State v. White, 62324

Decision Date13 October 1981
Docket NumberNo. 62324,62324
Citation622 S.W.2d 939
PartiesSTATE of Missouri, Respondent, v. Michael A. WHITE, Appellant.
CourtMissouri Supreme Court

Leslie Edwards, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Michael A. White was convicted by a jury of capital murder, § 565.001, RSMo 1978; his punishment was fixed at imprisonment for life without eligibility for parole or probation for fifty years, § 565.008, RSMo 1978. Judgment was rendered accordingly. He charges error to the aider liability instructions; the refusal to grant his motion to suppress an incriminating statement; and the application of the statute on peremptory juror challenges. Affirmed.

I.

The evidence supports defendant's conviction for the murder of Susie Hawkins. It established that on February 5, 1979, between 8:30 and 9:00 p. m., Hardy Bivens arrived at Michael White's house. As previously arranged, Bivens was to give White a ride to the home of his brother, Charles White. Before leaving Michael's home, Bivens telephoned Janice Thompson. Bivens and Ms. Thompson had had a disagreement the previous day during which he threatened her. During the telephone conversation Ms. Thompson told Bivens that she was going to the supermarket, and would call Bivens when she returned home. Shortly after this conversation, Ms. Thompson and her step-sister Susie Hawkins, both fifteen-year-old girls, walked to the store. At approximately the same time Bivens and defendant also departed supposedly for the home of defendant's brother. Instead, Bivens drove directly to the store where Ms. Thompson said she was going. Sometime prior to arriving at the store defendant placed a loaded pistol on the front seat of the car between himself and Bivens; he carried extra bullets in his pocket. Bivens met the girls in the store and offered them a ride home; they accepted.

As Bivens drove from the store, he began to question Ms. Thompson regarding their argument of the previous day. An argument ensued between Bivens and Ms. Thompson. A short time later Bivens stopped the car; defendant and Bivens got out, spoke briefly, then re-entered, with defendant driving. The argument continued until Bivens picked up the gun and shot both girls, wounding Ms. Hawkins in the mouth and Ms. Thompson in the jaw. Following Bivens instructions, defendant drove to 23rd and Cass in the City of St. Louis, where an apartment building stood vacant.

Upon arriving, Bivens got out and ordered the girls out of the car. Bivens instructed defendant to drive around the block. While defendant was circling the block, Bivens forced the girls into the building, then ordered them to sit on the floor. The girls pleaded with Bivens, promising to remain silent about the incident. Bivens denied their pleas, but fired no shots until he heard the defendant sound the horn after completing his trip around the block. After emptying his gun, Bivens ran back to the car where he demanded and received more bullets from defendant. Bivens ran back to the building as defendant drove around the block again. When Bivens entered the building he found only Ms. Hawkins; Ms. Thompson had fled. As she escaped, she heard more shots coming from the building. Bivens returned to the car and told defendant that Ms. Thompson had fled. Defendant disposed of Ms. Hawkins groceries, and he and Bivens returned to look for Ms. Thompson. While searching, defendant saw Ms. Hawkins on the floor coughing. Upon hearing a siren, Bivens and defendant fled together. Ms. Hawkins died as a result of her wounds. Both defendant and Bivens were arrested late the same evening.

II.

The jury was instructed on all degrees of homicide as required by MAI-CR2d 15.00 series. The capital murder issue was submitted to the jury by two general instructions on criminal responsibility, a verdict directing instruction and a converse instruction. Instruction No. 5 was in form MAI-CR2d 2.10 1 (derived from § 562.036, RSMo 1978):

1. A person is guilty of an offense if it was committed by conduct for which he is criminally responsible, whether that conduct was his own or that of another person or both his own conduct and that of another.

2. A person is criminally responsible for the conduct of another in committing a particular offense when, either before or during the commission of an offense, with the purpose of promoting the commission of that offense he aids or agrees to aid or attempts to aid such other person in committing that offense.

3. The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

Instruction No. 6 was in form MAI-CR2d 2.14 (derived from § 565.051, RSMo 1978):

In this case you will be instructed that you may find the defendant either not guilty of any offense or guilty of either capital murder or second degree murder or manslaughter. In that connection you are instructed that when two persons are criminally responsible for an offense which is divided into greater and lesser offenses, each such person is guilty of that offense, greater or lesser, which is compatible with that state of mind with which he acted in committing the offense and compatible with his own accountability for any aggravating or mitigating fact or circumstance.

Instruction No. 7 was in form MAI-CR2d 2.12 (derived from § 562.041, RSMo 1978) combined with MAI-CR2d 15.02:

If you find and believe from the evidence beyond a reasonable doubt.

First, that on the 5th day of February, 1979, Hardy Bivens with the aid or attempted aid of the defendant committed the crime of capital murder of Susie Hawkins, in that Hardy Bivens, with the aid or attempted aid of the defendant caused the death of Susie Hawkins by shooting her, and in that Hardy Bivens, with the aid or attempted aid of the defendant knew he was practically certain to cause the death of Susie Hawkins, and in that Hardy Bivens with the aid or attempted aid of the defendant considered taking the life of Susie Hawkins and reflected upon this matter coolly and fully before doing so, and

Second, that the defendant either before or during the commission of the offense of capital murder with the purpose of promoting its commission aided Hardy Bivens in committing that offense,

then you will find the defendant guilty of capital murder.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing propositions, you must find the defendant not guilty of that offense.

Instruction No. 8 was in form MAI-CR2d 3.02:

If you do not find and believe from the evidence beyond a reasonable doubt that Hardy Bivens with the aid or attempted aid of the defendant did consider taking the life of Susie Hawkins and did reflect upon this matter coolly and fully before doing so, you must find the defendant not guilty of capital murder.

Instruction B, refused by the court, was offered by defendant for use in place of or in addition to instruction No. 8:

If you do not find and believe from the evidence beyond a reasonable doubt that the Defendant did consider taking the life of Susie Hawkins and did reflect upon this matter coolly and fully before doing so, you must find the Defendant not guilty of Capital Murder.

A.

Appellant contends Instruction No. 7 was improperly constructed. He argues first that the "practically certain" clause in No. 7 was erroneously included because it applies only to cases where the defendant is charged with an offense committed by another person but other than the original offense contemplated by the defendant. (Ex. felony murder) MAI-CR2d 2.12, Note on Use 6.

This argument overlooks the inclusion of this clause in MAI-CR2d 15.02 on capital murder which in the present case was combined with MAI-CR2d 2.12. This clause was properly included in Instruction No. 7 because it is a component of the capital murder instruction.

B.

A second argument of improper construction concerns the use of "will" instead of "may" in the last line of the first paragraph. Note on Use 3 of MAI-CR2d 2.12 provides, "The word 'may' must be used ... in any case where Section 562.051 is applicable." This Note on Use refers to MAI-CR2d 2.14 Note on Use 3 which indicates that MAI-CR2d 2.14 and by reference thereto the word "may" in MAI-CR2d 2.12 must be used "when two or more persons are criminally responsible for an offense divided into degrees," citing § 562.051, RSMo 1978.

Prejudicial effect of giving or failure to give an instruction in violation of MAI-CR2d and the applicable Notes on Use is for judicial determination. Rule 28.02(e); State v. Williams, 611 S.W.2d 26, 29 (Mo. banc 1981); State v. Heitman, 589 S.W.2d 249, 255 (Mo. banc 1979); State v. Graves, 588 S.W.2d 495, 497 (Mo. banc 1979). Such errors are presumptively prejudicial unless the contrary is clearly demonstrated. State v. Williams, supra; State v. Graves, supra; State v. Clifton, 549 S.W.2d 891, 893 (Mo.App. 1977). This Court must review all submitted instructions together to determine if the use of "will" in Instruction No. 7, resulted in prejudicial error. State v. Harris, 602 S.W.2d 840, 847 (Mo.App. 1980); State v. Vainikos, 366 S.W.2d 423, 425 (Mo. banc 1963).

The use of "may" "when two or more persons are criminally responsible for an offense divided into degrees", (§ 562.051, RSMo 1978) serves to inform the jury that they are not required to find each defendant guilty in the same degree. Therefore, if the jury understood it could consider defendant's liability as to each degree, then the use of "will" instead of "may" has no prejudicial effect. In this case, the jury was instructed on all applicable degrees of homicide and it did consider each degree of homicide. I...

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