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06/30/83 STATE MISSOURI v. SAMUEL HOLLAND

June 30, 1983

STATE OF MISSOURI, RESPONDENT,
v.
SAMUEL HOLLAND, APPELLANT.



From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge Daniel T. Tillman.

The opinion of the court was delivered by: Gunn

Defendant-appellant was charged with capital murder. In accordance with instructions given, he was convicted of first degree murder (felony murder), a violation of § 565.003, RSMo 1978, and sentenced to life imprisonment. His appeal presents five points of alleged error: I. Instructing on first degree murder when there was no indictment for that crime and the evidence was insufficient to support such an instruction; II. Submitting an improper modification of MAI-CR2d 2.12; III. Admitting his videotaped confession maculated for a multitude of reasons, e.g., it was involuntary and obtained in violation of right to counsel; IV. Refusing to appoint or provide funds for a forensic pathologist; V. Limiting his counsel's voir dire of the venire panel and permitting certain improper prosecutorial comment.

we affirm the judgment.

The evidence that supports defendant's conviction for first degree murder beyond a reasonable doubt points to events that began in the rectory of the Shrine of St. Joseph in North St. Louis. As Father Edward Filipiak, a 79 year old priest, sat alone in his room in the rectory, defendant and two companions broke into the church intent upon burglarizing its contents. The intruders explored the church and the rectory, handling various objects along the way. Defendant's thumbprint was deposited on a bottle of altar wine.

Attracted by the sound of a television program, defendant and his associates in crime entered the room of the unsuspecting Father Filipiak. Although the elderly priest pleaded that he had a heart condition, his urgings were unavailing; for his attackers bound him hand and foot, forced him to the floor in a fetal position and pummeled him mercilessly. A pillowcase had been put in the priest's mouth as a gag and another placed over his head. The victim suffered 16 broken ribs, a massive bruise to the chest covering the entire frontal thorax, bruises to the hands, a massive head bruise and a cerebral hemorrhage. He died sometime between the defendant's 9:30 p.m. entry into the church and rectory and the time of the discovery of his body between 8:30 and 8:45 a.m. the next morning. Cause of death was determined to be a combination of multiple factors: cerebral hemorrhage, shock caused by broken ribs and suffocation from the gag in his mouth and the pillowcase placed over his head.

The savage attack complete, defendant and his companions left their victim, apparently without much haste, taking with them as their paltry and malgained lucre an old television set, an electric razor and a few cartons of Kool cigarettes that had been given to Father Filipiak by a friend. The substance of the burglary was subsequently traced to the intruders.

Defendant, in a videotaped confession viewed by the jury, acknowledged the break-in to the church; he was the first to enter through a window. But he offered that he had not contributed to the priest's death, as he had only "just tapped" him about three times as he lay bound on the floor. He also admitted tying the priest's feet together, but in a humane fashion with string so that the nearly 80 year old man would be able to free himself. Neither did defendant observe any overwhelming assault on Father Filipiak although he acknowledged that all three intruders had participated in some sort of "light" physical battery to the bound and gagged elderly victim. But somehow through this "light tapping," binding and gagging, Father Filipiak's earthly life came to an end; and somehow his body came to bear the marks of a ruthless beating.

I.

The charge was capital murder. The jury was instructed on capital murder, first degree murder (felony murder), conventional second degree murder and manslaughter. The jury verdict was for guilty on first degree murder, which brings forth the first point of defendant's appeal: alleged trial court error in instructing on first degree murder as a lesser included offense of capital murder when first degree murder was not specifically charged.

State v. Goddard, 649 S.W.2d 882 (Mo. banc 1983) (No. 63476, decided April 26, 1983) answers this point directly. It specifically rejects the defendant's contention of error to instruct down to first degree murder when not so charged on a capital murder charge. Goddard also gave prospective application to State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), which holds that murder in the first degree is not a lesser included offense when only capital murder is charged. See State v. Betts, 646 S.W.2d 94 (Mo. banc 1983) (also gives Baker prospective application). Thus, Baker, today, remains vital.

Goddard gives a thorough history of the status of the law regarding the requirements for instructing down in capital murder cases. In Goddard the Conclusion is reached that there is an absence of prejudice to a defendant in instructing on first degree murder in the circumstance--as in this case--that the evidence which supports the first degree murder instruction "is exactly the same evidence which would have supported a conviction for capital murder." Id. at 889. Hence, the defendant in Goddard was not prejudiced by the first degree murder instruction, particularly as the form of submission had been approved in Missouri for many years and was the extant law at time of trial.

Goddard also notes that the defendant had ample notice that under a capital murder charge, he would also be on trial for first degree murder. Thus, no due process problem exists.

So, too in this case, defendant cannot complain of lack of notice or due process by the jury's being instructed on first degree murder on a capital murder charge; this for a variety of reasons, notable State v. Daugherty, 631 S.W.2d 637 (Mo. 1982). Daugherty involved the trial and conviction for the first degree murder of Father Filipiak by one of defendant's co-accuseds. The defendant's co-actor, Daugherty, raised the identical point presented here: that it was error to instruct on first degree murder when the only charge was capital murder. In affirming the conviction for first degree murder, as is done in this instance, this Court in Daugherty stated id. at 645:

Under his final point (5), appellant contends that the trial court erred when it instructed the jury on first degree murder because the statutory elements of capital murder did not include all the legal elements of murder in the first degree, and murder in the first degree is not specifically a lesser included offense of capital murder. The evidence upon the record was sufficient to support the submission of murder in the first degree. As to appellant's contention that murder in the first degree is not a lesser included offense of capital murder, this Court has held that failure to instruct on murder in the first degree where the evidence supports the submission of murder in the first degree is reversible error. State v. Gardner, 618 S.W.2d 40 (Mo. 1981). See also State v. Wilkerson, 616 S.W.2d 829 (Mo. banc 1981). The trial court's instruction on murder in the first degree in the instant case was not error. Point (5) is found to be without merit and is ruled against appellant.

The holding of Daugherty merely follows the earlier decision of this Court in State v. Fuhr, 626 S.W.2d 379 (Mo. 1982), finding that under State v. Wilkerson, 616 S.W.2d 829 (Mo. banc 1981) and State v. Gardner, 618 S.W.2d 40 (Mo. 1981) it was error to fail to instruct down to first degree murder on an offense occurring in February 1980.

Defendant was charged with capital murder. The trial court dutifully instructed the jury on capital murder, murder first degree (felony murder), conventional second degree murder and manslaughter, all as had been required until Baker, which had not been handed down at the time of trial. Even defendant offered his instruction on murder first degree, as he logically should by reason of Fuhr, and, certainly, by reason of his companion case, Daugherty. Indeed, defendant would have been surprised if the court had failed to instruct on first degree murder. But defendant now says that without indictment or information on first degree murder, there can be no conviction on that charge. We perceive no error in this instance. State v. Goddard, supra.

As stated in State v. Lewis, 642 S.W.2d 627, 630 (Mo. banc 1982), "he purpose of an information or indictment is twofold: to inform the accused of charges against him so that he may prepare an adequate defense; and to preclude retrial on the same charges should a jury acquit him." These purposes are an expression of the proposition that due process requires that conviction be on a charge made. See State v. Wilkerson, 616 S.W.2d at 833. What follows does not warp these standards of legal rubric nor, for that matter, intrude upon the solution of State v. Baker to the failure to instruct down to ยง 565.003, RSMo 1978 first degree murder. Notice to the defendant is the keystone precept involved, and in ...


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