Green v. State

DIXON, Judge,

dissenting.

I dissent from that portion of the principal opinion which holds that the assault conviction is not violative of the double jeopardy clause of the fifth amendment. I concur in the result of the principal opinion in barring the conviction for armed robbery on the basis of the double jeopardy clause, but I reach that result by way of somewhat different reasoning than does the majority opinion. First, even a counselled plea of guilty does not waive a claim of double jeopardy. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). Thus, the issue of double jeopardy is a matter for review under Rule 27.26 as a claim of constitutional error not waived by the guilty plea. Discussions of the effectiveness of counsel are irrelevant to the question.

On the issue of the conviction for armed robbery as the underlying felony upon which the felony murder conviction rests, the authority is inescapably clear. Whalen v. U.S., 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), squarely hold that conviction for felony murder bars the underlying felony upon which the felony murder charge rests. Thus, as a matter of federal constitutional law, the conviction for armed robbery in this case cannot stand.

It follows from this that the question concerning the assault charge turns upon whether or not the assault upon the attendant by the movant was a part of the offense of armed robbery or was a separate offense. That in turn, under the case law concerning the division of a course of conduct into one or two offenses, depends upon a factual determination with respect to the completion of one offense and the commencement of another.

The sparse facts in this case are from the transcript of the hearing on movant’s guilty plea. Movant and his accomplice entered the gas station, where both drew their guns and announced their intentions to the attendant inside. Movant’s accomplice hit the attendant in the back of the head with his gun. The attendant pulled some money out of his shirt pocket. Observing that the outside attendant had been alerted to the robbery, movant’s accomplice went outside. Movant then noticed that the inside attendant had a wallet in his shirt pocket. As movant reached across the desk to obtain the wallet, the attendant pushed back in his chair and reached into a drawer. At that point, movant shot the inside attendant. Movant then heard a shot outside the station, whereupon he ran outside and escaped with his accomplice.

Movant urges that his dual conviction for both assault and robbery placed him twice in jeopardy. The majority responds that movant’s shooting of the inside attendant occurred after the robbery of the attendant was completed, thereby constituting the second offense of assault.

The transcript that is available does not support the conclusion that the shooting of the attendant was a “separate and distinct act of force” from the assault committed in furtherance of the robbery. The majority opinion states that the assault on which the robbery conviction is based occurred when movant’s accomplice struck the inside attendant over the head with his gun. The attendant then handed over some money. The robbery was not complete at that point because movant observed a wallet in the victim’s pocket and was in the process of pilfering it when the attendant’s apparent move to protect himself prompted movant to fire. The taking of the money offered by the attendant and the further reaching for the attendant’s wallet were all acts constituting the same robbery, all a continuous chain of events comprising the taking, by force or intimidation, of the attendant’s property. Since the shooting was “coterminous” with the robbery, it cannot be relied on to establish a separate conviction for assault. State v. Neal, 514 S.W.2d 544 (Mo. banc 1974); State v. Helm, 624 S.W.2d 513 (Mo.App.1981); State v. Buford, 582 S.W.2d 298 (Mo.App.1979). The fact that the act of pulling the trigger can be distinguished from the earlier acts of intimidation (hitting attendant with the gun) does not support a separate conviction for assault so long as the robbery was still in progress.

Many recent cases have examined the question whether “a single act of force was present or whether, ... separate acts of force took place which would justify the separate charges of assault and robbery.” State v. Buford, supra, at 303. Again, the “acts” referred to are acts outside the continuous event of the robbery, not separable, physical acts that make up the assault that is an element of the robbery. In State v. Collett, 526 S.W.2d 920 (Mo.App.1975), the victim was robbed at gunpoint, then taken from behind the cash register to a back room, where he was beaten about the head. The subsequent beating was held to constitute a proper basis for the separate assault conviction. In Henderson v. State, 627 S.W.2d 324 (Mo.App.1982), Henderson raised the issue in his Rule 27.26 motion. After Henderson obtained money from a gas station attendant, he forced the attendant to lie down on the floor of a back room. When the attendant lunged for Henderson’s legs, Henderson hit him over the head with a baseball bat. The separate assault conviction was held not to place movant in double jeopardy because the bat incident took place “after the robbery was complete in order to effect an escape” and was not a part of a “single continuous event.” Id. at 325. The defendant in State v. Helm, 624 S.W.2d 513 (Mo.App.1981), demanded the victim’s purse at knife point. When he discovered the purse contained very little money, defendant struck the victim about the head and neck with the knife, inflicting serious injury. The dual convictions of assault and armed criminal action based on the underlying felony of robbery were upheld. On review of movant’s Rule 27.26 motion, the court in Thompson v. State, 606 S.W.2d 263 (Mo.App.1980), found no error in multiple convictions where the movant shot at his cab driver/victim after he had obtained the victim’s money and papers.

In all of these cases, the assault that formed the basis of the separate charge and conviction took place after the robbery was complete. The shooting in the instant case took place as movant reached across the desk for the attendant’s wallet. The robbery was still in progress, and on these facts, multiple sentences are prohibited by Missouri case law which defines the unit of prosecution permitted under the double jeopardy clause.

The necessary effect of the majority opinion is to divide the offense in the instant case into two robberies, one of which is barred by the double jeopardy clause, and one of which is not. There can be no doubt under the facts here presented that the shooting of the attendant occurred simultaneously or nearly so with the movant’s attempt to obtain the wallet from his shirt. Only the assertion of the majority opinion that the robbery was complete and that the second assault was a separate event affords a basis for imposition of the assault charge. Thus, the majority opinion splits the robbery into two events. The conviction of one is sustained, and the conviction of the other is barred by double jeopardy. The majority is analytically incorrect in separating the robbery into two robberies when, in fact, what occurred in this case was a continuing robbery — first the money and second the wallet. It is no different than any other robbery case in which the robbery is accomplished by the taking of property from different locations or at different times during the course of the robbery.

The division of a greater offense into two crimes by charging them as two offenses because they are temporally separated has been condemned as violative of the double jeopardy clause. In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the defendant engaged in a nine-day course of conduct with a stolen automobile. He was charged with joyriding in one jurisdiction and, in another jurisdiction in the same state, he was charged with the offense of theft of the automobile. Both charges stemmed from the same nine-day period in which defendant was in possession of the vehicle. The Supreme Court held that the second conviction could not stand under the double jeopardy clause. The analysis of the Supreme Court was that joyriding was a lesser-included offense of the theft for double jeopardy purposes and that, therefore, the double jeopardy clause protected him from conviction on the greater charge after conviction upon the lesser. The language of the court in its holding is critical: “The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” 432 U.S. at 169, 97 S.Ct. at 2227.

The dissent in Brown v. Ohio, supra, does not agree with the approach taken by the majority as to the application of the double jeopardy clause. Nonetheless, Brown v. Ohio, supra, so holds and is decided upon facts which are much more susceptible of a division into separate “units of prosecution” than is the present case.

As outlined above, it is my belief that these facts require, under our own law, a determination that the assault charge is not a separate offense; but even if our own state law did not provide that result, I believe the conviction for assault which is undeniably a lesser-included offense of the robbery is barred under federal double jeopardy law by Brown v. Ohio, supra. For the reasons stated, I respectfully dissent and would affirm only the conviction for felony murder and vacate the robbery conviction and the assault conviction and the resulting sentences.