David Ballard, Warden v. Phillip Reese Bush

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The State appeals the circuit court's order granting respondent's petition for habeas corpus that reversed respondent's March 24, 1983, convictions of two counts of murder, and granted a new trial. The trial court's instruction to the jury stated that the jury could find the respondent guilty of murder "committed in the commission or attempt to commit a robbery and/or first degree sexual assault." At the time of respondent's trial in 1983, the felony murder statute had not been amended to reference "sexual assault," but rather, it still referenced the crime of "rape." The habeas court ruled that given the use of "and/or" in the instruction and in the verdict form, it was impossible to discern the predicate felony upon which the murder convictions were based.