State v. Crews, 20161

• Decision Date: 16 May 1996
• Docket Number: No. 20161,20161
• Citation: 923 S.W.2d 477
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Dale CREWS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 477

923 S.W.2d 477

STATE of Missouri, Plaintiff-Respondent, v. Dale CREWS, Defendant-Appellant.

No. 20161.

Missouri Court of Appeals,

Southern District,

Division One.

May 16, 1996.

Judith C. LaRose, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Joanne E. Joiner, Assistant Attorney General, Jefferson City, for respondent.

BARNEY, Judge.

Dale Crews (defendant) appeals his conviction, following a jury trial in the Circuit Court of New Madrid County, Missouri, of one count of assault in the first degree, § 565.050, RSMo 1986 and one count of armed criminal action, § 571.015, RSMo 1986. Pursuant to defendant's request to have the trial judge determine the punishment per § 557.036.2(1), RSMo 1986 he was sentenced to fifteen years and three years, respectively, the sentences to run consecutively.

The defendant raises two points of trial court error. In point one, he asserts that the court erred in refusing to add the word "death" in paragraph eight of Instruction No. 7 (patterned after MAI-CR 3d (306.08)) which authorizes the use of deadly force in the defense of another who is in imminent danger of death, serious physical injury or forcible rape. In his second point of error defendant asserts that the trial court plainly erred in allowing the prosecutor to make objectionable comments in his closing arguments when the prosecutor stated that defense counsel always claims defendants are victims and when the prosecutor remarked that defense counsel acted like a "magician" thereby impugning the character of defense counsel to the detriment of defendant.

Defendant does not challenge the sufficiency of the evidence to support the verdict, hence we recount only the evidence necessary to address the claims of error, viewing it in the light most favorable to the verdict. State v. McClintock, 913 S.W.2d 124, 125 (Mo.App.1996).

In the early morning of May 15, 1994, in Steele, Missouri, defendant and Jeff Cunningham (victim) were arguing in the center of a crowd of people in the middle of a street. They both had been drinking alcoholic beverages. The police dispersed the two, whereupon they went to the home of defendant's mother, Dorothy Bounds and shared a fifth of vodka. At some point, defendant's mother came into the living room. Shortly thereafter, defendant went into the kitchen to mix another drink. It was at that time that defendant's mother began to get off the recliner and fell down. She let out a cry for help. The victim ran over to help her to her feet as defendant re-entered the room. Defendant went to get a knife and returned with a 13 1/4 inch kitchen knife with a 9 inch blade and stabbed the victim in the left temple of his head. In an effort to defend himself the victim ran to the corner of the room and grabbed a potted tree. Defendant began swinging the knife at the victim and stabbed him in the upper arm. The evidence showed that the victim eventually sustained ten to twelve stab wounds to the throat, chest, arms and back. When the police arrived, the victim lay in a pool of blood, emitting a strong "bowel-type smell, like a puncture wound to the victim's intestines." Several of the wounds were referred to as "sucking chest wounds" due to the bubbles coming out of the wounds, indicating the wounds had penetrated the lungs. The police further testified that upon their arrival they found defendant standing over the victim, straddling his head. The defendant said, "I'll stomp your goddamn head." Upon the police asking defendant to step back, he replied: "No, I'll stop the son of a bitch. I'll kill him." The defendant further said: "Go ahead and save him; I'll kill him the next time."

The victim was in the hospital nine days, of which four were spent in intensive care. Because of the stab wound to his throat, his voice was raspy at the time of trial.

At trial the victim testified that he had not attacked anyone in any way and did not know why defendant had attacked him.

Defendant presented evidence in support of a theory of self-defense and defense of others. He testified that while he was out of the living room, going to the bathroom, the victim tried to get defendant's mother's purse containing pain pills which the victim allegedly had his eye on earlier. Upon attempting to grab the purse, the victim knocked defendant's mother down and she yelled for help. Defendant initially testified that he thought the victim was trying to rape his mother but then concluded that he simply was trying to get her pain pills. Defendant denied bringing a knife into the living room, but rather a knife was already in the living room, being used to cut some cheese and apples located on a table. Defendant further testified that the victim grabbed the knife but that he took the knife away from him and used it on the victim during a fierce struggle where he then testified that he became convinced the victim was going to either kill, rape or commit bodily harm on his mother, as well as do harm to the defendant. Defendant's mother testified that she did not see the initial stages of the altercation since she was face down on the floor and was having trouble getting up.

Defendant argues in his first point that the trial court erred when it refused to add the word "death" in paragraph eight of Instruction No. 7, as requested by defense counsel. The instruction was patterned on MAI-CR 3d (306.08) entitled, Justification: Use of force in defense of third persons. The instruction given by the trial court read as follows:

One of the issues as to Count I in this case is whether the use of force by the defendant against Jeff Cunningham was a defense of another person. In this state, the use of force including the use of deadly force to protect another person from harm is lawful in certain situations.

In order for a person to lawfully use force in defense of another person, such a defender must reasonably believe the person he is trying to protect is in imminent danger of harm from a third person. The person he is trying to protect need not be in actual danger but the defender must have a reasonable belief that the person is in such danger.

If the person trying to protect another person has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to protect the other person.

But a person acting in the defense of another person is not entitled to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes the person he is trying to protect is in imminent danger of death or serious physical injury or forcible rape.

And even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to protect the other person.

As used in this Instruction, the term "reasonable belief" means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

On the issue of the defense of another person as to Count I in this case, you are instructed as follows:

If, under the circumstances that the defendant reasonably believed them to be, Dorothy Bounds was in imminent danger of harm from Jeff Cunningham and if the defendant reasonably believed Dorothy Bounds was in imminent danger of forcible rape or serious physical injury from the acts of Jeff Cunningham and he reasonably believed that the use of deadly force was necessary to defend Dorothy Bounds, then he acted in lawful defense of another person.

The State has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful defense of another person. Unless you find beyond reasonable doubt that the defendant did not act in lawful defense of another person, you must find the defendant not guilty under Count I.

As used in this Instruction, the term "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.

Defendant contends that paragraph eight of the Instruction should have read as follows:

If under the circumstances that the defendant reasonably believed them to be, Dorothy Bounds was in imminent danger of harm from Jeff Cunningham and if the defendant reasonably believed Dorothy Bounds was in imminent danger of death or serious physical injury or forcible rape from the acts of Jeff Cunningham and he reasonably believed that the use of deadly force was necessary to defend Dorothy Bounds, then he acted in lawful defense of another person. (Emphasis added.)

Defendant argues that the jury could have acquitted him based on the Instruction that he was protecting his mother from death when he assaulted Mr. Cunningham. ¹

Where an MAI-CR Instruction is not properly given, this Court must determine whether or not the defendant was prejudiced by any such omission. State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991); State v. Green, 812 S.W.2d 779, 787 (Mo.App.1991). "The giving or failure to give an instruction or verdict form in violation of this rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined." Rule 28.02(f) Missouri Rules of Criminal Procedure (1994). "Prejudicial error occurs whenever the jury may have been adversely influenced by an erroneous instruction." State v. Levesque, 871 S.W.2d 87, 90 (Mo.App.1994).

It is significant that contained within the last paragraph of Instruction No. 7 was the mandatory definition of "serious physical injury," which is repeated anew herein, to-wit:

As used in this Instruction, the term 'serious physical injury' means physical injury...