State ex rel. Bulloch v. Seier, No. 71012

CourtMissouri Supreme Court
Writing for the CourtRENDLEN; BILLINGS; BLACKMAR; WELLIVER, J., concurs in result and concurs in concurring in result opinion of BLACKMAR; HIGGINS; BLACKMAR; HIGGINS
Citation771 S.W.2d 71
Docket NumberNo. 71012
Decision Date16 May 1989
PartiesSTATE ex rel. Dennis BULLOCH, Relator, v. Honorable A.J. SEIER, Judge of the Circuit Court of Cape Girardeau County, Missouri, Respondent.

Page 71

771 S.W.2d 71
STATE ex rel. Dennis BULLOCH, Relator,
v.
Honorable A.J. SEIER, Judge of the Circuit Court of Cape
Girardeau County, Missouri, Respondent.
No. 71012.
Supreme Court of Missouri,
En Banc.
May 16, 1989.
As Modified on Denial of Rehearing
June 13, 1989.

Arthur S. Margulis, St. Louis, for relator.

Thomas J. Mehan and Tom W. DePriest, Asst. Pros. Attys., St. Louis County, Clayton, for respondent.

PROCEEDING IN PROHIBITION

RENDLEN, Judge.

Relator instituted this proceeding to prohibit respondent from allowing the state to prosecute relator for armed criminal action in connection with the death of his wife, Julia Bulloch. The Court of Appeals, issuing the requested writ, concluded prosecution for armed criminal action violated relator's protection under the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States. We granted transfer and now make the preliminary rule absolute.

On May 6, 1986, relator's wife was asphyxiated when two strips of cloth were placed in her mouth and retained by tape wrapped around her face and over her mouth. The victim died at the family home, in which a fire occurred almost immediately following her death. Indicted on a charge of first degree murder in August, 1986 and, a month later, on a charge of second degree arson, relator was first tried for murder and the state elected to seek the death penalty. At trial, relator contended his wife's death was an accident resulting from an episode of consensual sexual bondage, but admitted starting the fire. The jury found relator not guilty of

Page 72

first or second degree murder and returned a verdict of guilty on the lesser offense of involuntary manslaughter. Relator was sentenced to a term of seven years' imprisonment.

Following the homicide trial, relator was indicted on additional charges of armed criminal action and tampering with physical evidence. The armed criminal action indictment charged that relator recklessly caused the death of Julia Bulloch by asphyxiation and committed the felony of involuntary manslaughter "by, with, or through the use, assistance or aid of a dangerous instrument." 1 In response to a motion to dismiss that indictment, the state contended the tape and gag constituted a "dangerous instrument." Respondent overruled relator's motion to dismiss, which was based upon claims of double jeopardy, collateral estoppel, absence of legislative intent, and denial of due process in the form of prosecutorial vindictiveness. The Court of Appeals, Eastern District, concluded the question of prosecutorial vindictiveness involved disputed facts and was a matter for the trial court's discretion to be considered, if necessary, on direct appeal; however, the court found that the armed criminal action proceeding constituted double jeopardy and issued its writ of prohibition. During pendency of the proceedings in prohibition, relator was tried and convicted of arson and the tampering with physical evidence charge which had been added after the homicide trial, and he was sentenced to six and five years' imprisonment, respectively.

The circumstances here present questions under the Double Jeopardy Clause, which has been said to protect against a second prosecution for the same offense after acquittal or conviction and preclude imposition of multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). 2 The concept of what constitutes the "same offense" in the context of double jeopardy was discussed in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), wherein it was stated: "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." Id. 52 S.Ct. at 182. Recent United States Supreme Court jurisprudence, however, has limited application of the Blockburger test in cases involving a single trial. See, e.g., Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). In Missouri v. Hunter, it was noted: "the Blockburger test is a 'rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." Id. 103 S.Ct. at 679 (quoting Albernaz, 450 U.S. 333, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981) (emphasis in original). In Hunter the United States Supreme Court rejected this Court's erroneous notion that prosecution of a defendant for both first degree robbery and armed criminal action was violative of the Double Jeopardy Clause. The Court held "the question of what punishments are constitutionally permissible is no different from the question of what punishments the Legislative Branch intended to be imposed...." 103 S.Ct. at 679. Because the Missouri Legislature clearly intended cumulative punishment under the armed criminal action statute, the Court found defendant was not subjected to double jeopardy.

Page 73

The core issue of double jeopardy for convictions of robbery in the first degree as well as armed criminal action was decided by this Court in 1977 in State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978). In that case, we properly took the position that multiple convictions for both armed criminal action and the underlying felony were not violative of the Double Jeopardy Clause of the United States Constitution. Two years later, the Court took the same position in State v. Valentine, 584 S.W.2d 92 (Mo. banc 1979), but six months thereafter on January 15, 1980, this Court handed down the first of its aberrant decisions in Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) [Sours I ], in which it vacated a conviction of armed criminal action that had been entered with a robbery first degree conviction. 3 The United States Supreme Court vacated and remanded Sours I for reconsideration in light of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), which gave adequate guidance for this Court to uphold the armed criminal action conviction in Sours. Nevertheless, this Court in Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) [Sours II] intransigently refused to follow the teachings of Whalen and vacated Sours's armed criminal action conviction once more. Certiorari was again sought in the United States Supreme Court, but prior to a hearing there Sours was released from confinement and certiorari was denied. Noteworthy is the fact that Justice Blackmun and Justice Rehnquist, advised of Sours's release, would have dismissed the petition as moot. Missouri v. Sours, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981). In March of 1981, in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), the Supreme Court forcefully reiterated its position, squarely contrary to that of this Court in Sours I and Sours II. At that point, the United States Supreme Court, acutely aware of the problems flowing from Sours I and II, noted that the various districts of the Missouri Courts of Appeals, assuming they were bound by this Court's Sours decisions, had in a growing number of cases felt required to reverse armed criminal action convictions. Between March 23 and June 22, 1981, the United States Supreme Court vacated judgments of reversal in sixteen such cases and in each instance remanded the cause for further consideration in light of Albernaz. In addition, at the time of this Court's decision in State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981), where this Court obdurately refused to follow Albernaz, the Supreme Court accepted review of three of our cases including State v. Williams, 606 S.W.2d 777 (Mo.1980); State v. Kendrick, 606 S.W.2d 643 (Mo.1980); and State v. Greer, 605 S.W.2d 93 (Mo.1980). See Missouri v. Greer, 451 U.S. 1013, 101 S.Ct. 3000, 69 L.Ed.2d 385 (1981). In Albernaz, the Court affirmed the opinion of the United States Court of Appeals for the Fifth Circuit upholding petitioner's conviction and sentences and denying his claim of double jeopardy. The Court, by way of introduction to its incisive, pellucid opinion, noted that:

We granted certiorari to consider whether Congress intended consecutive sentences be imposed for...

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16 practice notes
  • Westfall, Matter of, No. 72022
    • United States
    • United States State Supreme Court of Missouri
    • May 3, 1991
    ...of the information. --------------- 1 This Court granted transfer and made the preliminary rule absolute. State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989). The United States Supreme Court denied certiorari. Missouri v. Bulloch, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 1 Th......
  • State v. Peters, No. 75036
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 1993
    ...cases in Page 355 which the use of a dangerous weapon was also an element of the underlying felony. See State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990) (detailing this stream of litigation from Treadway, to So......
  • State v. Reynolds, No. 73782
    • United States
    • United States State Supreme Court of Missouri
    • November 19, 1991
    ...S.W.2d 259, 261 (Mo.App.1983), and per contra State v. Helm, 624 S.W.2d 513, 517 (Mo.App.1981). See also State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989), opinion concurring in result, Blackmar, J., at 76. The open question, however, is whether the statute requires "a culp......
  • State v. Hernandez, Nos. 16477
    • United States
    • Court of Appeal of Missouri (US)
    • July 26, 1991
    ...By definition, armed criminal action incorporates all the elements of the underlying felony. State ex rel. Bulloch v. Seier, 771 S.W.2d 71, 75 (Mo. banc 1989). An essential element of the underlying crime in this case was that the defendant acted with criminal negligence. It is the least cu......
  • Request a trial to view additional results
16 cases
  • Westfall, Matter of, No. 72022
    • United States
    • United States State Supreme Court of Missouri
    • May 3, 1991
    ...of the information. --------------- 1 This Court granted transfer and made the preliminary rule absolute. State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989). The United States Supreme Court denied certiorari. Missouri v. Bulloch, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 1 Th......
  • State v. Peters, No. 75036
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 1993
    ...cases in Page 355 which the use of a dangerous weapon was also an element of the underlying felony. See State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990) (detailing this stream of litigation from Treadway, to So......
  • State v. Reynolds, No. 73782
    • United States
    • United States State Supreme Court of Missouri
    • November 19, 1991
    ...S.W.2d 259, 261 (Mo.App.1983), and per contra State v. Helm, 624 S.W.2d 513, 517 (Mo.App.1981). See also State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989), opinion concurring in result, Blackmar, J., at 76. The open question, however, is whether the statute requires "a culpable ......
  • State v. Hernandez, Nos. 16477
    • United States
    • Court of Appeal of Missouri (US)
    • July 26, 1991
    ...By definition, armed criminal action incorporates all the elements of the underlying felony. State ex rel. Bulloch v. Seier, 771 S.W.2d 71, 75 (Mo. banc 1989). An essential element of the underlying crime in this case was that the defendant acted with criminal negligence. It is the least cu......
  • Request a trial to view additional results

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