State v. Milentz

• Decision Date: 11 January 1977
• Docket Number: No. 37188,37188
• Citation: State v. Milentz, 547 S.W.2d 164 (Mo. App. 1977)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Raymond Charles MILENTZ, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 164

547 S.W.2d 164

STATE of Missouri, Plaintiff-Respondent, v. Raymond Charles MILENTZ, Defendant-Appellant.

No. 37188.

Missouri Court of Appeals, St. Louis District, Division Three.

Jan. 11, 1977.

Motion for Rehearing or Transfer Denied Feb. 16, 1977.

Application to Transfer Denied April 11, 1977.

Bell, Harris, Kirksey, & Harris, James A. Bell, St. Louis, for defendant-appellant.

William F. Arnet, Preston Dean, Asst. Attys. Gen., Jefferson City; Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

GUNN, Judge.

A jury returned verdicts convicting the defendant of two counts of murder in the second degree and one count of escaping custody after conviction. Pursuant to the Second Offender Act, ¹ the trial court sentenced defendant consecutively to 30 years imprisonment on the first murder count, 25 years imprisonment for the second murder count, and 5 years imprisonment for the escape count. Defendant has appealed raising a multitude of points for our consideration, none of which serves as a basis for reversal.

While serving a five year prison sentence, defendant participated in a drug education program known as Operation Depart. The program was directed by the penitentiary's special activities coordinator, Barnard Forck, and Forck was authorized to remove inmates from the penitentiary so that they might participate in the program on the outside.

On November 21, 1974, Forck took the defendant and inmates Rulo and Blake to St. Louis where they were to attend and participate in a series of meetings. While waiting for a meeting to commence in the St. Louis City Hall, defendant, who was on the honor system, asked Forck for permission to respond to a call of nature. Permission was granted an unfortunate contretemps for Forck and the defendant was told to meet Forck on the third floor of the City Hall for a meeting. Inmate Blake also received permission to leave for a similar purpose and was likewise instructed to return to the third floor. Defendant thereupon departed and failed to return for further participation in Operation Depart. Forck's discomfiture was complete when Blake followed the defendant's example. A search for the defendant and Blake was unavailing, and a report of the escape was made to police.

Defendant spent the night of his escape and the next day, November 22, with friends, and on the evening of November 22 made use of a 1968 Pontiac owned by a friend, Jackie Porter, to visit his sister-in-law who lived on Risch Avenue in south St. Louis County. St. Louis County police had been alerted to the possibility that the defendant might visit his sister-in-law and at approximately 1:25 a.m. on November 23, two county police officers in an unmarked police car observed the defendant in the Pontiac driving slowly on Risch Avenue. The police car followed defendant for a short distance to an intersection stop light. The defendant stopped briefly with the police car behind him, and when the police activated their grille lights, the defendant hastily moved away. A high speed chase ensued with the police car's red grille lights flashing and siren wailing. During the chase, in which the police maintained one-half block distance from the defendant, both vehicles reached speeds of 95 m.p.h. The speeding defendant violated a stop sign at a street intersection in St. Louis and hurtled into the intersection, plunging into an automobile occupied by John and Janet Prag. Both Prags were killed by the collision, and the defendant was assisted by the police from his auto before it burst into flames.

Defendant was charged in six counts. Counts I and II charged defendant with the murders of Janet and John Prag, by feloniously driving a motor vehicle into them, and doing so "in order to further his escape from the lawful custody of the Missouri Department of Corrections, and its officers, and to elude arrest and capture by duly authorized peace officers of the State of Missouri who were then and there engaged in their lawful duty of seeking to arrest and recapture him for said escape . . ." resulting in the deaths of Janet and John Prag. Counts II and IV, on the other hand, charged defendant with causing the deaths of Janet and John Prag by feloniously driving a motor vehicle into them while "operating a 1968 Pontiac motor vehicle owned by Jackie Porter without the permission of said Jackie Porter; and that in causing the deaths of (the Prags) and operating said motor vehicle he sought to avoid arrest, and elude capture by duly authorized peace officers of the State of Missouri for operating a motor vehicle without the consent of the owner. . . ." Count V charged defendant with the offense of escaping custody after conviction; Count VI charged the offense of operating Porter's Pontiac without his permission. It is clear that the State was proceeding with alternative felony-murder theories one theory being that the homicides occurred during the perpetration of the felony of escaping after conviction, and the second theory being that the homicides occurred during the perpetration of the felony of operating a motor vehicle without the owner's consent.

As his first assignment of error, defendant argues that the trial court erred by failing to compel the State to elect which of the four murder counts it would proceed upon at trial. Defendant filed a pre-trial motion to compel such an election, and arguments on the motion were presented at a pre-trial conference. The State contended that all counts were properly joined pursuant to Rule 24.04 and that MAI-CR 2.70 ² allowed alternative counts to be submitted to the jury. The motion to compel election was overruled. Defendant now argues that the State "indicted the defendant for the felonious murder of two persons twice," and that "the trial court committed reversible error in the instant case when it punished defendant on multiple charges of murder for the same two deaths." Such argument is too fenestrated to hold much merit.

The State charged the same two offenses in Counts I and III as were charged in Counts II and IV, the alternative counts merely setting forth the commission of the two offenses in different manner. When Jackie Porter was called as a witness for the State he unexpectedly elected to exercise his Fifth Amendment privilege and refused to testify. Consequently, the State was unable to prove one of its alternative theories of felony-murder homicide emanating from the operation of a vehicle without the owner's consent. Counts II and IV, along with Count VI, were therefore dismissed at the close of all the evidence and were never submitted to the jury. It has long been the rule in Missouri that the State may charge a defendant with an offense in alternative counts for the purpose of meeting the evidence that may be adduced at trial. ³ This was done in this case, and no error resulted from overruling the motion to compel election before trial.

Defendant's second and third points formulate his contention that the State failed to establish a submissible case of murder in the second degree and that the court erred in instructing on felony-murder in the second degree. Essentially, he argues that the instruction was error, as he had no intention of harming John or Janet Prag; that the underlying felony of escape was completed on November 21 (the date he left City Hall) and could not be utilized as the basis of a felony-murder submission. We reject both of these points and hold that the court properly instructed the jury on murder in the second degree under the felony-murder rule.

If a homicide is committed in the course of perpetrating a felony which is not enumerated in § 559.007, RSMo Supp. 1975 (formerly § 559.010, RSMo 1969), that homicide may become murder in the second degree under § 559.020, RSMo 1969, pursuant to the felony-murder rule. State v. Mudgett, 531 S.W.2d 275, 278-279 (Mo. banc 1975); State v. Jasper, 486 S.W.2d 268, 271 (Mo. banc 1972); State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420, 425 (1933); State v Robinett, 279 S.W. 696, 700 (Mo.1926). In the instant case the jury returned a verdict finding defendant guilty of the felony of escaping custody after conviction, ⁴ which was the underlying felony supporting the felony-murder submission. The finding of guilt for that felony served to supply the felonious intent necessary to the murder conviction. State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975). The applicable rationale "is that in cases of felony-murder in the second degree, the defendant has formed a criminal intent to commit the underlying felony; and if he proceeds with its perpetration, he should answer to the consequences of his intentions, including accountability for homicides that occur incidental to the underlying felony." Id., at 833.

Thus, it is the law that "when the homicide is within the res gestae of the initial crime and is an emanation therefrom, it is committed in the perpetration of that crime . . . ." State v. Mullen, 532 S.W.2d 794, 797 (Mo.App.1975) ⁵ (citing State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637 (1936), and State v. Messino, 325 Mo. 743, 30 S.W.2d 750 (1930)). It has been held that the felony-murder doctrine applies where the initial crime and the homicide are parts of one continuous transaction and are closely connected in point of time, place and causal relation, as where the killing is done in flight from the scene of the crime to prevent detection or to promote escape. State v. Adams, supra; (citing cases); State v. Beal, 470 S.W.2d 509 (Mo. banc 1971). The facts and circumstances of the instant case warrant the inference that even if defendant believed that his original escape had been consummated, he renewed his purpose to perfect escape from lawful custody by fleeing from the police as he did. State v. Hershon, 329 Mo. 469, 45 S.W.2d 60 (1931). We believe that it was a jury matter whether the defendant's actions in fleeing the police...