State v. Bolden
| Decision Date | 03 July 2012 |
| Docket Number | No. SC 92175.,SC 92175. |
| Parties | STATE of Missouri, Respondent, v. Emily BOLDEN, Appellant. |
| Court | Missouri Supreme Court |
OPINION TEXT STARTS HERE
Jessica M. Hathaway, Public Defender's Office, St. Louis, for Bolden.
Shaun J. Mackelprang, Jayne T. Woods, Attorney General's Office, Jefferson City, for the State.
During Emily Bolden's (“Defendant”) trial for assault and armed criminal action she and the State jointly proffered a defense-of-others instruction to the trial court that was submitted to the jury. She now claims that the submission of the erroneous instruction to the jury was plain error and seeks reversal of her conviction. This Court affirms the conviction in that there is no sua sponte duty for the trial court to correct the defendant's faulty proffered instructions.
Defendant and her brother arrived at Fannie Powell's (“Victim”) front door looking for two other individuals. Victim's daughter answered the door, told Defendantand Defendant's brother that the individuals they sought were not at the house, and ordered them to leave. At this point, a melee occurred. The State presented testimony that Defendant was the initial aggressor, lunging at Victim's daughter and stabbing her in the hand with a knife. Defendant presented testimony that Victim's daughter was the initial aggressor against Defendant's brother. In Defendant's account of the facts, Defendant's brother saw Victim's daughter coming to the door with an object in her hand, and she stabbed him first in the eye. Upon seeing Victim's daughter's actions, Defendant started swinging her knife at Victim.
Regardless of which account of the facts is accurate, Victim was stabbed by Defendant 11 times. Defendant also took her brother to the hospital, where he was treated for the stab wound to his eye.
Defendant and her brother were charged jointly with two counts of first-degree assault and two counts of armed criminal action. Defendant was also charged separately with second-degree assault and an additional count of armed criminal action.
With regard to Defendant's first-degree assault charge against Victim, the jury was instructed about defense of others. During the jury instruction conference, the State and Defendant jointly proffered what they both believed to be the appropriate instruction. Defendant did not object to its submission, stating:
For the record, I had an instruction of defense of others, and counsel for the state and I collaborated over what we thought would be the best version given the change in the law and our disagreements over the language and settled upon the instruction that was submitted—ultimately submitted by the state.
The jury convicted Defendant of first-degree assault against Victim.
Even though Defendant jointly proffered the defense-of-others instruction, Defendant appeals, contending that the instruction contained errors and that the submission of the instruction to the jury was plain error. The instruction read, in relevant part:
....
In order for a person lawfully to use force in defense of another person, such a defender must reasonably believe such force is necessary to defend the person she is trying to protect from what he reasonably believes to be the imminent use of unlawful force.
But, a person acting in the defense of another person is not permitted to use deadly force unless she reasonably believes the use of deadly force is necessary to protect the person against death or serious physical injury.
....
Second, in [sic] the defendant reasonably believed that the use of force was necessary to defend [Defendant's brother] from what the defendant reasonably believed to be the imminent use of unlawful force by [Victim], and
Third, the defendant reasonably believed that the use of deadly force was necessary to protect [Defendant's brother] from death or serious physical injury from the acts of [Victim], then her use of deadly force is justifiable and she acted in lawful defense of another person.
....
(Emphasis added).
Defendant contends on appeal 1 that the trial court committed plain error by submitting this instruction, which she proffered, to the jury because: (1) it used the improper male pronoun “he” instead of the female “she” when instructing the jury to decide whether Defendant reasonably believed that force was necessary to defend her brother from what she reasonably believed to be the use of imminent unlawful force; (2) it was based on the most current version of the MAI defense-of-others instruction when the crime was committed at a time that required the use of a previous version; and (3) it instructed the jury only to consider the use of force by Victim when it should have also instructed the jury to consider others acting in concert with Victim, namely Victim's daughter.2
The question before this Court is whether the joint submission of a defective jury instruction by the State and Defendant requires reversal.
If the defendant injects self-defense into the case and there is substantial evidence to support a self-defense instruction, it is reversible error for the trial court to fail to submit a self-defense instruction to the jury under plain error review. State v. Westfall, 75 S.W.3d 278, 281 n. 9 (Mo. banc 2002). The defense-of-others justification is essentially an extension of the self-defense justification, in that the actor may do in another's defense anything the person himself may have lawfully done in the circumstances. State v. Grier, 609 S.W.2d 201, 204 (Mo.App.1980); State v. Turner, 246 Mo. 598, 152 S.W. 313, 316 (1912). It follows that, if the defendant carries the burden of introducing substantial evidence to support a defense-of-others instruction, it is error for the trial court to fail to submit a defense-of-others instruction to the jury just as it is error to fail to submit a self-defense instruction.
In this case, however, the trial court did submit a defense-of-others instruction to the jury. It accepted the jointly proffered instruction from both parties and submitted that instruction. Although the instruction did not properly instruct the jury that it could consider the actions of multiple assailants when considering whether Defendant's actions were reasonable, the trial court did not fail to submit a defense-of-others instruction to the jury. As such, Westfall is inapposite in...
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State v. Brandolese
..."this Court will not use plain error to impose a sua sponte duty on the trial court to correct Defendant's invited errors." State v. Bolden , 371 S.W.3d 802, 806 (Mo. banc 2012).Analysis Point II Brandolese alleges the circuit court plainly erred in not modifying sua sponte the State's non-......
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Johnson v. State
...at 668, 904 P.2d 578. Furthermore, "a defendant may not take advantage of self-invited error or error of [her] own making." State v. Bolden, 371 S.W.3d 802, 806 (Mo. banc 2012). To the extent that Movant's voluntary manslaughter conviction raised any double jeopardy concerns, Movant waived ......
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State v. Cruz-Basurto
...only found appellant guilty of the class C felony of assault in the second degree), overruled on other grounds , State v. Bolden , 371 S.W.3d 802, 805–06 (Mo. 2012) ; State v. Collins , 154 S.W.3d 486, 491 (Mo. App. W.D. 2005) (although not briefed, reversing judgment to the extent it convi......
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Thompson v. Steele
...Thompson has waived appellate review as to his first point on appeal." Id. at 6. The Missouri Court of Appeals relied on State v. Bolden, 371 S.W.3d 802, 806 (Mo. 2012). ("This Court has long held that a defendant cannot complain about an instruction given at his request."). In Ground 1B, P......
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§ 19.01 General Rule
...of a child, a defense-of-other instruction can be raised).[2] State v. Cook, 515 S.E.2d 127, 133 (W. Va. 1999).[3] State v. Bolden, 371 S.W.3d 802, 805 (Mo. 2012).[4] E.g., Utah Code § 76-2-402(1)(a) (2015); Maye v. State, 49 So. 3d 1124, 1130 (Miss. 2010).[5] May a pregnant mother respond ......
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§19.01 GENERAL RULE
...of a child, a defense-of-other instruction can be raised).[2] . State v. Cook, 515 S.E.2d 127, 133 (W. Va. 1999).[3] . State v. Bolden, 371 S.W.3d 802, 805 (Mo. 2012).[4] . E.g., Utah Code § 76-2-402(1)(a) (2015); Maye v. State, 49 So. 3d 1124, 1130 (Miss. 2010).[5] . May a pregnant mother ......
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TABLE OF CASES
...419 Bodely, People v., 32 Cal. App. 4th 311 (Ct. App. 1995), 496 Bogenreif, State v., 465 N.W.2d 777 (S.D. 1991), 485 Bolden, State v., 371 S.W.3d 802 (Mo. 2012), 243 Bolling v. Sharpe, 347 U.S. 497 (1954), 35 Bolsinger, State v., 709 N.W.2d 560 (Iowa 2006), 558 Bonjour, State v., 694 N.W.2......