State v. Clay, 533 S.W.3d 710

Background

Defendant Larry Clay was tried for second-degree murder and armed criminal action after he shot and killed Joel White following a basement fight at Clay’s home; Clay admitted stabbing another participant and shooting White but claimed self-defense.
After the men left Clay’s house, an encounter continued in the driveway; Clay testified he retreated toward his house and fired while backing away as White pursued and attempted to grab him.
Jury acquitted Clay of assaulting one participant but convicted him of second-degree murder and armed criminal action for White’s death; Clay was sentenced to concurrent terms.
At trial the parties jointly drafted and submitted the self-defense instruction (MAI-CR 3d 306.06A variant), which omitted optional "withdrawal" language and did not explicitly state the statutory "no duty to retreat from private property" rule.
Defense proffered a separate non-MAI instruction stating there is no duty to retreat from private property; the trial court refused it as inconsistent with MAI format and invited the parties to argue the MAI instruction.
On appeal Clay argued instructional errors (withdrawal and no-duty-to-retreat), failure to instruct on voluntary manslaughter, improper admission of marijuana and brass-knuckles evidence, and prejudicial closing argument; the Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Omission of "withdrawal" language from self-defense instruction	Instruction was plain error because jury should have been told an initial aggressor may regain self-defense by withdrawing	Clay jointly drafted/submitted the instruction and thus waived plain-error review	Waived—defendant invited error by jointly proffering the instruction; no plain-error relief
2. Refusal to give separate "no duty to retreat" instruction	Trial court should have instructed jury that statute removes duty to retreat from private property	Non-MAI abstract instruction violated Rule 28.02(d) and MAI format; modification should have been tendered as MAI-style change (but defendant helped draft MAI instruction)	Refusal proper; defendant waived related claim by joint submission of MAI instruction
3. Failure to instruct on voluntary manslaughter (lesser included)	Court should have given voluntary manslaughter instruction as a nested lesser-included offense	Voluntary manslaughter is not "nested" because it requires an extra element (sudden passion); defendant did not timely request instruction	No plain error—the offense is not nested and defendant failed to timely request instruction
4. Admission of marijuana/brass knuckles evidence and closing argument about retreat	Evidence was irrelevant/prejudicial and closing improperly argued Clay had duty to retreat while defense was barred from arguing no duty to retreat	Marijuana evidence was elicited by both sides and relevant to credibility; brass knuckles were minimally referenced and admitted with other items; no contemporaneous objections to closing statements	No plain error or reversible error: evidence admissible/contextual and defendant either elicited it or failed to preserve objection; no timely objection to closing remarks and defense was permitted to argue MAI defenses

Key Cases Cited

State v. Bolden, 371 S.W.3d 802 (Mo. banc 2012) (jointly proffered erroneous instruction is invited error; waives plain-error review)
State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011) (failure to object to instruction does not automatically waive plain-error review)
State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014) (requirements for lesser-included instruction request and when court must give lesser offense)
State v. Deck, 303 S.W.3d 527 (Mo. banc 2010) (MAI-CR instructions are mandatory when applicable)
State v. Primm, 347 S.W.3d 66 (Mo. banc 2011) (uncharged-misconduct evidence admissible when part of sequence of events to present a coherent picture)
State v. Brown, 902 S.W.2d 278 (Mo. banc 1995) (plain-error standard for appellate discretion)