State of Missouri v. Andrew BarnettState of Missouri v. Andrew Barnett
Andrew Barnett (“Barnett“) appeals the circuit court‘s judgment following a jury trial convicting him of first-degree assault and armed criminal action. Barnett argues the circuit court erred in failing to submit a self-defense instruction. This Court has jurisdiction under
Background
Barnett was charged with first-degree assault and armed criminal action. The following evidence was adduced at trial. On the night in question, Barnett and Victim were both at the Little Bar (“the bar“). Throughout the night, Victim urged Barnett to go outside so the two could fight. Later in the evening, Victim approached Barnett in a threatening manner, and the two got into a physical altercation. The bartenders ordered both men to leave the bar. Before Barnett left, a friend gave Barnett back his knives the friend had
During the jury instruction conference, Barnett offered a self-defense instruction. The state objected, claiming Barnett was not entitled to such an instruction because he denied committing the stabbing. The circuit court sustained the state‘s objection. The circuit court submitted an instruction for first-degree assault, along with a mitigating heat of passion instruction. An instruction for armed criminal action also was submitted.
The jury found Barnett guilty of first-degree assault and armed criminal action, and Barnett was sentenced accordingly. Barnett filed a motion for new trial, arguing, among other things, the circuit court erred by refusing to submit a self-defense instruction. The circuit court overruled the motion for new trial. Barnett appeals.
Analysis
The state claims Barnett is not entitled to a self-defense instruction principally because Barnett expressly denied stabbing Victim. According to the state, Barnett is entitled to a self-defense instruction only if the evidence supporting the theory of self-defense was offered by the state or injected by the testimony of a third party. Because neither the state nor a third party introduced the issue of self-defense, the state concludes Barnett was not entitled to the requested instruction. For the reasons set forth below, the Court rejects this argument.
I.
In determining whether a defendant is entitled to an instruction, this Court has long held if there is substantial evidence to support the theory propounded in the requested instruction, the court is required to submit that instruction to the jury. State v. Bidstrup, 140 S.W. 904, 907 (Mo. 1911). In making this determination, a court must view “the evidence in a light most favorable to the defendant[] in order to determine whether the evidence was sufficient to support and authorize instructions on the mentioned matters.” State v. Cole, 377 S.W.2d 306, 307 (Mo. 1964). Although the law on this issue was clear as early as 1911, see Bidstrup, 140 S.W. at 907, it has had a long and tortured history over the last century. This inconsistency in the law, which is addressed in Section III, has caused the state mistakenly to rely on cases holding an exception to the rule in Bidstrup exists when a defendant attempts to introduce his own testimony contrary to the requested instruction. Because no such exception exists, the state‘s reliance on these cases is improper.
The rule that a court is required to submit an instruction when there is substantial evidence to support it does not change when the defendant‘s testimony contradicts the requested instruction. Bidstrup, 140 S.W. at 907.1 If the opposite were true, the court - not the jury - would be tasked with determining which version of the defendant‘s statements to believe. This, of course, would be a usurpation of the jury‘s fact-finding role. State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014). As a result, when the evidence supports two conflicting versions of events, even when both versions have been provided by the defendant, the court must refrain from determining which version is correct. Id.2
The question of whether a defendant is entitled to an instruction cannot turn on which party introduced the evidence supporting the instruction. Bidstrup, 140 S.W. at 907. This remains true when the evidence supporting the instruction is the defendant‘s own testimony because, in making a sufficiency of the evidence determination, a court must “consider all the evidence in the case, without regard to the party by whom it was introduced.” Id. It is irrelevant “whether the issue arises from the testimony of the one side or the other, or both, [because in each instance] a question of law is presented upon which it becomes the duty of the court to instruct the jury for their information in giving their verdict.” Id. at 908. Therefore, if the evidence relied upon by the party requesting the instruction has been admitted into evidence (an evidentiary determination that is made before the question of jury instructions is decided), it must be considered by the court in determining whether the instruction shall be submitted. Id. at 907-08.
In short, there is no justifiable reason to deprive a defendant of his freedom without first allowing him to defend himself on every theory supported by the evidence. Accordingly, the only relevant inquiry when a defendant requests an instruction on a theory of defense is whether, after viewing all the evidence and drawing all reasonable inferences in favor of the theory propounded by the defendant, Cole, 377 S.W.2d at 307-08, there was substantial evidence to support the requested instruction. Bidstrup, 140 S.W. at 907. This inquiry remains the same regardless of which party introduced the testimony supporting the instruction and regardless of whether the defendant testified to the contrary. Id. at 907-08. As a result, going forward, it will be simplest if, when determining whether a defendant is entitled to a requested instruction, the court evaluates each requested instruction individually. State v. Redmond, 937 S.W.2d 205, 210 (Mo. banc 1996). When the instruction under evaluation is “supported by the evidence” it should be given “without regard to whether [any] other instruction is also being given.” Id.
II.
The foregoing must now be applied to Barnett‘s claim the circuit court erred in failing to give a self-defense instruction. “This Court reviews de novo a
An instruction is “supported by the evidence,”
After establishing the quantum of evidence necessary for a court to give an instruction, i.e., substantial evidence, the elements of self-defense must be identified. Pursuant to the self-defense statute, “A person may ... use physical force upon another person” if the person (1) was not the initial aggressor; and (2) “reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person ....”
death, serious physical injury, or a forcible felony. See
Before applying the facts of this case to the elements of self-defense, it bears repeating that in conducting this analysis, the Court need not consider Barnett‘s version of the events, or which party introduced the evidence supporting the instruction. Bidstrup, 140 S.W. at 907. Rather,
Below is the evidence adduced at trial, and faithful to the applicable standard, any evidence that does not support Barnett‘s requested self-defense instruction has been struck through.
Throughout the night, Victim urged Barnett to go outside so the two could fight. Then, later in the evening, Victim approached Barnett in a threatening manner and the two got into a physical altercation. The bartenders ordered both men to leave the bar. Before Barnett left, a friend gave Barnett back his knives the friend had been holding. After exiting the bar, Barnett stopped to urinate near a dumpster. At that time, Victim approached Barnett from behind and shouted threatening obscenities, such as “now you‘re going to die you [expletive].” The two got into a physical altercation, and Barnett saw a “metal and shiny” object in Victim‘s hand coming toward Barnett‘s face.
In response, Barnett testified he knocked Victim‘s hand away, shoved Victim to the ground, and left the scene.A witness who saw the altercation from afar, claimed he saw Victim “drop like a bag of rocks.” Shortly thereafter, Victim was lying on the ground, bleeding severely, and appeared to have several stab wounds.A few hours after the incident, Barnett was asked by police officers if he stabbed Victim in self-defense, but Barnett adamantly denied stabbing Victim at all.
First, there is substantial evidence Barnett was not the initial aggressor because there is evidence that early in the night, Victim called Barnett names and urged Barnett to go outside and fight. Then, later in the evening, Victim approached Barnett in a threatening manner, and the two got into an altercation. Last, while Barnett was urinating, Victim approached him from behind and shouted threatening obscenities at him.
Second, there is substantial evidence Barnett reasonably believed the use of deadly force was necessary to protect himself against death, serious physical injury, or a forcible felony. There is evidence that, while the two were outside, Victim threatened Barnett‘s life, stating, “now you‘re going to die.” And in Victim‘s hand was something “metal and shiny,” which Barnett testified was coming toward his face. Taking all of this as true, and drawing all reasonable inferences in favor of a theory of self-defense, there is substantial evidence Victim was about to carry out his threat to kill Barnett with the knife (or some other similar shiny metal object) that was in his hand and coming toward Barnett‘s face.
To be sure, there is ample evidence in this case negating self-defense. Under the standard set forth in Cole, however, the Court can consider only the evidence that supports a self-defense instruction. Cole, 377 S.W.2d at 307. Here, when only the above mentioned evidence is considered, there can be no doubt substantial evidence exists to support a theory of self-defense.
A faithful viewing of the evidence under Cole and true application of the rule set forth in Bidstrup will require a self-defense instruction be given when requested in many cases. But this does not mean “a self-defense instruction should be given every time the defendant requests it.” Bruner, 541 S.W.3d at 541 (Wilson, J., dissenting).5
III.
As noted in Section I, the state supports its position with cases holding an exception to the rule in Bidstrup exists when the defendant‘s own testimony tends to negate the requested instruction. But a thorough examination of the case law traces this exception back to dicta in this Court‘s opinion in State v. Wright, 175 S.W.2d 866 (Mo. 1943). That dicta was incorrect because, as forth in Section I, a defendant is entitled to every instruction there is substantial evidence to support. See Bidstrup, 140 S.W. at 907. Any case holding to the contrary should no longer be followed.
As an initial matter, it is relevant to note that the state of the law before Wright was consistent with Bidstrup. For instance, in State v. Creighton, 52 S.W.2d 556, 561-62
(Mo. 1932), this Court identified a conflict in the law regarding whether a defendant‘s testimony could be the sole basis for two instructions on inconsistent theories of defense.7 In Creighton, the defendant argued he was entitled to a manslaughter instruction based on his testimony, despite the fact he also received a self-defense instruction based on his testimony. Id. at 560-61. Applying Bidstrup (among other cases), the Court found substantial evidence existed to support a manslaughter instruction because the defendant testified the victim assaulted the defendant. Id. at 562. The Court also correctly resolved the conflict by overruling any case that held a defendant was not entitled to an instruction because the defendant‘s testimony was sole basis for the inconsistent instructions. Id.
About a decade later, the Court issued its opinion in State v. Wright. In Wright, on the night of the crime, the defendant‘s statement to the police suggested he committed the killing in self-defense. Wright, 175 S.W.2d at 869-70. This evidence was introduced by the state at trial. Id. The defendant then testified at trial that, even
On appeal, this Court relied on Bidstrup and Creighton to hold that the circuit court erred in failing to give a self-defense instruction because there was substantial
evidence - in the form of the defendant‘s statement on the night of the crime - to support that instruction. Id. at 871-72. This was correct. Unfortunately, the Court then proceeded needlessly to engage in a discussion concerning who authored - and offered - the inconsistent statement. Id. at 872. In doing so, the Court stated the testimony supporting an instruction contrary to the defendant‘s testimony will typically be the “testimony of third party witnesses for the defendant, or witnesses for the State.” Id. at 871. But the inconsistent statement in Wright was not from the testimony of a third-party witness or a witness for the state but, rather, from the defendant. Id. at 869-70. As a result, the Court‘s discussion of that issue was dicta.
In this same regard, the Court also stated that - had he attempted to do so - the defendant would not have been permitted to introduce his own prior inconsistent statement at trial. Id. at 871-72. On the other hand, if the state sought to introduce the defendant‘s prior inconsistent statement, the Court noted the defendant would have been permitted to rely on that statement to show there was substantial evidence supporting the requested instruction. Id. But once again, because the Court‘s entire discussion of whether the defendant could have introduced his prior inconsistent statement occurred in a case in which the state sought to do so, this discussion was dicta. Id. at 869-70.8
Later, in State v. Baker, 277 S.W.2d 627, 629-30 (Mo. 1955), the Court sought to apply the convoluted dicta from Wright. In Baker, the defendant affirmatively testified at trial that the shooting was an accident, and an accident instruction was submitted to the jury. Id. at 629. On appeal, the defendant argued he was also entitled to a self-defense instruction. Id. In addressing this issue, the Court stated that, even though “[t]he defenses of self-defense and accident are inconsistent[,] [i]f proved by proper evidence, a defendant is entitled to have inconsistent defenses submitted to a jury.” Id. Relying on Wright, the Court then explained, “the evidence to justify the instruction on the inconsistent defense must be offered by the State or proved by third party witnesses for the defendant.” Id. at 630 (citing Wright, 175 S.W.2d at 871). From there, the Court concluded the defendant was not entitled to an instruction on self-defense because the evidence supporting the instruction came from the defendant, not the state or a third party. Id.
The holding in Baker is incorrect. Instead of simply determining whether there was substantial evidence to support the instruction requested by the defendant, as required by Bidstrup, the Court was misled
Baker and its progeny can be traced back to this Court‘s dicta in Wright. Because of that dicta, Wright for decades has been erroneously cited for propositions far beyond its holding.9 This needs to end. These cases unnecessarily blur - and, occasionally, ignore outright - the bright line drawn in Bidstrup, i.e., that a defendant is entitled to an instruction when there is substantial evidence to support it regardless of who authors or offers that evidence. Bidstrup, 140 S.W. at 907. This Court correctly articulated in Bruner and Westfall that substantial evidence of self-defense requiring an instruction may come from the defendant alone. Bruner, 541 S.W.3d at 535; Westfall, 75 S.W.3d at 280-81. In so ruling, the Court did not deem it necessary to expressly overrule prior contrary cases. The state‘s attempt to distinguish Bruner, however, shows the need to expressly overrule Baker and subsequent cases utilizing similarly mistaken analysis.10
Conclusion
For the reasons set forth above, the judgment of the circuit court is vacated, and the case is remanded to the circuit court for further proceedings not inconsistent with this opinion.
All concur.
Paul C. Wilson, Judge