State v. Mannon

• Decision Date: 31 August 1982
• Docket Number: No. 63674,63674
• Citation: 637 S.W.2d 674
• Parties: STATE of Missouri, Respondent, v. William "Pete" MANNON, Appellant.
• Court: Missouri Supreme Court

Page 674

637 S.W.2d 674

STATE of Missouri, Respondent, v. William "Pete" MANNON, Appellant.

No. 63674.

Supreme Court of Missouri En Banc.

Aug. 31, 1982.

James R. Robison, Michael R. Baker, Sikeston, for appellant.

John Ashcroft, Atty. Gen., Brian P. Seltzer, Asst. Atty. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

Defendant was convicted by a jury of conventional ¹ second-degree murder (§ 565.004) ² and sentenced to thirty years imprisonment. He appealed to the Missouri Court of Appeals--Southern District which affirmed the conviction. This Court sustained appellant's motion for transfer after opinion.

The principal reason for transfer was the holding by the court of appeals that intoxication is not a defense to conventional second-degree murder because, the court said, the specific intent to kill or do great bodily harm is not required as an element of conventional second-degree murder relying upon the southern district's earlier case of State v. Gullett, 606 S.W.2d 796 (Mo. App. 1980).

The evidence showed that Ricky Brooks was fatally shot by appellant at the Crystal Inn in Charleston, Missouri, at around 1:00 a.m. on March 1, 1980. The events leading up to the shooting began around 11:00 a.m. on February 29, 1980. At that time, appellant, who had just returned to East Prairie, Missouri, from his home in Pine Bluff, Arkansas, with Wanda Carter, his girlfriend, went to the Main Street Tavern in East Prairie, Missouri. At around 12:00 noon, Ms. Carter came by the tavern to get appellant to go to lunch with her at her mother's. Appellant was drinking at that time.

After lunch, at around 1:30 or 2:00 p.m., they both returned to the Main Street Tavern, where they stayed the remainder of the afternoon. Appellant had had eight to ten beers when Ms. Carter left at 6:00 p.m. Appellant stayed at the tavern, drinking continuously, until Ms. Carter returned at 8:30 p.m. Ms. Carter testified that at the time she returned to the tavern, she saw the appellant in the most intoxicated condition she had ever seen him in during the eight years that she had known him. He was wobbling everywhere and he did not make any sense when he tried to talk.

Similarly, Clifford Griggs, the owner of the Main Street Tavern, testified at the trial that he had known the appellant for five years and that the appellant was in the worst shape that he had ever seen him in. In addition, Harry Lee Lindley, a man who testified that he had known the appellant for seventeen or eighteen years, stated that he was at the Main Street Tavern that night and when he stopped the appellant to say a few words to him, the appellant was so intoxicated that he just looked at Mr. Lindley as though he did not even know him.

Mr. Griggs also testified that he had seen the appellant with a .38 caliber pistol, that appellant had showed it to some friends at the tavern, and that when Mr. Griggs tried to persuade appellant to leave the gun there with him, he refused.

Ms. Carter remained with appellant at the tavern until 11:00 p.m., during which time appellant continued to drink. She testified that at that time, appellant was more drunk than he had been at 8:00 p.m. Ms. Carter left the appellant and went to another bar in East Prairie, Missouri. Appellant joined her there at around 12:00 midnight and they remained there until appellant had one more beer and they left for the Crystal Inn in Charleston, Missouri.

They arrived at the Crystal Inn at around 12:30 a.m. and appellant had two more beers. Appellant, by this time, was so intoxicated that he was "totally out," according to testimony by Ms. Carter.

In the meantime, the victim, Ricky Brooks, had entered the Crystal Inn at around 11:30 p.m. Mr. Brooks and the appellant had no contact until 1:00 a.m. when Verlin Uthoff, the owner of the Crystal Inn, started to close the bar and people began to leave. Mr. Uthoff testified that while appellant, Mr. Brooks, and several other people were in the hallway near an exit, he heard appellant say, "Don't tell me to go out first" and then he heard a blast and saw a man fall. The man turned out to be Ricky Brooks who had a gunshot wound in the abdomen.

Testimony was conflicting as to whether appellant made the above statement. Mr. Utoff testified that he was "absolutely certain" that it was the appellant who made the statement in the hallway, but Carl Ray Matheny testified that he was leaving with the appellant in the hallway and did not hear any conversation between the appellant and the victim. An ambulance arrived shortly and transported Ricky Brooks to the nearest hospital, but he died en route.

The case was submitted to the jury on conventional second-degree murder (MAI-CR 2d 15.14) and Manslaughter (MAI-CR 2d 15.18). The court gave, at the insistence of the state and over appellant's objections, Instruction No. 7 on intoxication. The instruction reads:

The Court instructs the jury that if you find and believe from the evidence that the defendant was intoxicated by drugs or alcohol at the time, such intoxication is in law no excuse for or defense to such offense as you find to have been committed. Voluntary intoxication is never a defense to a criminal charge. The fact of such intoxication, if you find it to be a fact, is only to be considered by the jury in connection with all other facts, in determining the guilt or innocence of the defendant, and the degree of guilt, if you find he is guilty. (Emphasis supplied.)

The appellant requested that the court give MAI-CR 2d 3.30.1--Intoxication or Drugged Condition--Negation of Purpose or Knowledge, but the court refused to do so on the premise that second-degree murder does not require the defendant to have acted purposely or knowingly.

Appellant contends the court erred in giving Instruction No. 7 because conventional murder in the second degree requires the specific intent to kill or do great bodily harm and under § 562.076 intoxication may be considered by the jury in determining whether a defendant had the necessary mental state to commit murder in the second degree. The mental state appellant contends to be required is that the defendant have the intent to kill or the intent to do great bodily harm.

It is the state's position that conventional murder in the second degree does not require the specific intent to kill or do great bodily harm but only a general criminal intent and therefore § 562.076 is not applicable to murder in the second degree under State v. Gullett, supra.

The instruction given--Instruction No. 7--was held not to be erroneous in State v. Street, 498 S.W.2d 523, 524-25 (Mo. 1973), and State v. Cole, 588 S.W.2d 94, 98-9 (Mo. App. 1979). However, both cases preceded the enactment of § 562.076. State v. Street, was a conviction for obtaining money by fraudulent check. The court simply applied the law as it was in 1973 and held voluntary intoxication is never a defense to a criminal charge. Under the state of the law in 1973 no discussion of the mental state required to commit the offense was necessary and none was indulged in, because voluntary intoxication was simply no defense.

State v. Cole, was a conviction of conventional murder in the second degree and assault with intent to kill with malice aforethought. Cole was tried prior to January 1, 1979, the effective date of § 562.076. In Cole, the court noted the adoption of § 562.076 and stated it expressed no opinion as to the accuracy of the instruction, which is the same as Instruction No. 7 here, after January 1, 1979. Id. at 99 n. 4.

The instant offense occurred March 1, 1980, and § 562.076 was in effect at that time.

The first question is whether conventional murder in the second degree has, as one of its necessary elements, the specific intent to kill or do great bodily harm. Murder in the second degree is defined by § 565.004 as, "[a]ll 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."

The state argues that a general criminal intent is all that is required for the commission of murder in the second degree because, the state says, § 565.004 does not specifically require that a defendant intend to kill or do great bodily harm.

At this point felony murder in the second degree must be mentioned in order that there will be no confusion about the matter. In State v. Jasper, 486 S.W.2d 268, 270 (Mo. banc 1972), this Court said:

At common law a person committing a homicide in the perpetration of a felony was guilty of murder. Wharton on Homicide, 3rd Ed., p. 174. In Missouri, the legislature has provided that if a homicide occurs in connection with certain felonies enumerated in § 559.010, it is murder in the first degree, whether or not the death was intended. 'The commission of, or the attempt to commit, the felony is the legal equivalent of premeditation, deliberation, and malice.' State v. Hayes, Mo., 262 S.W. 1034, 1037. In State v. Robinett, Mo., 279 S.W. 696, 700, this Court, after recognizing the effect of the predecessor statute of § 559.010, went on to say: ' * * * if the intention is to commit some felony other than one of those enumerated in that section, such homicide, although unintentional, is murder in the second degree under section 3231 * * *.' (Footnotes omitted.)

See also State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975).

Thus it is seen that the present state of the law in Missouri is that a person can be found guilty of second-degree murder under the felony murder rule if the homicide occurs in furtherance of a felony and in such a case the specific intent to kill is not required. ³ See MAI-CR 2d 15.16. The foregoing observation regarding second-degree felony murder is not a necessary holding to this case but is set forth merely to recognize that there is a form of common-law murder that is incorporated into the murder second-degree statute which does not require the specific intent to...