State v. Zweifel, 39555

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSMITH; SATZ, J., and ALDEN A. STOCKARD
Citation615 S.W.2d 470
PartiesSTATE of Missouri, Plaintiff, v. Merle Edward ZWEIFEL, Defendant.
Docket NumberNo. 39555,39555
Decision Date24 February 1981

Page 470

615 S.W.2d 470
STATE of Missouri, Plaintiff,
Merle Edward ZWEIFEL, Defendant.
No. 39555.
Missouri Court of Appeals, Eastern District, Division Four.
Feb. 24, 1981.
Motion for Rehearing and/or Transfer to Supreme Court Denied
April 24, 1981.

Page 472

Zenge & Smith, Canton, Charles A. Powell, Macon, for defendant.

John D. Ashcroft, Atty. Gen., Lyman Smith, Robert Presson, Asst. Attys. Gen., Jefferson City, William O. Green, Pros. Atty., Scotland County, Memphis, for plaintiff.

SMITH, Presiding Judge.

This case reaches the writer on reassignment. The case involves application of the doctrines established in Hemphill v. State, 566 S.W.2d 200 (Mo. banc 1978) upon a claim of ineffective assistance of counsel on appeal. In that case the Supreme Court held that a claim of ineffective assistance of counsel on appeal was not cognizable on a motion under Rule 27.26 in the trial court.

"Relief from defects in proceedings before the appellate courts are beyond the scope of the remedy and such relief should be sought only in the appellate court of rendition and there by motion to recall the mandate, vacate the sentence of affirmance and redocket the cause for rehearing." Hemphill v. State, supra. (15, 16).

See also State v. Schaffer, 383 S.W.2d 698 (Mo.1964) (6-9); Gerberding v. State, 433 S.W.2d 820 (Mo.1968) (3, 4); Wilwording v. State, 438 S.W.2d 447 (Mo.1969) concurring opinion of Finch, J. (10). The premise upon which Hemphill and its predecessors is based is the constitutional right of a convicted defendant to counsel upon appeal and the corollary proposition that he is entitled to effective assistance of counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Hemphill v. State, supra.

Defendant was convicted of manslaughter and sentenced to five years imprisonment. We affirmed that conviction. See State v. Zweifel, 570 S.W.2d 792 (Mo.App.1978). Thereafter defendant filed a "motion to recall mandate, vacate judgment, and redocket the cause for rehearing on appeal." This motion was served on the Attorney General, who filed suggestions in opposition to the motion. Following receipt of counter-suggestions this court sustained the motion and granted a rehearing. The matter was briefed by both parties and argued to the court. Although Hemphill, supra, has been with us for several years, we have no cases or rules which establish the procedures to be followed in handling that genre of cases. Although both the State and the defendant have submitted supplemental briefs to us on the potential problems in procedure we do not intend here to establish procedures for handling Hemphill cases. It is necessary, however, for us to state the procedures we are following in this case and the issues which we believe are before us. When the matter has been presented to us initially as this has been namely through a motion to recall with suggestions both in support and in opposition our initial determination is whether the motion sets forth sufficient specific factual allegations to believe that the extreme relief of recalling a mandate is warranted. That relief should only be granted if, on the allegations, there are strong grounds to believe that counsel has failed to assert on appeal a claim of error which would have required reversal had it been asserted, and which was so obvious from the record that a competent and effective lawyer would have recognized its importance and asserted it. 1 See Cole v. State, 573 S.W.2d 397 (Mo.App.1978). This standard will inevitably closely track the standard set forth in Rule 30.20, the plain error rule that the error is such as to effect substantial rights resulting in manifest injustice or a miscarriage of justice.

Normally, when a rehearing is granted:

Page 473

"(T)he appeal stands as if it had never been heard and the opinion filed becomes a nullity as if it has never been written." State v. Barnes, 517 S.W.2d 155 (Mo.App.1974) (19-2).

We do not believe, however, that such a situation in the peculiar nature of a Hemphill case requires us to reexamine the issues previously raised and ruled upon the original appeal. If it does we herewith adopt our opinion in State v. Zweifel, supra, on the issues therein discussed. Nor do we believe that granting a rehearing requires us to rule on issues which were not asserted on the original appeal and which do not meet the standard heretofore set forth as justifying the recall of our mandate. We will not, therefore, reach those points raised by defendant which deal with ineffectiveness of counsel during the trial or points charging errors which would not have compelled reversal under the plain error rule if they had been raised and determined to be error. We must determine the merits of the claims of error asserted which led to granting the rehearing and if meritorious, whether the failure to raise them constituted ineffective assistance of counsel. Our order granting defendant's motion to vacate did not constitute a resolution of those issues; it was merely a preliminary determination that the allegations were sufficient to raise the issues. Having thus framed the scope of our review on this appeal, we turn to the merits of defendant's claim.

The thrust of defendant's charge of ineffectiveness of counsel relates to the failure to assert on appeal the alleged error of the trial court in failing to instruct the jury on excusable and/or justifiable homicide. Neither of these points was preserved in the motion for new trial nor advanced on appeal. The facts of this case were set forth in State v. Zweifel, supra, and those need not be repeated here. As indicated in that opinion there was evidence to support a conclusion that the altercation or scuffle which resulted in the death of Mr. Erwin was either in the nature of mutual combat or was provoked by Erwin. There was also evidence to support a conclusion that defendant was the aggressor. We set out at length in the appendix hereto the testimony which supports a conclusion that Erwin was the provocateur or was at least a mutual combatant.

We deal first with excusable homicide. Section 559.050 RSMo 1969 (the statute applicable at the time of the victim's death) provides:

"Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases:

(1) In lawfully correcting a child, apprentice or servant or in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent; or

(2) In heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner."

The law in this state, so firmly established as to be conceded by the state, is that if there is any evidence to support excusable homicide the trial court must give an instruction on that special negative defense whether requested or not. See MAI CR and MAI-CR 2d 2.28 Notes on Use; State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973). By far the bulk of the cases on excusable homicide deal with accidents in the handling of deadly weapons which arise under the first numbered alternative in the statute. There, a requirement that the defendant invoking the accident defense must have been acting in a lawful manner is imposed. State v. Stubenrouch, 591 S.W.2d 42 (Mo.App.1979). The statute does not impose the lawful act standard on the second numbered alternative. Instead the second alternative recognizes the all-too-human proclivity to engage in physical combat upon provocation and makes a death resulting therefrom excusable so long as the combat is not conducted in an unduly dangerous way. The second alternative applies to the evidence adduced in this case on

Page 474

behalf of defendant. There was abundant evidence that defendant responded to provocation by Erwin (the sufficiency of that provocation would be a jury question) and that the defendant and deceased engaged in sudden combat arising from that provocation or instituted by the decedent. We cannot say that the evidence establishes as a matter of law that undue advantage was taken, that a dangerous weapon was used, or that defendant acted in a cruel and unusual manner. There was evidence to support excusable homicide and an instruction on that defense was required.

In State v. Randolph, supra, the Supreme Court held that the failure to give an excusable homicide instruction was "plain error" requiring reversal. See also State v. Haygood, 411 S.W.2d 230 (Mo.1967). In State v. Sanders, supra, the Supreme Court stated that the determination of whether "plain error" exists is to be made on a case by case basis and refused to invoke the doctrine. Our review convinces us that here the failure to so instruct was plain error requiring reversal. The jury was instructed upon murder second degree and manslaughter. The latter instruction premised a finding of guilt upon believing that defendant "caused the death of C. Carson Erwin by assaulting and striking him ...." Throughout the trial and on appeal, defendant's counsel based virtually his entire presentation upon the question of causation. The thrust of this defense was that an earlier myocardial infarction suffered by Erwin, unknown to him or anyone else, could have resulted in his death from causes unrelated to the scuffle or altercation with defendant. In this posture the question of excusable homicide as a defense to manslaughter was never brought to the jury's attention. In view of this trial strategy and the manslaughter instruction, the jury was virtually compelled to find defendant guilty if it believed the struggle was the proximate cause of death. This becomes more apparent upon viewing the second degree murder instruction which specifically told the jury that it could not find defendant guilty of that offense if it found the assault...

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