State v. Morrow, 18935

• Decision Date: 01 December 1994
• Docket Number: No. 18935,18935
• Citation: 888 S.W.2d 387
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gregory MORROW, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 387

888 S.W.2d 387

STATE of Missouri, Plaintiff-Respondent, v. Gregory MORROW, Defendant-Appellant.

No. 18935.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 1, 1994.

Lyle M. Gregory, Caruthersville, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

A jury found defendant guilty on two counts of unlawful use of a weapon, § 571.030.1(3), ¹ and he was sentenced, as a prior and persistent offender, to a term of ten years' imprisonment on Count I and four years' imprisonment on Count II, the sentences to run consecutively. Defendant appeals.

Defendant's sole point is that the trial court erred in denying his motion to dismiss one count, in violation of his rights under the Double Jeopardy Clause, "and applicable Missouri common and statutory law in that the act of shooting into the dwelling was a continuous course of conduct since testimony established that it occurred on the same occasion, all shots hit the same house, and all shots fired were fired in rapid succession."

Section 571.030 reads, in pertinent part:

"1. A person commits the crime of unlawful use of weapons if he knowingly:

... (3) Discharges or shoots a firearm into a dwelling house....

4. Unlawful use of weapons is a class D felony unless...."

In addition to its formal parts and allegations of defendant's prior convictions, Count I charged "that on or about October 23, 1992, in the County of Pemiscot, State of Missouri, the defendant knowingly shot a firearm into a dwelling house located at Burton Street, Steele, Missouri." Except for being captioned "Count II" instead of "Count I," Count II was identical to Count I. Defendant does not challenge the sufficiency of the evidence to support the conviction on Count I. He requests reversal of his conviction on Count II.

The state's evidence showed that on October 23, 1992, Brian Rogers and his wife and their two-year-old son lived in a house at 201 Burton Street, Steele, Missouri, in Pemiscot County. Rogers went to bed at 10:30 p.m. He was awakened by the noise of glass breaking. Upon investigation, he found that his son's bedroom had been penetrated by shots from a shotgun. The outside of his house bore more than two shotgun blast patterns. Patrolman Jim Morton, of the Steele Police Department, found three spent shotgun shells on a railroad track about 50 yards from the Rogers house.

Prior to the shooting, Steve Brown, Tim Collins, and Jeff Cunningham were near the Rogers house drinking beer. Defendant arrived carrying a 12-gauge pump shotgun. Defendant told the trio he was going to "shoot up this house." The trio decided to leave. Brown saw defendant point the shotgun at the Rogers house and heard "anywhere from three to six shots." Brown said, "When I heard the shots go off, they were real quick, one right after the other." Cunningham testified that he saw defendant with the shotgun and heard four shots fired. Then defendant "came running past me on the tracks."

Instruction 8, the verdict-director on Count I, read, in pertinent part:

"Instruction No. 8

"As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

That on October 23, 1992, in the City of Steele, County of Pemiscot, State of Missouri, the defendant knowingly shot a firearm into a dwelling house,

then you will find the defendant guilty under Count I of unlawful use of a weapon."

Instruction 9, the verdict-director on Count II, was identical to Instruction 8 except that it used "Count II" in the two places where Instruction 8 used "Count I."

The court also gave Instruction 12, which read:

"Instruction No. 12

"The defendant is charged with a separate offense in each of the two counts submitted to you. Each count must be considered separately.

"You should return a verdict for each count and you can return only one verdict for each count." ²

The jury returned a verdict of guilty on Count I and a separate verdict of guilty on Count II.

The mere fact that Count I and Count II were identical does not invalidate either count, State v. Martin, 852 S.W.2d 844, 856 (Mo.App.1992), or render either count insufficient, State v. Riggs, 770 S.W.2d 361, 362 (Mo.App.1989).

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Fifth Amendment is made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).

The Missouri Constitution provides that no person shall "be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury...." Mo. Const. art. I, § 19. Since defendant was never acquitted by a jury, the Double Jeopardy Clause of the Missouri Constitution does not apply to his case. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992); State v. Shive, 624 S.W.2d 136, 138, n. 3 (Mo.App.1981). As pointed out in State v. Richardson, 460 S.W.2d 537, 538 (Mo. banc 1970), however, Missouri enforces the common law rule that no person shall, for the same offense, be twice put in jeopardy. Our supreme court there said, "We find no readily discernible difference between the Fifth Amendment guarantee against double jeopardy and the common law guarantee as applied in this state." Defendant's protection from double jeopardy under Missouri law is coextensive with that afforded by the Fifth Amendment.

Referring to the Double Jeopardy Clause of the Fifth Amendment, the court, in State v. Nichols, 865 S.W.2d 435 (Mo.App.1993), said, at 437[1,2]:

"This constitutional guarantee includes protection against multiple punishments for the same offense. State ex rel. Westfall v. Campbell, 637 S.W.2d 94, 96 (Mo.App.1982). This protection forbids the state from splitting a single crime into separate parts and then prosecuting the offense in piecemeal. Id. at 97.

"The double jeopardy prohibition upon multiple punishments for the same offense is limited to preventing the sentencing court from inflicting greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In determining the legislative intent, we must examine the definition of the offense and its allowable unit of prosecution."

"In the abstract, it is correct that neither multiple convictions nor multiple punishments may be obtained for one crime. Missouri, however, follows the separate or several offense rule rather than the same transaction rule. [M]ultiple convictions are permissible if the defendant has in law and in fact committed separate crimes." State v. Foster, 838 S.W.2d 60, 66[13,14] (Mo.App.1992) (citations omitted).

The basic inquiry is whether the legislature, in enacting § 571.030.1(3), intended to allow, as a unit of prosecution, the discharging or shooting of one shot from a firearm into a dwelling house. For the reasons which follow, this court holds that such was the legislative intent and that defendant's point has no merit.

Defendant's able counsel, who preserved his point at every stage of the trial court proceedings, argues:

"Nothing in [§ 571.030.1(3) ] gives clear guidance to courts as to the 'allowable unit of prosecution.' Certainly, had the legislature intended to do so, it could easily have written the statute to read that a person commits said offense each time he knowingly discharges a firearm into a dwelling house. However, the statute does not say that.... He should not be twice prosecuted for an offense which was clearly a continuous course of conduct.... Apparently, the trial court placed much reliance on the fact that the offenses were 'separated' because defendant had to pump the shotgun twice and pull the trigger twice. One problem with that analysis is that it does not distinguish defendant's conduct from the conduct at issue in [State v. Good, 851 S.W.2d 1 (Mo.App.1992) ]. If a defendant who resisted two separate officers in two separate ways was engaged in a continuous course of conduct, then surely defendant was as well. Moreover, if one accepts the trial court's analysis, a person who used an automatic weapon to fire a continuous stream of bullets into a house could be charged only once, whereas a person who used a semiautomatic pistol to fire two bullets into a house could be charged twice because he'd had to cock the gun again after the first shot. That cannot be what the legislature intended."

The excellent brief of the state counters with this argument:

"[D]efendant committed two counts of unlawful use of a weapon by two separate acts. The weapon defendant used to commit the offenses was a 12-gauge 'pump' shotgun. Two shotgun blasts were found in different locations on the outside of Rogers' home, through the window and side of the house. Defendant committed two separate and distinct offenses given that it took the acts of 'pumping another shell into the chamber' and then pointing and firing the shotgun a second time into Rogers' house.... [Defendant's] convictions for two counts of unlawful use of a weapon were based on two separate acts, rather than the 'same conduct' of defendant. Each act of firing the shotgun into Rogers' dwelling constitutes a distinct and separate offense.... When a person discharges a weapon, there is a thought process involved. Defendant did not use an automatic weapon, where he pulled the trigger once--a single act--producing more than one shot. Rather, defendant had to repeat a sequence of acts for a second time. After defendant fired the shotgun into Rogers' home once, he put another shell into the chamber, aimed and pointed the shotgun at a different location of Rogers' house, and pulled the trigger a second time. Defendant committed two acts, which were separate incidents that occurred at different times. Furthermore, defendant had to form the intent, a conscious thought...