State v. Avery

• Decision Date: 25 November 2003
• Docket Number: No. SC 85300.,SC 85300.
• Citation: 120 S.W.3d 196
• Parties: STATE of Missouri, Respondent, v. Jamie AVERY, Appellant.
• Court: Missouri Supreme Court

120 S.W.3d 196

STATE of Missouri, Respondent, v. Jamie AVERY, Appellant.

No. SC 85300.

Supreme Court of Missouri, En Banc.

November 25, 2003.

Craig A. Johnston, Office of the Public Defender, Columbia, for appellee.

Jeremiah W. (Jay) Nixon, Atty. Gen., Nicole E. Gorovsky, Asst. Atty. Gen., Jefferson City, for respondent.

LAURA DENVIR STITH, Judge.

Defendant Jamie Avery was convicted of second-degree murder and armed criminal action under section 565.021 and section 571.015.¹ The judge sentenced her to two consecutive terms of thirty years imprisonment. On appeal, Ms. Avery claims that the trial court erred in refusing to instruct the jury on self-defense, defense of premises, and voluntary manslaughter. This Court agrees. Although Ms. Avery testified at trial that the shooting was an accident, the State introduced evidence of prior statements by her to the police and to her boyfriend that supported submission of the theories that the shooting was intentional but done in self-defense or defense of premises or that it arose out of sudden passion based on adequate cause. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

I. FACTUAL BACKGROUND

In October 2000, Ms. Avery began an intimate relationship with and moved into the house of John Hamilton. That same month Ms. Avery had a sexual encounter with Bruce Paris, the deceased. Thereafter she and Mr. Paris began making plans to go to Chicago together. Before these plans came to fruition, however, Mr. Paris called off the trip because he had rekindled his relationship with an ex-girlfriend. Upon hearing this news, Ms. Avery became upset and made some verbal threats against Mr. Paris. Mr. Paris went with his ex-girlfriend to North Carolina and then moved alone to Chicago later that month, returning to Missouri not quite two months later, on December 4, 2000.

About two weeks before Mr. Paris' return to Missouri he made numerous harassing telephone calls to Ms. Avery and Mr. Hamilton at their home. During the last telephone call, Ms. Avery warned him she would call the police if he did not stop calling. Nonetheless, on December 6, 2000, just two days after his return to Missouri, Mr. Paris told a mutual friend, Regina Buckner, that he wanted to see Ms. Avery.

That afternoon, Ms. Buckner found Ms. Avery drinking at a local tavern and told her that Mr. Paris wished to see her again. Ms. Avery initially replied that she had no intention of seeing Mr. Paris again. She apparently later changed her mind, however, for that evening she and Ms. Buckner drove to a local store to meet Mr. Paris. Ms. Avery later testified that the three drove around town drinking alcohol, while Ms. Buckner and Mr. Paris also smoked marijuana. During this drive, Ms. Avery said, Mr. Paris grabbed her breast and covered her mouth with his hand, causing her to bite him because she could not breathe. After this incident, the three eventually went to Ms. Avery's home.

Mr. Paris remained alone at Ms. Avery's home while Ms. Avery returned Ms. Buckner to the latter's car. Ms. Avery then returned home. After being dropped off at her car, Ms. Buckner went to her friend Becky Gibbs' house and told her that Mr. Paris was at Ms. Avery's home. Ms. Gibbs was a friend of Ms. Avery's boyfriend, John Hamilton, who was in California on business. She called Mr. Hamilton and told him that Mr. Paris was in his home. Mr. Hamilton immediately called Ms. Avery and confronted her with this information. Ms. Avery assured him that she only wanted to tell Mr. Paris to leave them alone.

At trial, Ms. Avery testified that, after Mr. Hamilton's telephone call, she repeatedly asked Mr. Paris to leave, but he refused to do so. When she attempted to open the door, he placed his foot in front of it. Ms. Avery became scared and retrieved Mr. Hamilton's revolver from her bedroom. Although she did not directly point the revolver at Mr. Paris, she displayed the weapon and ordered him to leave. After seeing the revolver, Mr. Paris left on foot.

Twenty minutes after Mr. Paris' departure, Ms. Avery decided to walk her dog. She took the revolver with her because she had once been gang-raped and was afraid of the dark. While walking the dog, Ms. Avery heard noises and saw a figure approaching her. It was just after 9 p.m. Scared, Ms. Avery ran inside her home, but accidentally left the door open. Unsure who was coming, she pointed the revolver at the door. Mr. Paris entered the doorway. Ms. Avery testified that, upon seeing the revolver pointed at him, he became angry and said to her, "Put the f____ing gun down or else I'll beat your f____ ing a____." She testified that Mr. Paris then quickly began to approach her and attempted to grab the revolver. Ms. Avery stepped back.

At this point, although Ms. Avery consistently admitted to shooting Mr. Paris, her explanation of how that shooting occurred varied. At trial, she testified that the gun went off accidentally as she and Mr. Paris struggled for it and she did not intend to shoot him. She admitted, however, that immediately after the shooting, she had locked herself in her bedroom and, upon calling the Hickory County sheriff's department, had stated that she had "shot an intruder."

After calling the police, Ms. Avery called Mr. Hamilton to tell him what happened. He described her as "extremely upset" and "pretty hysterical" until the police arrived. He also noted that she was screaming. During this conversation, Ms. Avery told him that she "was scared" and that Mr. Paris "was going to hurt me." She also told Mr. Hamilton that Mr. Paris "came at me and I shot him."

The police arrived at about 9:15 p.m. and found Mr. Paris dead on the floor. Ms. Avery told both Deputy Barry Walker and Sheriff Ray Tipton that she had shot an intruder. Deputy Walker noted that Ms. Avery was extremely upset and that she was visibly shaking. Police noticed Mr. Paris' pants were unzipped and found a picture of Ms. Avery with a note on it from her in his pocket. Upon being confronted with the picture, Ms. Avery admitted that she had given Mr. Paris the picture earlier that evening. Mr. Paris had seen the picture sitting on her coffee table and asked to keep it. Ms. Avery said that he could keep it if he promised to leave her alone. An autopsy revealed alcohol in Mr. Paris' stomach and one of Ms. Avery's hairs, with the root still attached, clutched in his hand.

Later that evening, after receiving Miranda warnings, Ms. Avery gave a five-page written statement to Sheriff Tipton. In that statement, she described the shooting incident in some detail, but did not mention Mr. Paris' refusal to leave her home twenty minutes before the shooting occurred. The next day, December 7, 2000, she gave another statement to George Knowles, an investigator with the Missouri State Highway Patrol, in which she did mention that she had to display the revolver to Mr. Paris to get him to leave some twenty minutes before the shooting.

The jury was instructed on first-degree murder, second-degree murder, involuntary manslaughter, and armed criminal action. Ms. Avery also argued that the evidence supported instructions on self-defense, defense of premises, and voluntary manslaughter and requested that these instructions be given. The trial court refused the self-defense and defense of premises instructions because Ms. Avery testified that the shooting was accidental. The court also refused the voluntary manslaughter instruction, believing that no evidence was produced on the element of heat of passion.

The jury found Ms. Avery guilty of second-degree murder and armed criminal action. Ms. Avery appeals, asserting error in failing to submit self-defense, defense of premises, and voluntary manslaughter.² Following opinion by the Missouri Court of Appeals, Southern District, this Court granted transfer. Mo. Const. art. V, sec. 10.

II. STANDARD OF REVIEW

Defendant claims that the trial court erred in refusing to submit instructions on self-defense, defense of premises, and voluntary manslaughter. In determining whether a refusal to submit an instruction was error, "the evidence is viewed in the light most favorable to the defendant." State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc 2002). "If the evidence tends to establish the defendant's theory, or supports differing conclusions, the defendant is entitled to an instruction on it." Id. See also State v. Taylor, 944 S.W.2d 925, 936 (Mo. banc 1997).

III. SELF-DEFENSE INSTRUCTION

Although Ms. Avery testified at trial that the shooting was an accident, she claims that the State introduced several of her prior statements into evidence showing that the shooting was done intentionally in self-defense during the struggle over the revolver, thus requiring a self-defense instruction.

A self-defense instruction must be submitted "when substantial evidence is adduced to support it, even when that evidence is inconsistent with the defendant's testimony." Westfall, 75 S.W.3d at 281. See also State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992). Failure to submit a self-defense instruction when required by the evidence constitutes reversible error. Westfall, 75 S.W.3d at 280; Weems, 840 S.W.2d at 226. "Substantial evidence" is evidence putting a matter in issue. Weems, 840 S.W.2d at 226. Where, as here, the defender killed the victim, evidence of four elements is required to make a submissible claim of self-defense: (1) absence of aggression or provocation on the defender's part; (2) real or apparent necessity for the defender to kill to save herself from an immediate danger of serious bodily injury or death; (3) reasonable cause for the defender's belief in such necessity; and (4) an attempt by the defender to do all within her power consistent with her personal safety to avoid the danger and the need to take a life. Id.

As a general rule a defendant is not entitled to an instruction on self-defense if defendant claims accident....