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August 16, 1983


From the Circuit Court of Jackson County; Criminal Appeal; Judge Laurence R. Smith.

The opinion of the court was delivered by: Gunn

Defendant was convicted of first degree murder, § 565.003, RSMo 1978. His sentence was life imprisonment. Although the 1982 amendment to Mo. Const. art. V, § 3 placed jurisdiction of life imprisonment cases in the Missouri Courts of Appeals, this Court has retained jurisdiction in those cases under submission on the effective date of the amendment. State v. Martin, 644 S.W.2d 359, 360 (Mo. banc 1983). That is the situation in this case.

Defendant relies on three points of alleged error in his appeal: 1) failure to instruct on the offense of second degree murder; 2) failure to grant a mistrial or permit jury voir dire on the circumstances of the attempted assassination of President Reagan; 3) failure to sustain defendant's motion for judgment of acquittal on the basis of defense of mental disease or defect excluding responsibility.

No reversible error appears, and the judgment is affirmed.

Defendant robbed a liquor store in Kansas City and by a bullet fired to the brain killed the clerk of the store during the process of the robbery. The facts in the case are uncontroverted. And, indeed, defendant's best defense as the case unfolds is that he did exactly as charged, killed the liquor store clerk during the course of a robbery; his defense--mental disease or defect.

The liquor store clerk was murdered December 10, 1979. No one witnessed the killing, but the cash register had been emptied of $204. Police were baffled as to the perpetrator of the crime, and their investigation had produced no legitimate suspects. But on January 2, 1980, defendant entered a Kansas City, Missouri district police station, announced that he had killed the clerk and turned over the murder weapon to a startled desk sergeant. Full written confession of the crime, after all appropriate warnings, was given.

The gist of defendant's statement was that he had been riding in his car looking for an appropriate place to rob. He selected the particular liquor store as there was only one person inside. He fully intended to commit the robbery, but during the process he heard the victim say: "You are going to kill me." Defendant through his fuddled mind interpreted this statement as a command to kill the victim, which he did.

There is more. Defendant presented evidence from a state psychiatrist and the medical records from a veteran's hospital and Kansas City jail psychiatrist that defendant suffered from paranoid schizophrenia. The state psychiatrist postulated that the defendant knew or appreciated the nature or quality of the wrongfulness of his act but was incapable of conforming his conduct to the requirements of the law. There was abundant evidence that stemming back from his time in military service he had heard "voices" calling to him to kill someone and that he had interpreted a remark of his victim as a command to kill. But there was no deviation from the evidence that defendant fully intended to commit robbery: he "needed the money."

The issue presented to the jury was whether or not defendant under Chapter 552 was responsible for his conduct in the killing by reason of mental disease or defect. The jury's decision rejected defendant's theory of defense.

Defendant's first point of appeal concerns alleged instructional error.

The jury was instructed on first degree (felony) murder and manslaughter. Its verdict was a finding of guilty of first degree murder. Neither the state nor the defense requested an instruction on second degree murder, but defendant now argues it was plain error for the trial court to fail to submit such an instruction.

Plain error regarding instructions occurs when the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest inJustice. State v. Murphy. 592 S.W.2d 727, 733 (Mo. banc 1979); State v. Moland, 626 S.W.2d 368, 370 (Mo. 1982). Under the facts of this case we find no instructional error.

Defendant argues that State v. Donovan, 631 S.W.2d 39 (Mo. 1982) and State v. Wilkerson, 616 S.W.2d 829 (Mo. banc 1981) *fn1 require the submission of second degree murder.

In Donovan, the appellant was charged with the first degree murder of the victim who died as a result of forty-eight stab wounds. The indictment charged murder in the first degree in the perpetration of the felony of robbery. At trial, the appellant testified that he declined to participate in robbing the victim. First degree murder and manslaughter were submitted, and a verdict of guilty of first degree murder was returned by the jury. This Court found that the evidence justified instructions on both conventional and felony second degree murder. The judgment was reversed and remanded for failure to instruct on any degree of homicide justified by the evidence.

Donovan differs from this case in two material respects: (1) the defendant denied participation in the robbery (i.e., the requisite element of first degree murder), and (2) ...

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