State v. Bradshaw

• Decision Date: 31 December 1979
• Docket Number: No. KCD,KCD
• Citation: 593 S.W.2d 562
• Parties: STATE of Missouri, Respondent, v. Bradley D. BRADSHAW, Appellant. 30261.
• Court: Missouri Court of Appeals

Page 562

593 S.W.2d 562

STATE of Missouri, Respondent, v. Bradley D. BRADSHAW, Appellant.

No. KCD 30261.

Missouri Court of Appeals, Western District.

Dec. 31, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 4, 1980.

Application to Transfer Denied March 11, 1980.

Ward B. Stuckey, Kansas City, for appellant.

Atty. Gen., John Ashcroft, Asst. Atty. Gen., Paul R. Otto, Jefferson City, for respondent.

Before SHANGLER, P. J., and SWOFFORD and CLARK, JJ.

SHANGLER, Presiding Judge.

The defendant Bradshaw was charged by information under § 559.007, RSMo Supp.1975, with (felony) murder in the first degree as an aider and abettor in the homicide of one Strickland in the perpetration of a robbery. The cause was submitted to the jury under three instructions: first degree (felony) murder; conventional second degree murder, and manslaughter. The jury found the defendant guilty of second degree murder.

Three points are assigned on appeal, among them, that conventional second degree murder is not an included offense within first degree (felony) murder, so that the defendant stands convicted of a crime not charged. That same issue confronted this court in State v. Handley, KCD, 29, 291, was dealt with, and then was referred to the Missouri Supreme Court under our constitutional power of transfer (Mo.Const. Art. V, § 10) because of the general importance of the question presented.

Our opinion concluded that the recently enacted § 559.007 which redefines first degree (felony) murder as

"(t)he unlawful killing of a human being when committed Without a premeditated intent to cause the death of a particular individual but when committed in the perpetration of or in the attempt to perpetrate . . . robbery . . ." (Emphasis added.)

shares no related element with murder second degree and so a formal accusation for first degree (felony) murder does not sanction submission of murder second degree as an included offense.

On transfer, the principal opinion (Part II) of the Supreme Court en banc in State v. Handley, 585 S.W.2d 458 (1979) accepted our conclusion that the elements of conventional second degree murder under § 559.020 the willful, Premeditated killing of a human being with malice are not encompassed within the redefinition of first degree (felony) murder under § 559.007 as an unlawful Unpremeditated homicide in the perpetration of an enumerated felony. The Supreme Court en banc opinion (Part II) held, moreover, that the direction of § 559.009.2 RSMo Supp.1975 that

"(u)pon the trial of an indictment or information for murder in the first degree, the jury must inquire under such instructions as the court finds are justified by the evidence, and by their verdict ascertain, whether the defendant is guilty of murder in the second degree . . ."

could not be imposed constitutionally to submit a crime not charged in terms or as a necessarily included offense by formal accusation. The rationale of Part II of the principal opinion of the Supreme Court en banc (by Seiler, J.) concurs with the opinion of this court (by Somerville, J.) received on transfer: that as a matter of law a charge of first degree (felony) murder under § 559.007 does not encompass conventional second degree murder so that the latter may not be submitted under an accusation for the former unless separately charged and separately proved.

In the normal course of adjudication, an opinion of the Supreme Court en banc on a proposition of law controls all subordinate tribunals. Mo.Const. Art. V, § 2, 1945. An opinion of the Supreme Court en banc which lacks concurrence of a majority of the judges except as to result, however, does not decide the issue but has value only as instruction. Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700, 702(6) (banc 1924). On transfer, Handley was submitted to six judges of the Supreme Court en banc. The principal opinion was written by Seiler, J., concurred in by Bardgett, C. J., by separate opinion, and concurred in result by Donnelly, J., and Finch, Sr., J. There were two separate dissents, Rendlen and Morgan, JJ. Part II of the en banc Handley which concludes that conventional second degree murder is not a lesser included offense of first degree (felony) murder under § 559.007 has no concurrence. ¹ Thus, the very issue before us was not decided with authority in Handley en banc but remains open for decision. Heald v. Aetna Life Ins. Co. of Hartford, Conn., 340 Mo. 1143, 104 S.W.2d 379, 384 (10) (1937).

Nor does our prior opinion in Handley have efficacy on the issue. In the constitutional scheme of an ordered jurisdiction, transfer of a cause by an appellate court because of the general importance of a question vests jurisdiction in the Supreme Court for final determination as an original appeal. Mo.Const. Art. V, § 10, 1945 (as amended at special elections August 4, 1970, August 3, 1976).

We continue in the opinion that by the very terms of § 559.007, first degree (felony) murder which requires proof of an unlawful killing of a human being done without a premeditated intent in the perpetration of an enumerated felony does not encompass conventional second degree murder which requires proof of a willful, premeditated homicide with malice aforethought. We adopt the rationale of Seiler, J., in the en banc Handley opinion (Part II) which is altogether congruent with our posture on the question per Somerville, J., in Handley.

We conclude that defendant Bradshaw was put to trial without formal accusation of second degree murder and therefore the conviction for that offense cannot stand. Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978). The question remains whether, nevertheless, the defendant may be tried anew for that offense. The conviction for second degree murder was an implicit acquittal of first degree (felony) murder so that retrial for that offense would put the defendant twice in jeopardy. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). A retrial upon a new information for second degree murder would not infringe that principle (since that offense was not encompassed within the first degree murder charge) except, on principles of collateral estoppel, to the extent the acquittal of felony murder necessarily determined any of the elements that make up the new charge of second degree murder. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The doctrine of collateral estoppel, as embodied in the Fifth Amendment guarantee against double jeopardy, applies only when an issue has been previously adjudicated in favor of the defendant. The question becomes: whether a "rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ashe v. Swenson, supra, l. c. 444, 90 S.Ct. l. c. 1194. That determination rests on the facts in evidence and the propositions submitted by instructions.

The proof of the substantive crime was made by one Vielbig, an accomplice with defendant Bradshaw in the commission of the offenses. Vielbig and Bradshaw concocted a scheme, during a round of alcohol and marihuana, to rob a taxicab. They had run out of money and decided to replenish themselves. They borrowed a shotgun and headed in the Vielbig car towards the airport where he dropped Bradshaw and then drove to a nearby dead end road to await the arrival of Bradshaw in a taxicab. Bradshaw was armed with a .45 caliber gun and Vielbig kept the shotgun. Within a half-hour, Vielbig saw a taxicab approach, slow, and then he heard the reports from the fire of two different guns. Vielbig then saw the taxicab leave the road and strike some trees. As he approached the vehicle, he heard the cab driver entreat, over and over: "Don't kill me." He heard the defendant say: "Let go of me, I won't hurt you." Vielbig walked up to the taxicab, saw the driver prostrate, and as he began to sit up, Vielbig thought he had a gun in his hand, so Vielbig shot the driver in the head with the shotgun. Bradshaw told Vielbig he had been wounded, so he took him to an apartment where they were arrested later.

The police investigation recovered the .45 caliber weapon, the shotgun and other accoutrements of the criminal venture. There was evidence that the bullet removed from the neck of the victim matched the test bullets fired from the .45 caliber weapon found behind the apartment where the two were apprehended. The investigation also discovered the blood-stained bills of money taken by Bradshaw in the robbery and given to Vielbig and placed by him in the apartment chest of drawers.

On this evidence, Instruction Seven submitted first degree (felony) murder. The implicit acquittal for felony murder by the jury conviction for second degree murder necessarily determines that the jury did not believe one of the three propositions submitted by Instruction Seven: (1) that Bradshaw or Vielbig caused the death of the taxicab driver Or (2) that either one did so in the perpetration...