Moore v. Wyrick

• Decision Date: 06 September 1985
• Docket Number: No. 84-1926,84-1926
• Citation: 766 F.2d 1253
• Parties: Brian Keith MOORE, Appellant, v. Donald W. WYRICK, Warden, and John Ashcroft, Attorney General of the State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1253

766 F.2d 1253

Brian Keith MOORE, Appellant, v. Donald W. WYRICK, Warden, and John Ashcroft, Attorney

General of the State of Missouri, Appellees.

No. 84-1926.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1985.

Decided July 10, 1985.

As Amended on Denial of Rehearing En Banc Sept. 6, 1985.

Douglas Rush, St. Louis, Mo., for appellant.

John M. Morris, Jefferson City, Mo., for appellees.

Before LAY, Chief Judge, and John R. GIBSON and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Brian Moore appeals the dismissal of his 28 U.S.C. Sec. 2254 petition for writ of habeas corpus. Moore contends that he was deprived of rights guaranteed by the due process clause of the fourteenth amendment when the Missouri Supreme Court retroactively applied a new and expansive construction of the Missouri felony murder statute to affirm his conviction. We agree and reverse the dismissal of Moore's petition.

Moore stands convicted of first degree felony murder. The events giving rise to this conviction occurred on July 28, 1975, when Moore and several cohorts attempted to rob a tavern located in St. Louis, Missouri. During the attempt, Albert Williams, one of the tavern's patrons, pulled a gun and exchanged several shots with Moore and his accomplices. In the exchange of gunfire, another patron was fatally wounded. Ballistic tests later showed that the fatal shots were fired not by Moore or one of his accomplices, but rather were fired by Williams. Despite this fact, Moore was charged with and convicted of first degree felony murder. This conviction was affirmed by the Missouri Supreme Court. State v. Moore, 580 S.W.2d 747 (Mo.1979) (en banc) (Moore I ).

Moore contends that in affirming his conviction the Missouri Supreme Court unforeseeably expanded the scope of Missouri's felony murder statute to encompass a particular factual situation previously determined by that court to be beyond the reach of the statute. Compare State v. Moore, 580 S.W.2d 747 (Mo.1979) (en banc) (construing state's felony murder statute to encompass killing by an uninvolved bystander), with State v. Majors, 237 S.W. 486 (Mo.1922) (limiting state's felony murder statute to situations in which defendant or an accomplice commits the killing). Moore asserts that this newly expanded judicial interpretation of the state's felony murder statute cannot, consistent with the due process clause of the fourteenth amendment, be applied retroactively to his case, but rather may only be applied prospectively.

To support this position, Moore relies primarily on the Supreme Court case of Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In Bouie, petitioners asserted that the retroactive application of an expanded judicial interpretation of South Carolina's criminal trespass statute "violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits." Id. at 350, 84 S.Ct. at 1701. The Supreme Court agreed with petitioners' position and held that "[w]hen a[n] * * * unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime." Id. at 354-55, 84 S.Ct. at 1702-03. Further, the Court held that this prohibition applies not only when judicial construction of a statute makes an action "which was innocent when done, criminal," but also when as here judicial construction "aggravates a crime, or makes it greater than it was, when committed." Id. at 353, 84 S.Ct. at 1702 (emphasis omitted) (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)).

In light of the Supreme Court's decision in Bouie, the issue before this court is whether the Missouri Supreme Court's action in affirming Moore's conviction constituted an "unforeseeable" expansion of the Missouri felony murder statute. If with reference to prior Missouri decisions the expansion was unforeseeable, then the decision may not be applied retroactively to Moore because to do so would deprive Moore of the "fair warning" to which he is entitled under the due process clause of the fourteenth amendment. Id. at 354-55, 84 S.Ct. at 1702-03. See also Marks v. United States, 430 U.S. 188, 192, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977); Hamling v. United States, 418 U.S. 87, 116, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); and Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 2200, 37 L.Ed.2d 52 (1973) (each describing the test in terms of "unforeseeability" and "fair notice" or "fair warning").

As an initial matter, we note that this same issue was presented to and determined by the Missouri Court of Appeals in Moore's state post-conviction relief proceedings. Moore v. State, 651 S.W.2d 578 (Mo.App.1983). The court of appeals rejected Moore's position and held that the Missouri Supreme Court's construction of the state's felony murder statute was foreseeable and could "be given retroactive application to [Moore] without violating the due process clause of the United States Constitution." Id. at 581.

The state now contends that the Missouri Court of Appeals' determination with respect to foreseeability constitutes a finding of historical fact and as a result is binding upon this court. We disagree. A finding that a change in the law was foreseeable, while perhaps involving a development of certain underlying historical facts, is at bottom an adjudication of Moore's federal due process rights determined by the application of federal constitutional principles. While this court must defer to a state court's factual findings if those findings are "fairly supported" in the record, 28 U.S.C. Sec. 2254(d)(8); see also Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983) and Johnson v. Nix, 763 F.2d 344, 345 (8th Cir.1985), this court is not bound by a state court's application of federal constitutional principles to those facts, Sumner v. Mata, 449 U.S. 539, 543-44, 101 S.Ct. 764, 767, 66 L.Ed.2d 722 (1981). As such, the issue of whether the judicial expansion of a criminal statute was or was not foreseeable and consequently can or cannot be applied retroactively is a question of federal law subject to this court's independent determination. Cf. Weaver v. Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 966, 67 L.Ed.2d 17 (1981) (ex post facto law claim is one of federal law).

We turn now to the merits of Moore's appeal. At the time of Moore's involvement in the attempted robbery giving rise to the present action, the Missouri felony murder statute provided that "every homicide which shall be committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder in the first degree." Mo.Rev.Stat. Sec. 559.010 (1969) (repealed September 28, 1975). As Moore points out, the Missouri Supreme Court, in construing this statute, could have adopted either of two mutually exclusive theories of criminal liability: the agency theory of felony murder or the proximate cause theory of felony murder.

Under the agency theory of felony murder, two basic elements must be established by the state in order to convict the defendant. First, the state must prove that the defendant or an accomplice actually killed the victim. If the state is unable to establish this threshold element, then the defendant cannot be guilty of felony murder and the state's felony murder statute will not be applicable. Second, if, however, the state is able to show that the defendant or an accomplice was the actual killer, the state must then prove that the killing was sufficiently related to the felony to be considered as having been committed in the perpetration of the felony. To establish this second element, the state is required to prove that the killing was the natural and proximate result of the felony. If these two primary elements are established, the law attaches the specific intent to commit the related felony to the homicide and will conclusively presume an intent to kill even though the murder itself may not have been specifically intended.

The proximate cause theory of felony murder, on the other hand, differs from the agency theory in one crucial respect. Under the proximate cause theory, unlike the agency theory, the actual identity of the killer is irrelevant in determining the general applicability of the state's felony murder statute. Instead, a determination of whether the death occurred as the natural and proximate result of the felony is dispositive both with respect to the issue of the defendant's personal responsibility and with respect to the issue of whether the killing can be considered to have occurred during the perpetration of the felony. As with the agency theory, intent will be conclusively presumed once it is shown that the felony and the homicide are proximately related.

The key difference between these two theories then is one of identification. Very simply, under the agency theory either the defendant or an accomplice must commit the killing in order for the state's felony murder statute to be applicable. Under the proximate cause theory, however, responsibility can attach regardless of whether the victim was killed by the defendant, an accomplice, another victim, or a bystander, so long as the death is proximately related to the commission of the felony.

On direct appeal to the Missouri Court of Appeals following his conviction, Moore asserted (as he has throughout) that at the time of his crime Missouri followed the agency theory of felony murder. Thus, because neither he nor an accomplice committed the killing, the state's felony murder statute was inapplicable, and as a result could not be used as a basis to convict him of first degree felony murder.

To support this position, Moore relied primarily on the factually indistinguishable Missouri...