State v. Betts
| Decision Date | 23 February 1983 |
| Docket Number | No. 62851,62851 |
| Citation | 646 S.W.2d 94 |
| Parties | STATE of Missouri, Respondent, v. James K. BETTS, Appellant. |
| Court | Missouri Supreme Court |
James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant-appellant was convicted of capital murder and sentenced to life imprisonment without possibility of probation or parole for 50 years, the state having waived the death penalty.
The defendant and two others, Dennis Skillcorn and Frank Brooks, planned to burglarize the farm home of Wendell Howell. During the course of the burglary Mr. Howell was killed by a shotgun blast to the head as he lay face down on a couch. Conflicting evidence was introduced as to who shot the victim. Frank Brooks testified for the state that the defendant had announced before the burglary that he would have to kill anyone found in the house, and that defendant was the one, in fact, who had fired the fatal shot. Defendant related that it was over his protestations that Mr. Howell died at the hand of Frank Brooks, although he acknowledged that if anyone was encountered in the house, the resident would have to be "cowboyed," i.e., frightened out of his wits.
The crime was committed on December 2, 1979, and the case tried in October 1980. The jury was instructed on capital murder second degree murder and manslaughter but was not instructed on § 565.003, RSMo 1978, first degree murder committed in the perpetration of burglary. Initially, the cause was reversed for failing to instruct on first degree murder. But on this Court's own motion, the submission was set aside for rehearing.
The case presents a multitude of issues: (1) whether first degree felony murder is a lesser included offense of charged capital murder, requiring instruction; (2) the question of instructional error regarding the requisite mental state for conviction of capital murder; (3) whether there was prejudicial error in a deviation from MAI-CR2d 2.12, the aider and abettor instruction; (4) alleged error in failing to define "inhabitable structure"; (5) alleged error in overruling a challenge to a venireman; (6) the effect of including the "however" clause in the state's verdict directing instruction when an affirmative defense is submitted; (7) whether the instruction on defense by reason of abandonment was prejudicially erroneous.
We affirm the judgment of conviction.
The first point--whether first degree felony murder is a lesser included offense of capital murder, requiring instruction calls for summary disposition. State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), and to the same effect State v. Woods, 639 S.W.2d 818 (Mo.1982), and State v. Blair, 638 S.W.2d 739 (Mo. banc 1982), speak directly to that point holding that first degree felony murder, § 556.046, RSMo 1978, is not a lesser included offense of capital murder. Further, it is the holding of these cases that no first degree murder instruction is required in a trial for capital murder committed after January 1, 1979. Baker was in effect at the time of trial.
The next point centers on the state's verdict director for capital murder as not properly instructing on the requisite mental state. That instruction provides:
If you find and believe from the evidence beyond a reasonable doubt:
then you will find the defendant guilty of capital murder, unless you find and believe from the evidence that it is more probably true than not true that the defendant is not entitled to an acquittal by reason of Instruction No. 6.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
It is defendant's contention in this regard that the foregoing verdict director does not hypothesize the requisite intent as it attributes the intent alternatively to defendant, Skillcorn or Brooks; that the deficiency is not cured in Paragraph Second because the mental state hypothesized there relates to burglary and not capital murder; and that Paragraph Eighth alone is an inadequate direction for the mental state in capital murder.
The verdict director in this case follows the pattern given and approved in State v. Robinson, 641 S.W.2d 423, 425 (Mo. banc 1982) and State v. White, 622 S.W.2d 939, 942-43 (Mo. banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). The only difference between the verdict directors in Robinson and White and this case is that in the former two cases the instructions hypothesized guilt on the theory that the defendant had aided and abetted another in the actual act of killing, whereas in this case the instruction hypothesized guilt on the theory that the defendant had aided and abetted another in a burglary as an initially contemplated offense, that a capital murder occurred as the legally proximate result of the burglary and that defendant knew another was practically certain to commit a capital murder. That difference, however, is inconsequential. Robinson and White determined that knowing another is practically certain to commit capital murder is a sufficient mental state to satisfy the mens rea requirements of a capital murder.
In the critical aspects of the mens rea, the jury in this case was instructed the same as in White: if the defendant knew others were practically certain to commit a capital murder in the course of conduct for which he was criminally responsible, i.e., burglary, then he had the same intent as the active participant, including knowledge, premeditation and deliberation. To know that another is practically certain to commit a capital murder is to know what that person will do and with what intent he will do it. With this knowledge, to purposely promote the commission of an offense that results in a capital murder is to possess the requisite intent. In this case all parties knew that a burglary was to be committed; and according to Brooks, defendant said that if anyone was in the house, that person would have to be killed. Finally, either Brooks or the defendant carried out the plan. Thus, defendant participated in the promotion of an offense (burglary) with evidence before the jury, though denied by defendant, that he knew fully that someone would be killed either by his own hand or by a co-participant. Evidence of the requisite intent to convict defendant of capital murder was therefore, present.
Defendant argues error in the verdict director's use of the phrase "then you will find the defendant guilty," rather than "then you may find the defendant guilty."
It was error to use the word "will" rather than "may", because criminal responsibility in this case depends upon party liability and because § 562.051, RSMo 1978, applies. This statute states: "[W]hen two or more persons are criminally responsible for an offense which is divided into degrees each person is guilty of such degree as is compatible with his own mental state...." MAI-CR2d 2.12 is the vehicle for instructing on party liability, and Note 3 on Use thereto states that "the word 'may' must be used ... in any case where section 562.051 is applicable." 1 Additionally, MAI-CR2d 2.14 must be given whenever § 562.051, RSMo 1978, applies.
Although error occurred, for the reason expressed in State v. White, 622 S.W.2d at 943-44, it was not prejudicial because the jury was otherwise adequately instructed that defendant's liability for each degree could be considered. In this case, as in White, the jury was properly instructed on all applicable degrees of homicide and given MAI-CR2d 2.14, instructing it to find guilt only to the degree compatible with mental state.
Defendant contends that the trial court erred in failing to define "inhabitable structure" in connection with the verdict director holding him responsible for capital murder arising during the course of burglary with others. Note 5 on Use to MAI-CR2d 2.12 requires that when the 2.12 aider and abettor instruction is used, a separate instruction must be given defining the initial offense contemplated (in this case, burglary). So, too, a definition must be given to any word which must be defined according to Notes on Use under any MAI-CR form applicable to that offense.
In this case, the jury was instructed on second degree burglary pursuant to MAI-CR2d 33.01. Note 3 on Use to MAI-CR2d 23.52 on burglary in the second degree mandates that "inhabitable structure" be defined. Therefore, error occurred in failing to define this term. The error, however, was not prejudicial. Rule 28.02(e).
The failure to define "inhabitable structure" is deemed prejudicial unless a contrary effect...
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