State v. Fincher, WD
| Decision Date | 17 May 1983 |
| Docket Number | No. WD,WD |
| Citation | 655 S.W.2d 54 |
| Parties | STATE of Missouri, Respondent, v. William FINCHER, Appellant. 33007. |
| Court | Missouri Court of Appeals |
John Kurtz of Popham, Conway, Sweeny, Fremont & Bundschu, P.C., Kansas City, for appellant.
John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, C.J., and SHANGLER and MANFORD, JJ.
This is a direct appeal from a judgment entered in accordance with a jury conviction and sentence of 25 years for murder, second degree (§ 565.004, RSMo 1978). Jurisdiction is vested in this court. Mo. Const. Art. V, § 3, as amended 1979. The judgment is affirmed.
Appellant presents four points 1 on appeal, which in summary charge the trial court erred: (1) in refusing to instruct the jury on self defense; (2) in excluding proffered medical evidence; (3) in failing to properly instruct the jury on the issue of punishment, and in failing to provide proper verdict forms; and (4) in sentencing appellant to a term of incarceration specified to be consecutive to a term presently being served in the state of Kansas.
There is no challenge to the sufficiency of the evidence. A brief summary of pertinent facts suffices.
On October 16, 1979, the victim, Carl Shoemaker, and his wife were visiting some friends at the latter's trailer home. The victim had secured a job that day, and the four individuals were drinking and celebrating. The four were outside talking, when about 10:00 p.m. appellant, who lived in the next trailer, arrived, parked his automobile, and went into his own trailer. A minute or so later, appellant came out of his trailer and got into his automobile. As appellant started to drive away, the victim and his wife were arguing. Appellant stopped his automobile, got out, and walked around his automobile toward the victim and the others. Appellant had a handgun in his hand and asked the victim and the others what their problem was. The victim had been seated on the fender of a parked automobile. The victim got off the fender and walked to where his wife was standing. Appellant fired a shot into the ground. The victim's wife stated that the gun was for blanks or words to that effect. Appellant raised the gun and shot the victim in the chest. The bullet passed through the victim and struck the victim's wife in the arm. The victim fell to the ground. Appellant drove away in his automobile at a high rate of speed.
On October 26, 1979, appellant was interviewed by a detective. After being given his Miranda warning, appellant made an oral statement to the detective. In summary, appellant told the detective that about 5:30 p.m., appellant, with his son and girl friend, left his trailer and while leaving, the victim cursed him and made an obscene gesture at appellant. Appellant told the detective this had humiliated him, and that he, his son and girl friend proceeded to dinner and to a movie. Appellant further told the detective that he had decided to stay at a motel that evening because of the earlier events. Appellant then stated he returned to his trailer to get clothing and his handgun. According to appellant, as he returned to his automobile, he heard an argument from the trailer next to his. Appellant stated he then drove his automobile to the trailer next to his and exited his automobile with his gun in his hand. Appellant inquired why the victim and the others were harassing him. Appellant then stated to the detective that the victim got off the car upon which he was seated and walked around that car. Appellant stated he shot at the victim's legs, then shot again, saw the victim fall, and heard the victim's wife say she was also shot. Appellant then stated he left and that he did it because he (appellant) had been cheated and humiliated by people for two years and was tired of it. Appellant also disclosed to the detective that he had never seen the victim before and that the victim made no violent gestures toward appellant. Appellant stated further that after he fired the first shot, the victim raised his arms with his fists closed. Appellant did not testify at trial, but the above evidence was introduced via the testimony of the officer.
The jury returned its verdict. Judgment was entered and after the overruling of timely filed after-trial motions, this appeal followed.
Under his first point, appellant charges that the trial court erred upon its refusal to submit an instruction to the jury upon self-defense. Appellant points out such instruction is mandatory whenever there is evidence to support it, State v. Peoples, 621 S.W.2d 324 (Mo.App.1981); State v. Carter, 585 S.W.2d 215, 219 (Mo.App.1979); and Rule 28.02(a); and failure to instruct is reversible error. State v. Boyd, 498 S.W.2d 532, 534 (Mo.1973).
Before resolving appellant's precise point, it needs to be mentioned that appellant offered no direct evidence in support of his defense. All of the evidence referenced above regarding appellant's account of events was introduced by way of testimony of a state's witness.
Appellant draws attention to § 563.031, RSMo 1978, which under our Criminal Code, is a codification of the law of self-defense. That statute provides:
"563.031. Use of force in defense of persons.--1. A person may, subject to the provisions of subsection 2, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided
(a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
(b) He is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or
(c) The aggressor is justified under some other provision of this chapter or other provision of law;
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would not be justified in using such protective force.
2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping.
3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
4. The defendant shall have the burden of injecting the issue of justification under this section."
It is noted that under 4 above, the defendant bears the burden of injecting the issue under the statute. In the instant case, during the oral argument, discussion centered upon whether a defendant must "inject the issue" by direct defense evidence in order to comply with the statute, or whether a defendant has satisfied his burden of "injecting the issue" if evidence on the issue of self-defense is produced from any source, including evidence produced by the prosecution. Pre-Code authority has recognized the viability of the issue of self defense, regardless of the source of the evidence on the issue. State v. Grier, 609 S.W.2d 201, 203 (Mo.App.1980); State v. Thornton, 532 S.W.2d 37, 42 (Mo.App.1975); and State v. Blair, 531 S.W.2d 755, 760 (Mo.App.1975). The question remains whether with the adoption of the Criminal Code in 1978, this rule was changed. This court concludes it was not. In § 556.051(1), the following is found:
Further, in § 556.061(2), the following is found:
"556.061. Code definitions.--In this code, unless the context requires a different definition, the following shall apply: * * *
(2) 'Burden of injecting the issue' has the meaning specified in section 556.051." See also § 556.031, RSMo 1978.
It is noted from the analysis and provisions of The New Missouri Criminal Code: A Manual for Court Related Personnel, "Preliminary Provisions", § 1.11--Burden of Injecting the Issue, p. 1-7:
With the foregoing as background principle, certain conclusions can be drawn. First, an accused can meet his "burden of injecting the issue" of self-defense under the statute if evidence thereof is introduced from whatever source and an accused is not deprived of such defense upon his failure to introduce direct evidence by way of evidence for the defense. Secondly, there must be evidence introduced, from whatever source, to support the issue. Thirdly, if there is evidence to support the issue, the burden rests upon the prosecution to prove beyond a reasonable doubt that the homicide was not justified. An accused bears no burden of proof on the issue of self-defense, but merely bears the burden of "injecting" the issue into the case from whatever evidentiary source.
The foregoing should not be misconstrued in any manner as a modification of the requirement that there be evidence to support the issue or in any manner as an alteration of the prosecution's burden of proof; rather, the discussion and conclusion reached herein are to...
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