Lane v. State

Decision Date31 August 1982
Docket NumberWD32635,Nos. WD32226,s. WD32226
Citation641 S.W.2d 132
PartiesBobby LANE, Respondent-Appellant, v. STATE of Missouri, Appellant-Respondent.
CourtMissouri Court of Appeals

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for appellant-respondent.

Bruce W. Simon, Kansas City, for respondent-appellant.

Before KENNEDY, P.J., and WASSERSTROM and MANFORD, JJ.

WASSERSTROM, Judge.

Lane filed the present proceeding under Rule 27.26 to set aside his conviction and sentence to life imprisonment for first degree murder. The trial court sustained the motion and ordered a new trial. The state appeals from the order to the extent that it granted any relief. Lane appeals on the ground that the order should have granted full discharge rather than merely a new trial.

This case has a long and complex history, involving three trials and two appeals not including the present one. The underlying facts are stated at length in the opinions on the first two appeals, State v. Lane, 475 S.W.2d 91 (Mo.1972) and State v. Lane, 551 S.W.2d 900 (Mo.App.1977). The facts to the extent here pertinent may be briefly summarized as follows.

On November 26, 1968, Lane and a companion Primous were trying to get into a third floor apartment. The police were summoned, and Officer Mynatt was the first to respond. Upon his arrival, Lane and Primous attacked him, managed to wrest away his service revolver, and tried to escape down the stairs. Before they could get out of the building, they were intercepted by Officers Smith and Yoakum, and a gun fight ensued, during the course of which Yoakum was shot and killed. Expert testimony proved that the fatal shots came from the Mynatt service revolver, but the evidence was conflicting as to whether Lane or Primous had the revolver in hand at the time of the fatal shots.

The first trial of this matter was conducted by Judge Riederer in December 1969 on an indictment alleging conventional murder of Yoakum by Lane. The verdict directing instruction however posed the question to the jury as to whether Lane had made the fatal assault upon Yoakum "either alone or knowingly acting in concert with others." Pursuant to that instruction, the jury found Lane guilty and sentenced him to life imprisonment.

Lane then filed a motion for new trial in which he set forth 38 assignments of error. On April 15, 1970, Judge Riederer granted a new trial pursuant to the following formal order:

"Now defendant's Motion For New Trial, heretofore filed on the 21st day of January, 1970, is by the Court sustained on points numbered 20 and 29 and overruled as to the balance, except points 28, 31 and 37 which were withdrawn at the time of argument. (See: Judge Riederer's letter--dated, 4-15-70).

"Now it is ordered by the Court that said cause be and is hereby returned to Division No. 15, designated under the rules of Court as Criminal Division 'A'." 1

The letter by Judge Riederer referred to in the formal order was addressed to the attorneys and advised them of his granting of a new trial on Lane's points 20 and 29. The letter then went on as follows in paragraphs 2 and 3:

"In so doing I have determined that there was no competent substantial evidence of probative value which could have permitted the jury to find that the defendant knowingly acted in concert with others. The facts in this case did not warrant giving of Instruction Number 4 containing the disjunctive language 'either alone or knowingly acting in concert with others'. Therefore, the jury was allowed to find the defendant guilty in a manner not set forth in the indictment, and not supported by the evidence.

"It has long been the rule that when a crime may be committed by any of several methods, the information (or indictment) must charge one or more of the methods, and the method or methods submitted in the verdict directing instruction must be among those alleged in the information, and when submitted in the disjunctive each must be supported by evidence. State v. Shepard, Mo., 442 S.W.2d 58, 60; see also State v. Johnson, Mo., 20 S.W. 302, 304; State v. Byrd, Mo., 213 S.W. 35, 37, and State v. Lusk, Mo., Number 54,382, Division 2 opinion issued April 13, 1970."

Lane's second trial in this case took place in September 1970 before Judge Stubbs without a jury and again resulted in conviction for conventional first degree murder with punishment affixed at life imprisonment. Lane appealed to the Missouri Supreme Court, which affirmed the conviction. On that appeal, Lane submitted among other contentions an argument that Primous had possession of Mynatt's revolver at all times, that it was Primous not Lane who shot and killed Yoakum, and that there was no evidence that Lane and Primous acted jointly or confederated together nor that Lane knew that Primous intended to shoot Yoakum. The Supreme Court rejected that argument as follows:

"Assuming for the purpose of discussion only, that the facts are as contended by defendant, i.e., that Primous had Mynatt's revolver and shot and killed Officer Yoakum as defendant and Yoakum were fighting, there is still sufficient substantial evidence to sustain a finding that defendant was guilty either as a principal or as an aider and abettor. The trier of facts reasonably could find that the killing of Officer Yoakum during a fight with defendant was a part of one continuous episode and the result of a joint effort and common purpose of defendant and Primous to escape, by use of whatever means necessary, after their joint assault upon and robbery of Officer Mynatt, and defendant's shooting of Fletcher Lewis in the course of their flight down the stairway. State v. Ramsey, Mo., 368 S.W.2d 413, 416-418[2-7]; State v. Irby, Mo., 423 S.W.2d 800[3, 4]; State v. Engberg, Mo., 376 S.W.2d 150, 155-157."

Subsequently, in September of 1973 Judge Stubbs sustained a Rule 27.26 motion filed by Lane and ordered the conviction to be set aside. The ground for that ruling was that the information upon which the second trial had proceeded "was fatally defective for the reason that such information omitted a charge that defendant's alleged conduct was felonious."

Lane's third trial for this same offense occurred in May 1974 before Judge Hall. The information was amended to insert the word "feloniously" but otherwise remained the same as the information at the time of the second trial before Judge Stubbs. The case was submitted to the jury however upon two verdict directors, the first of which (No. 6) premised conviction upon conventional murder. The second instruction, No. 7, apparently submitted in an effort to follow the suggestion contained in the Supreme Court opinion quoted above, was premised upon felony murder and told the jury that if defendant or another caused the death of Yoakum by shooting him and that he did so to promote escape after robbing Mynatt and "that the defendant knowingly and with common purpose acted together with the person who engaged in the conduct submitted in the above paragraphs" then the jury should find defendant guilty of first degree murder. The jury returned a verdict finding Lane guilty under Instruction No. 7. His punishment was again affixed at life imprisonment.

Lane appealed this third conviction to this court. In affirming the conviction, the opinion of this court held:

"The evidence viewed most favorable for the State was clearly sufficient to support a first degree felony murder conviction. Adopting the language of the Supreme Court in State v. Lane, supra, we find that, 'The trier of facts reasonably could find that the killing of Officer Yoakum during a fight with defendant was a part of one continuous episode and the result of a joint effort and common purpose of defendant and Primous to escape, by use of whatever means necessary, after their joint assault upon and robbery of Officer Mynatt,' ...."

In August 1979, Lane filed his present motion seeking to set aside his third conviction. His theory was that the conviction violated the principle of double jeopardy and the corollary principle of collateral estoppel as announced in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The motion was heard by Judge Martin, who held that the Burks doctrine is applicable and that Burks should be deemed effective retroactively.

On this appeal the state assumes for the sake of argument that Burks operates retroactively, but nevertheless argues that Burks is not applicable for the following reasons: (1) Judge Riederer set aside the first conviction because of trial error, not insufficiency of the evidence, and Burks does not apply where only trial error is involved; (2) Judge Riederer was plainly wrong, the state had no opportunity to challenge that error by appeal, and those facts distinguish Burks; (3) the issue decided by Judge Riederer is different from the issue presented in connection with the third conviction; and (4) the indictment on which the case was tried before Judge Riederer omitted the term "feloniously", just as did the information on which the case was tried before Judge Stubbs, and Judge Riederer therefore was without jurisdiction to enter his order of April 15, 1970.

As does the state, so also we assume that Burks has retroactive application. It should be noted, however, that the United States Supreme Court granted certiorari on June 14, 1982, in Estelle v. Bullard, 457 U.S. 1116, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982) to decide this very question. Even making the foregoing assumption, we conclude that the order setting aside the conviction must be reversed because of the state's points 1 and 3. In view of that...

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2 cases
  • Estate of Ingram v. Rollins
    • United States
    • Missouri Court of Appeals
    • November 2, 1993
    ...lies in the order or decretal portion itself, rather than in any accompanying recitals, findings, memorandum or opinion. Lane v. State, 641 S.W.2d 132, 136 (Mo.App.1982). In construing the order, the general rules of construction apply and words and clauses must be construed in accordance w......
  • State v. Lane, WD
    • United States
    • Missouri Court of Appeals
    • November 9, 1982
    ...law controls. State ex rel. Peach v. Bloom, 576 S.W.2d 744, 746 (Mo. banc 1979).2 That decision has since been reversed in Lane v. State, 641 S.W.2d 132, 1982 thus reinstating the 1974 conviction for first degree murder.1 "Remedial statutes, seeking the correction of recognized errors and a......

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