In the Missouri Court of Appeals
Eastern District

I)IVISION FOUR
STA'I`E OF MISSOURI, ) ED103699
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
v. ) 14SL-CR07287-01
)
MICHAEL B. CASEY, ) I~lonorable Steven H. Goldman
)
Appeilant. ) Fi]ed: Decem‘oer 27, 2016

Introduction
Michael Casey (Defendant) appeals thejudgment entered upon his conviction by a
jury of one count of second-degree murder and one count of armed criminal aetion, for
Which the trial court sentenced him to consecutive terms of life and 30 years in prison,
respectively Defendant argues that the trial court erred in failing to give two of his
proffered instructions to the jury and in excluding expert testimony regarding false
confessions We affirm.
Background
The State charged Defendant with one count of first-degree murder, one count of
first-degree assault, and two counts of armed criminal action, resulting from a shooting on

July 26, 2014. Earlier that evening, a University City high school held a reunion at Heman

 

Park in University City attended by approximately three to four hundred people A tight
broke out at some point, involving 15 to 20 people. Defendant was fighting a man he called
“Tigga,” When Mario Wallace (Victim) pulled Defendant off Tigga. Police arrived and
sprayed mace in the faces of several of those involved to break up the fight. Defendant
walked away with Romie Banks (Banks), one of those sprayed with mace.

Shortly after Defendant and Banks left the area, they saw Victim following them.
Victim Was yelling at them accusing them of attacking Victim’s friend during the fight.
Victim had his fists up in a fighting position and was challenging Defendant and Banks to
iight. Victim pulled his shirt up and said “l don’t have anything.” Pamela Christian
(Christian) was nearby and saw Victim yelling at Defendant and Banks. She told Victim
not to fight, and Victim responded, “Yes, nia’am” and started to walk away. Defendant
was standing next to Banks’ car. Christian saw Defendant reach into the car, pull out a
gun, and start shooting in Victim’s direction. Then Defendant and Banks got into the car
and drove away. Victim later died from a gunshot wound to his chest.l

On August 7, 2014, Police arrested Defendant and brought him to the police station
for questioning and to participate in a live lineup. They gave Defendant Miranda2
warnings, and Defendant signed a waiver form. Defendant initially denied being involved
in either the tight or the shooting He then admitted he was involved in the tight and that
Victim pulled Defendant off Tigga. He later admitted that he walked with Banks and that
the gun that killed Victim came from Banks’ car, but Defendant said Banks was the one

who shot Victim.

 

l Another man, Dejuan Walker (Walker), was shot in the knee, but he testified he did not see where thel shots
came from. The charges of first-degree assault and an associated armed criminal action stemmed from this
injury to Walker, but the jury acquitted Defendant of these charges

2 Miranda v. Arizona, 

(1969).

 

Police took a break from questioning Defendant and placed him in a live lineup.
Christian viewed the lineup and identified Defendant as the shooter. She became emotional
when she identified him, and she said she was sure Defendant was the person who shot
Victim. Police resumed questioning Defendant and then took a later break to take
Defendant’s fingerprints After that, they returned to the room and Defendant confessed
to shooting Victim. The next day, Defendant participated in a video reenactment of the
crime. Defendant grabbed the gun out of the car and fired it at Victim, who he said was
running toward him. Defendant said on the video that he was sorry for what happened and
wished he could take it back.

At trial, the trial court gave verdict directing instructions for the charged crime of
first-degree murder, as well as for the lesser-included charges of second-degree murder and
involuntary manslaughter. Defendant requested an instruction for voluntary manslaughter,
which the trial court denied. Defendant also requested that the trial court instruct the jury
regarding eyewitness testimony using a new Missouri Approved Instruction (MAI) that
had not yet become effective, and the trial court also denied this request, utilizing a current
MAI regarding eyewitness testimony instead. The jury convicted Defendant of second-
degree murder and armed criminal action. The trial court sentenced Defendant to
consecutive terms of life and 30 years in prison, respectively This appeal follows.

D_iseM

Defendant raises three points on appeal. First, he argues that the trial court erred in
refusing his proffered verdict directing instruction for voluntary manslaughter. Second, he
argues the trial court abused its discretion in refusing his proffered instruction regarding

eyewitness testimony Finally, Defendant argues the trial court abused its discretion in

 

excluding Defendant’S expert’s testimony regarding risk factors for false confessions in
interrogation procedures We discuss each in turn.
P_f>intl

Defendant argues the trial court erred in refusing his requested verdict directing
instruction for voluntary manslaughter because the evidence supported a finding that he
committed the murder under the influence of sudden passion arising from adequate cause.
We disagree

In determining whether the trial court erred in refusing an instruction, we view the
evidence in the light most favorable to Defendant State v. Avery, 

, 200
(Mo. banc 2003). “A jury instruction for a lesser-included offense is required when the
evidence ‘provides a basis both for the acquittal of the greater offense and the conviction
of the lesser offense.”’ State v. Johnson, 

, 575 (Mo. banc 2009) (quoting

).

Voluntary manslaughter is a lesser-included offense of first-degree murder.3
Section 565.025.2(1)(b).“ A person commits voluntary manslaughter by “caus[ing] the
death of another person under circumstances that would constitute murder in the second
degree . . . except that he caused the death under the influence of sudden passion arising
from adequate cause.” Section 565.023.1(1). The jury found Defendant guilty of second-

degree murder, and Defendant argues that the court should have instructed the jury to

 

3 We ncte, however, that it is not a nested of`f`ense, for which a trial court is required to instruct when requested
by a defendant State v. Payne, 488 S.W.Bd 161, 164 (Mo. App. E.D. 2016) (discussing applicability ofm
v. Jackson, 

(Mo. banc 2014); concluding voluntary manslaughter instruction is not nested
lesser-included offense of tirst~degree or second-degree murder and thus jury cannot convict defendant of
voluntary manslaughter simply by disbelieving part ol` evidence supporting first or second-degree murder
charge).

“ All statutory references are to RSMo. (2000), unless otherwise indicated

4

 

consider whether the additional elenrent of sudden passion arising from adequate cause
was present here.

“Sudden passion” is defined as “passion directly caused by and arising out of
provocation by the victim . . . which passion arises at the time of the offense and is not
solely the result of former provocation.” Section 565.002(7). “Adequatc cause” is “cause
that would reasonably produce a degree of passion in a person of ordinary temperament
sufficient to substantially impair an ordinary person’s capacity for self-control.” Section
565.002(1). The defendant must commit the offense “in sudden passion, and not after there
has been time for the passion to cool.” State v. Redmond, 

, 208 (Mo. banc
1996). “Words alone, no matter how opprobrious or insulting, are not sufficient to show
adequate provocation.” l_d. “A manslaughter instruction is typically justified when the
victim perpetrates a battery upon the defendant.” State v. Arnel, 

, 247 (Mo.
App. E.D. 1993).

Defendant argues that the evidence shows that in the immediate aftermath of the
physical fight in the park, Victim “carne at” Defendant and Banks with his fists raised and
wanting to fight. Defendant argues that because Victim was shot in the chest, this shows
he was coming toward Defendant when Defendant shot him, rather than walking away.
Defendant, though maintaining that Banks was the one who shot Victim, testified that they
reached the car and that Defendant was seated in the car before Victim caught up with
them. `

Even viewing the evidence in the light most favorable to Defendant, there is no
evidence here of a sudden passion on the part of Defendant or of adequate cause. Any

sudden passion that may have been present during the initial fight is not sufficient because

 

Defendant and BanlA_rn_el, 846 S.W.2d at 242-48 
(no evidence showed victim’s state of mind
or that victim advanced toward defendant in threatening manner, rather defendant left
room, returned with gun, and shot victim). The evidence regarding Victim’s pursuit of
Defendant and Banks indicates he used words to try to get them to fight, but he was also at
a distance from them. Additionally, there was no evidence Victim brandished a weapon
S_ee 
Redmond, 937 S.W.2d at 209 
(citing cases in which victim’s displaying of weapon
during argument was sufficient evidence of provocation to submit voluntary manslaughter
instruction). In fact, the evidence here was that Victim let them know he did not have a
weapon and wanted to fight without weapons Finally, the fact that Victim was shot in the
chest is not sufficient to create an inference of sudden passion.

Given the record here, we conclude the trial court did not err in refusing
Defendant’s proffered instruction for voluntary manslaughter because the evidence did not
support a finding that he acted under the influence of sudden passion arising from adequate
cause. Point denied.

R372 S.W.3d 65
, 69 (Mo. App. W.D. 2012). “An abuse of
discretion occurs if a ruling is clearly against the logic of the circumstances and is so
arbitrary and unreasonable as to shock the sense of justice and indicate a careful lack of

consideration.” State v. Williams, 
375 S.W.3d 920
, 924 (Mo. App. S.D. 2012) (internal

 

quotation omitted). We view the evidence in the light nrost favorable to the instruction
Ij__. However, we will not reverse a conviction upon a showing of mere error; Defendant
must demonstrate that prejudice resulted from the error. l_d_. (quoting State v. Davis, 
203
S.W.3d 796
, 798 (Mo. App. W.D. 2006)). Prejudice exists when but for the error, there is
a reasonable probability the verdict would have been different 
Williarns, 375 S.W.3d at
924 
(internal quotations omitted).

Here, Defendant offered an instruction based on a provisional version of an MAI
instruction that was set to become effective on lanuary 1, 2016, just over two months after
Defendant’s trial took place The proffered instruction began as follows:

Testimony has been introduced identifying [Defendant] as the

person observed at the time of the offense lt is up to you to

decide whether the witness identification of [D]efendant is

reliable and believable or whether it was based on a mistake
The instruction went on to discuss several factors the jury should take into consideration,
including the conditions such as distance, lighting, and other aspects of the viewing
environment; the amount of time the witness had to observe a person; what was within the
witness’ view and focus, such as the presence of a weapon, which carr draw focus to the
weapon away from the perpetrator; the duration of the crime; the witness’ age or eyesight;
any stress, illness, inj ury, or fatigue of the witness; the witness’ level of certainty; the length
of time between the event and the identification; the description the witness gave; the
circumstances under which the out-of-court identification was made; and the lineup
procedure in which the witness identified Defendant.

'i`he trial court refused this instruction, noting that the instruction was confusing

and that the jury could “determine whether an eyewitness is reliable or not.” Additionally,

 

the court did instruct the jury regarding the believability of witnesses, based on the MAI in
effect at the time of trial, MAl-CR 3d 302.01:

ln determining the believability of a witness and the weight to
be given to testimony of the witness, you may take into
consideration the witness’ manner while testifying; the ability
and opportunity of the witness to observe and remember any
matter about which testimony is given; any interest, bias, or
prejudice the witness may have; the reasonableness of the
witness’ testimony considered in the light of all of the evidence
in the case; and any other matter that has a tendency in reason to
prove or disprove the truthfulness of the testimony of the
witness.

Note 3 of the Notes on Use following MAI-CR 3d 302.01 (2014) states, “Except as may
be specifically provided for elsewhere in MAl-CR, no other or additional instruction may
be given on the believability of witnesses, or the effect, weight, or value of their testimony.”
S_ee_ELsh, 372 S.W.3d at 70-71
.

The trial court did not abuse its discretion under the circumstances here Rather, it
followed the applicable MAI at the time of trial as well as the Notes on Use. E M:_"y".

Price, 
513 S.W.2d 392
, 396 (l\/lo. 1974) (finding no error where trial court refused future

 

MAI not in effect at time of trial). Additionally, Missouri courts have historically rejected
instructions similar to the one Defendant proffered here, which Defendant argues is similar
to the instruction used by federal courts of appeal, from United States v. Telfaire, 
469 F.2d
552 
(D.C. Cir. 1972). W State v. Gilmore, 
797 S.W.2d 802
, 809-10 (l\/fo. App. W.D.
1990) (noting “Missouri courts have unequivocally rejected the argument that it is error for
a trial court to refuse to submit additional cautionary instructions to the jury concerning

eyewitnesses modeled after those contained in Telfaire”). 'fhus, the trial court exercised

 

its discretion not to utilize a provisional instruction taking such a departure from past
practice, while that instruction was subject to revision before being officially adopted.5

Moreover, Defendant points to no specific part of his proffered instruction that was
either not covered by the given instruction or caused prejudice to him by its absence
Defendant’s counsel argued in closing that Christian’s testimony was unreliable for several
reasons and referred to multiple aspects of her testimony to illustrate his argumentl Tlre
trial court instructed the jury it was their responsibility to determine the believability of
witnesses Besides the fact that the trial court did not abuse its discretion, Defendant has
given no indication that he was prejudiced by the trial court’s decision here Point denied.

Point HI

In his final point on appeal, Defendant argues that the trial court abused its
discretion in excluding expert testimony regarding interrogation procedures and risk
factors for false confessions We disagree l

The admission or exclusion of expert testimony is a matter within the discretion of
the trial court. State v. Davis, 
32 S.W.3d 603
, 608 (Mo. App. E.D. 2000). Thus, we will
reverse only where the trial court abuses its discretion, meaning “when the ruling is clearly
against the logic of the circumstances or where it is arbitrary and unreasonable.” § Again,
we review for prejudice and not mere error, reversing only “if the error was so prejudicial
that it deprived the defendant of a fair trial.” State v. Morrow, 
968 S.W.2d 100
, 106 (Mo.

banc 1998).

 

5 Tlie Missouri Supreme Court did in fact modify the instruction before it became official in an order vacating
MAI-CR 3 l 0.02 adopted on March 2, 2015, and adopting a different version Order, Decelnber 16, 2015, In
re: Additions to MAl-CR 3d, available at littp:."/www.courts.mo.gov/page.jsp?id;95087.

9

 

I~lere, Defendant sought to admit the testimony of Dr. Charles Honts, who would
have testified that the police interrogation of Defendant here presented several risk factors
for a false confession. The trial court initially stated the court would likely exclude this
testimony At trial, Defendant renewed his request to call Dr. Honts to testify At that
time, the trial court made its ruling excluding this evidence, noting that “the jury can see
all this on videotape as opposed to just having testimony about it, which even gives them
a better ability to see the circumstances of the statements that are made by [Defendantj and
by the police officers.”

The trial court did not abuse its discretion in excluding this evidence Missouri
courts have upheld similar exclusions of evidence in State v. Wright, the defendant sought
to introduce expert testimony on the issue of false confessions and the factors that
contributed to such a confessionl 
247 S.W.3d 161
, 166 (Mo. App. S.D. 2008). Tlre
defendant additionally sought to have the same expert testify that the defendant’s own
personality traits contributed to his confession. § Tlre trial court excluded all of this
testimony, and the appellate court found no abuse of discretion, concluding that the
proffered testimony would invade the province of the jury because it related to the 1
credibility of the defendant’s confession § at 168 (citing 
Da_vis, 32 S.W.3d at 608-09
)
(affrrming exclusion of expert testimony regarding the correlation between interrogation
techniques and false confessions because testimony invaded jury’s province to make
credibility determinations).

The circumstances are similar here. Defendant sought to introduce evidence
regarding interrogation procedures and the risk factors for false confessions so that

Defendant could draw support for his testimony that he falsely confessed in light of the

10

 

interrogation utilized here. The trial court had discretion to admit or exclude this evidence
as it saw fit under the circumstances of this case, and the trial court noted that here, the
jurors were able to view the interrogation for themselves and determine Defendant’s
credibility We cannot say the trial court’s choice to exclude the expert testimony was an
abuse of its discretion. Point denied.
Conclusion

The trial court did not err in refusing to instruct the jury on voluntary manslaughter
as a lesser-included offense because the evidence did not support a finding that Defendant
killed Victirn under the influence of sudden passion arising from adequate cause
Additionally, the trial court did riot abuse its discretion in refusing a cautionary instruction
regarding eyewitness testimony that was not a mandatory MAI at the time of trial. Finally,
the trial court did not abuse its discretion in excluding Dr. Honts’ testimony regarding false

confessions We affirnr.

 

 

Gary M.\Gefertner, Jr., Judge
lames M. Dowd, P. J., concurs
Kurt S. Odenwald, .l., concurs

ll