State v. Blackmon, 39922
| Decision Date | 03 July 1979 |
| Docket Number | No. 39922,39922 |
| Citation | 587 S.W.2d 292 |
| Parties | STATE of Missouri, Respondent, v. Odell BLACKMON (a/k/a Blackman). |
| Court | Missouri Court of Appeals |
Vincent S. Moody, Clayton, for appellant.
John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Defendant appeals from his conviction by a jury of first degree murder, robbery, assault with intent to kill with malice, and armed criminal action. The court sentenced defendant to consecutive terms of life imprisonment, twenty years, thirty-five years and five years. On appeal defendant challenges only the conviction for murder.
The evidence at trial was largely circumstantial but would support a finding that defendant and Willie Cordell robbed the Beneficial Finance Company on Grand Avenue in St. Louis with a gun and that during the course of the robbery defendant shot and wounded an off-duty policeman, Chris Day. The evidence also supports a finding that during the course of the robbery Willie Cordell was shot and that he died shortly thereafter from the wound.
Specifically, as to the death of Willie Cordell, the evidence most favorable to the State is as hereinafter set forth. After two masked men had entered the finance company they ordered several employees to a restroom area in the front of the office. Day was in the office to obtain assistance with his income tax. Cordell came to the area where Day and another employee were located and indicated a hold-up. Day observed that Cordell was not apparently armed, and Day rose to his feet and drew his pistol. Cordell then grabbed Day and the two men fell to the floor locked in combat. Cordell yelled at the other robber, who was armed, that Day had a gun and that the other robber should "shoot him." The other robber, identified through circumstantial evidence as defendant, came to the area of the struggle and from a standing position above the combatants fired two different series of "several" shots down toward Cordell and Day. Three bullets struck Day. One, removed surgically thereafter, was a .32 caliber. Day fired three shots one at defendant, one at Cordell, and one into the floor. He did not know whether he hit Cordell. Day's gun was a .38 caliber. The combatants disengaged when defendant struck Day several times with a gun and Cordell and defendant fled with the proceeds of the robbery.
The robbers escaped by car to an area several blocks away. A police officer, searching for them on foot, located Cordell lying in a back yard bleeding from the chest. Cordell died from the chest wound. Near Cordell's wounded body was a .32 caliber casing and a spent bullet "less than .38 caliber". The medical evidence was that a bullet entered the right upper back of Cordell and exited through the right nipple. The trajectory through the body was neither ascending nor descending. Defendant's testimony, and that of his witnesses, supported an alibi defense that he was not present and did not participate in the robbery.
Defendant was charged with causing the death of Cordell during the perpetration of a robbery in violation of Sec. 559.007 RSMo 1975. The court's verdict directing instruction on the murder was MAI-CR 6.19 and required the jury to find that "defendant caused the death of Willie Cordell By shooting him " during the course of the robbery. It is defendant's contention that the emphasized portion of the instruction was unsupported by the evidence and it was therefore error to give the instruction.
On May 17, 1979 the Supreme Court held in State v. Moore, 580 S.W.2d 747 (Mo. banc 1979) that where a person is killed during the course of a felony the felony-murder rule is applicable whether the fatal shot is delivered by the defendant, a co-participant, a victim or a bystander, unless there has been an independent intervening act. In so doing the Court overruled State v. Majors, 237 S.W. 486 (Mo.1922) which had held that the felony-murder rule did not apply unless the fatal shot was delivered by the defendant or a co-participant. In view of State v. Moore the phrase "by shooting him" introduced into the instruction an additional element unnecessary to establish the guilt of defendant. Under Moore, it is immaterial whether Cordell was shot by defendant or by Day as long as he was killed in the course of the robbery under foreseeable circumstances.
Defendant has called our attention to the Dayton cases State v. Dayton, 535 S.W.2d 469 (Mo.App.1976) and State v. Dayton, 535 S.W.2d 479 (Mo.App.1976) to support his contention that even if the instruction contained an unnecessary element the instruction was still unsupported by the evidence as to that element and therefore prejudicially confusing. In the Dayton cases the defendants were charged as both principals and aiders and abettors of gross sodomitic conduct...
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