State v. Neal, WD35644
| Decision Date | 29 January 1985 |
| Docket Number | No. WD35644,WD35644 |
| Citation | 685 S.W.2d 271 |
| Parties | STATE of Missouri, Respondent, v. Lyle NEAL, Appellant. |
| Court | Missouri Court of Appeals |
J. Armin Rust, Public Defender, Lexington, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before KENNEDY, SHANGLER and DIXON, JJ.
Neal was convicted of conspiracy to commit arson in the second degree, Section 564.016 RSMo 1978, and unlawful possession of an explosive weapon, Section 571.020 RSMo Supp.1984, and was sentenced to two and three years respectively, to run concurrently. He asserts that he was subjected to double jeopardy, that the judge erred in entering the jury room and responding to questions during deliberations, that there was insufficient evidence, and that there was instructional error. Affirmed.
Rena Storm telephoned Al Crowell, the Waverly, Missouri, Chief of Police at approximately 4:00 to 4:30 a.m. on May 19, 1983, and stated she had been awakened by voices of two men fighting or arguing in the alley between her apartment building and a hardware store. She told Crowell she had heard one man say, "[t]he next time you get me up in the middle of the night to do something stupid...." Crowell drove to the area, parked his car, and walked into the alley. There he saw two men, one of whom he recognized as Dennis Madison, Neal's cousin, whom he had seen earlier in the evening in Neal's company. Crowell heard Madison say, "We'll throw the son-of-a-bitches into the hole right there." He then heard the other man respond, Exercising caution, Crowell left the area, picked up his deputy for a back-up and then returned to the alley. There they found the two men gone, but found three beer bottles filled with gasoline and stuffed with rags, which Crowell left in Ms. Storm's care. Twelve to fifteen minutes later, and three to four blocks away, Crowell and the deputy found Madison and Neal together. When the officers approached, the men ran in different directions. Neal, wearing gloves that reeked of gasoline, was apprehended immediately. Madison escaped but turned himself in the next day. Neal was jury tried and sentenced to two and three years, which the judge set to run concurrently, for conspiracy to commit arson and possession of an explosive weapon. During their deliberations, the jury asked the judge to enter the jury room to answer some questions. Accompanied by the court reporter, who recorded the entire colloquy, the judge did so.
In his first point, Neal contends that under the Blockburger test [Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ], he was subjected to double jeopardy because the knowing possession of an explosive weapon was one of the overt acts of the conspiracy count and was also separately charged, and because the same evidence was adduced at trial on both counts. Neal failed to raise this constitutional issue at the earliest moment possible, when the case was submitted to the jury, and thus failed to preserve the issue. State v. Thompson, 627 S.W.2d 298, 303 (Mo. banc 1982); State v. Byrne, 503 S.W.2d 693, 695-96 (Mo. banc 1973). Despite the lack of preservation, the point will be reviewed ex gratia.
In Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, the Supreme Court stated that "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." If so, the defendant is not subjected to double jeopardy by a charge and conviction of both offenses. The elements of the two offenses at issue here are entirely dissimilar and thus, Neal was not subjected to double jeopardy. A conspiracy to commit arson in the second degree requires (1) the purpose or intent to damage a building or inhabitable structure by starting a fire or causing an explosion; (2) an agreement with one or more people to do the act that is the offense; and (3) pursuant to the agreement, the commission of the overt act, by at least one of the people. Sections 564.016 and 569.050.1 RSMo 1978. Possession of an explosive weapon requires the (1) knowing (2) possession of (3) an explosive weapon. Section 571.020.1(1) RSMo Supp.1984. One could thus conspire to commit second degree arson and do an overt act in furtherance of the conspiracy without even possessing an explosive weapon. In fact, "the overt act required for a conspiracy conviction need not even be a substantial step in the commission of the target offense." State v. Cornman, No. 12,845, slip op. at 18 (Mo.App.S.D. Aug. 30, 1984). In rejecting the same argument in an analogous situation, after noting the dissimilarity in elements of the two offenses in question, the Southern District recently stated, Cornman, slip op supra, at 19. Because the two offenses do not share common elements, Neal's convictions of both offenses did not place him twice in jeopardy for the same offense.
Neal also asserts the court erred in entering the jury room during deliberations and responding to the jurors' questions. The judge was accompanied by the court reporter who transcribed the following colloquy:
(The jury resumed their deliberations, and at 6:08 p.m. the jury returned into open court with their verdict.)
Neal asserts this communication by the court to the jury is error within the ruling of State v. Cooper, 648 S.W.2d 137 (Mo.App.1983). Cooper has no bearing on the issues presented in the instant case, for in Cooper there was both a separation of the jury and a communication between one juror and the trial judge.
The issue here is whether the judge's responses to the jury's questions were appropriate. The manner in which the responses were...
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