State v. Handley

585 S.W.2d 458, 1979 Mo. LEXIS 334

• Court: Supreme Court of Missouri
• Decided: July 17, 1979
• Docket: 60590
• Status: Published

Opinions

SEILER, Judge.

In this case, which comes to the writer on recent reassignment, appellant was charged with first degree murder (felony-murder) under § 559.007, RSMo 1975, by an indictment which alleged that he knowingly aided and abetted others in an attempted armed robbery of the North Hills Bank in Clay County, Missouri on March 10, 1976, during which a security guard was fatally shot. The cause was submitted to the jury on first degree (felony) murder, § 559.007; conventional second degree murder, § 559.-020, RSMo 1969; and voluntary manslaughter, § 559.070, RSMo 1969. Appellant was convicted of second degree murder, and, the jury not being able to agree upon punishment, was sentenced by the judge to 55 years confinement. He appealed to the western district of the court of appeals, which reversed, concluding that second degree murder is not a lesser included offense of felony murder, the crime with which defendant was charged. Believing that the same reasons which prevented conviction of defendant for second degree murder prevented conviction for manslaughter, the court of appeals transferred the cause to this court because of the general interest and importance of the principal issues and corollary questions involved.

Appellant was not present during the attempted robbery of the North Hills Bank by three armed men, which occurred at about 10:45 a. m. on March 10, 1976. His alleged involvement occurred prior to that time. In January and February of 1976 James Falk-ner, who masterminded the robbery plan, recruited appellant’s brother and certain other men for the scheme. With them he “cased” the bank and made plans for the robbery and escape. Falkner first contacted Handley on March 7,1976, at which time he asked that appellant steal an automobile. On March 8, Falkner asked appellant to steal a second automobile. While Handley was able to fill Falkner’s “order” for one such automobile but not the second, in neither instance was he told the purpose for which the stolen vehicle would be used.

On the morning of the abortive robbery attempt, Handley and a friend named Ed went to an apartment on Troost Avenue in mid-Kansas City pursuant to Palkner’s request that they help him with “something”. Falkner did not elucidate, and at this point Handley still knew nothing about the robbery plans. Handley first learned of them that morning, as he heard Falkner brief the throe men who were to execute the scheme as to their assignments and watched final preparations being made. At Falkner’s behest, Handley and Ed then used Ed’s car to help deliver guns and masks to another apartment on Paseo Boulevard in mid-Kansas City, where the others changed into their overalls. When preparations were complete,, all the men drove in a four-car caravan, including two stolen vehicles, to the “jumping-off” point in Clay County. Ed’s car, in which Handley was a passenger, brought up the rear and after proceeding about one block, one of the drivers honked his horn and the four cars pulled over. Handley reported to Falkner that the driver of the third car was not driving properly. The two men in that car changed places that the other might drive, and the caravan resumed its trek. The entourage arrived at a “parking lot of the Waterworks Department,” north of the Missouri River, where the stolen Buick was parked as a getaway vehicle and its two occupants joined the driver of the stolen LTD. The LTD then proceeded to the North Hills Bank while the other two cars, including the one in which Handley was riding, left the parking lot and returned to midtown Kansas City.

The three armed would-be robbers burst into the lobby of the North Hills Bank in Kansas City, north of the Missouri River (Clay County), and one of them shouted, “Everybody freeze, hit the floor!” Gunfire erupted. Fifteen to twenty shots were fired before the robbers fled, sans loot, leaving a mortally wounded bank guard who died about five hours later. The facts do not show who fired the fatal bullets.

Falkner testified on cross-examination that the presence of the security officer at the bank was totally unexpected and that no shooting was contemplated or mentioned when plans for robbing the bank were discussed.

There was no plan for Handley and “Ed” to return to the Paseo apartment, but they did so later that day. By that time, the robbers had returned from their unsuccessful foray into the bank and Handley asked where the money was. After being told there was none, he left with “Ed”. At no time did the planning of the robbery include a split of the bank money for Hand-ley; rather, he was to be paid a fee for stealing the LTD whenever Falkner had the money. Falkner made no mention of Hand-ley as a participant when he turned state’s evidence and gave a detailed confession in return for a 15-year sentence.

Appellant makes numerous allegations of error. Because of our resolution of this case, we need address only three. First, appellant alleges that the court erred in failing to grant his motion for judgment of acquittal in that there was insufficient evidence to show that he aided and abetted in the perpetration of the robbery or homicide. Second, he alleges error in submitting the second degree murder instruction. Third, he alleges that he should be discharged rather than remanded for a new trial on manslaughter because neither the facts nor the law support a conviction for manslaughter.

I.

Although appellant was not present during the robbery and was never to have received any of the proceeds therefrom, the state points to several separate circumstances demonstrating appellant’s active participation in the criminal enterprise, the first of which is the theft of the car. By its uncontradicted evidence the state showed that Handley did not know at the time he stole the car what its use would be and it cannot be said that he then intended to assist in the robbery scheme by means of the auto theft. His complicity cannot be based on that act. See State v. Strawther, 476 S.W.2d 576, 581 (Mo.1972).

Next, the state relies on Handley’s presence during the final briefing session and preparations for the robbery; on his presence in the car in which weapons and disguises were ferried from the Troost apartment to the Paseo apartment building prior to the robbery; and on his unexpected arrival at the apartment of one of the robbers after the abortive robbery attempt, when he asked if there was any money. While these facts demonstrate knowledge of the criminal purpose, Handley’s presence, without more, does not prove his participation. State v. Irby, 423 S.W.2d 800, 803 (Mo.1968).

However, these facts may properly be considered with other evidence in determining the question of participation. State v. Reed, 453 S.W.2d 946, 948-49 (Mo.1970). Viewed in this light, we find appellant willingly joining the caravan which had as its intended goal the bank robbery and while en route to Clay County telling Falkner that one of the drivers was having difficulty with the third car. United States v. Hill, 464 F.2d 1287 (8th Cir.1972), has been cited in which the prosecution showed defendant’s presence at a planning session for the crime, her nodded assent to the plan, and her presence with the conspirators when the robbery was thwarted. The appellate court ruled that a submissible case of aiding and abetting had not been made. Although Hill seems similar to the facts before us, given the totality of the circumstances — attending the final planning session, riding in the car ferrying weapons and disguises, acquiescence in the use of the stolen car in the felonious activity and finally assistance during the trip to the jump-off point during which appellant reported the inability of one of the drivers to carry out his assigned task, and considering all evidence and inferences favorable to the prosecution, Reed, 453 S.W.2d at 949, we find defendant’s actions constituted sufficient participation in the criminal enterprise to make a submissi-ble case of aiding and abetting the robbery, although the jury did not find defendant guilty of doing so.

II.

Appellant next attacks the submission of second degree murder to the jury, asserting that because the felony-murder indictment did not include a charge of second degree murder, he was impermissibly convicted of a crime of which he had not been accused. We agree.

Article I, § 17 of the Missouri Constitution guarantees “That no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information . . .” The protection of this constitutional section renders any conviction for a crime not charged or necessarily included in the underlying indictment or information a nullity. “There can be no trial, conviction or punishment for a crime without a formal and sufficient accusation.” State v. McKinley, 341 Mo. 1186, 111 S.W.2d 115, 118 (1937). A court is without jurisdiction to try a person for an offense unless the offense has been charged by information or indictment. See State v. Barrett, 332 Mo. 1020, 44 S.W.2d 76, 78 (1931). To do so would violate a defendant’s due process rights, Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948), cert. granted after remand, 337 U.S. 929, 69 S.Ct. 1496, 93 L.Ed. 1737 (1949), aff’d 338 U.S. 345, 70 S.Ct. 172, 94 L.Ed. 155 (1949); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 236, 58 L.Ed.2d 207 (1978).

Although the state has referred us to cases such as State v. Williams, 529 S.W.2d 883 (Mo.banc 1975), and State v. Jewell, 473 S.W.2d 734 (Mo.1971), in which “instructing down” to murder second was permitted, we do not find them controlling on the issue here, for they were decided on charges filed under the murder statutes in force prior to September 28, 1975. Before that date, the proscription of the then “first degree murder” statute, § 559.010, RSMo 1969, broadly included both “common form” first degree murder and “felony” first degree murder.¹ On September 28, 1975, and thereafter, “common form” first degree murder was separated from “felony-murder first degree” and was designated “capital murder”. The new section, 559.005, RSMo Supp.1975 (now revised in § 565.001, RSMo 1978) provided, “A person is guilty of capital murder if he unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of a human being.” On the other hand, that portion of former § 559.010 traditionally described as “felony” first degree murder was isolated on September 28, 1975, and “felony-murder first degree” became the only homicide remaining in the class designated “first degree murder,” § 559.007 (now revised in § 565.003, RSMo Supp.1977).² Thus a distinct new crime of “first degree murder”, was created, the elements of which appear in the statutory definition: (1) the unlawful killing (2) of a human being (3) committed in the perpetration of or in the attempt to perpetrate (4) one of the five named felonies.

Common form second degree murder was then and is presently described in the statute as follows: “All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.” Section 559.020, RSMo 1969. The elements of “common form” second degree murder which were here submitted to the jury over appellant’s objections have been stated thus: (1) willful, (2) premeditated, (3) killing (4) of a human being (5) with malice aforethought. State v. Franco, 544 S.W.2d 533, 535 (Mo.banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). A comparison of the elements of “common form” second degree murder with those of the then new “first degree murder” under § 559.007 shows that the latter clearly do not contain the former. “[A]ll legal and factual aver-ments necessary to sustain a conviction for a lesser included offense must also be elements of the greater offense.” Hayes v. State, 501 S.W.2d 508, 511 (Mo.App.1973). See also State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957). Thus “common form” second degree murder (§ 559.020) is not a lesser included offense of “first degree felony-murder” under § 559.007 because the latter does not include the elements of willfulness, premeditation, or malice aforethought, each of which are necessary for “common form” second degree murder. Accordingly, as the indictment did not charge common form second degree murder, the court was without jurisdiction to submit such crime for the jury’s consideration.

Further, the conviction cannot be saved by the provisions of the then in force subsection 559.009.2, RSMo Supp.1975. Section 559.009.2 states:

“Upon the trial of an indictment or information for murder in the first degree, the jury must inquire under such instructions as the court finds are justified by the evidence, and by their verdict ascertain, whether the defendant is guilty of murder in the first degree, murder in the second degree, or manslaughter.”

Notwithstanding the language of this subsection, its terms are unenforceable because the legislature cannot, in view of the constitutional protection against that abuse, contained in art. I, § 17 and in the due process clauses of Mo.Const., art. I, § 10, and the 14th amendment to the United States constitution, bestow jurisdiction upon the courts to try persons for offenses not charged. The statutory command to submit second degree murder (if warranted by the evidence) when “first degree murder” is charged is, in this instance, constitutionally impermissible. For these reasons and for the reason, noted infra, that conviction of second degree murder was not warranted by the evidence, the judgment of conviction must be reversed.

III.

We must now consider whether appellant may be remanded for a new trial on manslaughter. Under the facts of this case, we conclude not.

In order to be guilty as an aider and abetter of manslaughter, one must knowingly and intentionally aid and abet the assault which resulted in the death of the victim, State v. Grebe, 461 S.W.2d 265 (Mo. banc 1970); LaFave and Scott, Criminal Law, Ch. 6, § 64 at 506 (1972). This distinguishes manslaughter from first degree murder (felony-murder) in which knowingly and intentionally aiding and abetting only the robbery would suffice for conviction because of the strict liability imposed by the felony rule.

Here, the record is devoid of any evidence which would indicate that appellant intentionally aided and abetted the assault on the guard. He was not even at the bank when the shooting occurred, and did not know a guard had died or who killed the guard. He cannot have had a specific intent to aid and abet the assault or death of a particular individual he did not know existed, during a robbery at which he was not present and in which the jury found he did not aid, by a person he did not know was performing the act. Thus, the intent to aid and abet the manslaughter required by Grebe must be supplied, if at all, by proof that appellant knowingly and intentionally aided and abetted a crime the natural and probable consequence of which was the death of the guard. The state’s evidence as to such intentional aiding and abetting was, however, rejected by the jury and cannot now be supplied.

By convicting appellant of second degree murder, the jury implicitly acquitted him of felony-murder. Price v. Georgia, 398 U.S. 323, 326-28, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); State v. Favell, 536 S.W.2d 47, 51 (Mo.App. 1976).

The evidence is undisputed that Falkner’s three henchmen, masked and armed, burst into the bank with the intention of staging a robbery, commanded everyone to “freeze” and put the victims in fear. Once inside the bank lobby the unexpected presence of a bank guard seated at a desk brought about shooting. There was an exchange of gunfire, much breaking of glass, the guard was fatally wounded, and the gunmen fled. In both opening and closing argument to the jury the state stressed that the only defense offered was whether or not defendant aided or encouraged the commission of the robbery. Against this factual background, there is only one basis upon which the jury could have implicitly acquitted defendant of felony-murder, under the instructions given: it did not believe beyond a reasonable doubt that appellant’s acts constituted aiding and abetting the robbery. That this is the only basis is apparent from the evidence and from a reading of instruction No. 8, which states:

“If you do not find and believe from the evidence beyond a reasonable doubt that the defendant aided and encouraged the attempted robbery then you must find the defendant not guilty.”

This was a converse to instruction No. 5, the felony murder instruction.³ By finding appellant not guilty of felony-murder, the jury necessarily did not believe beyond a reasonable doubt that defendant aided and encouraged the attempted robbery.

However, if appellant did not aid and abet the robbery then, under these facts, he cannot be guilty of manslaughter. The alleged aiding and abetting of the robbery attempt is the umbilical cord that connects the appellant to the killing. The jury cut that cord when it found the appellant not guilty of the felony-murder and consequently there is no connecting cord left, under the facts and evidence of this case, between defendant and whatever took place at the robbery scene so as to provide any basis for a conviction of manslaughter.

We note that, a fortiori, the same is true as to second degree murder: defendant either factually aided in the robbery or he did not factually aid in the robbery. If he did not, as a matter of fact, aid in the robbery (as found by the jury), then under the evidence in this case he did not, in fact, aid in anything that took place at the bank, including the killing of the guard, intentionally or otherwise. It is the jury’s rejection of the necessary underlying facts proving aiding and abetting by its acquittal on first degree (felony) murder that precludes conviction of a crime which would require the acceptance of these facts.

This aspect distinguishes the present case from State v. Chernick, 278 S.W.2d 741 (Mo.1955). Chernick was convicted of assault with intent to kill with respect to the wounding of a police officer during a gun fight in a bank robbery. Chernick was not actually inside the bank, did none of the shooting, and the state did not contend he participated in the actual robbery. He was the outside man waiting in the getaway car. Nevertheless, he could be convicted of the assault on the officer under the rule stated that one who joins in a purpose with another to commit a crime [bank robbery] is also guilty of any other crime [assault] committed by the other as a natural or probable consequence of the robbery or attempted robbery. Id. at 746. As we know from examining the original file in this court, instruction No. 1 in the Chernick case, submitting the issue of defendant’s guilt, required the jury to find that Chernick by his presence at or near the bank “did aid, abet, assist or encourage” the three others “to feloniously hold up or rob” the bank and “as a part of and in furtherance of said holdup or robbery” did by his presence aid and abet the others to make an assault upon the police officer by shooting him. The state argued to the jury: “Under the instructions that have been given, if you find that there was a holdup and that the defendant participated in the holdup, then you are entitled to find him guilty of assault with intent to kill, because the assault was committed in connection with the holdup; that’s the instruction.”

The jury convicted the defendant, but a new trial was ordered on appeal because of admission of hearsay testimony. In addressing the retrial, the court said: “Upon retrial the submission should be restudied and the instruction redrafted so as to obviate the possible criticism that the instruction assumed and did not submit to the jury that defendant was present and aiding and abetting.” Id. at 748. In other words, to convict of assault, the jury must find, under a properly drafted instruction, that defendant was present and aided and abetted in the initial crime, the bank robbery. Otherwise defendant would not be in the position of having aided and abetted the others in a particular crime [robbery] of which the assault was the natural or probable result. The connection would be broken. In the case at bar, the effect of the acquittal on the felony-murder charge was a finding by the jury that defendant was not guilty of aiding and abetting in the attempted bank robbery (whereas the jury did find as a fact that Chernick was aiding and abetting the others in the bank robbery) and hence defendant, who admittedly was not present at or near the scene, was guilty of no crime committed by the others of which the death of the bank guard was the natural and probable consequence.

The state cannot have a second “bite of the apple”, and try to convince a new jury, on remand, that defendant’s acts did constitute aiding and abetting the attempted robbery. As a result of the rule in Ashe v. Swenson, 397 U.S. 436, 443-47, 90 S.Ct. , 25 L.Ed.2d 469 (1970), to remand for this purpose would constitute double jeopardy and thus is forbidden. In Ashe, the defendant was suspected of robbing six poker players, to which his only real defense was alibi. He was tried for the robbery of one of the players and acquitted. The state then tried him for the robbery of a second player, of which he was convicted. The United States Supreme Court reversed, stating that the only basis on which the first jury could have acquitted him was that it believed defendant was not present during the crime. The Supreme Court concluded that to submit the issue of his presence at the crime to the second jury constituted double jeopardy, and the state was collaterally estopped from so doing. It admonished that collateral estoppel is not to be determined hyperteehnically, but rather that we are to conclude “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444 and n. 9, 90 S.Ct. at 1194 and n. 9.

So here, the state cannot re-litigate whether appellant aided and abetted the attempted robbery. As a result, appellant must be discharged because there was insufficient evidence to sustain a conviction of second degree murder or manslaughter, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Burks, the United States Supreme Court held that “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient,” and hence overturned the defendant’s conviction, id. at 18, 98 S.Ct. at 2150. It follows that, where, as here, nothing appears which could show the required specific intent for aiding and abetting the homicide (once felony-murder is out of the case), and there being no way to supply the deficiency under the undisputed facts, the case should not be remanded for a new trial. “[T]he only ‘just’ remedy available for [this] court is the direction of a judgment of acquittal.” Burks v. United States, 437 U.S. at 18, 98 S.Ct. at 2150.

Consequently, we reverse the judgment of the trial court and order that the defendant be discharged.

BARDGETT, C. J., concurs in separate concurring opinion. DONNELLY, J., concurs in result in separate opinion. FINCH, Senior Judge, concurs in result. RENDLEN and MORGAN, JJ., dissent in separate dissenting opinions. HOUSER, Senior Judge, not participating. WELLIVER, J., not participating because not a member of the court when cause was submitted.

1 . Section 559.010, RSMo 1969 defined first degree murder as follows:

“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 every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.”

2 . Under the 1975 and 1977 “first degree murder” statutes kidnapping replaced mayhem as one of the five felonies which when linked with an “unlawful killing” constitutes murder first degree.

Section 559.007, RSMo.Supp.1975 defined first degree murder as follows:

“The unlawful killing of a human being when committed without a premeditated intent to cause the death of a particular individual but when committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping is murder in the first degree.”

3 . Instruction No. 8 does not refer specifically to instruction No. 5. However, the latter is the only instruction which refers to the robbery. Since a converse instruction must converse something, it necessarily was a converse to instruction No. 5.