dissenting.
I respectfully dissent.
The principal opinion holds that the trial court did not err in failing to instruct the jury on first degree murder because State v. Baker, 636 S.W.2d 902, 904-05 (Mo. banc 1982), cert. denied, - U.S. -, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983), held that first degree murder is not a lesser included offense of capital murder. The principal opinion, however, overlooks the fact that only last .month this Court held that the decision in Baker “is not retroactive, but prospective, in its application.” State v. Goddard, 649 S.W.2d 882, 893 (Mo. banc 1983) (emphasis added). Baker was decided August 23, 1982, almost a year after the trial in this case was held September 14-17, 1981. Under the law that existed before Baker was decided, trial courts were required to instruct the jury on first degree murder whenever the evidence justified such an instruction. State v. Fuhr, 626 S.W.2d 379, 379 (Mo.1982). See State v. Daugherty, 631 S.W.2d 637, 645 (Mo.1982). Because Baker does not apply retroactively,1 appellant was entitled to an instruction on first degree murder in this kidnapping-murder case. It is no answer, as the principal opinion implies, that appellant concedes the applicability of Baker. The briefs in this case were filed, and this case was argued, well before Goddard was decided.2 In *118affirming appellant’s conviction and death sentence, the principal opinion once again “demonstrates the classic catch-22 into which the majority has written the Court in an effort to affirm criminal convictions.” Goddard, 649 S.W.2d at 890 (Welliver, J., dissenting).
. The principal opinion notes that Baker has been reaffirmed recently in a number of cases and cites State v. Betts, 646 S.W.2d 94, 96 (Mo. banc 1983), in support of that proposition. It is clear that the Court in Betts applied Baker retroactively to January 1, 1979, the date the new lesser included offenses statute, § 556.046, RSMo 1978, became effective. The trial in Betts occurred in October 1980, and the Court noted that “Baker was in effect at the time of trial.” 646 S.W.2d at 95-96. Interestingly, Goddard, in announcing that Baker was to be applied only prospectively, made no mention of the prior contrary holding in Betts.
. Appellant’s attorney filed a brief for appellant November 18, 1982, and appellant filed pro se briefs December 28, 1982, and January 17, 1983. The state’s brief was filed January 3, *1181983. This case was argued January 27, 1983. Goddard was decided April 26, 1983.