State v. Anding

¶1Defendant James L. Anding was charged with capital murder — hiring another to kill attorney Joseph Langworthy — and convicted of manslaughter. Because there was no evidence to warrant a manslaughter submission, the judgment is reversed and defendant ordered discharged.

¶2The State’s evidence was as follows: Defendant Anding and Langworthy were attorneys practicing in Pacific, Missouri. Defendant began associating with Langwor-thy’s killer, Richard Chandler, early in 1975. Chandler served as defendant’s driver and general helper. Sometime in the middle of 1975 defendant asked Chandler if he could kill someone and Chandler responded that he would kill for a price of at least $10,000.00. Defendant did not then name the victim but stated that the person he wanted killed was someone down the street from him.

¶3Early in 1976 defendant told Richard Chandler that he wanted to put a price on the contract and set up the killing. Richard agreed to a price of $7,000.00, half to be paid before the murder was committed and half to be paid after the job was finished. Defendant also agreed to pay all legal fees in the event that Richard was caught. At the time the agreement was made defendant told Chandler that the person he wanted murdered was Joseph Lang-worthy.

¶4*60Over the next few months defendant and Richard Chandler followed Langworthy to his office, to a ballgame in St. Louis, and to court so that defendant could point the victim out to Chandler. Chandler then followed Langworthy around town on his own to learn his schedule. In early July defendant told Chandler that he would be out of town on the weekend of July 30 and that it would be good for the murder to take place while he was away.

¶5Richard decided to take his brothers Michael and Darrell with him to commit the murder and on the evening of August 2, 1976 they drove to Pacific and parked their car outside of Langworthy’s office where Langworthy was holding appointments that evening. Sometime between 8:00 and 8:30 p.m. the brothers entered Langwor-thy’s office, ostensibly to obtain a divorce for Darrell, but in reality to case the office. They spoke with Langworthy for a few minutes concerning the phony divorce and then left the office and returned to their car. Richard Chandler then went to defendant’s office and called defendant long distance to tell him that “the pigeon is sitting” and he would “take care of it in a little while”, to which defendant responded “okay.” Richard returned to his car, and he and his brothers waited for Langwor-thy’s secretary to leave.

¶6The secretary left around 9:30 and sometime between 9:30 and 9:45 p.m. the Chandlers went back upstairs to Langworthy’s office. Richard was carrying a 12 inch hunting knife in his boot and a .357 magnum pistol in his hand. The Chandlers first told Langworthy that it was a robbery and ordered the attorney to remove his money from his pocket and put it on the desk. Langworthy complied. However, Richard Chandler then handed the gun to one of his brothers, took the hunting knife out of his boot, and told Langworthy that somebody wanted him dead. Langworthy pleaded for his life, but to no avail. Michael and Darrell held him in his chair while Richard stabbed him in the stomach. Richard then took the knife laid it on Lang-worthy’s neck and slit his throat from ear to ear. The victim bled to death in about one minute. The trio went downstairs, got into their car, and drove away.

¶7Langworthy’s murder went unsolved for nearly two years. However, in 1978 local authorities obtained information on the murder from Michael Chandler. A warrant was issued for Richard Chandler’s arrest on charges of capital murder on June 23, 1978.

¶8Defendant and another attorney originally represented Richard on the murder charge but in September 1978 Richard fired defendant and implicated him in the murder of Joseph Langworthy. On the basis of Richard’s testimony before a grand jury, defendant was indicted on a charge of capital murder in 1978. This charge was dropped a short time later, however, when Richard recanted his testimony. In 1985 Chandler changed his mind and agreed to testify for the State against defendant who was then charged again with capital murder.

¶9A jury trial was held in February 1986. Defendant was specifically acquitted of capital murder and of second degree murder but was found guilty of manslaughter and was sentenced to ten years in prison.

¶10The trial judge instructed the jury on manslaughter, although stating “there was no evidence to support the submission of manslaughter.” However, the trial court concluded that State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), required the automatic submission of manslaughter instructions in any case where there was evidence of first or second degree murder. Defendant contends that the trial court committed reversible error in instructing the jury on manslaughter because there was no evidence to support such a submission.

¶11The traditional rule in Missouri is that for a homicide to be reduced from murder to manslaughter there must be evidence of sudden provocation sufficient to indicate an absence of malice and deliberation. State v. Smart, 328 S.W.2d 569, 574 (Mo.1959); State v. Clough, 327 Mo. 700, 705, 38 S.W.2d 36, 38 (Mo.1931).

¶12In State v. Williams, 442 S.W.2d 61, 64 (Mo. banc 1968), the court established a *61presumption that an intentional killing was second degree murder and placed the burden on the defendant to produce sufficient evidence of adequate provocation to rebut the presumption of malice and deliberation. State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971), relieved the defendant of this burden and placed the responsibility on the trial judge to determine if the issue of adequate provocation arose. Ayers, however, held that if as a matter of law there is an entire absence of evidence upon which to rest a verdict of guilty of manslaughter, the trial court can properly instruct the jury only as to second degree murder. Id. at 538. Ayers, therefore, continued to require some evidence of manslaughter to warrant an instruction on that charge. (Emphasis added.)

¶13State v. Stapleton, 518 S.W.2d 292, 300 (Mo. banc 1975), incorrectly interpreted Ayersto hold that a trial court is automatically required to submit manslaughter instructions in homicide cases even when there is no evidence of lack of malice or premeditation — no evidence of provocation. Stapleton’s misinterpretation of Ayerswas adopted by MAI-CR in March 1975. MAI-CR 6.02, Notes on Use 6, p. 6-4; Notes on Use 4(c)(2), p. 6-1C; and MAI-CR 6.08, Notes on Use 5, require the automatic submission of manslaughter instructions whenever the evidence warrants the submission of first or second degree murder.

¶14Stapleton’s error was soon recognized in State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975), cert. denied 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835 (1976). In Mudgett, the court strongly implied that because Stapletonmisinterpreted Ayersthe automatic submission rule did not go into effect until it was adopted as a procedural rule in MAI. The court stated that the automatic submission rule was effectuated by MAI-CR 6.02, not by Ayers, any contrary implication from the language in Stapletonnotwithstanding. Id. at 281. Since the homicide in Mudgettoccurred prior to the adoption of the automatic submission rule by MAI, the court applied the traditional rule of Cloughas modified by Ayers. See also State v. Franco, 544 S.W.2d 533, 538 (Mo. banc 1976), cert. denied 431 U.S. 957, 97 5.Ct. 2682, 53 L.Ed.2d 275 (1977). (On motion for rehearing, court concluded that automatic submission rule only applied to cases tried after March 1, 1975, the effective date the rule was adopted by MAI).

¶15Several more recent opinions have also treated the automatic submission rule as procedural and therefore not binding to the extent that the rule conflicts with the substantive law as stated in Clough, Ayers, and other cases. State v. Kurtz, 564 S.W.2d 856, 862 (Mo. Banc 1978), held that the failure to give a manslaughter instruction in a prosecution for first degree murder by poison was not manifestly unjust under plain error review, regardless of the requirements of MAI-CR 6.02, Notes on Use 6. State v. Martin, 602 S.W.2d 772 (Mo.App.1980), reversed a manslaughter conviction, despite the mandate of Stapleton and MAI, where there was no evidence to support a manslaughter instruction. Love v. State, 670 S.W.2d 499, 503-04 (Mo. banc 1984), held that the movant in a Rule 27.26 action was not prejudiced by the failure of counsel to request a manslaughter instruction in a second degree murder case where there was no evidence to convict the defendant of manslaughter.

¶16The holdings in Kurtz, Martin and Lovewould not have been possible if Sta-pleton created a substantive rule of law requiring the automatic submission of manslaughter instructions in all homicide cases. See Venker, Missouri Homicides: Lesser Included Offenses and Instructing Down, 48 Mo.L.Rev. 935 (1983). The Court concludes the automatic submission rule is not a substantive rule of law arising out of Stapleton, but merely a procedural rule adopted by MAI.

¶17Procedural rules adopted by MAI cannot change the substantive law and must therefore be interpreted in the light of existing statutory and case law. Mo. Const. Art. V, § 5; State v. Dixon, 655 S.W.2d 547, 558 (Mo.App.1983), cert. denied 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). The *62substantive law at the time of the offense1 required some evidence of provocation to convict a defendant of manslaughter. See State v. Clough, 38 S.W.2d at 38 and State v. Ayers, 470 S.W.2d at 538. The automatic submission rule is of no effect in this case because it conflicts with the substantive law at the time of the murder. The rule has also been abolished by statute. See Sections 565.025, RSMo (Cum.Supp. 1984) and 556.046.2, RSMo 1978, which obligate the Court to instruct the jury on manslaughter as a lesser included offense only if there is an evidentiary basis for convicting the defendant on that charge. Thus, defendant’s manslaughter conviction cannot stand unless there is some evidence of adequate provocation in the record.

¶18The record in this case clearly indicates that defendant was either guilty of deliberate, premeditated murder or of nothing at all. If the State’s evidence is believed defendant contracted to have Joseph Langworthy murdered more than a year before the murder took place. During that year defendant allegedly planned the murder with the help of Richard Chandler. The time of the murder was purposefully set to coincide with a time when defendant was out of the state. The brutal slaying of Langworthy was carried out while the victim was being held down in his chair. There are simply no facts in this case upon which to conclude that the killing of Joseph Langworthy was provoked or was committed without deliberation, malice, and premeditation. Consequently, the trial court erred in instructing the jury on manslaughter because there was no evidence to support such an instruction. The procedural mandate of MAI-CR and the ruling in Sta-pleton requiring automatic submission of manslaughter should not be followed.

¶19Defendant also contends his manslaughter conviction is barred by the three year statute of limitations. Section 541.200 RSMo 1969. The murder in this case occurred on August 2, 1976. The instant charge was filed March 15, 1985, 8½ years after the murder took place. Because the judgment must be reversed and defendant ordered discharged for the reasons already stated, the Court does not deem it necessary to consider this contention or the State’s argument of waiver. See: 21 Am. Jur.2d Criminal Law section 223, 225 (1981); State v. Chevlin, 284 S.W.2d 563, 567 (Mo.1955); State v. Civella, 364 S.W.2d 624, 627-28 (Mo.App.1963), Chaifetz v. U.S., 288 F.2d 133 (D.C.Cir.1960); and 47 A.L.R.2d 892. See also Rule 24.04(b)(2).

¶20The judgment is reversed and defendant ordered discharged.