State v. Clark, 63484
| Decision Date | 31 May 1983 |
| Docket Number | No. 63484,63484 |
| Citation | 652 S.W.2d 123 |
| Parties | STATE of Missouri, Respondent, v. Mark S. CLARK, Appellant. |
| Court | Missouri Supreme Court |
Gail N. Gaus, St. Louis, for appellant.
John Ashcroft, Atty. Gen., John Jacobs, Asst. Atty. Gen., Jefferson City, Steven H. Goldman, Asst. Pros. Atty., Clayton, for respondent.
Defendant Mark S. Clark was convicted of second degree murder [§ 565.004, RSMo 1978] and sentenced to life imprisonment. He contends, inter alia, the evidence was insufficient to support his conviction and it was reversible error to instruct on second degree felony murder because he was charged with capital murder. 1 We affirm.
In considering the issue of sufficiency of the evidence, we consider the facts in evidence and all favorable inferences to be drawn therefrom, in the light most favorable to the State, and reject all contrary evidence and inferences. State v. Franco 544 S.W.2d 533 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).
On June 10, 1980, the victim, Robert Bruce Lindsey III, went to defendant's house for the purpose of selling defendant marijuana. Defendant purchased more than three pounds of marijuana and paid Lindsey approximately $1,400. Defendant then tossed the marijuana into a small storage room adjoining the kitchen. Defendant and Lindsey then began discussing a $200.00 debt owed by defendant to Lindsey from a previous drug sale. An argument erupted, and Lindsey brandished a small steak knife. Defendant convinced Lindsey to put the knife away and suggested they smoke a "joint". While defendant was rolling the "joint" he looked up and saw Lindsey pointing a pistol at him. Lindsey ordered defendant to Defendant stepped inside the doorway of the storage room, where he kept a loaded rifle. He grabbed the gun, pivoted, and fired. Lindsey was struck in the temple by the shot, and was killed.
Defendant wrapped the body in a blanket and loaded it into the trunk of the car that Lindsey had driven to the house. As he was driving up the highway he saw Steven Halter parked where they had earlier arranged to meet for a drug sale. Defendant stopped, told Halter what had happened, and asked him for help. When Halter refused, defendant got back into the car and drove to Busch's Wildlife Reserve, where he dumped the body.
Defendant returned to his home and there told one O'Brien he had killed a man over money. Later, O'Brien went with defendant to the wildlife reserve where defendant burned the body of Lindsey.
Steven O'Keefe testified that in the summer of 1980 he and defendant hunted and fished at Busch's Wildlife Reserve and that on one of these trips defendant brought a skull to the car and told O'Keefe it was the skull of a man he had killed over dope.
From the foregoing, the jury could find, beyond a reasonable doubt, that defendant killed Lindsey while engaged in an unlawful act, a felony. 2
At common law, a homicide was either murder or manslaughter, and there were no degrees of murder. Not only was it murder to kill another, though the intent was merely to severely hurt, but a homicide unintentionally committed in pursuit of a felony was murder, and was punishable with death. Wharton on Homicide, § 105, p. 147, 3rd ed. (1907).
The felony murder rule can be traced back to Lord Coke, where he stated that: "If the act be unlawful it is murder. As if 'A' meaning to steale a deere in the park of 'B', shooteth at the deere, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawful, although 'A' had no intent to hurt the boy, nor knew not of him, but if 'B' the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.
"So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium [misadventure]: for it was not unlawful to shoot at the wilde fowle: but if he had shot at a cock or hen, or any tame fowle of another mans, and the arrow by mischance had killed a man, this had been murder, for the act was unlawfull." Coke, Third Institutes (1797), p. 56.
State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975). 3 As Higgins, J., pointed out in State v. Jewell, 473 S.W.2d 734, 738 (Mo.1971), "so-called felony murder is not a separate and distinct offense ...." (emphasis added)
Prior to 1975, Missouri's first degree statute provided as follows:
Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree. Section 559.010, RSMo 1969 (repealed).
This statute contained the basic elements of what is presently capital murder [§ 565.001, RSMo 1978] and those in present first degree murder [§ 565.003, RSMo 1978]. Under the former first degree murder statute there were two basic methods of proving the requisite mental state. In conventional first degree murder, the deliberation and premeditation necessary to authorize a conviction could be inferred from the facts and circumstances of the killing. State v. Lindsey, 507 S.W.2d 1, 4 (Mo. banc 1974). On the other hand, if the felony murder doctrine was used, then proof of the commission of one of the enumerated felonies in the statute stood in lieu of showing the required state of mind. "... [T]he turpitude of the criminal act supplies the place of deliberate and premeditated malice and is its legal equivalent, and the purpose to kill is conclusively presumed from the intention which is the essence of the criminal act intended." Wharton, supra at 173-74.
The first degree murder statute currently in effect in Missouri provides that "any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping." Section 565.003, RSMo 1978. This statute modifies the common law felony murder rule somewhat in that it includes the phrase "... without a premeditated intent ...." Where the felony murder rule deemed intent to be present, the Legislature has provided that the only requirement is the proof of one of the named felonies. The accused need not have intended the killing, but must have the intent to commit the felony. State v. Newman, 605 S.W.2d 781, 786 (Mo.1980).
Unlike the first degree murder statute, our second degree murder statute has remained the same since 1835. R.S. 1835, § 2, p. 167. The current statute is § 565.004, RSMo 1978, which provides that "All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree." (our emphasis)
All other kinds of murder at common law remaining would be the following: (1) Intentional murder, nondeliberate, and (2) homicides committed in the perpetration of or attempt to perpetrate any felony other than the five listed in the first degree murder statute. Note 3, Notes on Use, MAI-CR 2d 15.16. (Our emphasis)
Like the pre-1975 first degree murder, although second degree murder is a single crime, the requisite mental state (willful, premeditated killing with malice aforethought) can be proved by either of two methods. In conventional second degree murder, the facts and circumstances of the killing can provide the factual basis for the jury's belief that the accused killed another with malice aforethought and premeditation. State v. Powell, 630 S.W.2d 168 (Mo.App.1982); State v. Black, 611 S.W.2d 236 (Mo.App.1980). In second degree felony murder the commission of a felony (which is not one of those designated in the first degree murder statute) provides the means of proving the requisite state of mind. State v. Chambers, supra at 829.
Although the Legislature modified the former first degree murder statute so as to dispense with "premeditated intent", and by enacting that statute in its present form makes the crime a separate and substantive offense, it did not choose to do the same with second degree murder and, consequently, the felony murder rule is still viable in its true form under the current second degree murder statute. Statements in recent cases implying second degree felony murder is a separate substantive offense 4 are refuted by the history of the felony murder doctrine, the case law of this State, and the decision of the Legislature to continue to define second degree murder as "All other kinds of murder at common law ...."
As regards defendant Clark, the felony murder rule was properly used to convict him of second degree murder. Although the...
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