Green v. State, WD

• Decision Date: 01 March 1983
• Docket Number: No. WD,WD
• Citation: 659 S.W.2d 219
• Parties: David GREEN, Movant-Appellant, v. STATE of Missouri, Respondent. 32759.
• Court: Missouri Court of Appeals

Page 219

659 S.W.2d 219

David GREEN, Movant-Appellant, v.STATE of Missouri, Respondent.

No. WD 32759.

Missouri Court of Appeals Western District.

March 1, 1983.

Application for Transfer Sustained

May 3, 1983.

Case Retransferred Oct. 7, 1983.

Court of Appeals Opinion Readopted

Oct. 11, 1983.

John Pat Burnett of Quinn, Peebles, Beaird & Cardarella, Kansas City, for movant-appellant.

John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SOMERVILLE, C.J., and SHANGLER, PRITCHARD, DIXON, CLARK, MANFORD and KENNEDY, JJ.

MANFORD, Judge.

This is an appeal from a denial of post-conviction relief pursuant to a Rule 27.26 motion.Movant seeks to set aside his convictions and sentences by withdrawal of his multiple pleas of guilty.The judgment is affirmed in part and reversed in part and the cause remanded with instructions.

Movant's alleged errors are summarized as follows.The trial court erred when it made findings of fact that movant was indicted for murder first degree (felony murder), assault with intent to kill with malice aforethought and robbery first degree, and that each charge arose from the same incident, and then (1) entered a conclusion of law that movant was not twice placed in jeopardy by separate sentences on the charges of assault and robbery and (2) entered a conclusion of law that movant was not twice placed in jeopardy by separate sentences for murder and robbery.A third alleged error charges the court never made a finding of fact upon movant's allegation of ineffectiveness of counsel.

The facts pertinent to the issues on this appeal are as follows.

On January 31, 1977, movant and his accomplice (Brown) robbed a service station in Jackson County, Missouri.Both were armed and made use of handguns.One station attendant was seated at a desk when the robbers entered the station.Brown struck this attendant (hereinafter referred to as attendant no. 1) on the head with his gun and announced the robbery.Movant then displayed his gun and announced it was a robbery.Attendantno. 1 gave the robbers cash from his pocket.Brown then noticed that they had been spotted by another attendant (attendant no. 2) and Brown proceeded outside after attendant no. 2.Movant then observed a wallet in the right shirt pocket of attendant no. 1.Movant reached for the wallet.Attendantno. 1 then pushed back the chair in which he was seated and in movant's words, "reached in the drawer.He reached in the drawer and I shot him."Movant's shooting of attendant no. 1 resulted in the attendant being wounded in the mouth.Meanwhile outside, Brown fatally wounded attendant no. 2.Both robbers then fled the scene.

Movant was charged.In due course, the cause was called for trial and the jury impaneled.Prior to the introduction of evidence, movant entered his plea of guilty to all three charges.The plea hearing record reveals that movant chose to enter his pleas of guilty because, as shown in answer to the questions, "Are you pleading guilty simply because you are guilty?"(Answer, Yes) and "Are you pleading guilty for any reason other than the fact that you are guilty of the crime as charged?"(Answer, No), he was guilty of the offenses.

Upon his plea, he was sentenced on all three charges (murder-life imprisonment, assault-25 years, and robbery-10 years), all sentences to run concurrently.Sentence was entered on December 16, 1977.In July, 1980, movant filed (pro se) his motion for post-conviction relief pursuant to Rule 27.26.On December 11, 1980, movant, by counsel, filed his first amended motion.An evidentiary hearing was held.The court denied relief and this appeal followed.

While presented as separate alleged errors, the first two points on this appeal are so interrelated as to permit simultaneous disposition.Simply stated, movant charges that the trial court made a fact finding that all three charges arose out of the same incident.Movant seizes upon this expressed finding by the trial court and then points out the trial court entered conclusions of law declaring that he was not twice placed in jeopardy by separate sentences on the charges of assault and robbery [ (1) above), and that movant was not twice placed in jeopardy by separate sentences on the charges of murder and robbery, [ (2) above].

Turning to (1) above, the facts as presented (principally by movant's own testimony) fail to support movant's contention on this point.Movant emphasizes the trial court's finding of "the same incident" and concludes this finding disposes of all the issues and mandates reversal.Movant contends that the assault (the shooting of attendant no. 1) occurred during the robbery and was therefore a part of the single crime of robbery.Movant assumes, and as discussed infra incorrectly, that since the court declared the offenses occurred during or as a result of "the same incident", this disposes of the matter.That assumption by movant is erroneous.Furthermore, the facts do not support movant's contention.The facts (by movant's own testimony) reveal a robbery had occurred by the giving/taking of cash from attendant no. 1 from the attendant's pocket.Upon the completion of these events, movant's accomplice proceeded outside and fatally wounded attendant no. 2.At this point, movant observed a wallet in the shirt pocket of attendant no. 1.Movant reached for the wallet and during this activity, attendant no. 1 reached "in the drawer" and with that, movant shot attendant no. 1 in the mouth.

Movant argues that this case comes squarely within State v. Neal, 514 S.W.2d 544(Mo.banc 1974).Neal involved an armed robbery by three persons, one of whom ordered one of the victims to "get on the floor".During the compliance with this directive, the victim threw up his hand and "a shot was fired, which caused the loss of a finger."Nealat 547.Our state Supreme Court in Neal ruled that under the facts and circumstances of that case, the assault was a part of the robbery and a conviction for both robbery and assault under those precise facts and circumstances violated the safeguard of double jeopardy.In Neal, the court affirmed in part and reversed in part.Neal is not controlling herein.Neal is not to be construed as a strict prohibition against conviction/sentencing for more than one offense arising out of the same occurrence or the same incident.To be sure, multiple convictions and punishments attending thereto will stand and are not violative of the guarantee as to double jeopardy, provided the facts and circumstances establish the commission of two separate and distinct offenses.Baker v. State, 584 S.W.2d 65, 69(Mo.banc 1979).

The test for determining whether two offenses are "the same" for purposes of double jeopardy was established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306(1932).In Blockburger, the United States Supreme Court held that "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."See alsoWhalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715(1980) where Blockburger was applied as a "rule of statutory construction."

Our state Supreme Court has heretofore applied the Blockburger test.SeeState v. McCrary, 621 S.W.2d 266, 269(Mo.banc 1981)(charges of arson first degree and assault first degree did not place accused in double jeopardy).Most recently, in a case analogous to the instant case, (involving charges and convictions for robbery first degree and assault first degree) our state Supreme Court ruled:

"The robbery charge required proof that defendant stole property while armed with a deadly weapon.The assault charge required proof that defendant knowingly caused serious physical injury to Cantwell by shooting him, and not simply that defendant employed physical force.Each offense requires proof of a fact the other does not, and conviction of both does not violate double jeopardy proscription.Blockburger v. United States, 284 U.S. 299[52 S.Ct. 180, 76 L.Ed. 306](1932);seeState v. McCrary, 621 S.W.2d 266(Mo.banc 1981).Moreover, the act of force constituting the assault was not that which served as an element of the robbery charge.SeeThompson v. State, 606 S.W.2d 263(Mo.App.1980).The contention is quite without merit."State v. Sprous, 639 S.W.2d 576, 578(Mo.1982).

The rule applied in Sprous is precisely applicable to the instant case.The act of force by movant herein, which constituted the assault upon attendant no. 1(shooting him in the mouth), was not that which served as an element of the robbery charge.This latter act of force was the concurrent display of deadly weapons by movant and his accomplice, coupled with the striking of attendant no. 1 on the head with a weapon by Brown, both of which preceded the shooting of attendant no. 1.There is, in the instant case, a factual additive.Movant and his accomplice had, by armed threat and the striking of attendant no. 1, obtained cash from his person.Brown then departed the immediate area, chased down attendant no. 2 and murdered him.Movant then observed a wallet in the shirt pocket of attendant no. 1.Movant reached for the wallet.Attendantno. 1"reached in the drawer" and movant shot the attendant in the mouth.For a recent decision regarding analysis of the evidence showing separate crimes and a denial of the argument that only one criminal act ensued, seeYoung v. State, 643 S.W.2d 51(Mo.App.1982)[modified on court's own motion, November 30, 1982].See alsoHarris v. State, 577 S.W.2d 140(Mo.App.1979).

By its facts, this case illustrates an assault within the robbery (i.e., Brown's striking attendant no. 1 with a gun)...