State v. Goforth, 50790

• Decision Date: 09 December 1986
• Docket Number: No. 50790,50790
• Citation: 721 S.W.2d 756
• Parties: STATE of Missouri, Respondent, v. Judith Mae GOFORTH, Appellant.
• Court: Missouri Court of Appeals

Page 756

721 S.W.2d 756

STATE of Missouri, Respondent, v. Judith Mae GOFORTH, Appellant.

No. 50790.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 9, 1986.

Shaw, Howlett & Schwartz, James Ochs, Clayton, for appellant.

William L. Webster, Atty. Gen., Paul LaRose, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Defendant Judy Goforth appeals her conviction and sentence for involuntary manslaughter under § 565.024 RSMo Supp.1984. Defendant was charged with second degree murder of her husband under § 565.021 RSMo 1978. The jury determined and the court sentenced defendant to serve a term of seven years imprisonment. We reverse and remand for new trial.

Defendant shot and killed her husband in the kitchen of their home. The cause of death was multiple gunshot wounds. The fatal shot struck the heart. The defense was justification, self-defense and defense of the defendant's son.

The errors claimed on appeal relate to: (1) the admission of certain photographs on grounds that they were irrelevant, repetitious, inflammatory and prejudicial; (2) evidence of the victim's reputation for violence was improperly limited or excluded; (3) refusal to give that part of defendant's offered instructions on self-defense and defense of another which would have submitted the issue of the victim's reputation for rash, violent or turbulent disposition and defendant's knowledge of that reputation in deciding whether defendant reasonably believed she or her son were in danger of death or serious physical injury; and, (4) failure to declare a mistrial when per misadventure a duplicate set of instructions were mixed in with State's Exhibits and furnished to the jury.

The State's first witness, a neighbor and registered nurse, testified that she received a phone call about 7:00 p.m. on January 5, 1985, asking her aid. The neighbor went to the Goforth's home and saw Ross Goforth on the kitchen floor. She examined him and found him dead. Also present were defendant and Jeff Civey, defendant's 15 year old son from an earlier marriage. The neighbor recalled defendant asking, "Can God forgive me for this?" The emergency medical team arrived. The neighbor went to the living room and sat beside defendant. She noticed no marks, bruises, cuts or scratches on defendant. While seated there, defendant said to her, "He would have killed us this time, Marilyn."

The sheriff arrived at the Goforth home about 7:40 p.m. He saw Ross Goforth's body and observed bullet wounds on Ross's arms and chest. The sheriff seized the weapon, a .22 caliber semi-automatic rifle found on the living room floor containing ten empty shells and ten live rounds. He also found various bullet fragments.

Defendant Judy Goforth testified she had prepared dinner and called her husband and son to the table. Everyone filled their plates. Ross became angry with Jeff because he had failed to do a chore and reached across the table to slap Jeff. Defendant asked Ross to stop, rising as she did so. Ross slapped defendant and she stumbled, knocking over a chair. Defendant headed towards the bedroom and Ross followed her. All the way there, Ross continued to shove and push her while cursing her. Jeff remained in the kitchen. Ross grabbed defendant's arm, then dropped it and headed back to the kitchen. She followed him. There he threatened Jeff, cursing him and calling him names. Defendant testified that Ross threatened to kill Jeff. She ran back to the bedroom for her shoes, saw the gun and said she thought that she could scare Ross with the gun so that he would let them leave the house. There were other guns in the house, but she grabbed the first one she saw. Defendant did not know what type of gun she had used. She headed back towards the kitchen but stopped at some intermediate point in the hall. Ross was in the kitchen threatening Jeff. She called to Ross to stop. He turned towards her, "mad and wild." She did not recall shooting him, but next remembered seeing Ross lying on the floor with the gun at her feet.

Defendant also testified that Ross had slapped her within three months after their wedding on September 1, 1979. Ross hit her often during their marriage from which she sustained black eyes and bruises. He hit her only when he had been drinking and he had been drinking whiskey on the day he was shot. The parties stipulated the deceased was found to have a .07 blood alcohol content.

Jeff Civey then testified as to the same events. His version agreed with that of his mother. Jeff stated that Ross had beaten him and his mother. He was badly beaten on these occasions. He also recounted that defendant held the rifle at her hip and fired. Ross grabbed his arms and fell to the floor.

The defense called fourteen witnesses who testified that defendant's reputation in the community was peaceful. Of these, seven had seen some bruises or marks on defendant or Jeff Civey at one time or another. Other witnesses, testifying for the State on rebuttal, denied seeing such marks. No witness had seen Ross strike defendant, although one testified to seeing him jerk her arm.

We find the decisive issue on this appeal is defendant's claim that the court erred in refusing to submit that portion of her instructions on justification, self-defense and defense of another, as follows:

If Joseph Ross Goforth had a reputation for a rash, violent or turbulent disposition or character, (ordinarily or when under the influence of liquor), and if the defendant knew of that reputation you may consider such reputation and defendant's knowledge thereof in deciding whether defendant reasonably believed she was in danger of being attacked by Joseph Ross Goforth and in danger of death or serious physical injury at the hands of Joseph Ross Goforth. MAI-CR 2d 2.41.

The instruction on justification in defense of another contained a similar provision in reference to defendant's reasonable belief of danger to her son. MAI-CR 2d 2.41.1 applies to justifiable use of force in self-defense and MAI-CR 2d 2.41.2 applies to justifiable use of force in defense of third persons. Paragraph 4 of MAI-CR 2.41.1 and .2 suggests the use of the omitted paragraph. The inclusion or omission of material in the paragraph depends upon the evidence in each case.

We review this issue as preserved error. The instructions were offered containing this paragraph but refused. The claim of error was preserved in paragraphs 18 and 19 of the motion for new trial. The State contends that the motion for new trial fails to allege facts in evidence that justified the instruction. Facts and not mere conclusions are required. State v. Sanders, 541 S.W.2d 530, 532 (Mo. banc 1976). In the present case the motion for new trial alleged that the, "[s]aid omission is in conjunction with earlier rulings disallowing evidence of Ross Goforth's reputation. However, evidence was still illicited supporting Ross Goforth's reputation for violence when under the influence of alcohol." We find this adequate under Rule 29.11(d) and the requirements of Sanders. The claim of error stated facts alleged to be in evidence justifying submission. Defendant did more than merely allege that the omitted portion of MAI-CR 2d 2.41.1 and .2 were supported by evidence.

In determining whether the court erred in failing to give certain instructions requested by defendant, the evidence must be considered in the light most favorable to defendant to determine whether there was any competent substantial evidence on the matters covered by the requested instruction. State v. Cole, 377 S.W.2d 306, 307 (Mo.1964). Here we review the evidence most favorable to defendant's hypothesis of self-defense. State v. Thomas, 625 S.W.2d 115, 122 (Mo.1981).

The only disputed issue in this case was the question of self-defense or defense of another. Under the facts we consider these as one defense because what one may do for himself he may do for another. State v. Grier, 609 S.W.2d 201, 203 (Mo.App.1980). The four recognized elements of self-defense are set forth in State v. Jackson, 522 S.W.2d 317, 319 (Mo.App.1975). A person may use deadly force when and to the extent he reasonably believes such to be necessary to defend himself or a third person under circumstances described in § 563.031 RSMo 1978. The defendant has the burden of injecting the issue of justification under that section. Section 563.031.4 RSMo 1978. The state carries the burden of proof beyond a reasonable doubt in opposing a claim of self-defense once the issue is injected in the case. State v. Ford, 491 S.W.2d 540, 542 (Mo.1973). "Quite clearly, a defendant has no burden on the issue of self-defense. All that is required to raise the issue is that there be a prima facie showing, from evidence produced by either defendant or the state, of the elements of self-defense. When that issue is raised, the burden rests on the state to prove beyond a reasonable doubt that the killing was not done in self-defense." Id.

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 .. there must be evidence introduced, from whatever source, to support the issue ... 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. (our emphasis)

State v. Fincher, 655 S.W.2d 54, 58 (Mo.App.1983).

In the context of these recognized principles the evidence on the issue of self-defense and defense of another supported submission of the omitted portion of MAI-CR 2d 2.41.1 and .2. This paragraph was directed at the reputation of the deceased for...