State of Missouri v. Richard John Whipple
501 S.W.3d 507
| Mo. Ct. App. | 2016Background
- On June 17, 2014 Richard Whipple and his family went to the Sannings' home looking for a stolen bike; a verbal altercation occurred between Mrs. Whipple and a Sanning teen.
- The Sannings later went to the Whipples' property to confront them; an argument between Richard Whipple and Jason Sanning Sr. ensued while both families remained in their vehicles.
- Whipple displayed a firearm to "diffuse" the situation after Sanning allegedly threatened him and refused to leave; later Whipple fired one shot into the hood of the Sannings' van as it was backing up and allegedly veering toward him and his vehicle.
- Whipple was tried by jury and convicted of: unlawful use of a weapon (brandishing), unlawful use of a weapon (discharge), first-degree tampering with a motor vehicle, and three counts of third-degree assault. He does not contest sufficiency of the evidence.
- At trial the court refused Whipple's requested self-defense/defense-of-others instructions; Whipple objected and later moved for a new trial, which was denied.
- Whipple was sentenced as a prior offender; he appealed the refusal to give self-defense instructions and the use of the prior-offender statute in sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in refusing to give self-defense jury instructions | State: evidence insufficient to support self-defense and duty-to-retreat instructions | Whipple: entitled to self-defense instruction because (a) no duty to retreat on his property and (b) substantial evidence supported self-defense/defense of others | Reversed: court erred; substantial evidence put self-defense/defense-of-others in issue for both brandishing and shooting counts; instruction must be given |
| Effect of duty-to-retreat provision in §563.031 on entitlement to a self-defense instruction | State: absence of duty to retreat does not eliminate statutory reasonableness requirements of §563.031.1 | Whipple: entitled to instruction solely because §563.031.3 removes duty to retreat on occupier's property | Court: duty-to-retreat removal does not dispense with reasonableness/necessity requirements; subsections must be read together |
| Whether a separate duty-to-retreat instruction was required | State: no separate MAI exists; MAI-CR 3d 306.11 (modified) covers the law | Whipple: requested separate duty-to-retreat instruction | Court: no separate instruction needed; give a modified MAI-CR 3d 306.11 on remand to reflect private-property language |
| Whether sentencing Whipple as a prior offender under §558.016 based on a prior SIS violated due process | Whipple: prior suspended imposition of sentence (SIS) cannot be used to trigger prior-offender status because SIS isn't a final, appealable judgment and could be erroneous | State: statute permits prior offender status based on prior finding of guilt; SIS conviction can support prior-offender status; defendant had remedies (extraordinary writ) if prior judgment was erroneous | Court: claim is colorable but plainly without merit; sentencing as prior offender under §558.016 was proper |
Key Cases Cited
- State v. Amschler, 477 S.W.3d 10 (Mo. App. E.D. 2015) (self-defense instruction review; view evidence in defendant's favor)
- State v. Westfall, 75 S.W.3d 278 (Mo. banc 2002) (trial court must instruct on self-defense if substantial evidence exists)
- State v. Avery, 120 S.W.3d 196 (Mo. banc 2003) (substantial evidence means evidence putting the matter in issue)
- State v. Weems, 840 S.W.2d 222 (Mo. banc 1992) (reversible error to refuse a self-defense instruction when supported by substantial evidence)
- State v. Chambers, 671 S.W.2d 781 (Mo. banc 1984) (four prerequisites for self-defense instruction)
- State v. Clinch, 335 S.W.3d 579 (Mo. App. W.D. 2011) (reading of §563.031 subsections; deadly-force requirements tied to subsection 1 reasonableness)
- State v. Wiley, 337 S.W.3d 41 (Mo. App. S.D. 2011) (insights on duty to retreat and relevance to self-defense reasonableness)
- State v. Crudup, 415 S.W.3d 170 (Mo. App. E.D. 2013) (deadly force justified only when defender reasonably believes deadly force necessary)