State v. Martin

• Decision Date: 24 June 1980
• Docket Number: No. 40793,40793
• Citation: 602 S.W.2d 772
• Parties: STATE of Missouri, Respondent, v. Charlene Craig MARTIN, Appellant.
• Court: Missouri Court of Appeals

Page 772

602 S.W.2d 772

STATE of Missouri, Respondent, v.Charlene Craig MARTIN, Appellant.

No. 40793.

Missouri Court of Appeals, Eastern District.

June 24, 1980.

Motion for Rehearing or Transfer to Supreme Court Denied

July 16, 1980.

Application to Transfer Denied Sept. 9, 1980.

Clifford B. Mayberry, Kirksville, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Mary C. P. Pincus, Asst. Attys.Gen., Jefferson City, for respondent.

SMITH, Judge.

Defendant appeals from her conviction by a jury of manslaughter and sentence by the court of ten years imprisonment under the then applicable second offender act.Sec. 556.280 R.S.Mo.1969.

Defendant raises several issues on appeal but we are confronted initially with a matter of plain error arising from the decision in State v. Handley, 585 S.W.2d 458(Mo. banc 1979) which decision was handed down after the appeal was taken and after appellant's brief was filed.Defendant was charged with the killing of Gladys O'Brien on September 19, 1977, by causing her to suffer burns and smoke inhalation from which she died.It was charged that the killing was committed in the perpetration of the felony of arson.Trial began on June 6, 1978.The evidence was uncontradicted that Ms. O'Brien died from heat and smoke inhalation suffered during a fire in her home.There was evidence from which a jury could find that defendant intentionally set the fire which caused the death.There was evidence to the contrary.The cause was submitted to the jury on MAI-CR 15.04 (Murder in the First Degree in Arson) and MAI-CR 15.18 (Manslaughter: Conventional).Both instructions hypothesized the cause of death as "subjecting her to smoke and heat inhalation."The jury found defendant guilty of manslaughter.

Handley, supra, presented a situation where a defendant charged with first degree (felony) murder as an aider and abetter was convicted of second degree murder.A plurality of the court held that second degree murder was not a lesser included offense of first degree murder.The court then held further that the finding of guilt of second degree murder was an acquittal of the charge of first degree murder; that that finding determined that defendant did not participate in the felony; that because defendant was not present when the victim was killed and had been found not to have participated in the felony he could not be guilty of manslaughter and should be discharged.Four judges concurred in the disposition of the case, indicating four members of the Supreme Court did not believe defendant could be retried for manslaughter.No reference is made in the case to the requirements of MAI-CR 6.02 or 15.00 that a conventional manslaughter instruction must be given in all felony murder cases.If Hanley, supra, is controlling, ¹ then we are confronted with a situation in which defendant was acquitted of first degree murder but convicted of manslaughter just as was true in Handley.In our case such an acquittal must mean that the jury either found that decedent did not die as a result of the fire or that defendant was not criminally responsible for that fire.Because there is no evidence of a cause of death other than heat and smoke inhalation either finding would absolve defendant of criminal responsibility for the death under the charged allegation of manslaughter.If defendant is not as a matter of law guilty of the crime for which she was convicted, then there is plain error affecting substantial rights amounting to a manifest injustice.Rule 29.12.

The state advances the theory that a manslaughter conviction can be supported on the basis that defendant prevented decedent from leaving the burning premises and that this resulted in her death.This contention lacks evidentiary support.There was evidence that defendant was heard shouting in or in the vicinity of decedent's home shortly before the fire.This would support an inference that defendant and decedent were arguing.There was evidence that decedent had bruises on her body in addition to burns.There was no evidence of the seriousness of the bruises, or the method of infliction, although the bruises were described as like those sustained by falling.The medical evidence did not establish that the bruises resulted from a force sufficient to cause decedent to be unable to escape, and in fact the autopsy revealed no concussion or brain injury, and no broken bones.Decedent, 85 years old but in generally good health and ambulatory prior to the fire, was found in a conscious or at least semi-conscious state within two feet of the back door lying on the floor and gasping for air.She had burns on her body, but she was found some distance from the flames and from any burned area.If it can be inferred that she was struck by defendant, which is no more probable than that she bruised herself falling in trying to escape, there is absolutely nothing in the record to support an inference that such blows caused her to be incapacitated or prevented her from leaving the house.

We, therefore, must decide whether as a matter of law the doctrine of Handley applies and if so does that cause the conviction to be unsupported by the evidence.The problem is presented because the Missouri Approved Charges Criminal, (MAI-CR) 15.00 mandate that in every first degree murder case an instruction on conventional manslaughter must be given.²It is specifically stated that in every such case there is evidence to support such a submission.MAI-CR 15.00.3 Caveat c. In resolving this problem, we believe some history of the requirement of "instructing down" is necessary.

As early as 1876³ it was recognized in Missouri that it was the duty of the trial court to instruct the jury on the law and that duty included the obligation to instruct only on the degree or degrees of homicide established by the evidence.State v. Love, 64 Mo. 319(1876);State v. Jones, 64 Mo. 391(1877).The doctrine was accepted by the United States Supreme Court in Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343(1895)andStevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980(1896).In the former case it was recognized that the determination of whether there is any evidence to support a lesser offense is initially one of law for the court.Whether that evidence is sufficient is a question of fact for the jury.The reason for this approach was stated as follows:

"A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof and in violation by the jury of their obligation to render a true verdict.There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault.A verdict of that kind would have been the exercise by the jury of the power to commute the punishment for an offense actually committed, and thus impose a punishment different from that prescribed by law."Sparf v. United States, supra, l.c. 64, 15 S.Ct. at 278.

Further:

"Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be.Under any other system, the courts, although established in order to declare the law would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights.When that occurs our government will cease to be a government of law, and become a government of men.Liberty regulated by law is the underlying principle of our institutions."Sparf v. United States, supra, l.c. 102, 103, 15 S.Ct. at 293.

It was the rule in Missouri, at least as recently as 1975, that the trial court was not required to instruct on lesser degrees of homicide unless there was evidence to support such an instruction.This was true whether the case was circumstantial or direct.State v. Crow, 486 S.W.2d 248(Mo.1972);State v. Terry, 472 S.W.2d 426(Mo. banc 1971).It was recognized that the circumstances of the killing could be such as to establish as a matter of law the existence of all mental elements of the crime, including deliberation.State v. Terry, supra, (10-12);State v. Crow, supra, (13).Indeed, the first degree murder statute in force in Missouri until 1975 specifically described three types of murders (poisoning, lying in wait and felony-murder) where proof that the killing occurred in the described way established deliberation as a matter of law.Sec. 559.010, R.S.Mo.1969.The fact question for the jury in those cases, and in others in which deliberation was established as a matter of law, was whether defendant committed the act.It was not necessary for the jury to determine the mental state of the defendant.⁴A change in this concept began to emerge presaged by State v. Williams, 442 S.W.2d 61(Mo. banc 1968).That case recognized that there existed only one definition of manslaughter in this state, that contained in what is now Sec. 565.005 R.S.Mo.1978.In Williams, supra, it was held that there existed a presumption that the intentional killing of a human being was second degree murder and an instruction on manslaughter required "proof of facts tending to show want of premeditation and malice . . . ." l.c.(4-6).

State v. Williams, supra, was overruled in State v. Ayers, 470 S.W.2d 534(Mo. banc 1971).Ayers, referring to Sparf, supra, reemphasized the obligation of the court to instruct the jury on the law, but then held that the intentional killing of a human being was manslaughter and was not presumed to be second degree murder.If in addition the elements of premeditation and malice are shown, the offense becomes murder second degree.If in addition deliberation is shown, the offense becomes murder first degree.The court reaffirmed its prior positions that if the evidence established as a matter of law " 'an entire...