of SEILER, Senior Judge. BLACKMAR and BILLINGS, JJ., not participating because not members of the Court when cause was submitted.

1 . But see State v. McIlvoy, 629 S.W.2d 333, 338 (Mo. banc 1982), holding that no error results in using will where a person is charged with a crime entirely on the basis of his own conduct and mental state even though another aided him; and State v. Boggs, 634 S.W.2d 447, 455 (Mo. banc 1982), holding that no error occurs in using will in an instruction on first degree murder because no culpable mental state vis-a-vis the killing is required in first degree murder and section 562.051, RSMo 1978, therefore, does not apply.

2 . Words of common usage and general understanding generally do not require definitional instruction. State v. Northcutt, 598 S.W.2d 130, 133 (Mo. banc 1980).

3 . “However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions [elements for capital murder], you must find the defendant not guilty of that offense.”

4 . Section 562.041.2(3) and .3 establish the affirmative defense of abandonment.