State v. Nolan
| Decision Date | 22 March 1994 |
| Docket Number | No. 75972,75972 |
| Citation | 872 S.W.2d 99 |
| Parties | STATE of Missouri, Respondent, v. Ervin Dee NOLAN, Jr., Appellant. Ervin NOLAN, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
William J. Swift, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Ervin Nolan was charged as a persistent offender with attempted burglary in the second degree, a class D felony. § 558.016.3, RSMo Supp.1992; §§ 564.011, 569.170, RSMo 1986. A jury convicted Nolan of the charge, and the trial court sentenced him to seven years in the department of corrections. Nolan appealed his conviction and the denial of post-conviction relief. The court of appeals reversed and remanded. The State sought and this Court ordered transfer pursuant to Rule 83.03. We affirm.
Nolan lived in an older house that had been converted into an apartment building. William McKernan and his adult son, Kenneth, lived in the adjoining apartment in the same building. Nolan had lived in the building for approximately one month, and the neighbors were not acquainted. Kenneth had never seen Nolan.
The two apartments shared a common wall. In this wall was a doorway, which had been covered with plywood. Above the door was a transom that was nailed shut.
On December 26, 1990, Nolan came to the door of the McKernans' apartment and asked to use their telephone. William handed the telephone to Nolan in the hallway. Kenneth could not see Nolan from where he was seated. William overheard Nolan asking for help starting his car and offered to help. The two went down to the parking lot.
When they got to the parking lot, the two discovered that neither had jumper cables. Nolan left to get cables. William waited three to five minutes and then left to go to the hospital where his daughter was having surgery.
Five or ten minutes after William left, Kenneth was watching television and heard someone insert a key in the lock of the door to the McKernans' apartment. Kenneth looked under the door and saw a pair of shoes. He saw the shoes go into Nolan's apartment, return to the hallway, and go back into Nolan's apartment.
Kenneth then heard someone pushing against the plywood at the old doorway between the apartments. He then heard a scraping followed by a loud pop and cracking. Kenneth went to call the police. On the way to the phone, Kenneth saw Nolan with one hand holding the transom open, with his other hand on the sill, and with his head sticking through into the McKernans' apartment.
Kenneth asked Nolan what was going on, and Nolan replied that he was trying to get the transom shut. Kenneth accused Nolan of trying to break in and closed the transom. When the police arrived, Nolan gave varying explanations revolving around hanging a tapestry for why he was at the transom. The officers found pry marks on the transom and arrested Nolan.
The first issue before the Court is whether the trial court erred when the verdict director failed to specify in the definition of burglary the crime that it was Nolan's purpose to commit when he allegedly attempted burglary. The State submitted only on attempted burglary. MAI-CR 3d 304.06, the pattern for an attempt verdict director, and the pertinent Notes on Use read:
(If you do not find the defendant guilty (under Count __) of [name of offense ], you must consider whether he is guilty of an attempt to commit [name of offense ].)
then you will find the defendant guilty (under Count __) of an attempt to commit [name of offense ].
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
(A person commits the crime of [name of crime ] when he [Insert definition of crime including all elements thereof.] )
As used in this instruction, the term "substantial step" means conduct which is strongly corroborative of the firmness of the defendant's purpose to complete the commission of the offense of [name of offense ]. (It is no defense that it was factually or legally impossible to commit [name of offense ] if such offense could have been committed had the circumstances been as the defendant believed them to be.)
If you do find the defendant guilty (under Count __) of (an attempt to commit) (attempted) [name of offense ], you will assess and declare one of the following punishments: [Insert range of punishment as directed in MAI-CR 3d 304.02.]
* * * * * *
3. In general, an attempt crime may be submitted as an included offense of the completed crime. Section 556.046.1(3), RSMo 1986. If both the completed offense and the attempt crime are submitted, all essential elements of the crime which was the object of the attempt will have been set out in the instruction on the completed crime. In such case the object crime need not be defined in the optional paragraph provided in this instruction unless either party makes a written request in proper form. If such request is made, the optional paragraph must be submitted.
4. If the attempt crime is submitted but the object crime is not submitted, the optional paragraph defining the object crime must be given, whether the definition is requested or not. If the object crime is defined in the optional paragraph, words and phrases used in the verdict directing pattern for the defined crime may also be included. Mandatory definitions that appear in the verdict directing form or in Notes on Use must be inserted in the definition in subsequent paragraphs. Optional definitions may be included upon written request in proper form by the state or by the defendant or on the Court's own motion.
MAI-CR 3d 304.06 (emphasis added).
The optional paragraph of MAI-CR 3d 304.06 that Notes on Use 3 and 4 refer to is the paragraph above that is enclosed in parentheses and reads as follows:
(A person commits the crime of [name of crime ] when he [Insert definition of crime including all elements thereof.] )
The "object crime" referred to in Note on Use 3 is the crime that it is alleged was attempted; in this case, burglary in the second degree.
Neither MAI-CR 3d 304.06 nor its Notes on Use tell the drafter where to get the definition of the crime. However, Note on Use 2.D to MAI-CR 3d 333.00 DEFINITIONS does; it provides in part:
If a definition of a crime is required ... use the definition of that crime as it appears in MAI-CR 3d 333.00. If the crime is not defined in MAI-CR 3d 333.00, an appropriate definition of the crime shall be drafted and submitted to the court for approval. For guidance, an examination of the appropriate statute is suggested, as well as any applicable verdict directing instruction and its Notes on Use.
Id. MAI-CR 3d 333.00 contains a definition of burglary. It provides:
A person commits the crime of burglary when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing [Specify name of crime and, upon request, add the definition of the object crime to this definition.].
Id. Here, the "object crime" is the crime that was the alleged purpose of the burglary. For clarity, we will refer to this as the "intended crime." This is consistent with terminology used in MAI-CR 323.54, the second degree burglary verdict director, and the Notes on Use. See MAI-CR 323.54.
The drafter in this case relied on the appropriate statute, quoting it verbatim:
A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.
§ 569.170, RSMo 1986. If there was no definition of burglary in MAI-CR 3d 333.00, the drafter would be guided to the appropriate statute as well as the verdict director and its Notes on Use. MAI-CR 3d 333.00, Note on Use 2.D.
The verdict director given in this case did not use the definition of burglary as it appears in MAI-CR 3d 333.00. The definition in the verdict director seriously departed from the definition in MAI-CR 3d 333.00 by not specifying the intended crime of the burglary. The verdict director given is set out below with the troublesome paragraph in bold.
If you find and believe from the evidence beyond a reasonable doubt:
then you will find the defendant guilty of an attempt to commit burglary in the second degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in...
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