State v. Morgan

• Decision Date: 15 January 1980
• Docket Number: No. 61504,61504
• Citation: 592 S.W.2d 796
• Parties: STATE of Missouri, Respondent, v. Dennis Lee MORGAN, Appellant.
• Court: Missouri Supreme Court

Page 796

592 S.W.2d 796

STATE of Missouri, Respondent, v. Dennis Lee MORGAN, Appellant.

No. 61504.

Supreme Court of Missouri, En Banc.

Jan. 15, 1980.

Rehearing Denied Feb. 11, 1980.

Cynthia S. Holmes, Sp. Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Steve Garrett, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Appellant was convicted in one trial of stealing over $50 and second degree (felony) murder. The victim was killed when the car in which she was a passenger was struck by a car driven by appellant, who was seeking to elude police in a high-speed chase. The stealing had occurred earlier when appellant pulled into a gasoline station and engaged the attendant in conversation about the car while a companion, never seen by the attendant, entered the storage room of the station and stole some cigarettes, a check protector and some quarters.

The Court of Appeals, Eastern District, affirmed appellant's convictions, ¹ after which this Court granted transfer and now decides the case as an original appeal.

Seven claims of error are lodged here. Appellant contends that the trial court erred in (1) denying his motion to dismiss on the ground that the two counts in the substitute information subjected him to double jeopardy; (2) denying his motions for acquittal because there was insufficient evidence of stealing; (3) limiting defense counsel's cross-examination of one of the police officers; (4) denying his motion to suppress evidence seized without a warrant at the scene of the wreck; (5) submitting a verdict-directing instruction that varied from the substitute information; (6) failing to give in full MAI-CR 2.70 as required, and (7) overruling defense objections to testimony by the station attendant as to the value of cigarettes stolen and failing to declare a mistrial after sustaining defense counsel's motion to strike testimony as to the value of the check protector, thus prejudicing appellant's right to a fair trial.

The state's evidence established the following: On December 4, 1975, a man identified by the station attendant as appellant drove into the Clark Service Station on South Grand in St. Louis and asked the attendant to check the oil. The attendant described the car as a black over white Cadillac, although his testimony varied on whether it was a two-door or four-door car and he did not know the model of the car. When the attendant told appellant that the oil was fine, appellant then asked the attendant to listen for a knocking noise in the engine. The attendant estimated that the encounter lasted between five and ten minutes. He testified that during that time appellant never got out of the car and that he saw no one else in the car or around the station. When the attendant returned to the station building after appellant had left, he saw that the door to the storage room was open, a bag of cigarettes lay open and some loose change was on the floor. The attendant then called the police. One of the policemen involved in the chase testified that he and his partner were out on routine patrol and began following the Cadillac appellant was driving after a call came over their radio on a holdup at the Clark station. The call included a description, although what the description was is unknown. Very soon after the call, the officer and his partner observed the Cadillac approaching with two persons inside. The driver was a black male, and as the police passed, one officer testified that the driver put his hand up to his face so as to obstruct their view of him, while the passenger in the Cadillac appeared to be doing something down on the seat. After following the Cadillac about half a block, another call came out over the police radio with a description of the automobile and its occupants. At that time the policemen accelerated and turned on the red roof lights and siren. The Cadillac also accelerated at this point, and the chase ending in the fatal crash ensued. After the crash and while the appellant and his companion were subdued, the front seat of the car was searched for weapons. None was found. At some point after ambulances and other police cars had arrived, one of the officers had a radio conversation with the attendant or manager of the service station and told him he had found a carton of cigarettes in the car. The attendant or manager told him more cartons had been stolen. The officer returned to the Cadillac and opened its trunk by means of a remote switch in the glovebox. There he found thirteen cartons of cigarettes and a check protector. Fingerprints on one carton and the check protector were identified later as belonging to appellant. Apparently, appellant was in the ambulance at the time of the trunk's search.

The complexity of the first issue presented, double jeopardy, requires a detailed analysis of this case vis-a-vis Missouri and United States Supreme Court cases on this issue. Appellant relies primarily on Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) to support his claim of double jeopardy here. A superficial comparison of this case and Harris yields the conclusion that the two cases are distinguishable. In Harris a grocery store clerk was shot and killed by a companion of Harris in the course of a robbery. Harris was convicted of robbery under an Oklahoma statute. Thereafter Harris was brought to trial and convicted on a separate information charging felony-murder also under an Oklahoma statute. ² His motion to dismiss on the ground that this prosecution violated the Double Jeopardy Clause of the fifth amendment was denied. The United States Supreme Court reversed, saying, "When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater crime." In a footnote to this sentence the court said the state had conceded that in the murder case it was necessary for all the ingredients of the underlying felony of robbery with firearms to be proved. The distinction between Harris and the instant case is that in Harris there were two trials and in this case there was one. This cannot be the end of the analysis, however, for several reasons.

The fifth amendment to the United States Constitution states in pertinent part: ". . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . ." U.S.Const. amend. V. ³ The United States Supreme Court has construed this language to refer to the dangers of multiple prosecution and multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). That court also has addressed the question of what constitutes the same offense for constitutional purposes. Although application of the test developed in this regard has been checkered, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) still is the leading case. The defendant there was charged with violating provisions of the Harrison Narcotic Act. Of the five counts charged, defendant was convicted in one trial of three counts. Two of those three, he claimed, constituted but one offense for which only a single penalty lawfully could be imposed. One of those counts charged a sale of morphine hydrochloride not in or from the original stamped package, and the other charged that sale as also having been made not in pursuance of a written order of the purchaser as required by the statute. In finding two offenses, the court stated the following:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. . . .

Id. at 304, 52 S.Ct. at 182.

The test was reaffirmed in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), which held that it applied to successive prosecutions as well as to the imposition of cumulative punishment at a single trial. The court there noted that the Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense but said, "Because we conclude today that a lesser included and a greater offense are the same under Blockburger, we need not decide whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to . . . additional protection . . . ." Id. at 167, n. 6, 97 S.Ct. at 2226.

Thirteen days after the court handed down Brown v. Ohio, another decision was rendered on greater and lesser included offenses. That case was Harris v. Oklahoma, supra.

The issue addressed in Harris has been before this Court as well. The case urged as controlling here is State v. Chambers, 524 S.W.2d 826 (Mo.banc 1975), Cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976), decided before Harris. There defendant and a companion, after a four-hour drinking bout, stole a pickup and towed it behind a car. The vehicles weaved through both lanes of the highway and collided with an oncoming automobile, killing four persons. Chambers was convicted in one trial of one count of stealing and four counts of murder, second degree. In his appeal to this Court, Chambers challenged the submission of both the underlying felony and the murders, claiming conviction for both crimes would violate the doctrine of double jeopardy. This Court said in that regard:

The question is now restated, whether, in the circumstances of this case, the stealing charge is an essential element of, or lesser included offense within, the felony-murders as to bring the case within the prohibition of State v. Toombs, (326 Mo. 981, 34 S.W.2d 61 (1930)).

The felony-murder rule permits the felonious intent necessary to a murder...