419 U.S. 1075 (1974)

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U.S. Supreme Court

WELLS v. MISSOURI , 419 U.S. 1075 (1974)

419 U.S. 1075

Raymond WELLS
State of MISSOURI.
No. 73-6535.

Supreme Court of the United States

December 16, 1974

On petition for writ of certiorari to the Supreme Court of Missouri.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.

On Louis of $200. During the robbery, one of petitioner's confederates fired a shot which killed a bank employee. Petitioner was charged in separate indictments with first-degree murder and first-degree robbery by means of a dangerous and deadly weapon. At the time the death penalty was available under Missouri law for each of these crimes with the decision whether it should be imposed committed to jury discretion. 559. 030, 560.135 (Mo.Rev.Stat.1959) V.A.M.S.

Under then-applicable Missouri criminal procedure rules, it was not permissible to join in one indictment or at one trial robbery and murder charges. See Mo.Sup.Ct.Rule 24.04, V.A.M.R.; 545.120, 545.130 (Mo.Rev. Stat.1959), V.A.M.S. Petitioner was tried first on the murder charge. Missouri punishes as first-degree murder 'every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or mayhem.' 559.010 (Mo.Rev.Stat.1969), V.A.M.S. While the murder indictment alleged that petitioner murdered the victim 'feloniously, willfully, premeditately, deliberately, on purpose and of . . . malice afterthought,' petitioner claims, and the Supreme Court of Missouri, as we read its opinion, found, that the murder case was tried to the jury on a felony-murder theory, with proof of the elements of

Page 419 U.S. 1075 , 1076

the robbery supplying the requisite mens rea for murder. Missouri permits trial on a felony-murder theory even though the indictment does not allege the felony but alleges directly the mens rea for first-degree murder. State v. Conway, 351 Mo. 126, 171 S.W.2d 677 (1943).

Petitioner was found guilty of firstdegree murder by the jury, which assessed his punishment as life imprisonment. At the sentencing hearing before the trial judge, petitioner waived his right to appeal the murder conviction and was sentenced to life imprisonment for murder. At the same hearing, he withdrew his not-guilty plea to the robbery charge and entered a guilty plea. The prosecuting attorney then recommended a concurrent life sentence on the robbery conviction, and the judge imposed the recommended sentence.

In 1970, petitioner sought in state post-conviction remedies to vacate both the waiver of appeal from the murder conviction and the guilty plea to the robbery charge. After hearing, the trial judge held that, although both the waiver of appeal and the guilty plea were motivated by fear that the death penalty might be imposed if petitioner stood trial for robbery, the waiver and plea were voluntary. The Supreme Court of Missouri affirmed. 504 S.W.2d 96 (Sup.Ct.Mo.1974).

The Supreme Court of Missouri also rejected petitioner's contention that the prosecution for robbery after conviction for murder on a felony- murder theory violated the constitutional protection from double jeopardy. 504 S.W.2d, at 97, relying on State v. Moore, 326 Mo. 1199, 33 SW.2d 905 ( 1930). In my view this holding was in error.

The two charges leveled against petitioner clearly arose out of the same criminal transaction or episode, yet they were tried separately. In that circumstance, we should grant the petition for certiorari and reverse the robbery [419 U.S. 1075 , 1077]

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