Patrick L. Beck appeals the judgment of his conviction, after a jury trial in the
The appellant raises three points on appeal. In Point I, he claims that the trial court plainly erred in failing to declare, sua sponte, a mistrial for the State’s arguing to the jury that in considering whether the appellant acted in self-defense, as submitted in Instruction No. 11, which was proffered by the appellant and patterned after MAI-CR 3d 306.06, it could only consider the actions of the victim and not those of his friends because the argument misstated the law of self-defense found in § 563.031. In Point II, he claims that the trial court plainly erred in failing to modify, sua sponte, Instruction No. 11, to instruct the jury that it could consider not only the actions of the victim, but the victim’s friends, in determining whether he acted in self-defense in stabbing the victim, because without modification, MAI-CR 3d 306.06, contrary to the law of self-defense, does not provide for instances of self-defense in cases of multiple assailants, as in this case. In Point III, he claims that the trial court plainly erred in entering its judgment of conviction on the jury’s verdict finding him guilty of the class C felony of assault in the second degree, § 565.060, as submitted in Instruction No. 7, because it did not, as required by due process, hypothesize all the requisite proof elements of that crime.
We reverse and remand.
Facts
In the early morning hours of August 6, 2000, an incident occurred in the parking lot of the Hangout Bar and Grill in Ivy Bend, Missouri, involving the appellant and Matthew Snarr, the victim. Prior to the incident, both men, who had never met, had been in the bar for several hours with different groups of people. At some point, they exited the bar and a confrontation ensued in the parking lot, which ultimately resulted in the appellant stabbing the victim six times.
On April 14, 2003, an information was filed in the Circuit Court of Morgan County, charging the appellant with assault in the first degree, § 565.050. The appellant’s case proceeded to a jury trial on September 2, 2003. The appellant admitted at trial to stabbing the victim, but claimed he was acting in self-defense. The victim testified that the appellant followed him outside of the bar and attacked him with a knife. He testified that neither he nor his friends provoked the appellant in any way.
The appellant testified that the victim and two of his friends instigated a fight with him and his friend, Waylon Bashrum, because one of the victim’s friends believed Bashrum was “looking at [his] old lady.” He further testified that the victim forcefully held him from behind while the victim’s friends approached him brandishing a baseball bat and metal pipe in a threatening manner. According to the appellant, it was necessary for him to stab the victim because he believed it was his only means of escaping the victim’s hold and the vic
The jury was instructed on first-degree assault, and the lesser-included offenses of assault in the second and third degree. At the request of the appellant, the jury was instructed on the issue of self-defense in Instruction No. 11, which was proffered by the appellant and patterned after MAI-CR 3d 306.06. Instruction No. 11 reads:
One of the issues in this case is whether the use of force by the defendant against Matthew Snarr was in self-defense. In this state, the use of force, including the use of deadly force, to protect oneself from harm is lawful in certain circumstances.
In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger.
If he has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to protect himself.
As used in this instruction, the term ‘reasonable belief means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.
On the issue of self-defense in this case you are instructed as follows:
If the defendant was not the initial aggressor in the encounter with Matthew Snarr, and if the defendant reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr and the defendant used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self-defense.
The State has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty in this case.
During closing arguments, the State twice commented on the appellant’s self-defense instruction, Instruction No. 11. First, the prosecutor stated: “I would suggest you read the Court’s instruction to you on self-defense. It only relates to what Matthew Snarr did, not what anybody else — what the defendant claims somebody else did.” Second, during the State’s final argument, the prosecutor stated: “[The appellant], under the law, whether we like it or not, is entitled to react only against what Matthew Snarr did, not what some other people supposedly did.”
On September 2, 2003, the jury returned its verdicts finding the appellant not guilty of assault in the first degree, but guilty of assault in the second degree. On September 23, 2003, the appellant filed a motion for judgment of acquittal or, in the alternative, for a new trial. None of the issues raised by the appellant on appeal, however, were asserted in the motion, which was overruled.
On January 14, 2004, the trial court sentenced the appellant to three years in the Missouri Department of Corrections. In its form judgment entry, the trial court indicated that the appellant had been convicted of assault in the first degree, a class B felony,
2
rather than assault in the second
This appeal followed.
I.
Before addressing the merits of the appellant’s claims of error, we first must address the obvious discrepancy between the trial court’s judgment entry, convicting the appellant of the class B felony of assault in the first degree, § 565.050, and the jury’s guilty verdict, finding him guilty of the class C felony of assault in the second degree, § 565.060. Because the parties do not raise this issue on appeal, our review of this issue, if any, would be for plain error, in accordance with Rule 30.20. 3
Rule 30.20 provides, in pertinent part, that “[wjhether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom.” The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review.
State v. Carr,
If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious, and clear.
Id.
As in the case of our review for “regular” error, not every evident, obvious, and clear error found mandates reversal.
Carr,
In its form judgment entry, the trial court found that the appellant was convicted of the class B felony of assault in the first degree, as originally charged by the State. However, the jury, in its verdict, found him guilty of the lesser-included offense of assault in the second degree, a class G felony, as submitted in Instruction No. 7, thereby acquitting him of assault in the first degree.
State v. Collins,
THE COURT: The verdict form returned by the jury reads as follows: “We, the jury, find the defendant, Patrick Beck, guilty of assault in the second degree as submitted in Instruction Number 7.’ It is signed by the foreperson of the jury.
Mr. Beck, you had your right to a jury trial, and the jury found you guilty. Their recommendation was three years imprisonment, plus a fine in the matter. In accordance with that, it’s the judgment and sentence of this Court that you be transported to the reception center of the Missouri Department of Corrections by the sheriff of Morgan County, Missouri, with one guard allowed, there to be kept and confined in an institution to be designated by the Missouri Department of Corrections for a term of three years unless sooner discharged according to law.
Section 558.011 sets forth the authorized punishments, inter alia, for class B and class C felonies, providing:
1. The authorized terms of imprisonment, including both prison and conditional release terms, are:
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(2) For a class B felony, a term of years not less than five years and not to exceed fifteen years;
(3) For a class C felony, a term of years not to exceed seven years;
Thus, by sentencing the appellant to three years in prison, the trial court sentenced him as though he had been convicted of a class C felony, rather than a class B felony, as indicated in its judgment. Given this fact, along with the trial court’s express declaration that it was entering judgment in accordance with the jury’s verdict, it is readily apparent that the trial court, in its form judgment entry, mistakenly checked the box indicating that the appellant was convicted of assault in the first degree.
As a general rule, where there is a material discrepancy between the oral pronouncement of the trial court’s judgment and sentence, and the written judgment entry, the oral pronouncement controls.
Collins,
II.
In Point I, the appellant challenges the State’s argument to the jury at trial as to the law of self-defense, on which the jury was instructed in Instruction No. 11. More specifically, he attacks the State’s argument to the jury interpreting the law of that instruction. In Point II, he challenges whether Instruction No. 11, which he proffered and was patterned after MAI-CR 3d 306.06, correctly advised the jury of the law of self-defense, as found in § 563.031 and applied to the specific facts of his case. Given these challenges, we necessarily discuss Point II first so as to determine the law of self-defense, as applied in this case and on which the determination of Point I depends for resolution.
In Point II, the appellant claims that the trial court plainly erred in failing to modify,
sua sponte,
his self-defense instruction, Instruction No. 11, to instruct the jury that it could consider not only the actions
MAI-CR 3d 306.06, the mandatory MAI-CR 3d instruction for submitting self-defense, Note on Use 2;
State v. White,
PART A — GENERAL INSTRUCTIONS
One of the issues (as to Count_) (in this case) is whether the use of force by the defendant against [name of victim ] was in self-defense. In this state, the use of force (including the use of deadly force) to protect oneself from harm is lawful in certain situations.
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[Use the material in [2] in ALL cases. Omit brackets and number.]
[2] In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger.
If he has such a belief, he is then permitted to use that amount of force that he reasonably believes to be necessary to protect himself.... fUse the material in [Jfj in ALL cases. Omit brackets and number.]
As used in this instruction, the term ‘reasonable belief means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.
PART B — SPECIFIC INSTRUCTIONS
On the issue of self-defense (as to Count_) (in this case), you are instructed as follows: [Select the appropriate paragraphs. Omit brackets and number.]
[1] [If there is evidence the defendant was the initial aggressor, use the appropriate portions of the following material. If there is no evidence that the defendant was the initial aggressor, skip this paragraph [1] and go to paragraph [2].]
If the defendant was not the initial aggressor in the encounter with [name of victim ],
(or if he was the initial aggressor and clearly indicated to [name of victim ] his withdrawal from the encounter, [See Notes on Use 5(a) for modification if a claim of lawful use of force is raised.])
[2] [Insert either [A], [B], [C], or [D] as appropriate. Omit brackets and material within the brackets.]
[A] [Use the following when there is no evidence as to the use of deadly force.]
(and if) (If) the defendant reasonably believed he was in imminent danger of harm from the acts of [name of victim ] and the defendant used only such forceas reasonably appeared to be necessary to defend himself, then he acted in lawful self-defense.
“The first part of the instruction, part A, sets out the general requirements for the use of force in self-defense.” MAI-CR 3d 306.06, Note on Use 4. “The second part of the instruction, part B, gives specific instructions relating to the specific case.” Id., Note on Use 5. “The third part of this instruction, part C, deals with matters of evidence.” Id., Note on Use 7.
The appellant contends that in order to properly instruct the jury on the law of self-defense, where, as here, there was evidence of multiple assailants, MAI-CR 3d 306.06 must be modified. Specifically, he claims that MAI-CR 3d 306.06, Part B— SPECIFIC INSTRUCTIONS, paragraph [2][A] should be modified so as to read:
(and if) (If) the defendant reasonably believed he was in imminent danger of harm from the acts of [name of victim ] [and those whom the defendant reasonably believed were acting in concert with [name of victim ]] and the defendant used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self-defense.
The bracketed language: “[and those whom the defendant reasonably believed were acting in concert with]” is the language the appellant is contending should have been added, sua sponte, by the trial court to Instruction No. 11 and was not.
The State contends in its brief that: (1) the appellant waived plain error review of his claimed instructional error as to Instruction No. 11 because he proffered it; and, (2) in the alternative, even if he did not waive plain error review, there was no error, plain or otherwise, in the trial court’s failure to modify, sua sponte, Instruction No. 11, because it was patterned after the mandatory self-defense instruction, MAI-CR 3d 306.06, and that it correctly stated the law of self-defense in cases involving multiple assailants. We disagree.
A. No Waiver of Plain Error Review
Rule 28.03 requires counsel to make specific objections to an instruction considered erroneous. If a party fails to object to an instruction, prior to the jury’s retiring to consider its verdict, that party may not assign as error on appeal the giving or failure to give that instruction.
Id.
While Rule 28.03 makes it clear that a party’s failure to object at trial to an instruction preserves nothing for review as to the giving or the failure to give that instruction,
State v. Hopkins,
In
Wurtzberger,
the defendant was convicted of attempting to manufacture a controlled substance, methamphetamine, § 195.211.1.
In
Derenzy,
the defendant was charged with the delivery of a controlled substance, marijuana, within 2,000 feet of a school, in violation of § 195.214.1.
In
State v. Westfall,
Based on the Court’s opinion in Derenzy and its footnote in Westfall, and the fact that the trial court, here, found that the appellant had carried his burden of injecting the issue of self defense, as required by § 563.031.4, such that the giving of a proper self-defense instruction by the court was mandatory, the appellant did not waive plain error review of his self-defense instruction, Instruction No. 11.
In finding as we do, that the defendant does not waive plain error review of the giving of an approved patterned jury instruction submitted by him, we are mindful of our holding in
State v. Goodwin,
Having determined that the appellant did not waive plain error review of his claim in Point II, we now turn to the merits of his claim.
B. Plain Error
In Point II, the appellant claims that the trial court plainly erred in failing to modify, sua sponte, his self-defense instruction, Instruction No. 11, to instruct the jury that it could consider not only the actions of the victim, but the victim’s friends, in determining whether he acted in lawful self-defense in stabbing the victim, because, without such modification, MAI-CR 3d 306.06 does not correctly instruct on the law of self-defense in cases of multiple assailants, as in this case. Specifically, he claims that the paragraph of Instruction No. 11, which reads: “If the [appellant] was not the initial aggressor in the encounter with Matthew Snarr, and if the [appellant] reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr and the [appellant] used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self defense,” should have been modified, sua sponte, by the trial court to read: “If the [appellant] was not the initial aggressor in the encounter with Matthew Snarr, and if the [appellant] reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr ‘and those whom the defendant reasonably believed were acting in concert with Matthew Snarr’ and the [appellant] used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self defense.”
In State v. Hibler, this court set forth the plain error standard of review for instructional error:
Giving the language in [Rule 30.20] its plain and ordinary meaning, we interpret it as providing for a two-step process in determining plain error review. Under the rule, the first step involves an examination to determine whether the claim for review facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted, or in other words, whether on the face of the claim, plain error has, in fact, occurred.... Plain errors are those which are evident, obvious and clear. If plain error is found on the face of the claim, then the rule authorizes, as a matter of court discretion, a second step to determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.
Instructional error seldom rises to the level of plain error. To show that the trial court plainly erred in submitting a jury instruction, a defendant must go beyond a demonstration of mere prejudice. In the context of instructional error, plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury’s verdict, and cause[d] manifest injustice or miscarriage of justice. The defendant bears the burden of showing that plain errorhas occurred which resulted in manifest injustice or a miscarriage of justice.
Rule 28.02(c) provides: “Whenever there is an MAI-CR instruction or verdict form applicable under the law and Notes On Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form.” “Whenever there is evidence supporting [self] defense, [MAI-CR 3d 306.06] must be given.” MAI-CR 3d 306.06, Note on Use 2. Hence, “MAI-CR 3d 306.06 is the mandatory instruction to be given when instructing on self-defense.”
White,
Section 563.031 governs the “[u]se of force in defense of persons.” Pursuant to § 563.031.4: “The defendant shall have the burden of injecting the issue of justification under this section.” (Emphasis added.) If a term or phrase is defined in the statute, that definition controls in the application of the statute.
State v. Rousseau,
When the phrase “The defendant shall have the burden of injecting the issue” is used in the code, it means
(1) The issue referred to is not submitted to the trier of fact unless supported by evidence; and
(2) If the issue is submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue.
We see nothing about the context of § 563.031.4 that would require a definition of the phrase, “injecting the issue,” other than that found in § 556.051. Hence, the statutory definition of “injecting the issue,” found in § 556.051 controls as to § 563.031.
MAI-CR 3d 306.06, Note on Use 2 provides: “The ‘burden of injecting the issue’ of self-defense is on the defendant.” This language comports with § 563.031.4 and § 556.051. “Whenever there is evidence supporting this defense, this instruction must be given.” MAI-CR 3d 306.06, Note on Use 2. In determining whether the evidence supports the giving of a self-defense instruction, the evidence has to be viewed in a light most favorable to the defendant.
Vogel v. State,
Once the defendant carries his burden of injecting the issue of self-defense, the State has the burden to prove beyond a reasonable doubt that he did not act in lawful self-defense, and the jury must be instructed accordingly.
White,
For the evidence to support the giving of a self-defense instruction, there necessarily has to be evidence establishing each of the elements of self-defense, which are found in § 563.031. See MAI-CR 3d 306.06, Note on Use 1 (§ 563.031 is the lone statutory reference for the instruction). 4 Section 563.031 reads:
1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided
(a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
(b) He is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or
(c) The aggressor is justified under some other provisions of this chapter or other provision of law;
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks toprotect would not be justified in using such protective force.
2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping or serious physical injury through robbery, burglary or arson.
3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
4. The defendant shall have the burden of injecting the issue of justification under this section.
Subsections 3 and 4 of the statute do not address the elements of self-defense. Rather, they deal with the use of physical restraint and the requirement that the defendant inject the issue into the case, respectively. Subsection 2 only applies in cases involving deadly force, and subdivision (2) of subsection 1 only applies in cases of physical force used in defense of third persons. Hence, in cases such as ours, involving self-defense using physical force, the required elements that must be shown to warrant an instruction, in accordance with § 563.031, are set out in § 563.031.1(1). Thus, in determining whether MAI-CR 3d 306.06 requires modification in cases of self-defense using physical force, involving multiple assailants, as the appellant claims in this point, we have to determine the required elements of self-defense using physical force, as set forth in § 563.031.1(1).
Statutory interpretation is purely a question of law, which we determine de novo.
Pavlica v. Dir. of Revenue,
We can find no cases interpreting § 563.031.1 in determining the elements of self-defense, using physical force involving multiple assailants. However, giving the language of § 563.031.1 its plain and ordinary meaning, it requires, for the defendant to be entitled to an instruction on self-defense using physical force, that there be evidence establishing that: (1) the defendant had a reasonable belief that the victim was using unlawful force against him or the use of such force was imminent; (2) the defendant had a reasonable belief that the physical force he used against the victim, in response to the use or imminent use of unlawful force by the victim, was necessary to defend himself; and (3) the defendant was not the initial aggressor, or if he was, that one or more of the three exceptions of § 563.031.1(l)(a)-(c) apply. The jury is instructed upon these elements in both the general instructions, part A, and the specific instructions, part B, of MAI-CR 3d 306.06. However, MAI-CR 3d 306.06 does not track the language of § 563.031.1 with respect to the defendant’s defending against what he “reasonably believes to be the use or imminent use of unlawful force.”
MAI-CR 3d 306.06, rather than speaking in terms of the defendant defending himself against what he “reasonably believes to be the use or imminent use of
Section 563.031 was enacted in 1978 as part of Missouri’s penal code and became effective on January 1, 1979. Prior to its enactment, the only codification of when a person was justified in using force against another was the “justifiable homicide” statute, § 559.040, RSMo 1969. It provided that homicide was justifiable in the following cases:
(1)In resisting any attempt to murder such person, or to commit any felony upon him or her, or in any dwelling house in which such person shall be; or
(2) When committed in the lawful defense of such person, or of his or her husband or wife, parent, child, brother, sister, uncle, aunt, nephew, niece, master, mistress, apprentice or servant, when there shall be reasonable cause to apprehend a design to commit a felony, or to do some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished; or
(3) When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keeping or preserving the peace.
MAI-CR 2.40 (10-31-73) was the mandatory instruction used to instruct on justifiable homicide. And, while there was no statute governing self-defense or defense of others in assault cases, MAI-CR 2.40, Note on Use 2, provided that “with slight alteration MAI-CR 2.40 should be adapted and used in
assault
cases where applicable under the law and the evidence,” recognizing that there was “no material difference in law between homicide and assault cases as to whether force (whether deadly or not) was justifiable so as to require acquittal,” citing
State v. Spencer,
One of the issues in this case is whether the death of [name of victim ] was a justifiable homicide. By ‘justifiable homicide’ is meant the killing of another in lawful self-defense. On that issue you are instructed as follows:
1. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the evidence in this case leaves in your mind a reasonabledoubt as to whether the defendant acted in lawful self-defense, then you must find the defendant not guilty.
2. (If the defendant did not provoke the use or threat of force against himself, and if) (If) the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that it was necessary for him to act as he did to protect himself from such danger; then you are instructed that he acted in lawful self-defense and must be acquitted....
Hence, like § 559.040, MAI-CR 2.40 spoke in terms of an “immediate danger of harm.”
At the same time § 563.0B1 became effective, January 1, 1979, MAI-CR 2d 2.41.1 (1-1-79) became the mandatory patterned instruction for self-defense in assault cases, using physical force. And, just like § 563.031, it spoke in terms of “unlawful force,” reading: “(If) the defendant reasonably believed it was necessary to use such physical force as he used in order to protect himself from what he reasonably believed to be the (use) (imminent use) of unlawful force by [name of victim ], then the defendant acted in lawful self-defense and must be acquitted.” MAI-CR 2d 2.41.1[1], Although the “unlawful force” language of § 563.031 has not been amended since the statute’s enactment in 1979, the present version of MAI-CR 3d 306.06, which is a revision of MAI-CR 3d 306.06 (9-1-99), which was a revision of MAI-CR 3d 306.06 (9-1990), which was a revision of MAI-CR 3d 306.06 (1-1-87), abandoned the statutory language of “unlawful force” that was used in MAI-CR 2d 2.41.1, without any indication in the Notes on Use of MAI-CR 3d 306.06 as to why that was done.
We know of no case that found fault with MAI-CR 2d 2.41.1, mandating that the approved MAI-CR ignore the “unlawful force” language of § 563.031 in favor of the imminent-danger-of-harm language, and we cannot discern any legal reason for doing so. We would note that unlike § 563.031.1, dealing with the use of physical force, § 563.031.2, dealing with deadly force, does speak in terms of resulting harm or injury. It reads:
A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping or serious physical injury through robbery, burglary or arson.
§ 563.031.2. However, we note that MAI-CR 2d 2.41.1.2[3] handled that by instructing: “(If) the defendant reasonably believed it was necessary to use deadly force to protect himself against what he reasonably believed to be the (use) (imminent use) of unlawful force putting himself in an imminent danger of (death) (or) (serious physical injury) (or) (rape) (or) (sodomy) (or) (kidnapping) at the hands of [name of victim ], then the defendant acted in lawful self-defense and must be acquitted[,]” in cases of deadly force. This is a correct statement of the law, reading § 563.031.1 and § 563.031.2 together. Hence, we believe that to correctly instruct the law of self-defense, MAI-CR 3d 306.06 should be revised to drop the “imminent danger of harm” language presently used, in favor of the “unlawful force” language of § 563.031, much as MAI-CR 2d 2.41.1 (1-1-79) did in paragraph 2[1], which reads, in pertinent part:
(If the defendant was not the initial aggressor in the encounter with [name of victim ] and if) (If) the defendantreasonably believed it was necessary to use such physical force as he used in order to protect himself from what he reasonably believed to be the (use) (imminent use) of unlawful force by [name of victim ], then the defendant acted in lawful self-defense and must be acquitted.
While we believe that MAI-CR 3d 306.06 is not a correct statement of the law of self-defense, to the extent it requires the jury to deliberate on whether the defendant acted justifiably in using force against another person because he had a reasonable belief that he was in “imminent danger of harm,” rather than he had a reasonable belief that such other person was using or was about to use “unlawful force” against him, we cannot say that the use of the “imminent danger of harm” language in Instruction No. 11 resulted in manifest injustice or a miscarriage of justice to the appellant, warranting plain error relief under Rule 30.20. This is so in that it is not readily apparent to us that Instruction No. 11, in instructing the jury to deliberate on whether the appellant had a reasonable belief that he was in “imminent danger of harm” from the victim, rather than instructing it on whether he had a reasonable belief as to the “use or imminent use of unlawful force” by the victim, so confused the jury that it failed to properly consider the appellant’s claim of self-defense such that if Instruction No. 11 contained the unlawful-force language, rather than the imminent-danger-of-harm language, there would have been a different outcome in the appellant’s case. In other words, that if Instruction No. 11 had contained the unlawful-force language, rather than the imminent-danger-of-harm language, the jury would have found that the appellant was acting in lawful self-defense in stabbing the victim.
In convicting the appellant, the jury necessarily rejected his claim of self-defense. However, we do not know on what basis. Regardless, it does not appear that the failure of Instruction No. 11 to use the unlawful-force language of § 563.031 had any bearing on the rejection of the appellant’s claim of self-defense. The victim testified that the appellant was the initial aggressor, while the appellant testified that the victim was the initial aggressor. If the jury believed the victim’s testimony in that regard, that alone would have been a sufficient basis for rejecting the appellant’s claim of self-defense. And, if that were the case, then it mattered not in the jury’s rejection of the appellant’s claim of self-defense whether Instruction No. 11 employed the unlawful-force language of § 563.031, rather than the imminent-danger-of-harm language of MAI-CR 3d 306.06.
Even assuming, arguendo, that the jury believed the appellant’s testimony that the victim was the initial aggressor, it still could have rejected the appellant’s self-defense claim on the basis that he did not have a reasonable belief that his stabbing the victim six times with a knife was necessary to defend against the victim’s grabbing him from behind. In other words, even if the jury believed that the victim was the initial aggressor, the decisive issue, in determining whether the appellant acted in lawful self-defense, did not revolve around whether he had a reasonable belief as to the victim’s use of “unlawful force,” but whether he had a reasonable belief that his acts of stabbing the victim were necessary to defend himself against the victim. And, once again, if that were the case, then it mattered not to the jury’s rejection of the appellant’s claim of self-defense whether Instruction No. 11 employed the unlawful-force language of § 563.031, rather than the imminent-danger-of-harm language of MAI-CR 3d 306.06.
The appellant claims in this point that the trial court should have modified, sua sponte, Instruction No. 11, by adding language to the paragraph of part B[A] of MAI-CR 3d 306.06 so that the jury would have been instructed that it could find that he acted in “lawful self-defense” in stabbing the victim, if it found that the defendant “reasonably believed that he was in imminent danger of harm from the acts of Matthew Snarr and those whom the defendant reasonably believed were acting in concert with Matthew Snarr and the defendant used only such force as reasonably appeared to be necessary to defend himself[.]” In response, the State argues:
But the plain language of the pattern instruction refutes [the appellant’s] argument. The instruction allows the jury to consider whether a defendant ‘reasonably believe[s] he is in imminent danger of harm from the other person.’ MAI-Cr3d 306.06, Part A[2]. ‘Reasonable belief,’ in turn, is defined as a ‘belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. This is upon how the facts reasonably appeared.’
The instruction talks about a reasonable person in the ‘same situation.’ Use of the word ‘situation’ connotes something more than the mere actions of the victim. Under this definition the jury was not restricted to consider only the victim’s actions, but was permitted to consider the actions of all persons and the totality of the circumstances in determining whether Appellant had a reasonable belief of imminent danger.
In other words, the State concedes that under the law of self-defense and the evidence in this case, the jury should have been allowed to consider the actions of the victim’s friends in determining if the appellant acted in lawful self-defense by stabbing the victim, but contends that Instruction No. 11, patterned after MAI-CR 3d 306.06, permitted the jury to do just that so that the appellant’s claim in Point II is without merit.
The appellant claims that paragraph 5 of Instruction No. 11, patterned after MAI-CR 3d 306.06, should have been modified by the trial court, sua sponte, to read:
If the [appellant] was not the initial aggressor in the encounter with Matthew Snarr, and if the [appellant] reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr and those whom the defendant reasonably believed were acting in concert with Matthew Snarr and the [appellant] used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self defense.
In claiming that Instruction No. 11 should have been modified in this fashion, the appellant is essentially claiming that, under the law and facts of this case, the jury, in considering whether he “used only such force as reasonably appeared to be necessary to defend himself,” should have been instructed expressly that it was allowed to consider not only the imminent danger of harm presented by the acts of the victim, but the acts of his friends. He claims that the instruction, as given, confused the jury
Section 563.031.1, governing self-defense using physical force, reads, in pertinent part: “A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person.... ” Giving this language its plain and ordinary meaning, it is clear that the legislature intended that the victim, the person against whom the defendant uses physical force — “another person,” must be the same person against whose unlawful acts of force the defendant is defending— “such other person.” This is so in that the qualifying term, “such,” directs us back to the “another person” or victim. “Such” is defined in the dictionary as “the person or thing mentioned or implied.” WEBSTER’S NEW WORLD COLLEGE DICTIONARY 1337 (3rd ed.1997). Hence, the self-defense instruction must refer to the unlawful acts of force of the victim against the defendant as the justification for the defendant’s using physical force against the victim.
State v. Howard,
In defending against the unlawful acts of force of the victim, the defendant is necessarily and logically trying to avoid resulting harm or injury. And, in fact, this is the bedrock upon which self-defense is based in this state — that a person should be allowed to use reasonable and necessary force against another to protect against harm or injury.
See In the Interest of
J— M— ,
Given our interpretation of § 563.031.1, Instruction No. 11, to conform therewith, had to instruct the jury to consider whether the appellant, in stabbing the victim, had a reasonable belief that: (1) the victim was using unlawful force by grabbing him from behind; and (2) such use of physical force by the appellant against the victim, in response thereto, was necessary to defend himself. However, as we discuss,
supra,
the determination of the reasonableness of the appellant’s response to the victim’s alleged unlawful use of force against him depends, in part, on the harm
In our case, the appellant is contending that in using physical force against the victim, specifically, stabbing him, which he contends was in response to the victim’s unlawful force of grabbing him from behind, he was trying to avoid the harm and injury that would result from not only the acts of the victim, but the acts of the victim’s friends. In that regard, he testified that it was necessary for him to stab the victim because he believed: (1) it was his only means of escaping the victim’s hold; and (2) the victim’s friends were approaching with the intent to assault him with the weapons they were brandishing. Accordingly, he argues that the jury should have been instructed in Instruction No. 11 that, in considering whether he had a reasonable belief that stabbing the victim was necessary to defend against the alleged unlawful act of the victim, grabbing him from behind, to avoid what he reasonably believed was imminent harm or injury, that it could consider the acts of the victim’s friends. The State concedes this proposition, but argues that Instruction No. 11 did just that.
In requiring the defendant to have a reasonable belief concerning the use or imminent use of unlawful force by the victim to rely on self-defense, § 563.081.1 does not require proof that the victim’s acts of force were actually unlawful, but only proof that the defendant “reasonably believed” that they were unlawful. 5 Likewise, in requiring the defendant to have a reasonable belief concerning the necessity of his actions to defend against the unlawful force of the victim to avoid harm or injury, § 563.031 does not require proof that the defendant’s actions were actually necessary, but only that he reasonably believed that they were necessary. A “reasonable belief’ is required to be defined in every self-defense instruction as follows:
As used in this instruction, the term ‘reasonable belief means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend on whether the belief turned out to be true or false.
MAI-CR 3d 306.06, Note on Use 4(d). Instruction No. 11 included this definition. The State contends from this that:
The instruction talks about a reasonable person in the ‘same situation.’ Use of the word ‘situation’ connotes something more than the mere actions of the victim. Under this definition the jury was not restricted to consider only the victim’s actions, but was permitted to consider the actions of all persons and the totality of the circumstances in determining whether Appellant had a reasonable belief of imminent danger.
We would agree with the State’s contention that the inclusion of the mandatory definition of “reasonable belief1’ in Instruction No. 11 would seem to instruct the jury that it could consider the “situation” or the totality of the circumstances in determining whether the appellant, in stabbing the victim, acted out of necessity in defending
Some argument could be made for the fact the “acts of [the victim]” language of the instruction only applied to the jury’s determination of the issue of “imminent danger of harm,” which as we discussed, supra, was substituted for the “unlawful force” determination, required by § 563.031.1, and not to its determination of the appellant’s belief as to the necessity of his response to the victim’s alleged unlawful acts to avoid harm or injury. This then would leave room to argue, as the State does, that Instruction No. 11 instructed the jury that in determining the reasonableness of the appellant’s belief as to the necessity for stabbing the victim, in order to avoid harm or injury, it could consider the totality of the circumstances, which would include the acts of the victim’s friends. It is unreasonable, however, to suggest that the jury could have made this fine of a distinction, especially given the State’s closing argument, which the appellant challenges in Point I, as being contrary to the law of self-defense, given the evidence of multiple assailants.
In its closing argument, the State argued: “I would suggest you read the Court’s instruction to you on self-defense. It only relates to what Matthew Snarr did, not what anybody else — what the defendant claims somebody else did.” This argument, coupled with Instruction No. 11, would have undoubtedly led the jury to believe, contrary to the law, that it could not consider the acts of the victim’s friends, in any manner, in deliberating on whether he acted in lawful self-defense in stabbing the victim in response to the victim’s grabbing him from behind. Thus, there can be no doubt that the jury was confused as to an element of the State’s proof, albeit in the negative. In that regard, as we noted,
supra,
once the trial court determined that the appellant had carried his burden of injecting the issue of self-defense in the case, it was the State’s burden to prove, beyond a reasonable doubt, that the appellant did not act in lawful self-defense.
White,
Having determined that Instruction No. 11 was erroneous, the question remains as to whether the error rose to the level of plain error. As we discussed,
supra,
instructional error is rarely found to result in manifest injustice or a miscarriage of justice, requiring reversal for plain error. However, as we noted in
State v. White,
In the context of instructional error, reversible plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury’s verdict. In that regard:
an appellate court will be more inclined to reverse in cases where the erroneous instruction ‘did not merely allow a wrong word or some other ambiguity to exist, but excused theState from its burden of proof on a contested element of the crime.’
(Citations omitted.) Here, the error in Instruction No. 11 effectively gave the State a pass on proving the negative of a contested element of the offense charged, that the appellant did not act in lawful self-defense when he stabbed the victim, such that plain error occurred.
A further basis for finding plain error here can be found in State v. Goucher, in which the Southern District of this court held that: “In Derenzy, the defendant met his burden of showing plain error by simply demonstrating that the trial court failed to give a mandatory instruction that possibly affected substantial rights.” Ill S.W.3d at 919. As we discussed, supra, the giving of the self-defense instruction in proper form in this case was mandatory. Instruction No. 11, given its deficiencies, was not in proper form.
Having found instructional plain error in Point II, the appellant is entitled to a reversal of his conviction for second-degree assault and a new trial.
State v. Smith,
Conclusion
The judgment of the appellant’s conviction for assault in the second degree, § 565.060, is reversed and the case is remanded for further proceedings in accordance with this opinion.
SPINDEN and HOLLIGER, JJ., concur.
Notes
. All statutory references are to RSMo 2000, unless otherwise indicated.
. Under § 565.050.2, assault in the first degree can be either a class A or class B felony, depending on whether the actor inflicts serious physical injury on the victim.
. All rule references are to Missouri Rules of Criminal Procedure 2005, unless otherwise indicated.
. Two other statutes deal with justification of the use of physical force, which otherwise would be considered criminal conduct. Section 563.021 applies in cases of conduct required or authorized by statute or judicial decree. Section 563.026 applies in cases of emergency or necessity.
. The lawfulness of the victim’s act should not be confused with the purpose of the self-defense instruction, to determine the lawfulness of the defendant’s acts in response thereto.