State v. Handley

• Decision Date: 17 July 1979
• Docket Number: No. 60590,60590
• Citation: 585 S.W.2d 458
• Parties: STATE of Missouri, Respondent, v. Danny D. HANDLEY, Appellant.
• Court: Missouri Supreme Court

Page 458

585 S.W.2d 458

STATE of Missouri, Respondent, v. Danny D. HANDLEY, Appellant.

No. 60590.

Supreme Court of Missouri.

July 17, 1979.

Rehearing Denied Sept. 11, 1979.

William E. Shull, Philip D. Gettig, Gettig, Coulson & Shull, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

In this case, which comes to the writer on recent reassignment, appellant was charged with first degree murder (felony-murder) under § 559.007, RSMo 1975, by an indictment which alleged that he knowingly aided and abetted others in an attempted armed robbery of the North Hills Bank in Clay County, Missouri on March 10, 1976, during which a security guard was fatally shot. The cause was submitted to the jury on first degree (felony) murder, § 559.007; conventional second degree murder, § 559.020, RSMo 1969; and voluntary manslaughter, § 559.070, RSMo 1969. Appellant was convicted of second degree murder, and, the jury not being able to agree upon punishment, was sentenced by the judge to 55 years confinement. He appealed to the western district of the court of appeals, which reversed, concluding that second degree murder is not a lesser included offense of felony murder, the crime with which defendant was charged. Believing that the same reasons which prevented conviction of defendant for second degree murder prevented conviction for manslaughter, the court of appeals transferred the cause to this court because of the general interest and importance of the principal issues and corollary questions involved.

Appellant was not present during the attempted robbery of the North Hills Bank by three armed men, which occurred at about 10:45 a. m. on March 10, 1976. His alleged involvement occurred prior to that time. In January and February of 1976 James Falkner, who masterminded the robbery plan, recruited appellant's brother and certain other men for the scheme. With them he "cased" the bank and made plans for the robbery and escape. Falkner first contacted Handley on March 7, 1976, at which time he asked that appellant steal an automobile. On March 8, Falkner asked appellant to steal a second automobile. While Handley was able to fill Falkner's "order" for one such automobile but not the second, in neither instance was he told the purpose for which the stolen vehicle would be used.

On the morning of the abortive robbery attempt, Handley and a friend named Ed went to an apartment on Troost Avenue in mid-Kansas City pursuant to Falkner's request that they help him with "something". Falkner did not elucidate, and at this point Handley still knew nothing about the robbery plans. Handley first learned of them that morning, as he heard Falkner brief the three men who were to execute the scheme as to their assignments and watched final preparations being made. At Falkner's behest, Handley and Ed then used Ed's car to help deliver guns and masks to another apartment on Paseo Boulevard in mid-Kansas City, where the others changed into their overalls. When preparations were complete, all the men drove in a four-car caravan, including two stolen vehicles, to the "jumping-off" point in Clay County. Ed's car, in which Handley was a passenger, brought up the rear and after proceeding about one block, one of the drivers honked his horn and the four cars pulled over. Handley reported to Falkner that the driver of the third car was not driving properly. The two men in that car changed places that the other might drive, and the caravan resumed its trek. The entourage arrived at a "parking lot of the Waterworks Department," north of the Missouri River, where the stolen Buick was parked as a getaway vehicle and its two occupants joined the driver of the stolen LTD. The LTD then proceeded to the North Hills Bank while the other two cars, including the one in which Handley was riding, left the parking lot and returned to midtown Kansas City.

The three armed would-be robbers burst into the lobby of the North Hills Bank in Kansas City, north of the Missouri River (Clay County), and one of them shouted, "Everybody freeze, hit the floor!" Gunfire erupted. Fifteen to twenty shots were fired before the robbers fled, Sans loot, leaving a mortally wounded bank guard who died about five hours later. The facts do not show who fired the fatal bullets.

Falkner testified on cross-examination that the presence of the security officer at the bank was totally unexpected and that no shooting was contemplated or mentioned when plans for robbing the bank were discussed.

There was no plan for Handley and "Ed" to return to the Paseo apartment, but they did so later that day. By that time, the robbers had returned from their unsuccessful foray into the bank and Handley asked where the money was. After being told there was none, he left with "Ed". At no time did the planning of the robbery include a split of the bank money for Handley; rather, he was to be paid a fee for stealing the LTD whenever Falkner had the money. Falkner made no mention of Handley as a participant when he turned state's evidence and gave a detailed confession in return for a 15-year sentence.

Appellant makes numerous allegations of error. Because of our resolution of this case, we need address only three. First, appellant alleges that the court erred in failing to grant his motion for judgment of acquittal in that there was insufficient evidence to show that he aided and abetted in the perpetration of the robbery or homicide. Second, he alleges error in submitting the second degree murder instruction. Third, he alleges that he should be discharged rather than remanded for a new trial on manslaughter because neither the facts nor the law support a conviction for manslaughter.

I.

Although appellant was not present during the robbery and was never to have received any of the proceeds therefrom, the state points to several separate circumstances demonstrating appellant's active participation in the criminal enterprise, the first of which is the theft of the car. By its uncontradicted evidence the state showed that Handley did not know at the time he stole the car what its use would be and it cannot be said that he then intended to assist in the robbery scheme by means of the auto theft. His complicity cannot be based on that act. See State v. Strawther, 476 S.W.2d 576, 581 (Mo.1972).

Next, the state relies on Handley's presence during the final briefing session and preparations for the robbery; on his presence in the car in which weapons and disguises were ferried from the Troost apartment to the Paseo apartment building prior to the robbery; and on his unexpected arrival at the apartment of one of the robbers after the abortive robbery attempt, when he asked if there was any money. While these facts demonstrate knowledge of the criminal purpose, Handley's presence, without more, does not prove his participation. State v. Irby, 423 S.W.2d 800, 803 (Mo.1968).

However, these facts may properly be considered with other evidence in determining the question of participation. State v. Reed, 453 S.W.2d 946, 948-49 (Mo.1970). Viewed in this light, we find appellant willingly joining the caravan which had as its intended goal the bank robbery and while en route to Clay County telling Falkner that one of the drivers was having difficulty with the third car. United States v. Hill, 464 F.2d 1287 (8th Cir.1972), has been cited in which the prosecution showed defendant's presence at a planning session for the crime, her nodded assent to the plan, and her presence with the conspirators when the robbery was thwarted. The appellate court ruled that a submissible case of aiding and abetting had not been made. Although Hill seems similar to the facts before us, given the totality of the circumstances attending the final planning session, riding in the car ferrying weapons and disguises, acquiescence in the use of the stolen car in the felonious activity and finally assistance during the trip to the jump-off point during which appellant reported the inability of one of the drivers to carry out his assigned task, and considering all evidence and inferences favorable to the prosecution, Reed, 453 S.W.2d at 949, we find defendant's actions constituted sufficient participation in the criminal enterprise to make a submissible case of aiding and abetting the robbery, although the jury did not find defendant guilty of doing so.

II.

Appellant next attacks the submission of second degree murder to the jury, asserting that because the felony-murder indictment did not include a charge of second degree murder, he was impermissibly convicted of a crime of which he had not been accused. We agree.

Article I, § 17 of the Missouri Constitution guarantees "That no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information . . ." The protection of this constitutional section renders any conviction for a crime not charged or necessarily included in the underlying indictment or information a nullity. "There can be no trial, conviction or punishment for a crime without a formal and sufficient accusation." State v. McKinley, 341 Mo. 1186, 111 S.W.2d 115, 118 (1937). A court is without jurisdiction to try a person for an offense unless the offense has been charged by information or indictment. See State v. Barrett, 332 Mo. 1020, 44 S.W.2d 76, 78 (1931). To do so would violate a defendant's due process rights, Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948), Cert. granted after remand, 337 U.S. 929, 69 S.Ct. 1496, 93 L.Ed. 1737 (1949), Aff'd 338 U.S. 345, 70 S.Ct. 172, 94 L.Ed. 155 (1949); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 236, 58 L.Ed.2d 207 (1978).

Although the state has referred us to cases such as State v. Williams, 529 S.W.2d 883 (Mo.banc 1975), and State v. Jewell, 473 S.W.2d 734 (Mo.1971), in which "instructing down" to murder second was permitted, we do...