State v. Lute

• Decision Date: 15 December 1980
• Docket Number: No. 61430.,61430.
• Citation: 608 S.W.2d 381
• Parties: STATE of Missouri, Respondent, v. Shirley LUTE, Appellant.
• Court: Missouri Supreme Court

608 S.W.2d 381

STATE of Missouri, Respondent, v. Shirley LUTE, Appellant.

No. 61430.

Supreme Court of Missouri, En Banc.

November 12, 1980.

As Modified on Own Motion On Denial of Rehearing December 15, 1980.

James G. Gregory, Montgomery City, for appellant.

John Ashcroft, Atty. Gen., S. Francis Baldwin, Asst. Atty. Gen., Jefferson City, for respondent.

As Modified On Courts Own Motion On Denial of Rehearing December 15, 1980.

WELLIVER, Judge.

Appellant was convicted of capital murder under § 559.010, RSMo 1978. Punishment was fixed at life imprisonment without probation or parole for a minimum of 50 years. Appellant contends that the trial court erred (1) by using MAI-CR2d (postcode) instructions when MAI-CR (pre-code) instructions should have been used for the trial of this pre-code offense; (2) by twice failing to give MAI-CR 2.05 as a lead-in paragraph to the submission of lesser included offenses; (3) by refusing a non-MAI-CR instruction based on § 556.180, RSMo 1969; (4) by failing to instruct on first degree murder and second degree felony murder; (5) by following a pattern instruction that is an impermissible comment on the evidence by the court; (6) by permitting the testimony of a sheriff who may have had custodial responsibilities for the jury; (7) by permitting expert testimony based upon a standard of "most probably"; and (8) by admitting certain documents without sufficient authentication. Jurisdiction is in this Court under Mo. const. art. V, § 3. We reverse and remand for a new trial.

Appellant was the wife of the victim, Melvin Lute. On February 6, 1978, highway patrol officers responded to a reported robbery at the Lute trailer in Middle Grove, Monroe County, Missouri. The responding officer discovered in the trailer the body of a man, later identified as Melvin Lute. A pathologist determined the cause of death as hemorrhage due to a six inch cut across the neck and a shotgun wound to the back.

Appellant was charged by an information alleging that she acted "in concert with another" in killing Melvin Lute. At trial, the evidence showed that appellant, for at least the preceding year and a half, had solicited several people, including her son Roy Welch, to kill Melvin Lute, and that she had offered them money in exchange.

Kristine Cockrell testified that she was with Roy Welch on the evening of February 6, 1978, when he had been in the Lute trailer for about 45 minutes. She testified that he came running out of the trailer with a gun and a knife in his hand, and that he had taken the gun and knife to a nearby creek, returning a few minutes later without them. Based on a statement given by Kristine, Monroe County Sheriff Dean Mason recovered a butcher knife and a 12-gauge shotgun from the creek.

The case was submitted to the jury on three verdict directing instructions and a general instruction on criminal responsibility. Instruction No. 5 was MAI-CR2d 2.10:

INSTRUCTION NO. 5

A person is guilty of an offense if it was committed by conduct for which he is criminally responsible, whether that conduct was his own or that of another person or both his own conduct and that of another.

A person is criminally responsible for the conduct of another in committing a particular offense when, either before or during the commission of an offense, with the purpose of promoting the commission of that offense he aids such other person in planning or committing that offense.

The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

Instruction No. 7 was MAI-CR2d 15.02 modified by MAI-CR2d 2.12:

INSTRUCTION NO. 7

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 6, 1978 Roy Welch with the aid or attempted aid of defendant did cause the death of Melvin Lute by shooting and cutting him, and

Second, that the defendant thereby intended to take the life of Melvin Lute, and

Third, that the defendant thereby knew that she was practically certain to cause the death of Melvin Lute, and

Fourth, that the defendant thereby considered taking the life of Melvin Lute and reflected upon this matter coolly and fully before doing so, and

Fifth, that the defendant, either before or during the commission of the offense of capital murder with the purpose of promoting its commission, aided such other person in planning or committing that offense,

then you may find the defendant guilty of capital murder.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Instruction No. 8 was MAI-CR2d 15.14 modified by MAI-CR2d 2.12:

INSTRUCTION NO. 8

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 6, 1978 Roy Welch with the aid or attempted aid of defendant did cause the death of Melvin Lute by cutting and shooting him, and

Second, that the defendant thereby intended to take the life of Melvin Lute, and

Third, that the defendant thereby did not do so in anger suddenly provoked by the unexpected act or conduct of Melvin Lute, and

Fourth, that the defendant, either before or during the commission of the offense of murder in the second degree with the purpose of promoting its commission, aided such other person in planning or committing that offense,

then you may find the defendant guilty of murder in the second degree.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Instruction No. 9 was MAI-CR2d 15.18 modified by MAI-CR2d 2.12:

INSTRUCTION NO. 9

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 6, 1978 Roy Welch with the aid or attempted aid of defendant did cause the death of Melvin Lute by shooting and cutting him, and

Second, that the defendant, either before or during the commission of the offense of manslaughter with the purpose of promoting its commission, aided such other person in planning or committing that offense, then you may find the defendant guilty of manslaughter.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

The jury found appellant guilty of capital murder as submitted in Instruction No. 7. The state having waived the death penalty, the jury fixed the punishment at life imprisonment without eligibility for probation or parole for 50 years.

Appellant contends that the postcode MAI-CR2d instructions, given by the trial court, misstated the applicable law and incorrectly submitted the issue of appellant's criminal responsibility. In State ex rel. Peach v. Bloom, 576 S.W.2d 744, 747 (Mo. banc 1979), we held that the "provisions of law existing prior to the new criminal code are applicable to all offenses committed prior to January 1, 1979." State v. Crow, 600 S.W.2d 162, 166 (Mo.App.1980); State v. Bey, 599 S.W.2d 243, 246 (Mo.App. 1980). It is not disputed that the instructions from MAI-CR were designed to submit the law as it existed prior to January 1, 1979, and that the trial court should have followed MAI-CR instead of MAI-CR2d. State v. Moore, 580 S.W.2d 747, 750 n.2 (Mo. banc 1977); Rule 28.02(c). Under rule 28.02(e), failure to give the applicable MAI-CR instruction is presumptively prejudicial, and we are obliged to so hold unless the contrary clearly appears. State v. Graves, 588 S.W.2d 495, 497 (Mo. banc 1979); State v. Phillips, 583 S.W.2d 526, 527-28 (Mo. banc 1979); State v. Clifton, 549 S.W.2d 891, 895 (Mo.App.1977); State v. Billingsley, 534 S.W.2d 484, 486 (Mo.App.1975). The state acknowledges that the case was submitted on the theory that appellant aided or encouraged her son in killing Melvin Lute, and that the three verdict directing instructions should have been modified by MAI-CR 2.14. The state argues that appellant was not prejudiced by this error because there is "no material difference" between the instructions given and MAI-CR 2.14 as properly modified. We do not agree.

Section 556.170, RSMo 1969,¹ the statute endorsed on the information and applicable to this offense provides:

556.170. Accessories defined

Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.

It has long been held that this section abrogates the common law distinction between principals and accessories. State v. West, 484 S.W.2d 191, 195 (Mo.1972); State v. Spica, 389 S.W.2d 35, 40 (Mo.1965) cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966); State v. Lunsford, 331 S.W.2d 538, 540 (Mo.1960); State v. Butler, 310 S.W.2d 952, 957 (Mo.1958); State v. Tripp, 303 S.W.2d 627, 631 (Mo.1957); State v. Pinkus, 550 S.W.2d 829, 838 (Mo.App.1977). One who aids and abets another in the commission of a felony is guilty as a principal, even without a showing of any conspiracy between the aider and the principal. State v. Reed, 453 S.W.2d 946, 948 (Mo.1970); State v. Lee, 404 S.W.2d 740, 747 (Mo.1966); State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963); State v. Johnson, 347 S.W.2d 220, 222 (Mo.1961); State v. Slade, 338 S.W.2d 802, 805 (Mo.1960); State v. Herman, 280 S.W.2d 44, 46 (Mo.1955); State v. Keever, 569 S.W.2d 400, 402 (Mo.App.1978).

It is well-settled under § 556.170, RSMo 1969, that one who knowingly and intentionally aids or encourages the commission of an offense is guilty of that...