dissenting.
The court today frees Brian Keith Moore, finding that he was deprived of due process by the Missouri Supreme Court’s retroactive application of an unforeseeable construction of Missouri’s felony murder statute. In so holding, the court ignores the ambiguity that existed in Missouri’s felony murder doctrine prior to Moore’s case and fails, directly contrary to Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), to give proper deference to Missouri court decisions on an issue of state law. Thus, I respectfully dissent.
The court’s decision today depends on its conclusion that the Missouri Supreme Court in its review of Moore’s conviction for felony murder “explicitly overruled its prior decision in Majors * * * and held, directly contrary to Majors, that the applicability of the Missouri felony murder statute does not depend on whether ‘the fatal act was done by the defendant, an accomplice, another victim, or a bystander * *.’ ” Supra at 1257. In so concluding, the court both gives State v. Majors, 237 S.W. 486 (Mo.1922), an unjustifiably expansive reading and overstates the supreme court’s actual holding in State v. Moore, 580 S.W.2d 747, 751 (Mo.1979) (en banc) (Moore I).
In Majors, as the supreme court pointed out in its discussion of the case in Moore I,
[t]he jury was instructed that if it found that the defendant or one of his accomplices shot the deceased in an effort to commit a crime, he would be guilty of murder. The murder conviction was reversed and the case remanded because the trial court failed to give converse instructions proffered by defendant which required a verdict of not guilty if the jury found that the fatal shot was fired by someone other than the defendant or someone acting in concert with him. The court without elaboration stated that such an instruction was a correct declaration of the law.
580 S.W.2d at 751. Thus, the essential issue in Majors was the failure to give a converse instruction: “[I]t has been repeatedly held in this state that the defendant in a criminal case is entitled, upon request[,] to an instruction setting forth the converse of the state’s instruction on the principal fact.” 237 S.W. at 488. Nowhere in Majors, as Judge Rendlen pointed out in Moore I, does there appear “a statement of the rationale for the requirement that the fatal act be performed by defendant or someone acting in concert with him.” 580 S.W.2d at 751. Thus, if Majors did adopt the agency theory of felony murder, it did so in a highly abbreviated, elliptical fashion. In adopting the proximate cause theory of felony murder, the Moore I court did not “explicitly overrule” Majors but instead simply noted, surely in further reference to the uncertain nature of the Majors holding, that “[ijnsofar as Majors * * [is] inconsistent with this opinion, * * * [it] *1260must no longer be followed.” 580 S.W.2d at 753.
The Moore I court not only addressed the indistinct nature of Majors but also treated the subsequent cases of State v. Adams, 339 Mo. 926, 98 S.W.2d 632 (1936), and State v. Glover, 330 Mo. 709, 50 S.W.2d 1049, 1053 (1932), in which it was made clear that “[e]ven though the homicide be unintentional, yet if it be committed in the course of perpetrating the felony, and is a natural and proximate result thereof, such as the defendant reasonably was bound to anticipate, * * * the homicide will be first degree murder under the statute.” Glover, 50 S.W.2d at 1053. After discussing the law of these cases, the Moore I court then determined that “[w]hether the fatal act was done by the defendant, an accomplice, another victim, or a bystander is * * not controlling. The significant factor is whether the death was the natural and proximate result of the acts of the appellant or of an accomplice.” 580 S.W.2d at 752.
Thus, after Glover and Adams, it could not be said that the courts of the state of Missouri had without question adopted the agency theory of the felony murder doctrine. A fair issue existed as to whether this or the proximate cause theory was the rule. Indeed, this was the conclusion reached by the Missouri Court of Appeals in its postjudgment review of Moore’s conviction:
In light of the test which the Missouri Supreme Court adopted in Glover in 1932, we think that since the victim’s death was the natural and proximate result of defendant’s actions, movant was put on notice that his conduct would be considered first degree murder. Consequently, the construction put on * * * [the felony murder statute] by the Missouri Supreme Court could not be considered to be “unexpected” or “indefensible” and can be given retroactive application to defendant without violating the due process clause of the United States Constitution.
Moore v. State, 651 S.W.2d 578, 581 (Mo.Ct.App.1983).
This court today seeks to subordinate Glover and Adams to Majors, arguing that those cases address only the second phase of a two-part process in the agency theory of felony murder. The court argues that under this theory the state must first identify the defendant or an accomplice as a killer, and then show that “the killing was a natural and proximate result of the felony.” Supra at 1256. Under the court’s analysis, then, Glover and Adams accept sub silentio the threshold requirement of identity in the agency theory. Identity, however, may just as easily be subsumed to the notion of natural and proximate results. Those states which follow the proximate cause theory of felony murder simply make the inquiry as to identity a part of the rule itself. Identification then becomes part of the general issue of foreseeability: Would someone committing a felony reasonably expect that someone other than himself or his accomplice might kill someone in the course of the felony? But this, of course, is the very test that Glover and Adams establish.
Thus, the holding of Majors is limited, since that case primarily involved the propriety of the refusal of a converse instruction. Insofar as Majors did adopt the agency theory of felony murder, Missouri’s courts clearly have viewed Glover and Adams as intervening cases presenting a different approach to the felony murder doctrine. In failing to give deference to the Missouri Supreme Court’s holding in Moore’s case, the court overlooks the command of Wainwright v. Goode that “the views of the state’s highest court with respect to state law are binding on the federal courts.” 104 S.Ct. at 382.
Further, the court’s holding today stems from a misapplication of the statement in Bouie that “[i]f a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect.” Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964) (quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960)). Bouie surely does not suggest that a state supreme court cannot clarify an ambiguity in its criminal law — something *1261quite different from construing statutes in an unexpected and indefensible way — without offending a defendant’s due process rights. In addition, Bouie involved a new interpretation of a breach-of-the-peace ordinance violated in a sit-in demonstration. The result was to create criminal penalties where none had before existed. The Bouie court limited its holding by noting that “[ajpplication of this rule is particularly compelling where, as here, the petitioner’s conduct cannot be deemed improper or immoral.” 378 U.S. at 362, 84 S.Ct. at 1707. Here, in contrast, when Moore participated in the robbery, he realized that resistance might follow. His conduct was unlawful from the beginning, which, of course, is reason for application of the felony murder rule. The net result is that the court today stretches Bouie far beyond its reasoning and its holding.
As the court today in freeing Brian Keith Moore does violence to Wainwright, Bouie, and the Missouri courts’ interpretation of the law of their state and substitutes its own misreading of that law, I dissent.