State v. Washington, s. 65033
| Decision Date | 23 May 1995 |
| Docket Number | Nos. 65033,66201,s. 65033 |
| Citation | 901 S.W.2d 276 |
| Parties | STATE of Missouri, Respondent, v. Jason WASHINGTON, Appellant. Jason WASHINGTON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Beal, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted of two counts of first degree robbery and one count of felonious restraint. He was sentenced by the court as a prior offender to two consecutive life sentences for the robberies and a concurrent seven year term for the felonious restraint. He appeals. He also appeals from the denial of his Rule 29.15 motion without an evidentiary hearing. We affirm in part and reverse and remand in part.
At approximately 12:45 a.m. on May 30, 1992, George Brown was at an Amoco station on the corner of Union and Dr. Martin Luther King Drive in St. Louis. He was approached from an alley by a man holding a small dark-colored automatic pistol who demanded his money. The gunman went through George Brown's pockets and took his wallet and then ran back to the alley. Two other men stood nearby in the alley and during the time of the robbery they ducked in and out from behind a dumpster in the alley looking back and forth from the victim to the street. The gunman and the other two men ran back through the alley away from the crime scene. George Brown subsequently identified Joseph Washington, defendant's brother, as the gunman, and defendant, Jason Washington, as one of the men in the alley.
On the following night at approximately the same time, Darryl Brown (unrelated to George Brown) came to the same Amoco station. He parked his blue Cadillac near the alley. As he exited his car he was surrounded by three men who came from the alley. One man put a small black automatic pistol to Brown's chest and another man put a knife to his midsection. The men went through his pockets and then ordered him into his car, and the man with the gun told Brown to "take us to the money." When advised that he did not have any money the gunman told Brown they were going to kill him. Brown drove to an alley where he was required to turn and stop the car. Out of the car Brown was searched again and made to take off his shoes. One robber pulled his pants and underwear down to search him. He was allowed to pull up his pants and told to run. He ran back to the Amoco station and flagged a police officer. The entire episode took about 15 minutes.
The officer and Brown returned to the alley and located the automobile. The left rear tire was off the vehicle and the right rear tire was loose, the speakers were gone and some cassette tapes and tools were missing. Brown testified the robbers took two diamond rings, a watch, a gold chain, and $18 from him. He subsequently identified Joseph Washington as the gunman and Jason Washington as the man holding the knife.
A few days later Toron Nichols was in custody on another charge and gave the police a statement that he was present at both robberies. He stated he served as a lookout and implicated Joseph and Jason Washington as participants. Nichols agreed to testify against the Washingtons and the State in return agreed to drop one first degree robbery count and a felonious restraint count and to reduce the other first degree robbery count to second degree. At trial Nichols testified concerning the May 31 robbery but denied being present at the robbery the day before.
Joseph and Jason were tried together. Jason attempted to have the George Brown robbery severed from the Darryl Brown robbery but that motion was denied. Both defendants were convicted of all three charges. Jason filed a Rule 29.15 motion which was denied without evidentiary hearing. On appeal Jason raises seven points.
Counts I and III involved the robbery and felonious restraint of Darryl Brown. Count II involved the robbery of George Brown. As to each defendant the court gave three instructions based upon MAI-CR3d 323.02, 319.26 and 304.04. As to Joseph each instruction contained the following language originating from 304.04:
... if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of that [robbery or felonious restraint] the defendant Joseph Washington aided or encouraged or acted together with or aided Jason Washington in committing that offense, then you will find the defendant Joseph Washington guilty under Count [ ] of [charged 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 Joseph Washington not guilty of that offense. (Emphasis supplied.)
Defendant contends that the language quoted above requires the jury to find Jason guilty in order to find Joseph guilty. The instruction so states. Comment 4 to 304.04 advises that 304.04 should be used when the evidence shows that defendant acted with or aided another person in the commission of an offense but does not have to be used where the evidence shows that the defendant, by his own conduct, committed all of the elements of the offense and there is evidence that another person was involved. In that situation 304.04 does not have to be given but may be if the prosecution chooses to submit it. Comment 5(d). Here the evidence established that Joseph Washington, by his own conduct, committed all of the elements of all three offenses, so it was not necessary that the instruction be given as to him.
Where, as here, the defendants are tried jointly, Instruction 304.04 poses a substantial danger of prejudice if one of the defendants has committed all of the elements of the charged crime and the other defendant has not and is being prosecuted solely as an accessory. We confronted the same issue in State v. Tate, 658 S.W.2d 940 (Mo.App.1983). There a woman was raped in a car in which Tate was present. Tate and Ford were tried jointly and an almost identical verdict director to that now before us was given as to Ford. Only Ford had committed an essential element of the rape charged against him. Tate was at most an accessory. The court found, and the parties agreed, that the effect of the verdict-director was to force the jury to convict both defendants or neither.
As to the George Brown robbery the identical situation exists here. The evidence established that Joseph Washington committed every element of the charged crime. Jason Washington did not commit any essential element of the charged crime. His guilt of the charged crime was premised upon his status as an accessory. It is possible that the jury confronted with the instruction requiring a finding that Joseph acted with Jason to support a finding of guilt by Joseph could have made the finding of Jason's guilt on Count II in order to be able to find Joseph guilty. Where the defendants are tried separately the problems arising from the use of 304.04 found in this case are not present. Nor do they arise where, as in Counts I and III, the evidence establishes that both co-defendants committed every element of the offense or each committed an essential element.
The state argues that there can be no error here because the trial court followed the MAI-CR. There is a conflict as to whether error can be predicated upon an approved instruction. The Supreme Court has held that an instruction in the format of MAI-CR will not be deemed erroneous. State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982) [8, 9]. However, in State v. Moss, 789 S.W.2d 512 (Mo.App.1990) the Southern District held that the giving...
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