State of Missouri, Respondent, v. Markess Flenoy, 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, Respondent, v. Markess Flenoy, Defendant/Appellant. Case Number: 72000 Handdown Date: 02/10/1998 Appeal From: Circuit Court of the City of St. Louis, Hon. Sherri B. Sullivan Counsel for Appellant: Susan L. Hogan Counsel for Respondent: John M. Morris, III, and Karen L. Kramer Opinion Summary: Markess Flenoy appeals his convictions of robbery and armed criminal action. He asserts his trial and conviction on these charges, which followed his conviction for felony murder involving the same robbery, constituted double jeopardy. TRANSFERRED TO THE SUPREME COURT PURSUANT TO RULE 83.02. Division Two holds: The trial court did not err in entering judgment of conviction on the jury verdicts of robbery in the first degree and armed criminal action in that the legislature specifically authorized cumulative punishment for felony murder, robbery, and armed criminal action. Due to the general interest and importance of the question involved and for the purpose of reexamining existing law, this case is transferred to the Missouri Supreme Court pursuant to Rule 83.02. Citation: Opinion Author: Mary Rhodes Russell, Judge Opinion Vote: TRANSFERRED TO THE SUPREME COURT PURSUANT TO RULE 83.02. Crane, P.J., and J. Dowd, J., concur Opinion: Defendant appeals from the judgment entered on jury verdicts finding him guilty of robbery in the first degree under section 569.020 RSMo 1994,(FN1) and armed criminal action under section 571.015. Defendant was sentenced to ten and twenty-year prison terms, respectively. The sentences were to run consecutively with a life sentence he received

in a previous trial for second degree felony murder involving the same incident. In his only point of error, defendant contends the trial court erred in overruling his motion to dismiss the first degree robbery and armed criminal action charges tried in a second proceeding after his murder conviction on the ground that the trial of the charges constituted double jeopardy. We find no error in that the legislature specifically authorized cumulative punishment for felony murder, robbery, and armed criminal action. We would affirm, but we transfer to the Supreme Court pursuant to Rule 83.02. On September 1, 1993, sometime after 10:00 p.m., victim drove to a bank automatic teller machine ("ATM") in the City of St. Louis with his thirteen year-old daughter as a passenger. After victim put his card into the drive-through ATM, two males approached victim's car. One of the men, later identified as defendant, approached the driver's side of the car and the other approached the passenger's side. Defendant brandished a gun and said to victim "Get all of the money out.... Hurry up. You think I'm playing?" As victim attempted to get the money out, one of the men said, "Get in," and they attempted to open the car doors. Defendant then fired the gun three times, striking and killing victim. Defendant was charged in a single indictment with first degree murder under section 565.020, first degree robbery under section 569.020, and two counts of armed criminal action under section 571.015. In November 1995, trial began on the murder charge alone. Defendant was convicted of the lesser included offense of felony murder in the second degree, under section 565.021, and was sentenced to life in prison. This Court affirmed the conviction in State v. Flenoy, 936 S.W.2d 175 (Mo. App. 1996). In November 1996, defendant went to trial for the remaining charges of robbery in the first degree and the related count of armed criminal action.(FN2) Defendant moved to dismiss the charges, asserting that trying him for robbery and armed criminal action following his conviction for felony murder based on the same robbery constituted double jeopardy. The trial court overruled the motion to dismiss. The court concluded that "the legislative intent could not have been then [sic] that the defendant could only be tried on the murder and not on any additional counts."(FN3) The case proceeded to trial and defendant was subsequently convicted and sentenced to ten years in prison for robbery and twenty years for armed criminal action, to be served consecutively to the life sentence previously imposed for felony murder. This appeal followed. In his only point on appeal, defendant argues that the trial court erred in overruling his motion to dismiss the robbery and armed criminal action counts on the grounds of double jeopardy. Defendant contends that the state, in trying him for robbery and armed criminal action after his conviction for felony murder in the second degree, subjected him to successive prosecutions for the same offense. The state, however, asserts that double jeopardy is not applicable because the statutory language defining the

offenses of felony murder and the underlying felony of robbery, in sections 565.021.2 and 571.015.1, respectively, demonstrate that the state legislature intended that those crimes be tried and punished as separate offenses. The state also contends that since all of the charges against defendant were originally brought in a single indictment, and the robbery and armed criminal action charges were severed from the murder charge before the initial trial, defendant waived any objection of double jeopardy by not raising it until after he was convicted of murder. The U.S. Constitution's Fifth Amendment Double Jeopardy Clause provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." The clause contains two distinct protections for criminal defendants: (a) protection from successive prosecutions for the same offense after either an acquittal or a conviction; and (b) protection from multiple punishments for the same offense. State v. Snider, 869 S.W.2d 188, 195 (Mo.App. 1993). The protection applies only to multiple punishments or prosecutions for the "same offense." Multiple convictions are permissible if the defendant has in law and in fact committed separate crimes. Id. Defendant contends that his convictions are for the same offense because the state was not required to prove any additional facts for the charges in the second trial than it was required to prove in the felony murder trial. Defendant relies for this analysis on Blockburger v. U.S., 284 U.S. 299 (1932), which stated that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304. Blockburger, however, does not exist in a vacuum. In Missouri v. Hunter, 459 U.S. 359 (1983), the Court explained that "the Blockburger test is a 'rule of statutory construction.' Because Blockburger serves as a means of discerning congressional purpose, the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." Id. at 367 (quoting Albernaz v. U.S., 450 U.S. 333, 340 (1981)). Taken in context with Hunter, Blockburger establishes a rebuttable presumption that cumulative punishment is barred where statutes fail the "same elements" test. Hunter explicitly concluded, therefore, that when a legislature specifically authorizes cumulative punishment under two statutes, the prosecutor may seek, and the trial court or jury may impose cumulative punishment under such statutes in a single trial, regardless of whether those two statutes proscribe the same conduct under Blockburger. Id. at 368-369. Defendant asserts that while Hunter does clarify what constitutes double jeopardy in the multiple punishment context, it is not applicable to cases, like the instant case, of successive prosecution. Defendant's distinction is based on the Missouri Supreme Court's analysis of Hunter in State ex. rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. banc 1989). In

Bulloch, the defendant was initially tried for the first degree murder of his wife. The jury found the defendant guilty of the lesser included offense of involuntary manslaughter. Id. at 71-72. Following the homicide trial, the defendant was indicted on additional charges, including armed criminal action in connection with the prior conviction for involuntary manslaughter. Id. at 72. The Court held that the defendant's conviction for armed criminal action did constitute double jeopardy, and reversed the conviction. Had the charges been tried in one proceeding, the Court stated there could be no question the defendant's claim of double jeopardy would fail since the legislature had, in section 565.004 RSMo 1986,(FN4) clearly stated its intent to allow the convictions. Bulloch, 771 S.W.2d at 72. The Court "reluctantly" concluded that Hunter was not controlling where there was an attempt at successive prosecution. Id. at 75-76. Bulloch, however, has been implicitly overruled by the U.S. Supreme Court in U.S. v. Dixon, 509 U.S. 688 (1993). (FN5) Therein, the Supreme Court rejected the notion that the "successive prosecution" strand of the Double Jeopardy Clause had a different meaning from the "successive punishment" strand. Dixon, 509 U.S. at 704. Dixon stated that the term "same offence" had the same meaning in either context, because "it is embarrassing to assert that the single term 'same offence' (the words of the Fifth Amendment at issue here) has two different meanings - that what is the same offense is yet not the same offense." Id. Thus, the Court concluded, the government "is entirely free to bring them separately, and can win convictions in both." Id. Following Dixon, the Eighth Circuit stated that "if two offenses are not the same for purposes of barring multiple punishment [at a single trial], they necessarily will not be the same for purposes of barring successive prosecutions." United States v. Bennett, 44 F.3d 1364, 1372 n.7 (8th Cir. 1995). Applying the logic of Dixon and Bennett, the analysis used in Hunter should necessarily be extended to double jeopardy cases involving successive prosecution. In analyzing the present case, we must determine whether felony murder, robbery, and armed criminal action counts are the "same offense" for double jeopardy purposes. We look first to legislative intent, in that under Hunter, failure of the Blockburger "same elements" test is not dispositive where the legislature has clearly expressed a contrary intent. Hunter, 459 U.S. at 367. In the present case, legislative intent can be discerned from the statutes defining each crime. The Missouri felony murder statute, section 565.021.2, clearly states that "the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter." (Emphasis added). Thus, by the plain language of the statute, punishment for the underlying felony of robbery in the first degree is intended to be in addition to felony murder. Likewise, the Missouri armed criminal action statute, section 571.015.1, states that "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). Due to the expressed intent of the legislature to punish each of the three offenses cumulatively, it is unnecessary to engage in a Blockburger analysis. Even if the offenses fail the Blockburger test, the legislative intent analysis of Hunter allows successive prosecutions under Dixon. As Bennett clarifies, because the offenses are not "the same" in a double jeopardy sense for purposes of barring multiple punishment in a single trial, they necessarily will not be the same offense for purposes of barring multiple prosecution. Bennett, 44 F.3d at 1372 n.7. In that murder, robbery, and armed criminal action are not the same offense, double jeopardy does not apply in this case. The Supreme Court left little doubt as to the application of its holding in Dixon to the facts of the instant case. In Dixon, the Court analyzed a hypothetical situation involving nearly identical facts to the case herein: Suppose the State first tries the defendant for felony-murder, based on robbery, and then indicts the defendant for robbery with a firearm in the same incident. . . . Under Blockburger, the second prosecution is not barred . . . . That second prosecution was allowed because "these two offences are so distinct in their nature, that evidence of one of them will not support an indictment for the other." (Citing King v. Vandercomb, 2 Leach 708, 717, 168 Eng Rep 455, 460 (KB 1796)). Dixon, therefore, allows the second prosecution herein of the robbery and armed criminal action charges even if they had been brought for the first time in a second indictment following defendant's conviction in the murder trial. Defendant's trial and convictions for robbery and armed criminal action do not constitute double jeopardy. Point denied. 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.All statutory references hereinafter are to RSMo 1994 unless otherwise indicated. FN2.The second count of armed criminal action was dropped. FN3.The court's holding was based on section 565.004.1 RSMo 1994, which provides in pertinent part: "[N]o murder in the first degree offense may be tried together with any offense other than murder in the first degree." FN4.Section 565.004 RSMo 1986, the statute governing the joinder of offenses with a charge of first degree murder, allowed joinder "when all such offenses arise out of the same transaction or constitute part of a common scheme or plan." FN5.Our court, in State v. Morris, 805 S.W.2d 347 (Mo.App. 1991), followed Bulloch, holding that the trial and conviction of a defendant for armed criminal action after his trial and conviction for voluntary manslaughter based on the same homicide, constituted double jeopardy. Morris has also been implicitly overruled by Dixon.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.