State v. Davis, KCD

• Citation: 559 S.W.2d 602
• Decision Date: 05 December 1977
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Geraldine DAVIS, a/k/a Geraldine English, Appellant. 29018.
• Court: Court of Appeal of Missouri (US)

Page 602

559 S.W.2d 602

STATE of Missouri, Respondent, v. Geraldine DAVIS, a/k/a Geraldine English, Appellant.

No. KCD 29018.

Missouri Court of Appeals, Kansas City District.

Dec. 5, 1977.

James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., Walter O. Theiss, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

The defendant was convicted of burglary and theft from a residence and was sentenced to concurrent terms of three and two years for the respective offenses. The evidence was the defendant acted with her husband and one Walker to commit the crimes. The defendant contends the evidence shows she was under the compulsion of her husband and so the court erred by failure to submit Instruction A which proferred that the defendant acted under duress and did not knowingly and intentionally aid or encourage another in the crime.

The evidence was that the latch at a residence had been forced open and two television sets and a golden robe stolen. Officers were notified by a neighbor who suspected criminal activity from the antics of a car parked in the driveway and operated by a woman and occupied by two men. The description and license plate number of the vehicle were transmitted to the police and the search began. The suspect automobile was detected by helicopter at a place where the occupants were seen to have removed articles from the trunk and then sped off again. (Four television knobs were recovered in the snow at this site and an imprint of what the officer took to be a television set was also apparent.) After a chase at high speed the car was captured with by then two occupants. The defendant was identified as the driver. A tire tool, a five-inch screwdriver and the robe taken from the residence were all found in the front of the automobile. Investigation disclosed that the tool marks on the residence lock were made by the screwdriver. The owner confirmed that the knobs found in the snow were from two television sets taken from the illegal entry into his residence. The defendant gave her version to these events: Her husband had telephoned her to come fetch him at a general location without specific address and, in the course of her driving, she turned around in a driveway, and then saw her husband come towards the car through a yard. The husband opened the door, as well as the trunk of the car, and then he and Walker got into the vehicle. The husband told her he wanted to use the car and she did not resist because from the tone of his voice, "it would have been either an argument or a fight". The husband drove towards their home, saw a policeman there, and her husband and Walker began to shout excitedly. The car turned the corner, her husband jumped out, and she took over the wheel. Walker directed her to a location where he could be let out, but by then the police were in pursuit and the chase began. The defendant attributed her flight to panic, and her complaisance to her husband as the means to avoid his hostility.

The defendant contends that at the most the evidence shows that she picked up the husband at his direction, and unwitting of any illicit purpose drove him from the scene of the crime, and then was caught in the pursuit. She says the evidence does not show, nor does the verdict director require the jury to find, that she intentionally aided and abetted another in the commission of the crime, and Instruction A was tendered for the very purpose to find that element of proof. The defendant cites State v. Poor, 533 S.W.2d 245 (Mo.App.1976) for authority that where the State seeks conviction of the accused as an aider and encourager the jury must find that conduct was done intentionally. Poor as well as State v. Grebe, 461 S.W.2d 265 (Mo. banc 1970) recognize the aider and abettor as an agent of criminal conduct and therefore subject to penalty, and for that reason require the proof to show (Grebe, l. c. 266) that the defendant in some manner "associate(d) himself with the venture . . . as . . . something that he wishes(d) to bring about".

In Poor the defendant was the lookout and operator of the escape vehicle. The theory of the prosecution and proof was that the defendant participated in the robbery as an aider and abettor but the verdict director did not submit that such association was intentional and knowing as required by MAI-CR 2.14, framed for that precise theory of conviction. Rather, a modified MAI-CR 7.62 without that essential proposition was given. The court found that failure to give MAI-CR 2.14 applicable to an aider and encourager submission violated Rule 20.02(c) that an applicable instruction form be used to the exclusion of any other. This lapse was found to be prejudicial, moreover, because the verdict director did not require the jury to find that the conduct was intentional an essential element of such a criminal responsibility.

The theory of proof and submission against this defendant, on the other hand, was not as aider and abettor, but as actor in concert with another in the commission of a crime. The submission of the criminal conduct of an active participant whether or not as principal actor is by the approved form MAI-CR 2.12. That form, used by the State to modify the submissions on burglary (MAI-CR 7.22) and stealing (MAI-CR 7.34), required for conviction that the jury find "the defendant acted either alone or knowingly and with...