561 S.W.3d 483
Mo. Ct. App.2018Background
- Defendant Dareion Tate violated a full order of protection and returned to his estranged wife's home where he and an associate, Albert Davis, had previously threatened the household.
- On November 16, 2016, Tate went to the property, circled to the back, climbed onto an exterior air-conditioning unit, looked into a second-story window while armed, and fired two shots through the window, striking Victim Garnell Carter, who was inside the home.
- Victim, lawfully inside the residence at the invitation of the wife, had been given a gun with a laser sight and pointed it toward the exterior; Victim did not shoot.
- Tate testified he saw a laser beam and believed Victim pointed a gun at him; he claimed he fired in self-defense after observing the beam and hearing his child scream.
- The jury convicted Tate of first-degree assault, armed criminal action, unlawful use of a weapon, and violating an order of protection; he received concurrent terms (30 years for assault).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing a self-defense instruction | State: Defendant was the initial aggressor, unlawfully on the property, so self-defense not available | Tate: Evidence (Victim pointed a gun via laser) injected self-defense into the case | Court: Affirmed — Tate was initial aggressor; no reasonable belief of unlawful force existed, so no instruction warranted |
| Whether prosecutor’s closing argument referring to nearby school bus stop was improper | State: Argument highlighted community danger from defendant’s conduct; permissible | Tate: Reference was irrelevant and prejudicial speculation about hypothetical children | Court: Affirmed — comment was permissible, not inflammatory or prejudicial; no abuse of discretion |
Key Cases Cited
- State v. Bruner, 541 S.W.3d 529 (Mo. banc 2018) (quantum of proof to inject self-defense is "substantial evidence")
- State v. Whipple, 501 S.W.3d 507 (Mo. App. E.D. 2016) (viewing evidence in the light most favorable to defendant for self-defense instruction review)
- State v. Kendrick, 550 S.W.3d 117 (Mo. App. W.D. 2018) (three statutory elements required to inject self-defense)
- State v. Hamilton, 85 S.W.2d 35 (Mo. 1935) (no self-defense against a lawful defensive response to a felonious act)
- State v. Lee, 841 S.W.2d 648 (Mo. banc 1992) (trial court has discretion to control closing argument and judge prejudicial effect)
- State v. Dominguez-Rodriguez, 471 S.W.3d 337 (Mo. App. E.D. 2015) (reversal for improper closing argument requires abuse of discretion plus prejudice)