dissenting.
The court’s holding that Williams’s conviction for a thoroughly brutal and calculated murder must be overturned because he was constitutionally entitled to “a kidnapping-based [felony] murder instruction,” ante at 661, totally misses the mark. I thus dissent.
Missouri law does not recognize as a separate offense an abduction that is part and parcel of a premeditated murder plan. Under this controlling legal principle, when conduct that might otherwise satisfy the elements of a kidnapping is “merely incidental” to capital murder, no separate felony has occurred that will trigger giving a felony murder instruction. State v. Erby, 735 S.W.2d 148, 149 (Mo.Ct.App.1987); see, e.g., State v. Jackson, 703 S.W.2d 30, 32-33 (Mo.Ct.App.1985); State v. Jackson, 703 S.W.2d 23, 24-25 (Mo.Ct.App.1985); State v. Stewart, 615 S.W.2d 600, 602-04 (Mo.Ct.App.1981); State v. Johnson, 549 S.W.2d 627, 630-33 (Mo.Ct.App.1977); see also State v. Coleman, 660 S.W.2d 201, 209-10 (Mo.Ct.App.1983). In deciding whether an abduction is incidental to capital murder, the state trial court is required to consider the evidence presented at the defendant’s trial and determine whether the abduction substantially increased the risk of harm to the victim beyond the risk inherent in the principal crime. See, e.g., Erby, 735 S.W.2d at 149; Jackson, 703 S.W.2d at 31-33; Jackson, 703 S.W.2d at 24-25; Stewart, 615 S.W.2d at 604; Johnson, 549 S.W.2d at 631-33. Based on the evidence in this case, I agree with the state trial court that Williams’s conduct did not rise to the level of a separate kidnapping. Thus, the evidence did not show a separate felony that would support the requested felony murder instruction.
The state trial court was aware of this critical principle of Missouri law and clearly appreciated its significance in Williams’s case. In refusing to give the kidnapping-*666based felony murder instruction requested by Williams, the trial court stated:
The [c]ourt ... does not feel ... there is evidence sufficient to submit on the felony murder theory. The ... only evidence ... is that [Williams], together with one John Morgan, set about with an intent and design to cause the death of the deceased in this case, Kerry Brum-mett.
The plan was ... that [Brummett] would be killed and his body thrown in the Missouri River.
The [c]ourt feels that the kidnapping that took place ... was merely one link in the chain of events that had been planned by [Williams] and John Morgan in committing the offense of murder.
Now, what I’m ... talking about [is] what the evidence shows. I’m not saying that’s my belief. That’s what the evidence in the case would tend to show if believed by the jury.
Now, the [c]ourt feels ... there is no evidence to the contrary. [Thus,] ... there is no independent collateral felony to draw upon to create the crime of felony murder_ [T]he kidnapping ... would just be one of the circumstances planned by the two conspirators to cause the death of Kerry Brummett.
State Trial Tr. at 613-14.
The court’s timid characterization of the evidence in this case in my view is decidedly naive. Brummett was slated from the outset to be killed. This was so because Williams was bent on eliminating witnesses who might implicate him in the burglary of a doctor’s office. To this end Williams had already murdered the unfortunate doctor. See Williams v. Armontrout, 877 F.2d 1376, 1378 (8th Cir.1989). Because Brum-mett could also tie Williams to the burglary, he was likewise targeted for murder. The panel’s suggestion that “transporting Brummett to a secluded riverfront location ... increased the likelihood that [he] would be harmed,” ante at 661, is out of focus with a real world view of the undisputed evidence. Brummett’s abduction and movement in the trunk of a car did nothing to intensify the risk he faced from the beginning. Instead, this was the method of accomplishing the plan to murder Brum-mett and dispose of the body secretly.
The happenings at the river’s edge are neither “unclear” nor “subject to differing interpretations.” Id. at 657. While Morgan obtained a rope and weight to dispose of Brummett’s body, Williams brutally beat the handcuffed victim-to-be. No doubt sensing the men’s intentions, Brummett selected from his rapidly dwindling options and ran into the river. Williams was in hot pursuit. Brummett immediately sank. After Brummett surfaced for the second time, Williams ordered Morgan to shoot him. Despite Morgan’s later explanation that he aimed and fired over Brummett’s head, Williams’s unadorned order eloquently refutes the court’s perception that at the “moment of truth” Williams was “merely indifferent to Brummett’s ultimate destiny,” had “abandoned the plan to intentionally cause Brummett’s death,” and “allowed Brummett to swim away.” Id. at 661-62. Although Williams had the opportunity to rescue Brummett, he entered the water only in an attempt to retrieve incriminating handcuffs from the body of a drowned man.
In a nutshell, the record of Williams's trial does not furnish any reasonable evi-dentiary basis for giving an instruction on Williams’s theory of a separate kidnapping. Indeed, in a related prosecution, Williams’s girlfriend claimed she was entitled to a felony murder instruction because Brummett’s abduction was a kidnapping. See Coleman, 660 S.W.2d at 208. The Missouri Court of Appeals recognized at once that as a matter of state law “there [was] no evidence that Brummett was kidnapped ... within the meaning of the [kidnapping] statute.” Id. at 210. Instead, the court held the evidence showed “[Coleman], Morgan, and Williams planned the ‘luring’ of Brummett to a predetermined location for the express purpose of murdering him.... The transportation of Brummett without his consent was merely the physical means to complete the murder.” Id. I completely agree.
Because the evidence did not support Williams’s claim that Brummett’s abduction was a separate felony, the state trial court’s refusal to give the requested instruction on the lesser included offense of felony murder did not violate due process. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980). Similarly, despite the Missouri Supreme Court’s seemingly inconsistent application of its precedents on this point, Williams’s equal protection claim necessarily fails when the evidence presented in his ease did *667not fit within the state law principles entitling him to the felony murder instruction in the first instance.
Thus, I would affirm the district court’s denial of Williams’s petition for a writ of habeas corpus.
ORDER
The panel opinion filed and the judgment entered on December 7, 1989, are vacated, and appellee’s suggestion for rehearing en banc is granted. The date for rehearing will be set down at a future time.
Counsel may simultaneously file, within thirty (30) days of the date of this order, supplemental briefs which are not duplica-tive of the briefs originally filed. The supplemental briefs shall not exceed fifteen (15) pages in length. Counsel shall submit sixteen (16) copies of these supplemental briefs.