State v. Wilkerson

Decision Date11 May 1981
Docket NumberNo. 62497,62497
Citation616 S.W.2d 829
PartiesSTATE of Missouri, Respondent, v. Earl WILKERSON, Defendant-Appellant.
CourtMissouri Supreme Court

Cornelius T. Lane, Sp. Asst. Public Defender, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Nancy Kelley Baker, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Pursuant to Rule 83.02, the Eastern District of the Court of Appeals, upon application of the State, ordered this cause transferred to this Court after filing an opinion reversing appellant's second degree murder conviction and affirming his robbery and kidnapping convictions. Although we dispose of this case as if it were the original appeal, Mo.Const. Art. V, § 10, portions of the Court of Appeals opinion are incorporated, without quotation marks, in this opinion.

By the Eastern District's order transferring the case to this Court, we are squarely confronted with an issue which has caused considerable consternation in the Bench and Bar of this State: Does that part of the opinion in State v. Handley, 585 S.W.2d 458 (Mo. banc 1979), which would hold that second degree murder is no longer a lesser offense of first degree murder, have any continuing vitality? See State v. Bradshaw, 593 S.W.2d 562, 565 (Mo.App.1979); State v. Martin, 602 S.W.2d 772 (Mo.App.1980); State v. McCall, 602 S.W.2d 702 (Mo.App.1980). For the reasons set forth herein, we hold that it does not. We first set out the relevant facts leading to this appeal.

Vernice Weary and her sons Larry, age 15, and Michael, age 17, lived on the first floor of a flat at 4538 Red Bud in the City of St. Louis. In the early morning hours of July 30, 1977, all three were in the house; Larry and Michael were asleep in the same bedroom. Larry was awakened by the sound of gunshots coming from the direction of his mother's bedroom. Shortly after the shots were fired, the light was turned on in the boys' room and appellant and Horice O'Toole entered. Each had a pistol in his hand. Appellant was known by the boys because he had dated their mother and visited in the home. They had broken up about three months before this occurrence. Appellant ordered Larry to "get up." O'Toole grabbed Michael, put a gun to his head and ordered him to lie on the floor. Appellant left the room and returned with Vernice's purse. He handed the purse to O'Toole who gave it to Michael with an order to look for the car keys and the money. Michael turned over $30.00 that he found in the purse. The car keys were not in the purse. When asked where the keys were, Michael told them they would be in his mother's room or "in the door." Appellant left and returned with the car keys. The boys got dressed and Michael was then told to unlock the door to a third bedroom where a stereo component was kept. After opening the door, they started to disconnect the component as instructed when a noise from upstairs was heard. Appellant told the boys to forget the stereo saying "(i)t won't look right bringing it out this time of the morning."

Appellant and O'Toole took Michael and Larry with them when they left in Vernice's automobile with appellant driving. After appellant stopped for gasoline, they drove to Fourth and Bond Streets in East St. Louis, Illinois. When they stopped, O'Toole asked appellant, "Do you want to do one of these with me?" The men got the two boys out of the car. Appellant ordered Michael to climb into a boxcar that was standing on railroad tracks nearby. Appellant climbed into the boxcar behind Michael, aimed the gun at him and fired. Hit in the left shoulder, Michael spun around and fell to the floor. Appellant fired two more shots that missed Michael.

O'Toole took Larry to the far side of the railroad cars and ordered him to run up the hill. When Larry neared the top, O'Toole ordered him to lie down. He then shot him in the leg and then left with appellant.

The boys managed to get to their grandfather's house in the immediate neighborhood. They told their grandfather what had happened and called Vernice's employer. They were then taken to the hospital. The body of Vernice was found in her bedroom. The bullets found in her body had the same markings as those found in the boxcar where appellant shot Michael Weary.

On August 23, 1977, appellant was charged by an indictment with one count of capital murder in violation of §§ 559.005 and 559.009(1), RSMo Supp. 1975, two counts of kidnapping in violation of § 559.240, and one count of first degree robbery in violation of §§ 560.120 and 560.135. (This indictment, of course, preceded the effective date of amended Rule 24.04 (now Rule 23.05), which permits only related capital murder offenses to be charged in the same indictment or information with other capital murder offenses. That rule became effective January 1, 1979.)

For the apparent reason that on August 23, 1977, the date the indictment was filed, §§ 559.005 and 559.009 had been repealed and replaced by §§ 565.001 and 565.008, a substitute information in lieu of the indictment was filed on April 6, 1978, charging appellant with violation of §§ 565.001, 565.008, and the same counts of kidnapping and first degree robbery charged in the indictment.

On May 2, 1978, an amended information was filed substituting a charge of first degree murder, §§ 565.003 and 565.008, RSMo Supp. 1977, for the capital murder charge.

A jury convicted appellant of second degree murder, first degree robbery, and two counts of kidnapping. The jury was unable to agree upon punishment, and the court assessed punishment at 75 years imprisonment on the conviction of second degree murder, 10 years on each of the kidnappings, and 15 years on the robbery; the kidnapping and robbery sentences are to run concurrently with each other and consecutive to the sentence for second degree murder. Appellant appealed the judgment entered upon the jury verdict to the Court of Appeals, Eastern District.

Before addressing the points raised by appellant, the Eastern District, sua sponte, considered the effect of State v. Handley, supra, and said:

"The plurality opinion of Seiler, J. in Handley states at page 462.

' "common form" second degree murder (§ 559.020) is not a lesser included offense of "first degree felony-murder" under § 559.007 because the latter does not include the elements of willfulness, premeditation, or malice aforethought, each of which are necessary for "common form" second degree murder.'

"Although this portion of the opinion had no concurrence and thus was not decided with authority the Supreme Court denied transfer of State v. Bradshaw, 593 S.W.2d 562 (Mo.App.1979) which adopted the rationale of the Handley plurality as quoted above. We thus feel constrained to hold that the trial court was without jurisdiction to instruct on common form second degree murder because that crime was not charged in the amended information. The conviction on that issue cannot stand. State v. Bradshaw, supra."

The Eastern District then went on to hold that appellant could be retried for second degree murder and affirmed his robbery and kidnapping convictions. As stated earlier, the Eastern District granted the State's application for transfer of the case to this Court.

The plurality opinion in Handley stated that the "protection of (Article I, § 17 of the Missouri Constitution) renders any conviction for a crime not charged or necessarily included in the underlying indictment or information a nullity." (Emphasis added). The flaw in the opinion is that it gave recognition to the provisions of § 556.230, RSMo 1969 (applicable in Handley and in this case) but ignored the provisions of § 556.220, RSMo 1969 (also applicable in Handley and in this case).

Section 556.230, supra, reads as follows: "Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment or information, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him." (Emphasis added).

Section 556.220, supra, reads as follows: "Upon indictment for any offense consisting of different degrees, as prescribed by this law, the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense, or any degree thereof; and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide." (Emphasis added).

The jury in this case found appellant guilty of second degree murder under a charge of first degree murder. In our view, the jury thereby found appellant guilty of a degree of murder "inferior to that charged in the indictment * * *." See §§ 565.003 and 565.004.

That the legislature has recognized and continues to recognize a difference between an offense being a lesser offense of the offense charged because it is specifically denominated as such and an offense being a lesser offense because it is necessarily included in the offense charged is clear from § 556.046, the language of §§ 556.220 and 556.230, supra, and the statutory history behind the latter sections. The initial predecessor of § 556.220 was R.S. 1835, p. 214, § 14, which provided:

" § 14. Upon an indictment for an offence, consisting of different degrees, as prescribed by this act, the jury may find the accused not guilty of the offence charged in the indictment, and may find him guilty of any degree of such offence, inferior to that charged in the indictment, or of an attempt to commit such offence."

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