Criminal Law

Rosalynn Koch, Esquire

Neither involuntary manslaughter by criminal negligence nor second degree endangering the welfare of a child is a lesser included offense of felony murder that is based upon the predicate offense of first degree child endangerment. State v. Lumpkins, No. 71602 (Mo. App. W.D., September 20, 2011), Welsh, J.

In a felony murder prosecution, the trial court refused defendant’s requested verdict directing instructions submitting involuntary manslaughter and second degree child endangerment.

Held:  Affirmed. Statutes specifically denominate involuntary manslaughter based upon recklessness as a lesser offense of felony murder, Section 565.025.2(2); but the same is not true for involuntary manslaughter by criminal negligence. That offense is not a lesser included offense as it requires a mental state not required for felony murder. To the extent that MAI-CR 3d 314.00 Notes on Use (C)2 mandates submission of any involuntary manslaughter instructions justified by the evidence, it conflicts with substantive law and should not be followed. Second degree child endangerment is not a lesser included offense of felony murder.

Plea counsel was not ineffective for failing to request a change of judge after the judge admonished the defendant about the impropriety of the charged behavior. Phillips v. State, No. 95720 (Mo. App. E.D., September 13, 2011), Sullivan, J.

After an aborted plea proceeding for statutory sodomy, the judge expressed regret about withdrawing the plea, advised the defendant that his behavior had been inappropriate despite defendant’s claim that the victim had initiated the contact, and threatened the defendant if he had any contact with the victim. After eventually pleading guilty, the defendant filed a post-conviction motion challenging counsel’s failure to move for a change of judge.

Held:  Affirmed. Defendant was not entitled to an automatic change of judge. Disqualifying prejudice is prejudice that has an extrajudicial source. Because the defendant was free on bond, the court’s cautions were warranted.