concurring in part and dissenting in part, with whom McMILLIAN, Circuit Judge, joins.
I must dissent with respect to parts I and II of the majority opinion. In my view, the state trial court’s refusal to instruct the jury on first-degree (felony) murder, see Mo.Ann.Stat. § 565.003 (Vernon 1979) (repealed 1984), in this capital case violated due process and equal protection. In substance, I adhere to the views expressed by the majority in the prior panel opinion, which granted Williams partial relief on his habeas petition. Williams v. Armontrout, 891 F.2d 656 (8th Cir.1989). Although the grant of the en banc review serves to vacate the panel opinion, I consider the views expressed therein to be valid. I adopt those views here and expand on the reasoning of that decision.
The majority does not deny the proposition that the Missouri appellate courts, by refusing to adhere to a consistent standard regarding submission of the first-degree murder instruction in capital cases, have violated principles of due process and equal protection. A review of the Missouri case law discloses that (1) the Missouri courts have acted arbitrarily in applying the Baker rule, see State v. Baker, 636 S.W.2d 902, 904-05 (Mo.1982) (en banc), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983), and (2) that the effect of this arbitrary application has been to affirm convictions.1 In fact, the Missouri Supreme Court has been accused by its own *936members of selectively applying the Baker standard in order to effect affirmances. See, e.g., State v. Holland, 653 S.W.2d 670, 680 (Mo.1983) (en banc) (Welliver, J., dissenting) (“The majority ... has treated similarly situated defendants differently in a transparent effort to avoid granting them new trials.”); State v. Williams, 652 S.W.2d 102, 117-18 (Mo.1983) (en banc) (Welliver, J., dissenting); State v. Goddard, 649 S.W.2d 882, 890-92 (Mo.) (en banc) (Welliver, J., dissenting in an opinion in which Seiler, J., concurred), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983).2
The remaining question is whether the facts of Williams’ case. could support a first-degree murder instruction under Missouri law. See Hopper v. Evans, 456 U.S. 605, 610-12, 102 S.Ct. 2049, 2052-53, 72 L.Ed.2d 367 (1982). Under a reasonably fair and consistent construction of Missouri law, the facts of this case warranted instruction on first-degree murder.
In this case, both defense counsel and the prosecutor requested an instruction on first-degree murder. Nevertheless, the state trial court denied the instruction because, in its interpretation of the evidence, the facts of Williams’ case could not support an independent kidnapping, see Mo. Ann.Stat. § 565.110 (Vernon 1979). Specifically, the state trial court noted,
[T]he Court does not feel that there is evidence sufficient to submit on the felony murder theory. The reasoning behind that is that in this case the only evidence that I remember in this case is that the defendant, together with one John Morgan, set about with an intent and design to cause the death of the deceased in this case, Kerry Brummett.
The plan was, that is the evidence indicates, if the jury believes it, that they set about to have the aid and assistance of a female, Betty Coleman. And with the eventual intent being that the deceased would be killed and his body thrown in the Missouri River..
The Court feels that the kidnapping that took place later on in the evening was merely one link in the chain of events that had been planned by the defendant and John Morgan in committing the offense of murder.
State Trial Tr. at 613-14. It is this one-sided recitation of the facts that the majority necessarily adopts, supra at 929-930, in affirming Williams’ conviction.
However, neither the law nor the facts applicable to this case are so clear-cut. Specifically, central to the majority opinion is its assertion, supra at 929, that “Missouri would not recognize an abduction that is part and parcel of a premeditated murder plan as a separate kidnapping offense.”
The majority’s proposition, which appears to require proof of a non-incidental kidnapping, misconstrues the essential elements of a kidnapping charge under Missouri law.3 In particular, Missouri courts have recognized that some types of kidnapping are, by their nature, incidental. State v. Jackson, 703 S.W.2d 23, 24 (Mo.Ct.App.1985). According to the court in Jackson, a kidnapping that is committed for the purpose of facilitating a felony — as was the abduction in the instant case4 — will “nearly always involve the commission of another offense and to that degree will ... be incidental to the other offense.” Id. Consequently, the question under Missouri law *937is not whether the kidnapping is incidental. Rather, the question is whether the movement or confinement is incidental— as the Missouri courts have seen fit to define those terms. Id. at 24-25.
Traditionally, the Missouri courts have required only a modicum of evidence to support a separate conviction for kidnapping. Indeed, in State v. Dodson, 556 S.W.2d 938, 942-43, 946-47 (Mo.Ct.App.1977), the state obtained convictions for both capital murder and kidnapping where the defendant had confined the victims for only an hour before executing them.5 Notably, the defendant in Dodson did not attempt to contend that the movement or confinement of the victims was insufficient to sustain a separate conviction for kidnapping. Moreover, it is by no means unusual for the Missouri courts to uphold separate kidnapping convictions in cases that present movement or confinement that is comparable to Dodson. For example, the Missouri Supreme Court recently upheld separate convictions for kidnapping and armed robbery where a defendant entered a car in a store parking lot, robbed its occupants and then ordered them to transport him a short distance down an access road before effecting his getaway. State v. Hornbuckle, 769 S.W.2d 89, 91, 97-98 (Mo.) (en banc), cert. denied, — U.S. -, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989).
Likewise, in sexual assault cases, Missouri courts have routinely interpreted the movement or confinement requirement to support separate, additional kidnapping charges. See, e.g., State v. Erby, 735 S.W.2d 148, 149 (Mo.Ct.App.1987); Jackson, 703 S.W.2d at 24-25. In Erby, the Missouri Court of Appeals held that a sexual assault incident could support separate kidnapping charges when the defendant’s choice to move the victim greatly facilitated commission of the crime. In Jackson, the court held that moving a sexual assault victim to a more secluded spot supported a separate kidnapping charge, even when the new location was only a block away. Both courts reasoned that moving the victim substantially increased the risk of harm because the remoteness and privacy of the location increased the victim’s terror, reduced the probability of others witnessing the attack or capturing the defendant and made the victim’s escape more difficult. Erby, 735 S.W.2d at 149; Jackson, 703 S.W.2d at 25.
The majority would nevertheless require Williams to establish not only non-incidental movement or confinement, but also a non-incidental kidnapping. To this writer’s knowledge, however, the Missouri Supreme Court has never directly decided whether a premeditated murder that incidentally involved a kidnapping could support a conviction for first-degree murder. Apparently, the closest the Missouri Supreme Court has come to addressing this issue is State v. Blair, 638 S.W.2d 739 (Mo.1982) (en banc), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983). The crucial circumstances of Blair resemble those of the instant case. See id. at 743-46. In Blair, a jail inmate charged with sexual assault hired an acquaintance, Blair, to eliminate the prosecution’s key witness. Blair kidnapped the witness and killed her. Blair was thereafter charged with capital murder and convicted. Blair then challenged his capital murder conviction, in part, because the trial court had refused to instruct on first-degree murder based on the kidnapping. The Missouri Supreme Court denied the appeal relying on the Baker rationale that first-degree murder was not a lesser included offense. Id. at 746-47. In so concluding, however, the Missouri Supreme Court added the following remarks:
Of course, the state if it chose to charge or seek an indictment of first-degree murder in addition to capital murder, which would allow an instruction on first-degree murder, could do so. Rule 23.05. But such is not the instant case. Nor is this a situation where a defendant charged only with capital murder requests and gets an instruction on first-degree murder, and then is convicted of first-degree murder. The point is overruled.
Id. at 747.
The above comments suggest that the Missouri Supreme Court contemplated that the facts of Blair could support a first-degree murder conviction. The only reason given for denial is the holding in Baker, a basis that is unsound and on which the majority in the instant case does not rely. Hence, given the similarities between *938Williams’ case and Blair, if the instruction might have been given in Blair, the majority has no foundation for denying it now to Williams.
It is further noteworthy that the Missouri Supreme Court has reviewed and affirmed cases where defendants received convictions for both capital murder and kidnapping. See, e.g., Bullington v. Missouri, 451 U.S. 430, 435 n. 7, 101 S.Ct. 1852, 1856 n. 7, 68 L.Ed.2d 270 (1981), rev’g on other grounds State ex rel. Westfall v. Mason, 594 S.W.2d 908 (Mo.1980); State v. Kilgore, 771 S.W.2d 57, 59-60, 68-69 (Mo.) (en banc), cert. denied, — U.S. -, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989).6 Significantly, after the United States Supreme Court reversed the judgment in Bulling-ton, the state retried the defendant and obtained a conviction for first-degree murder on a kidnapping-based theory. See State v. Bullington, 684 S.W.2d 52, 53-54, 57 (Mo.Ct.App.1984).
The Missouri Supreme Court has also affirmed a conviction for first-degree murder where the defendant kidnapped, raped and murdered a victim with seeming deliberation. State v. Olds, 603 S.W.2d 501, 502-05, 508-09 (Mo.1980) (en banc). In addition, the Missouri Supreme Court has affirmed a conviction for kidnapping that occurred in the context of an apparent attempted murder, see State v. Nave, 694 S.W.2d 729, 731-33, 738-39 (Mo.1985) (en banc) (defendant’s foiled attempt to murder drug abuse counselor), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 901 (1986), and in the context of a robbery-based felony murder to which the kidnapping was seemingly incidental, see State v. Mahaney, 625 S.W.2d 112, 113 (Mo.1981) (en banc).
Several opinions of the Missouri Court of Appeals likewise support the position that a kidnapping that is incidental to a capital murder can provide the basis for a first-degree murder conviction. In fact, the Missouri Court of Appeals, in discussing the capital murder and kidnapping convictions in Dodson, 556 S.W.2d at 947, expressly noted that “the State alleged and proved that the acts of kidnapping and confining the victims were integral parts of a common scheme leading to their murder.” Similarly, in State v. Mondaine, 655 S.W.2d 540, 544 (Mo.Ct.App.1983), another kidnapping-murder, the Missouri Court of Appeals implicitly approved the submission of a first-degree murder instruction, while at the same time accepting the state’s allegation that “the key link in the chain of causation of the victim’s death was the kidnapping of the victim.” As in Williams, the state in Mondaine had apparently proceeded on a premeditated murder theory.7 Also as in Williams, the defendant relied predominantly on an alibi defense. Id.
Further, in State v. Jimmerson, 660 S.W.2d 475, 476-79 (Mo.Ct.App.1983), the Missouri Court of Appeals affirmed a defendant’s conviction for capital murder where, following the robbery of a store, the defendant and an accomplice took the clerk to a country road and shot him. In reaching this result, the court acknowledged that the defendant’s accomplice was permitted to plead guilty to first-degree murder for the same offense and appeared to concede that the evidence could have supported such a charge. Id. at 477-78. Likewise, in Reed v. State, 778 S.W.2d 313, 315 (Mo.Ct.App.1989), a defendant who faced charges' for capital murder and kidnapping was permitted to enter a plea to first-degree murder and kidnapping. The Missouri Court of Appeals upheld the first-degree murder conviction, although on other grounds. Id. at 317-21.
A reasonably consistent application of the above holdings and the stándards supplied by Erby, 735 S.W.2d at 149, and Jackson, 703 S.W.2d at 24-25, indicates that Williams’ jury should have received instruction on first-degree murder. The evidence presented at Williams’ trial was that Betty Coleman lured Brummett into her car and then drove to a place on State Route 94 known as the “S” curves. State Trial Tr. at 282, 284, 289, 419. The “S” curves were located east of Jefferson City, Missouri, approximately one or two miles from the *939Missouri River. Id. at 284. At the “S” curves, Coleman pulled off the blacktop onto a gravel road and stopped the car. Id. at 288-89. At this time, the car containing Brummett was located only fifteen to twenty feet from the highway. Id. at 289.
Significantly, Morgan and Williams did not summarily execute Brummett at this location and then transport him to the river bank. Moreover, they did not kill Brum-mett at this location even though both Williams and Morgan were armed and Brummett strenuously resisted the abduction. See State Trial Tr. at 289-91. Instead, Williams and Morgan forcibly removed Brummett from the vehicle, tackled him to the ground, wrestled him into handcuffs and then placed him in the trunk. Id. Williams and Morgan then proceeded down the gravel road toward the Missouri River. Id. at 291. When they found campers at their planned place of entry, they turned around and headed back for the highway. Id.
On the way back to the highway, Williams and Morgan stopped the car and conducted a search of the trunk for a pistol that they mistakenly believed had fallen in the trunk during the abduction. State Trial Tr. at 292. Brummett was alive and conscious at this time. Id. The captors then stopped again at the site of the abduction, where they apparently continued the search for the missing weapon and ultimately recovered it. Id. at 292-93.
From there, Williams and Morgan turned onto State Route 94 and drove an additional five to six miles east toward Tebbetts, Missouri. State Trial Tr. at 293. Just outside of Tebbetts, the captors turned off the highway again and proceeded an undetermined distance to an isolated point on the Missouri River. Id. at 293, 304-13. Brummett’s attempt to escape ensued shortly thereafter. Id. at 294.
The majority suggests that the purpose behind transporting Brummett was solely to facilitate disposal of his body. This explanation is insufficient in itself, however, because Brummett, alive and struggling, certainly presented more of a difficulty than a corpse. Likewise, as subsequent events made obvious, the living Brummett presented a far greater escape risk. Finally, the availability of cliffs and steep banks at various points along the Missouri River would have made disposal of Brummett’s body relatively simple had that been the captors’ intent, regardless of where the actual killing occurred.
In view of the above evidence, only two reasonable explanations exist for Williams’ and Morgan’s decision to transport Brum-mett alive. The first explanation is that Williams and Morgan, although ultimately intending to kill Brummett, chose to transport Brummett in order to facilitate the commission of the crime as defined in Erby, 735 S.W.2d at 149, and Jackson, 703 S.W.2d at 24-25. In other words, Williams and Morgan were seeking a secluded location in order to minimize the opportunities for detection or intervention by outsiders and to decrease the chance that Brummett would successfully resist them.
A fair portion of the evidence introduced at trial lends credence to this position. For example, under one view of the evidence, the conspirators consciously rejected a proposal to kill Brummett at Betty Coleman’s trailer because of the likelihood of detection by Coleman’s roommate. State Trial Tr. at 283-85. Moreover, Williams and Morgan twice transported Brummett away from a travelled roadway in search of a site for the killing, id. at 291, 293, and deliberately rejected one location after discovering people in the vicinity, id. at 294.
The second possibility is that Williams and Morgan never intended to kill Brum-mett but only to terrify him into maintaining silence at the upcoming court proceedings. If this had been the case, the facts would clearly warrant a first-degree murder instruction because Brummett’s death resulted only when,.due to the attempted escape, the kidnapping went amok.
This theory is not so far-fetched as the majority’s recitation of the facts attempts to suggest. Indeed, the sole support in the record for the majority’s factual assertions about Williams’ conduct at the scene of the crime, supra at 927-928, 929-930, is the testimony of John Morgan, a co-conspirator turned State’s witness. Morgan, however, testified in exchange for his life. See State Trial Tr. at 318. Consequently, while Morgan’s testimony, if believed in its entirety, may suggest that Williams acted with premeditation, Morgan’s status as an accomplice entitled the jury to believe all, some or none of his assertions. State v. Day, 719 S.W.2d 291, 291-92 (Mo.Ct.App.1986); State v. Dick, 636 S.W.2d 425, 427 (Mo.Ct.App.1982).
Further, the defense presented considerable evidence impeaching Morgan. The defense developed Morgan’s own interest in Brummett’s death, State Trial Tr. at 320-21, 350, 632-33, as well as Morgan’s incen*940tive for providing the prosecution with information that would merit a grant of immunity, id. at 318-19, 350-51, 629-30, 633. In addition, the defense called into question the essential reliability of Morgan’s statements by eliciting testimony on Morgan’s chronic drug abuse, id. at 344-47, 352, 632, and by pointing to numerous inconsistent statements that Morgan had made to police in recounting the events preceding Brum-mett’s death, id. at 322-29, 633. Hence, the jury could have found that Morgan exaggerated or distorted Williams’ misconduct to improve his own bargaining position.8
The jury, not the judge, had the task of resolving these issues. In this case, the trial judge could not assess the evidentiary support for a kidnapping-based first-degree murder instruction without first deciding questions of credibility and state of mind. Since the reasonable minds could have drawn differing inferences about Morgan’s credibility and Williams’ state of mind, these questions should have rested with the jury. See State v. Nelson, 674 S.W.2d 220, 224 (Mo.Ct.App.1984). Thus, under either view of the evidence, a consistent application of Missouri law would dictate in favor of submitting the first-degree murder instruction.
The singular authority in support of the majority’s contentions to the contrary is State v. Coleman, 660 S.W.2d 201, 208-10 (Mo.Ct.App.1983). Coleman presented an appeal by Betty Coleman, Williams' alleged co-conspirator in the instant case. Like Williams, Coleman was convicted of capital murder by a jury that had received no instruction on first-degree murder. When Coleman raised this issue on direct appeal, the Missouri Court of Appeals held that the facts of Coleman’s case supported only an intentional planned homicide and not an accidental murder resulting.from an independent kidnapping. Id. at 209-10. Accordingly, under some and perhaps most circumstances, a federal court might conclude that concepts of federalism, which require certain deference to the Coleman holding, are dispositive. Nevertheless, such deference is not warranted in Williams’ case for a number of reasons.
First, in Coleman, defense counsel explicitly declined the first-degree murder instruction, and the state apparently did not request it either. Id. at 209.
Second, the Missouri Supreme Court’s failure to adhere to a consistent rule with respect to the first-degree murder instruction forced the Missouri Court of Appeals in Coleman to guess at the controlling legal standard for deciding that case. Id. The Coleman court is not the only Missouri Court of Appeals to express uncertainty about the Missouri Supreme Court’s “seemingly inconsistent position” on the first-degree murder instruction. See Rumble v. State, 741 S.W.2d 283, 284 n. 2 (Mo.Ct.App.1987);9 see also Jensen v. State, 723 S.W.2d 421, 423-24 (Mo.Ct.App.1986).
What is more, the Missouri Court of Appeals’ opinion in Coleman may itself present a denial of equal protection, albeit derivatively. To elaborate, the Missouri Court of Appeals rested its conclusion that Betty Coleman’s case contained no independent kidnapping, in part, on a comparison of Coleman’s circumstances with the Missouri Supreme Court’s ruling in State v. Blair, 638 S.W.2d at 743-47. Notably, Blair is one of the very cases in which, according to Williams’ allegations, the Missouri Supreme Court acted arbitrarily to affirm a conviction.
Third, the Missouri Court of Appeals’ holding in Coleman is insufficient to satisfy the unique federal constitutional concerns that are implicated in death penalty cases. Williams’ case, unlike Coleman, presents a death penalty appeal.10 In death penalty cases, Missouri law requires the Missouri Supreme Court to review all of a defendant’s contentions on direct appeal. Mo.Ann.Stat. § 565.014.2, .7 (Vernon 1979) (repealed 1984). Missouri adopted this and a number of similar procedural safeguards in order to address the federal constitutional concern that states not impose the death penalty in an arbitrary or capricious manner. See Bullington, 451 U.S. at 432-33, 101 S.Ct. at 1854-55; State v. Mercer, 618 S.W.2d 1, 4-5 (Mo.) (en banc), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981).
*941These protections, which guard against standardless infliction of the death penalty, are mandatory rather than optional. See Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980). In Godfrey, the United States Supreme Court overturned a death sentence where the Georgia Supreme Court abdicated its statutorily-mandated duty to provide meaningful review. Id. at 428-33, 100 S.Ct. at 1764-67. Accordingly, because the Missouri death penalty scheme was patterned after Georgia’s, Mercer, 618 S.W.2d at 4-5, the same concerns for fundamental fairness required the Missouri Supreme Court to meaningfully review Williams’ contention that the trial court erred in refusing to submit the first-degree murder instruction.
The Missouri Supreme Court, however, addressed the issue of instruction on first-degree murder only cursorily. In fact, the Missouri Supreme Court, in dismissing Williams’ claim, relied solely on its prior holding in Baker, see State v. Williams, 652 S.W.2d at 112, a basis on which the majority in the instant case has opted not to rely. As a result, the Missouri Supreme Court has never reached the issue that the majority decides today, i.e., that the facts of Williams’ case could not warrant an instruction on first-degree murder under Missouri law. Because such a holding fails to comport with the requirements of due process or equal protection in a capital case, I would reverse Williams’ death sentence and remand this case to grant Williams relief under his petition unless the Missouri courts grant him a new trial or resentence him to a term of imprisonment. See Mo.Ann.Stat. § 565.016 (Vernon 1979) (repealed 1984).11
Before LAY, Chief Judge, BRIGHT, Senior Circuit Judge, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges, En Banc.
ORDER
Oct. 12, 1990.
The NAACP Legal Defense and Educational Fund, American Civil Liberty Union of Western Missouri, and Missouri Capital Punishment Resource Center have moved for permission to file'briefs in support of Williams’s petition for rehearing en banc. For the most part, their briefs address Williams’s claim that the Missouri Supreme Court has committed equal protection violations in murder cases. Because we held there was insufficient evidence in Williams’s case to justify the submission of an instruction on the lesser included offense of felony murder, we did not reach the merits of Williams’s equal protection claim. Thus, the equal protection arguments the moving parties assert in their briefs are irrelevant to our decision and add no support to Williams’s petition. See Williams v. Armontrout, 912 F.2d 924, 929-30 (8th Cir.1990). Further, we see no useful purpose in permitting the mov-ants to file their briefs. This is particularly so because the equal protection issue raised in the moving parties’ briefs was recently decided by this court in another case. See Blair v. Armontrout, Nos. 86-2375/2376 (8th Cir. Sept. 24, 1990).
The motions are denied.
. The Missouri Supreme Court's selective application of Baker to affirm convictions is documented as follows.
On August 23, 1982, the Missouri Supreme Court held in Baker, 636 S.W.2d at 904-05, that first-degree murder was not a lesser included offense for capital murders occurring after January 1, 1979. The Missouri Supreme Court initially applied Baker retroactively, thereby affirming three capital murder convictions in which trial courts neglected to give the first-degree murder instruction. See State v. Blair, 638 S.W.2d 739, 746-47 (Mo. 1982) (en banc), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983); State v. Woods, 639 S.W.2d 818, 819 (Mo.1982); State v. Betts, 646 S.W.2d 94, 96 (Mo.1983) (en banc). The Missouri Supreme Court then changed course and held that Baker applied prospectively only. State v. Goddard, 649 S.W.2d 882, 889 (Mo.) (en banc), cert. denied. 464 U.S. 997. 104 S.Ct. 495. 78 L.Ed.2d 689 (1983). This ruling permitted the court to affirm a jury verdict of first-degree murder even though the state had charged only capital murder.
Just four weeks later, the Missouri Supreme Court reversed its position again, this time holding that Baker’s retroactive application prohibited instruction on first-degree murder. State v. Williams, 652 S.W.2d 102, 112 (Mo.1983) (en banc). This case affirmed Williams' conviction for capital murder. Shortly after deciding Williams, the Missouri Supreme Court changed positions for the third time that year and affirmed a first-degree murder conviction based on Baker’s prospective application. State v. Holland, 653 S.W.2d 670, 673 (Mo.1983) (en banc). Four years later, a Missouri Court of Appeals admitted it could not reconcile the Williams decision with other Missouri case law. Rumble v. State, 741 S.W.2d 283, 284 n. 2 (Mo.Ct.App.1987).
.Significantly, both the federal district court and the previous Eighth Circuit panel agreed that due process entitled Williams to the first-degree murder instruction if supported by the evidence. Williams v. Armontrout, 679 F.Supp. 916, 924 (W.D.Mo.1988); Williams v. Armontrout, 891 F.2d 656, 658-59, 667 (8th Cir.1989) (judgment vacated) (majority opinion of Bright, J., and dissenting opinion of Fagg, J.). In addition, the state trial court reached the same conclusion, although relying on state law grounds. State Trial Tr. at 612-13, 755. Only the Missouri appellate courts have ruled otherwise. State v. Williams, 652 S.W.2d at 112; Williams v. State, 712 S.W.2d 404, 406, 411 (Mo.Ct.App.1986). Moreover, at least one other Eighth Circuit panel has expressed concern about the due process implications of the Missouri Supreme Court’s vacillating position with respect to submission of the first-degree murder instruction. Franklin v. White, 803 F.2d 416, 418-19 (8th Cir.1986), cert. denied, 481 U.S. 1020, 107 S.Ct. 1904, 95 L.Ed.2d 510 (1987).
. Although the majority attempts to imply by its citation form that State v. Jackson, 703 S.W.2d 23, 25 (Mo.Ct.App.1985), stands for this proposition, the Jackson case dealt with a sexual assault, not a capital murder.
. The jury, during the sentencing phase, found beyond a reasonable doubt that Williams had acted to prevent Brummett from testifying in a judicial proceeding. State Trial Tr. at 702. Tampering with a prospective witness in a felony prosecution is a felony under Missouri law. See Mo.Ann.Stat. § 575.270 (Vernon 1979) (amended 1983).
. At the time of the defendant’s conviction in Dodson, the Missouri statutes defined capital murder as "murder in the first degree.” See Dodson, 556 S.W.2d at 946 n. 4. For a definition of murder in the first degree and a partial history of Missouri’s capital murder provisions, see State v. Duren, 547 S.W.2d 476, 477-81 (Mo.1977) (en banc).
. The defendant in Kilgore was convicted under Mo.Ann.Stat. § 565.020 (Vernon Supp.1990), which replaced the capital murder provision under which Williams was convicted, see Mo. Ann.Stat. § 565.001 (Vernon 1979) (repealed 1984).
. Specifically, the state presented evidence that the defendant, a drug lord, kidnapped and killed the victim, a suspected drug thief, as a lesson to others. Mondaine, 655 S.W.2d at 541-44. Thereafter, the trial court submitted instructions on capital murder, first-degree murder, second-degree murder and manslaughter. Id. at 544. The jury returned a verdict of second-degree murder. Id. at 541.
.See the vacated panel opinion, Williams v. Armontrout, 891 F.2d at 661-63, for additional factors that would support a first-degree murder instruction in Williams’ case.
. An Eighth Circuit panel recently denied Rumble’s petition for habeas corpus. See Rumble v. Smith, 905 F.2d 176 (8th Cir.1990).
. The jury sentenced Coleman to life imprisonment without the possibility of parole for 50 years. Coleman, 660 S.W.2d at 204.
. Even if relief were granted, Williams would likely spend the rest of his life in prison under his conviction for a separate homicide. See Williams v. Armontrout, 877 F.2d 1376, 1377 (8th Cir.1989) (Bright, J.), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990).