State v. Clay

• Decision Date: 17 October 2017
• Docket Number: No. SC 96016,SC 96016
• Parties: STATE of Missouri, Respondent, v. Larry CLAY, Appellant.
• Court: Missouri Supreme Court

533 S.W.3d 710

STATE of Missouri, Respondent,

v.Larry CLAY, Appellant.

No. SC 96016

Supreme Court of Missouri, en banc.

Opinion issued October 17, 2017

Rehearing Denied December 19, 2017

Clay was represented by Clayton E. Gillette of the Gillette Law Office LLC in Kansas City, (816) 895-2529.

The state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City, (573) 751-3321.

Patricia Breckenridge, Judge

Larry Clay appeals from a judgment convicting him of murder in the second degree, section 565.021, RSMo 2000, and armed criminal action, section 571.015.1, RSMo 2000. Mr. Clay asserts the trial court plainly erred by submitting an incorrect self-defense instruction, refusing an instruction on his lack of duty to retreat, and failing to instruct the jury on the lesser included offense of voluntary manslaughter. Mr. Clay further asserts the trial court plainly erred by failing to exclude evidence of uncharged misconduct. Finally, Mr. Clay asserts the trial court erred by allowing the state to argue in its closing argument that he had a duty to retreat from the conflict while prohibiting him from arguing he did not have a duty to retreat.

Mr. Clay's claim that the self-defense instruction submitted was erroneous for failing to instruct the jury that an initial aggressor can "withdraw" is not meritorious because he jointly drafted the self-defense instruction, thereby waiving plain error review of this claim. Mr. Clay also waived any plain error review related to his claim that the trial court improperly refused to submit the instruction proffered by Mr. Clay on lack of a duty to retreat for the same reason. Additionally, the trial court did not plainly err by declining to instruct the jury on the lesser included offense of voluntary manslaughter or by failing to exclude evidence of uncharged misconduct, and there was no error in the trial court's rulings regarding closing arguments. The judgment is affirmed.

Facts and Procedural History

On the evening of March 3, 2013, Steven McGhee, Jeff Becklean, and Joel White were at Mr. Clay's home. Mr. Clay and Mr. White engaged in a verbal conflict that escalated into a physical altercation. At some point, Mr. Clay stabbed Mr. McGhee twice in the arm and Mr. White at least two times. The testimony varies as to whether Mr. McGhee was trying to break up the fight or was also attacking Mr. Clay.

Mr. Clay broke away from the fight, went upstairs to retrieve his gun, and demanded everyone leave his house. After the three men exited the house but were still in the driveway, Mr. Clay went outside with the gun. He demanded the men leave his property. Mr. Clay and Mr. White continued yelling at one another. Mr. Clay shot and killed Mr. White.

Mr. Clay was charged with second degree assault and armed criminal action for stabbing Mr. McGhee and second degree murder and armed criminal action for shooting Mr. White.

A jury trial was held January 20 to 23, 2015. At trial, Mr. Clay's defense was he stabbed Mr. McGhee when he was defending himself against Mr. White's attack and he shot Mr. White in self-defense after Mr. White attacked and threatened him in the driveway. Mr. Clay further asserted he was justified in exiting his home after ousting the men from his home because he had no duty to retreat from his property pursuant to section 563.031.3.¹

The testimony of Mr. Clay, Mr. Becklean, and Mr. McGhee varied significantly regarding the altercations giving rise to criminal charges against Mr. Clay. All agree a verbal confrontation in Mr. Clay's basement between Mr. Clay and Mr. White escalated into a physical altercation. Mr. Becklean testified he was unsure who started the physical altercation between Mr. Clay and Mr. White but Mr. White "may have" been the one who threw the first punch. Mr. Clay testified he stabbed Mr. White, causing him to back off. Mr. Becklean further testified that, after the three men left Mr. Clay's home, he saw Mr. Clay "pistol whip" Mr. White with his gun. He also testified Mr. White "pitched forward, started to kind of like stumble forward," and Mr. Becklean then heard a gunshot. A video from a neighbor's security camera that recorded the events was admitted in evidence.

Mr. Clay's testimony was that he told Mr. White to leave when they were in the basement. Mr. White punched him, and the two men fought. Mr. Clay testified he twice stabbed Mr. McGhee when Mr. McGhee tried to grab him. Mr. Clay further testified that, once the three men left his home, he followed them outside and brandished his gun because he thought Mr. White was attempting to damage his truck. Mr. Clay testified he asked the men to leave his property, and Mr. Clay walked Mr. White off his property and turned and walked back toward his house with his arms at his side. Mr. White followed him back onto Mr. Clay's property. Mr. Clay testified Mr. White insulted him and attempted to grab his arm and attack him. Mr. Clay testified he fired as he backed up and was trying to get away from Mr. White.

The jury acquitted Mr. Clay of the charges for stabbing Mr. McGhee but convicted Mr. Clay of the class A felony of second degree murder and felony armed criminal action for shooting and killing Mr. White. The trial court sentenced Mr. Clay to concurrent sentences of 25 years in prison for second degree murder and ten years in prison for armed criminal action.

Mr. Clay appeals. This Court transferred the case following an opinion from the court of appeals and, therefore, has jurisdiction pursuant to Mo. Const. art. V, sec. 10.

Plain Error Review Waived for Self-Defense Instructions

On appeal, Mr. Clay asserts three counts of instructional error. In his Points I and II, Mr. Clay asserts the trial court improperly instructed the jury on self-defense. In Point VI, Mr. Clay asserts the trial court erroneously failed to instruct the jury on the lesser included offense of voluntary manslaughter. In his Point I, Mr. Clay asserts the trial court plainly erred by submitting the "initial aggressor" language from MAI-CR 3d 306.06A without also instructing the jury that an initial aggressor may regain the privilege of self-defense by withdrawing from the encounter. Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error "facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) (quoting Rule 30.20).

The self-defense instruction submitted at trial required the jury to determine whether Mr. Clay was the initial aggressor. If the jury determined Mr. Clay was not the initial aggressor, the instruction required the jury to determine whether he reasonably believed force or deadly force was necessary to defend himself from Mr. White. Mr. Clay asserts the instruction was erroneous because, if the jury determined Mr. Clay was the initial aggressor, the instruction did not require the jury to determine whether he regained the privilege of self-defense by withdrawing from the conflict. Mr. Clay asserts the trial court's failure to include the "withdrawal" language is plain error resulting in manifest injustice.

Section 563.031.1(1)(a) provides that an initial aggressor generally cannot use force in self-defense unless he or she withdraws from the encounter and then effectively communicates such withdrawal but the other person "persists in continuing the incident by the use or threatened use of unlawful force." Consistent with section 563.031.1(1)(a), MAI-CR 3d 306.06A provides optional "withdrawal" language that "will be used if there is further evidence that the defendant withdrew from the encounter." Notes on Use, ¶ 4(a). As Mr. Clay notes, his testimony was evidence indicating he withdrew from the encounter. Although the self-defense instruction included the "initial aggressor" language from MAI-CR 3d 306.06A while omitting the withdrawal language, Mr. Clay's claim fails because he invited the instructional error by jointly drafting and proffering the self-defense instruction submitted.

A defendant invites error and waives appellate review of a claim of instructional error when the defendant jointly proffers an erroneous instruction. State v. Bolden, 371 S.W.3d 802, 805 (Mo. banc 2012). In Bolden, the defendant and the state together proposed a defense-of-others instruction that was submitted to the jury. Id. at 803. The defendant then asserted the trial court committed plain error by submitting the instruction. Id. at 804-05. This Court reaffirmed the general principle that a trial court commits plain error by failing to instruct on self-defense when it is supported by the evidence but held the submission of an incorrect self-defense instruction that was jointly proffered to the trial court was an invited error by the defendant. Id. at 805-06. "Although plain error review is discretionary, this Court will not use plain error to impose a sua sponte duty on the trial court to correct Defendant's invited errors." Id. at 806.

As in Bolden, Mr. Clay invited the instructional error by proffering jointly with the state a self-defense instruction that omitted the withdrawal language he now asserts should have been included. Mr. Clay argues that the notation "Submitted by Plaintiff" on the self-defense instruction is proof the instruction was submitted solely by the state. The record, however, shows defense counsel participated in drafting and submitting the self-defense instruction to the trial court. Defense counsel informed the trial court the instruction would be amended by the defense. Defense counsel then stated, "We are proposing the initial aggressor language, plus adding threats." The parties continued to discuss and refine the self-defense instruction. For instance, Mr. Clay's counsel noted his proposed instruction omitted the phrase "from harm" as required by MAI-CR 3d 306.06A, and the state agreed this omission was correct. The...