State of Missouri, Plaintiff-Respondent, v. Dennis A. Blackman, Defendant-Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Plaintiff-Respondent, v. Dennis A. Blackman, Defendant-Appellant. Case Number: 72868 Handdown Date: 03/03/1998 Appeal From: Circuit Court of St. Louis County, Hon. James R. Hartenbach Counsel for Appellant: N. Scott Rosenblum and Susan Kister Counsel for Respondent: Joanne E. Joiner Opinion Summary: Dennis A. Blackman was tried for murder in the first degree and convicted of murder in the second degree. Following that conviction, Blackman was tried and convicted for armed criminal action arising out of the same incident. He appeals from the judgment on his conviction for armed criminal action on the basis of double jeopardy. TRANSFERRED TO THE MISSOURI SUPREME COURT PURSUANT TO RULE 83.02. Division Four holds: The trial court did not err in entering judgment on the conviction for armed criminal action because the legislature specifically authorized cumulative punishment for armed criminal action and the underlying felony. Therefore, this conviction did not constitute double jeopardy. This Court would affirm, but due to the general interest and importance of the question involved and for the purpose of reexamining existing law (FN1), this case is transferred to the Missouri Supreme Court pursuant to Rule 83.02. Footnotes: FN1. A similar case, State v. Flenoy, No. 72000 (E.D. filed February 10, 1998), was recently transferred to the Missouri Supreme Court. Citation: Opinion Author: Mary K. Hoff, Judge Opinion Vote: TRANSFERRED TO THE MISSOURI SUPREME COURT PURSUANT TO RULE 83.02. R. Dowd, Jr., P.J., and Simon, J., concur.

Opinion: Dennis A. Blackman (Defendant) appeals on the basis of double jeopardy from the judgment on his conviction for armed criminal action. We would affirm, but we transfer to the Missouri Supreme Court pursuant to Rule 83.02.(FN1) Defendant was charged by a single indictment with two counts, first degree murder under section 565.020 RSMo 1986, and armed criminal action under section 571.015 RSMo 1986, for the death of St. Louis County Police Officer Joann Liscombe. On June 1, 1992, at the beginning of the trial, the judge orally severed the armed criminal action count from the murder in the first degree count based on section 565.004 RSMo 1986.(FN2) At trial on the murder in the first degree charge, State sought the death penalty. The jury found Defendant guilty of the lesser included offense of murder in the second degree, section 565.021 RSMo 1986, and Defendant was sentenced to life imprisonment. Defendant's appeal from that conviction was affirmed by this Court in State v. Blackman, 875 S.W.2d 122 (Mo. App. E.D. 1994). On September 30, 1994, Defendant filed a motion to dismiss the remaining armed criminal action count arguing that prosecution on that count, after his conviction for murder in the second degree, would constitute double jeopardy. The trial court heard arguments regarding this issue and subsequently denied Defendant's motion to dismiss. Defendant challenged this ruling by filing a writ of mandamus with this Court and a writ of prohibition with the Missouri Supreme Court; both were denied. On July 11, 1997, Defendant waived his right to trial by jury and the armed criminal action count was submitted to the court based on the record of Defendant's prior trial for murder in the first degree. The trial court found Defendant guilty of armed criminal action and sentenced Defendant to a term of life imprisonment to be served consecutively to the term of life imprisonment imposed on Defendant's second degree murder conviction. Defendant now appeals from the armed criminal action conviction and sentence on the basis of double jeopardy. (FN3) In his only point on appeal, Defendant contends the trial court erred in denying his motion to dismiss the armed criminal action charge. Defendant points out the armed criminal action offense incorporates all the elements of the underlying felony of murder in the first degree. Defendant argues the armed criminal action count could have been tried with the murder in the first degree count and any subsequent prosecution on the armed criminal action count violated the Double Jeopardy Clause.(FN4)

Defendant argues that under Missouri v. Hunter, 459 U.S. 359 (1983), State was required to try him on both counts of murder in the first degree and armed criminal action in one trial, not subsequent trials. In Hunter, the United States Supreme Court held that where a legislature specifically authorizes cumulative punishment under two statutes, cumulative punishments may be imposed against a defendant in one trial. Hunter, 459 U.S. at 368-69. As a result, the Court in Hunter found defendant's prosecution for armed criminal action and first degree robbery in one trial was not double jeopardy. Id. Defendant also relies on State ex rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989) and State v. Morris, 805 S.W.2d 347 (Mo. App. E.D. 1991), which held a subsequent prosecution for armed criminal action after a prosecution for murder in the first degree violated the Double Jeopardy Clause. In Bulloch, the defendant was first tried for murder in the first degree for the death of his wife. Bulloch, 771 S.W.2d at 71. The jury found the defendant guilty of the lesser included offense of involuntary manslaughter. Id. at 71-72. After that homicide trial, defendant was indicted and tried on additional charges, including armed criminal action arising out of his wife's death. Id. at 72. The Missouri Supreme Court held that, because the armed criminal action charge was not tried with the underlying felony in one proceeding, subsequent prosecution of that charge violated the Double Jeopardy Clause. Id. at 75. In Morris, the defendant was charged in an information with two counts, first degree murder and armed criminal action, for the killing of his wife. Morris, 805 S.W.2d at 348. Prior to trial, the two counts were severed and defendant was tried only on the murder in the first degree count, for which the state sought the death penalty. Id. The jury convicted defendant of voluntary manslaughter. Id. Defendant moved to dismiss the armed criminal action charge and the trial court sustained his motion. Id. This Court, relying on Bulloch, affirmed the judgment and held "cumulative punishments for the same offense can be assessed only if they arise in the same proceeding." Id. at 348. Subsequent to Hunter, Bulloch, and Morris, the United States Supreme Court decided United States v. Dixon, 509 U.S. 688 (1993). In Dixon, the Court held "same offense" no longer has a different meaning in a "successive prosecution" context than in a "successive punishment" context. Dixon, 509 U.S. at 704. The Court concluded, the government "is entirely free to bring [same offenses to trial] separately, and can win convictions in both."(FN5) Id. at 705. The Supreme Court in Dixon also reaffirmed the "same offense" test set forth in Blockburger v. United

States, 284 U.S. 299 (1932). The Blockburger test asks whether each offense requires proof of an additional element which the other offense does not; if each offense does not require proof of an additional element, then a successive prosecution would be considered double jeopardy. Blockburger, 284 U.S. at 304. In Hunter, the United States Supreme Court held a court should apply the Blockburger test only when there is no clear legislative intent as to whether successive punishment should be imposed. Hunter, 459 U.S. at 367-68. Based on these authorities, our double jeopardy analysis requires a determination of whether there is clear legislative intent to punish a defendant cumulatively for first degree murder and armed criminal action. If the legislature intended that a defendant be successively punished for those offenses, then the state may do so either in a single trial or in separate trials. If legislative intent is clear, then we need not examine the elements of each crime under the Blockburger test. Therefore, we must discern the legislature's intent regarding the offenses of murder in the first degree and armed criminal action. Section 571.015 RSMo 1986 provides the following definition of armed criminal action:

1. [A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance,

or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action . . . . The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon. . . . (emphasis added). Because this statute expressly states punishment for armed criminal action is "in addition to" other punishment defendant may receive for the felony committed, it clearly establishes the legislature's intent to provide for successive punishment for those crimes. Section 565.004 RSMo 1986(FN6) states the following, in pertinent part:

1. Each homicide offense which is lawfully joined in the same indictment or information together with any

homicide offense or offense other than a homicide shall be charged together with such offense in separate counts. A count charging any offense of homicide may only be charged and tried together with one or more counts of any other homicide or offense other than a homicide when all such offenses arise out of the same transaction or constitute part of a common scheme or plan. Except as provided in subsections 2, 3, and 4 of this section, no murder in the first degree offense may be tried together with any offense other than murder in the first degree. . . .

1. A count charging any offense of homicide of a particular individual may be joined in

an indictment or information and tried with one or more counts charging alternatively any other homicide or offense other than a homicide committed against that individual. . . . While this statute was interpreted in Bulloch and Morris to preclude successive prosecution of a homicide offense and an "offense other than homicide when all such offenses arise out of the same transaction or constitute part of a common scheme or plan,"(FN7) this distinction between successive prosecution and successive punishment is

now moot in light of Dixon. We find Dixon broadened the holding in Hunter and implicitly overruled Bulloch and Morris. Dixon holds, for purposes of double jeopardy analysis, what the state may prosecute in one proceeding, it may prosecute in successive proceedings when the legislature clearly permits multiple punishments. Therefore, because the legislature clearly and expressly provided for successive punishment for both armed criminal action and the underlying felony, in this case murder in the first degree, State was "entirely free to bring them separately, and can win convictions in both." See Dixon, 509 U.S. at 705. We hold Defendant's conviction for armed criminal action in a separate trial following his conviction for murder in the second degree arising out of the same incident does not constitute double jeopardy. We would affirm the judgment. However, because of the general interest and importance of the question involved in the case and for the purpose of reexamining existing law, this case is transferred to the Missouri Supreme Court pursuant to Rule 83.02. Footnotes: FN1. A similar case, State v. Flenoy, No. 72000 (E.D. filed February 10, 1998), was recently transferred to the Missouri Supreme Court. FN2. The record reflects the judge subsequently entered his written order of severance on December 8, 1994. FN3. Because the facts of the crimes are not at issue, we will not discuss them here. For a detailed discussion of the facts, see State v. Blackman, 875 S.W.2d 122 (Mo. App. E.D. 1994). FN4. The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, provides no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V, XIV. FN5. The Court noted the government may be collaterally estopped from bringing a "later prosecution for a separate offense where the [g]overnment has lost an earlier prosecution involving the same facts." Dixon, 509 U.S. at 705. This, however, was not at issue in Dixon and is not at issue in the case before us. FN6. This section was amended in 1994. However, because the 1986 statute applies to this case, we will not address the amendment. FN7. Section 565.004.1 RSMo 1986. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.