Hanson v. State

• Decision Date: 26 March 1984
• Docket Number: No. 13200,13200
• Citation: 684 S.W.2d 337
• Parties: Calvin HANSON, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 337

684 S.W.2d 337

Calvin HANSON, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 13200.

Missouri Court of Appeals,

Southern District,

Division Two.

March 26, 1984.

Motion for Rehearing or to Transfer

Denied April 16, 1984.

Application to Transfer Denied

May 15, 1984.

Margaret E. Branyan, Frank V. DiMaggio, Asst. Public Defenders, Springfield, for movant-appellant.

John Ashcroft, Atty. Gen., David C. Mason, Asst. Atty. Gen., Jefferson City, for respondent.

MAUS, Presiding Judge.

The movant was charged with having committed capital murder under § 559.005 (S.C.S.H.C.S.H.B. No. 150, approved June 23, 1975, effective September 28, 1975; repealed L.1977 H.B. 90 § 1, effective May 26, 1977) by stabbing to death Ollie Adkins on July 5, 1976. After a three-day trial, the case was submitted to the jury on April 13, 1977. The trial court instructed the jury on capital murder, second degree conventional murder (§ 559.020, RSMo, transferred to § 565.004) and conventional manslaughter (§ 559.070, RSMo, transferred to § 565.005). The jury returned a verdict of guilty of capital murder. Under § 559.011 (now repealed) he was sentenced to life imprisonment without eligibility for probation or parole for 50 years. The failure of the trial court to instruct on first degree felony murder (§ 559.007 effective September 28, 1975; now repealed) forms the principal basis for movant's contention the 27.26 court erroneously denied his demand for relief.

The movant's conviction was affirmed on appeal in State v. Hanson, 587 S.W.2d 895 (Mo.App.1979). In this proceeding, he seeks to set aside his conviction by a motion under Rule 27.26. The opinion referred to contains a full resume of the facts. A brief summary is sufficient for the consideration of this appeal. On July 6, 1976, Adkins, with $200 in his billfold, left his home in Pacific to attend to business in Springfield. At approximately 6:45 p.m. that day, a witness saw an individual who was obviously Adkins engaged in a struggle with a man the witness could not identify. Shortly thereafter, Adkins' body was found near the scene of the struggle. He had suffered nine stab wounds to his chest and abdomen. His billfold was gone. After remarkable investigative work by law enforcement officers, the movant was arrested on the parking lot of a bar at approximately 1:00 a.m. on July 7, 1976. There was no evidence he had Adkins' billfold or the $200. However, he had a sheath knife taped to the lower part of his right leg. The knife bore fresh human blood, type A, with a PGM factor of 1. This corresponded with the blood of the victim. Movant had blood type O. There was additional evidence that established the verdict was supported by the evidence as determined by the trial court and by this court on direct appeal.

By his first point, movant contends the trial court erred in not instructing on first degree felony murder and thereby he was denied his constitutional right of due process. He contends this instruction was required by MAI-CR 6.02 (effective September 28, 1975) and the Notes on Use thereto. As stated in his brief, he relies upon cases from State v. Rapheld, 587 S.W.2d 881 (Mo.App.1979) through State v. Daugherty, 631 S.W.2d 637 (Mo.1982). For the purpose of this appeal, it will be assumed that at the defendant's trial, an instruction on first degree felony murder--robbery (MAI-CR 6.19, effective September 28, 1975) was required as set forth in the Notes on Use to MAI-CR 6.02 (effective September 28, 1975).

The rule generally applicable is that instructional error is trial error not cognizable in a Rule 27.26 proceeding. Fulsom v. State, 625 S.W.2d 249 (Mo.App.1981); Stewart v. State, 578 S.W.2d 57 (Mo.App.1978). An exception exists only when such an error rises to the level of constitutional error. Swearingin v. State, 629 S.W.2d 560 (Mo.App.1981). It is also well established that "[t]rial errors cannot be brought into the scope of Rule 27.26 by simply alleging as a conclusion that they resulted in an unfair or impartial trial, or that they affected constitutional rights." O'Neal v. State, 486 S.W.2d 206, 208 (Mo.1972).

The movant recognizes these general principles. However, he argues the error in question is such a constitutional error. He relies upon State v. Zweifel, 615 S.W.2d 470 (Mo.App.1981). He also cites Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and language dealing with instructions on lesser included offenses, such as that contained in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973).

By the courts of this state, a constitutional error is generally defined as "one that is so glaring as to cause a substantial deprivation of the right to a fair trial." Stewart v. State, supra, at 59. Also see Edwards v. State, 535 S.W.2d 124 (Mo.App.1976). Within that general statement, the following are examples of instructional errors held not to be a basis for relief in a 27.26 proceeding. Failure to instruct on good character. Brown v. State, 492 S.W.2d 762 (Mo.1973). The omission of the terms anger and fear in a second degree murder instruction. Swearingin v. State, supra. The failure to instruct on the necessity of determining the voluntariness of an oral statement. State ex rel. Tindall v. Peters, 516 S.W.2d 532 (Mo.App.1974). The failure to instruct on self-defense. Williams v. State, 550 S.W.2d 821 (Mo.App.1977). A deviation from MAI-CR 1.02. Stewart v. State, supra. Failure to instruct that there is no adverse inference from a defendant's failure to testify. Thomas v. State, 485 S.W.2d 413 (Mo.1972). It has also been declared, "[t]he failure of the trial court to give a lesser included stealing offense instruction in a robbery case is instructional error to be raised on direct appeal and is not cognizable in a Rule 27.26 proceeding." State v. Arnold, 632 S.W.2d 54, 55 (Mo.App.1982). In construing MAI-CR 6.02 and the Notes on Use thereto in considering a failure to instruct on second degree conventional murder or manslaughter, it has been declared, "[i]n any event, the failure to give such instructions would constitute at most mere trial error which would not be cognizable as part of a post conviction proceeding under Rule 27.26." Fulsom v. State, supra, at 251.

No decision of this state has been found expressly defining such a constitutional error in the terms of instructional error. However, unless an instructional error is plain error within the meaning of Rules 29.12 and 30.20, it is difficult to rationalize that such error could be constitutional error. Upon this basis, decisions defining instructional error in the terms of plain error may be considered in determining an issue of alleged constitutional error. State v. Zweifel, supra. However, this opinion should not be construed as holding that plain errors are invariably equated with constitutional errors. An instructional error is plain error when "the instruction misdirected or failed to instruct the jury upon the law so as to cause manifest injustice or miscarriage of justice." State v. James, 641 S.W.2d 146, 148 (Mo.App.1982). Also see State v. Harris, 636 S.W.2d 403 (Mo.App.1982).

The question presented by the defendant's first point has been considered under the plain error doctrine. In State v. Bolder, 635 S.W.2d 673, 693 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983), the court stated as follows:

After careful consideration we conclude that there has been no 'manifest injustice or miscarriage of justice,' id., that would necessitate reversal. The trial court instructed the jury on second degree murder and manslaughter, and the jury thus had the opportunity to convict appellant of a lesser offense. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Moreover, the evidence in this case would not support an instruction on first degree (felony) murder because none of the five enumerated felonies, § 565.003, RSMo 1978, was present. Due process therefore is not abridged. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

After a conviction of murder in the first degree, in considering asserted plain error in the failure to give instructions on murder in the second degree and manslaughter, the court said: "We have reviewed the case and do not deem that manifest injustice or miscarriage of justice resulted from the failure to give these instructions." State v. Kurtz, 564 S.W.2d 856, 862 (Mo. banc 1978).

In State v. McIlvoy, 629 S.W.2d 333 (Mo. banc 1982), the trial court instructed on capital murder, second degree conventional murder and culpable negligence manslaughter. The defendant was found guilty of capital murder. In holding that it was not plain error to fail to give an instruction on conventional manslaughter, the court said: "The jury was given the option of exercising leniency and convicting appellant of charges of lesser degree than capital murder. That it declined to do so makes it illogical to believe that it would have made any difference in the verdict had a conventional manslaughter instruction been given." Id. 339.

The principles found in the cases above cited are embodied in recent cases of the United States Supreme Court dealing with the collateral review of instructional error. As recently observed, other than in death penalty cases, that court has never held that the Due Process Clause per se guarantees the right of a defendant to have the jury instructed on a lesser included offense. Beck v. Alabama, supra. In dealing with instructional error in general, that court has announced the following precepts:

In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the...