Dаvid L. Griffin appeals from his conviction for unlawful use of a weapon, § 571.-030.1(4), RSMo 1986,
The instant case is complicated by racial overtones and allegations of a love triangle. These factors increased the tensions surrounding the incident from which the сharges against Griffin arose. At the time of the events in the instant case, Griffin was the principal of Westport High School in Kansas City, Missouri. Griffin is black. Jamie Draper was a middle school teacher who had known Griffin for about four years. Michael Grey was a federal prison guard. Both Draper and Grey are white.
There was evidence of an affair between Griffin аnd Draper several years before the incident at hand. Draper testified that
On September 23, 1990, Grey attended Draper’s softball game in Gladstone. After the game, Draper and Grey drove in separate cars to the home of Draper’s mother where they ate dinner. Draper ate hurriedly and left after explaining that she had school papers to grade. Grey testified that he found Draper’s actions unusual since he and Draper usually spent Sunday evenings together. Because Draper’s actions made Grey suspicious, he went to her apartment about thirty minutes after Draper left her mother’s house.
Draper answered the door, closed it behind her and stepped out onto the balcony with Grey. Grey and Draper began to argue after Draper told him that she had an old boyfriend in her apartment. Grey estimated that he and Draper argued on the balcony for fifteen to twenty minutes. During this time Grey observed a tall black man wearing a white baseball cap and glasses standing inside Draper’s apartment. Grey later identified this man as Griffin. Draper asked Grey tо leave. After Draper went back into the apartment, Grey sat down at the bottom of the steps. Grey heard Draper telling Griffin in a loud voice that she loved him and that Grey did not mean anything to her. Grey, being in an emotionally distraught state, walked around the apartment complex parking lot to collect himself before driving home.
Shortly thereafter, Grey hеard Draper’s apartment door slam and saw Draper hurry down the stairs and walk away from the apartment complex. Grey testified that Griffin came down the stairs after Draper and drove away in a small Toyota automobile. Grey followed Draper on foot because he wanted to talk to her. Griffin saw Grey following Draper and he drove up tо where Draper was walking. Draper got into Griffin’s car. Grey turned around to walk back to his car which was still parked at Draper’s apartment complex.
When Grey got back to the parking lot, Griffin was blocking the path to Grey’s automobile. Grey told Griffin, “[Y]ou and I have something in common, and I don’t want any part of it, I just want to get in the car.” Grey testified that Griffin ran back to his Toyota and reached in the passenger window, where Draper was sitting. When he turned back to face Grey, he was pointing a pistol at Grey. Griffin approached Grey with the pistol in his left hand and a knife in his right hand. Griffin then knocked Grey to the ground by punching him in the mouth twice. Griffin straddled Grey, hit him in the forehead with the pistol, held the knife to his neck and threatened to blow Grey’s hеad off if Grey did not leave Draper alone.
Grey was able to break away from Griffin when Griffin was distracted by the lights of a car entering the parking' lot. Grey ran to his car and drove about two blocks to a fire station where he found two police officers. The officers called for assistance and drove Grey back to Draper’s apártment complex. Griffin was just driving out of the parking lot when the officers arrived. The officers pulled Griffin over and placed him under arrest. When asked
At the time of the incident at issue, Tracey Scott lived in the same apartment complex as Draper. Scott observed the altercation from the balcony of her apartment. Scott testified that she saw “a white man down on the ground and a black man over him, straddling him, with a gun to his forehead and a switchblade or knife to his left hand side.” Scott heard the white man pleading, “Don’t kill me, don’t kill me.” Scott wеnt to a neighboring apartment and called the police. After the police talked with Scott, they arrested Griffin for aggravated assault and took him to the police station.
During an inventory search of Griffin’s car, the police found a three inch dagger-shaped knife which Griffin claimed was a cake-cutting utensil used by his six-year old son during food prepаration activities at school. The morning after Griffin’s arrest, the police searched the apartment complex grounds and found a gun in a holster. Griffin stipulated at trial that the gun was his.
Griffin was charged with two counts of unlawful use of a weapon. In Count I, he was charged with violating § 571.030.1(4) by knowingly exhibiting a knife and a .380 automatic pistol in an angry or threatening manner. He was chаrged in the second count with violating § 571.030.1(1) by knowingly carrying concealed upon or about his person a knife. The state entered a nolle prosequi as to Count II at the beginning of trial. At the conclusion of the evidence, the jury was instructed on unlawful use of a weapon under § 571.030.1(4) only as to the gun. Griffin was found guilty and sentenced to one year in prison. He appеals from that judgment of conviction and sentence.
Griffin argues in Point I that the jury’s guilty verdict was not supported by sufficient evidence. Griffin asserts that the trial court erred in denying his motion for judgment of acquittal because the evidence did not establish the absence of self-defense beyond a reasonable doubt as a matter of law.
Section 571.030 provides that a “person commits the crime of unlawful use of weapons if he knowingly: ... (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.” Self-defense is a defense to a charge of exhibiting a weapon in an angry or threatening manner. State v. Parkhurst,
Griffin asserts that the trial court erred in denying his motion for judgment of acquittal because the state failed to prove the absence of self-defense beyond a reasonable doubt. A defendаnt is entitled to a directed verdict of acquittal only when the evidence is insufficient to support a guilty verdict. State v. Blue,
Neither Griffin nor the prosecution presented evidence of self-defense in this case. Griffin’s evidence, rather than showing that Griffin had used the gun in self-defense, was that Griffin had not used the gun at all. Griffin testified that he offered Draper a ride back to her apartment when he saw Grey following her. They pаrked and were talking when they saw Grey sneaking between the buildings of the apartment complex. Griffin went to investigate but did not see Grey. Griffin was walking back to his car when Grey appeared and began to yell. Griffin testified
The evidence does not support a finding that, as a matter of law, Griffin knowingly exhibited the pistol, in an angry or threatening manner, in self-defense. The state’s evidence was that Grey was unarmed and was trying to reach his car to leave. Griffin, who was blocking the path to Grey’s car, returned to his own car to retrieve a pistol, pointed the pistol at Grey, punched Grey in the mouth twice, hit Grey in the head with the рistol and then threatened to blow Grey’s head off. The evidence established that Griffin was the aggressor and initiated the confrontation with Grey.
The evidence was sufficient to support the jury’s verdict. Griffin was not entitled to an acquittal because there was no evidence, considering the record as a whole, which injected the issue of self-defense, muсh less proved self-defense as a matter of law. Point I is denied.
In Point II, Griffin argues that the trial court erred in submitting to the jury Instruction 6, the verdict-directing instruction, because it did not include a reference to Instruction 5, the self-defense instruction. Griffin argues that Instruction 6 was erroneous in that it failed to require the jury to find the absence of self-defense beyond a reasonable doubt.
Use of the Missouri Approved Criminal Instructions is required by Rule 28.02(c). State v. Cook,
The court is required to instruct the jury on self-defense if there is substantial evidence putting self-defense in issue, regardless of whether the defendant has requested the instruction and irrespective of the source of the evidence. State v. Williams,
As stated under Point I, neither Griffin nor the state presented evidence which supported a theory of self-defense so the court was not required to give a self-defense instruction. Since Griffin was not entitled to a self-defense instruction, the trial court’s failure to correctly cross-reference the self-defense instruction in the verdict-directing instruction did not have a prejudicial effect. Point II is denied.
Griffin argues in Point III that the court erred in refusing to allow the defense to play for the jury Exhibit 21, a tape recording of a telephone call from Grey to Draper after the incident in question. Griffin argues that the tаpe should have been admitted because it contradicts Grey’s testimony, demonstrates Grey’s bias against Griffin, and proves that Grey lied during his testimony at the preliminary hearing.
After the incident but prior to trial, Draper received several phone calls from Grey. Draper arranged to tape the third such call on December 5, 1990. Griffin
During Draper’s testimony, Griffin again sought the court’s permission to play the tape for the jury so that the jury could make its own determination of whether Grey was intoxicated, and to demonstrate the bias and prejudice of Grey against Griffin. The trial court sustained the prosecution’s hearsay objection. In both instances, Griffin offered the entire tape for admission into evidence.
The trial court is given broad discretion as to the admission or exclusion of evidence. State v. Wahby,
In the instant case, the prosecution objected to Griffin’s request to play the tape for the jury during Grey’s cross-examination on the basis that there had been no foundation laid and that it was a hearsay statement. The trial court sustained the objection. At that point in the trial, there had not been any testimony establishing the manner in which the recording was made and by whom; the accuracy of the recording and the absence of editing; thе identity of the speakers and the voluntariness of their statements on the recording, as required by State v. Spica,
The record indicates that after the objection was sustained, Griffin advised the court that Draper wоuld identify the tape in her testimony the next day. He also briefly described Exhibit 22, which was allegedly an excerpt of specific parts of the tape. He indicated that the individual who edited the tape would present testimony the next day, as well. Griffin, however, did not otherwise refer to the edited tape or attempt to admit it into evidence at any time during the trial.
During Draper’s direct examination, she presented testimony upon all the factors required by Spica to lay a proper foundation for admission of that portion of the tape containing her conversation with Grey. After such testimony, Griffin made his second request to play the entire tape for the jury. The prosecution objected on the basis of hearsay. The trial court sustained the objection.
The trial court ruling excluding the tape was correct. When an exhibit contains both admissible and inadmissible material, and when the party offering the exhibit as evidence does not make an effort to offer only the admissible portions, exclusion by the trial court of the entire exhibit is not erroneous. State v. Harvey,
The dialogue between Grey and Draper included discussions of their relationships with parties other than those involved in the instant case. Grey repeatedly expressed his views on Draper’s abilities as a teacher. These matters were neither relevant to Grey’s bias and prejudice nor were inconsistent statements made by Grey.
Because the tape included evidence which was irrelevant and immaterial to the issues in the instant case, it was not admissible. The defense made no effort to exclude the inadmissible parts of the tape and present only the admissible evidence. Point III is denied.
The judgment is affirmed.
All concur.
Notes
. All statutory citations are to Revised Missouri Statutes 1986, unless otherwise indicated.