State v. Grier

• Decision Date: 03 November 1980
• Docket Number: No. WD,WD
• Citation: 609 S.W.2d 201
• Parties: STATE of Missouri, Respondent, v. Reginald GRIER, Appellant. 30916.
• Court: Missouri Court of Appeals

Page 201

609 S.W.2d 201

STATE of Missouri, Respondent, v. Reginald GRIER, Appellant.

No. WD 30916.

Missouri Court of Appeals, Western District.

Nov. 3, 1980.

Lee M. Nation, Nation & Curley, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Philip M. Koppe, Asst. Attys. Gen., Kansas City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

The defendant appeals from a conviction for murder in the second degree and a sentence of twenty years imprisonment. The defendant contends that the evidence shows that as a matter of law he acted in self-defense and so was entitled to a judgment of acquittal.

The site of the homicide was a sidewalk contiguous to the Sugar Shack and Mother's, two separate drink and dance establishments on Main Street. The victim, VanDyke, came upon a scene of physical conflict and bitter words between the defendant Grier, a young black man, and Rebecca Ruttan, a young white woman. He intervened and was killed. The two young persons knew each other and were together by prearrangement. The defendant had fetched her by automobile at her residence for an evening of dance and dinner. They then picked up Guilbeaux, another black man and, after a purchase of schnapps, arrived at the Sugar Shack. (The arrival was about 11:00 p. m., according to defendant Grier, and about 10:00 p. m., according to the inference of the Ruttan testimony. The date was Friday, December 16, 1977.) They occupied a table for three and drank and danced until about 1:00 a. m. the next morning. In the Sugar Shack they began to argue. The defendant accused her of a flirtation with another man there. (The inference from Guilbeaux evidence was that the contention was, rather, over the purchase of narcotic pills for her, who was then on methadone treatment for heroin addiction.) The verbal abuse resumed once outside the Sugar Shack and the two exchanged manual jousts. The defendant unlocked the door to the car (a new black Buick), parked south of the Sugar Shack along the west curb of Main, to retrieve a CB antenna placed there for safekeeping upon arrival at the discotheque. The car was located somewhere between the Sugar Shack and Mother's.

In the course of events, the defendant struck the female companion with the hand-accompanied by utterances of vulgarity-struck her with the CB antenna, or an extended wire hanger or chain (according to the account), so that she fell to the ground (or tripped, according to the defendant), and then as prostrate he kicked her about the abdomen as she wept and whimpered. The defendant finally subdued the young woman into the car. It was this scene VanDyke confronted (or, as witnesses for the defense described, the defendant hovered over the woman, still on the ground and beat her with the object, when VanDyke appeared). The deceased attempted a blow upon the defendant from behind and from that position locked his arms around the neck and upper anatomy of the defendant. A struggle ensued, VanDyke was wounded on the side of the head, in the chest area and around the legs and died from a knife puncture of the heart. The woman, the defendant driver and Guilbeaux in the rear seat, fled the scene in the Buick. In the course of investigation a white-handled knife-identified by some witnesses as the weapon wielded by the defendant upon VanDyke-was found in the Guilbeaux apartment where, by his testimony, the defendant had left it after the homicide.

The theory of the defense was that Guilbeaux, and not the defendant, owned and used the knife to kill VanDyke. The defendant testified that he used only the CB antenna, still in his hand, against VanDyke along the side of the head, but that the blow did not abate the struggle. As they continued embattled, the defendant saw a black hand (VanDyke was white) pull a knife from the body of VanDyke. As VanDyke slumped to the ground, the defendant saw that it was Guilbeaux who stabbed VanDyke. Two other witnesses corroborated that version of the events. The contention of defense-that one other than the defendant took the life of the victim-ostensibly contradicts the contention on appeal-that the defendant was justified as a matter of law to take the life of VanDyke. A criminal defendant, however, has no burden on the issue of self-defense. Once the evidence, from whatever source, raises self-defense, the burden rests on the State as an element of conviction to prove beyond a reasonable doubt that the homicide was not justified. State v. Minnis, 486 S.W.2d 280, 284(3-5) (Mo.1972). The question of lawful self-defense was submitted to the jury by MAI-CR 2.40 (first series) and found against the defendant by the conviction. The defendant argues by a motley of aphorisms, nevertheless, that his course of conduct was justified as a matter of law-that is, that no evidence negated justification-and so was entitled to an acquittal.

The legal sufficiency of the evidence to submit justification by self-defense is for the court in the first instance. Only when all the evidence clearly and without dispute shows that the conduct of the accused was justified to take the life of another may a court acquit of the homicide without a tender of self-defense to the jury. State v. Rash, 359 Mo. 215, 221 S.W.2d 124, 125(2) (1949). The appeal poses, therefore, that all of the constituent elements of a prima facie self-defense were conclusively proved by the evidence. We determine, rather, that all of the proofs antecedent to a self-defense were disputed and contradicted in the evidence so that the issue was for the jury.

To support the plea of justification, there must be evidence that (1) the defendant was not the aggressor and did not provoke the use of force against himself, (2) there was a real or apparently real necessity to kill to save himself from an immediate danger of serious bodily harm or death, (3) the defendant had reasonable cause for such belief, and (4) the defendant did all within his power consistent with personal safety to avoid the danger and the necessity to take life, even to the point of retreat. State v. Jackson, 522 S.W.2d 317, 319(3) (Mo.App.1975); Richardson, Self-Defense, Missouri Bar Committee Comments on MAI-CR Instructions (1974).

The assertion of the right to judgment of acquittal rests on the thesis of "uncontroverted testimony that (the defendant Grier) was attacked and that such attack was in no way provoked by him." The law withholds recourse to self-defense to one who provokes a fray in which he then injures or kills his adversary. State v. Spencer, 307 S.W.2d 440, 443(2, 3) (Mo.1957). Thus, it is only to protect against unlawful force-actual or apparent-that one may resort to self-defense. What one may do for himself, he may do for another. State v. Totman, 80 Mo.App. 125 (1899); State v. Foley, 12 Mo.App. 431, 435 (1882); LaFave & Scott, Criminal Law (Hornbook Series, 1972) § 54. And, cognately, what one may do to defend himself, another may do for him-if that other believes danger to life or serious injury impends, or that such danger and necessity are reasonably apparent. A person who intervenes to defend another acts in the stead of the other, so that force by the intervenor is justified to the same extent force by the party defended would have been justified. State v. McNail, 182 S.W. 1081 (Mo.App.1916); Bourster v. Fox, 117 Mo.App. 711, 93 S.W. 318, 323 (1916); State v. Reed, 137 Mo. 125, 38 S.W. 574 (1897). The question at outset becomes, then, whether at the time VanDyke intervened to defend the woman, she would have been justified to apply the force against Grier that VanDyke applied on her behalf. If the evidence was doubtful whether the force administered by Grier upon the woman was unlawful-or that VanDyke believed it so-then the issue of whether the defendant provoked VanDyke was for the jury. The right to act in self-defense rests in necessity, real or apparent. State v. Parker, 403 S.W.2d 623, 627(3) (Mo.1966). Thus, the cause and necessity for VanDyke to intervene are seen as those circumstances appeared to him.

The evidence of the events-except for the testimony of the principals, Grier, Ruttan and Guilbeaux-does not relate a consecutive narrative. The altercation between the defendant and the woman occurred on the sidewalk of Main Street between the Sugar Shack and the Buick automobile at the adjacent curb. VanDyke came upon the scene afoot on that sidewalk from the north. (One witness placed his movement onto the sidewalk, not from the north, but from Mother's the nearby drink and dance establishment.) The evidence shows, reasonably, these events open to the view of VanDyke between the emergence of defendant and the woman from the Sugar Shack and the VanDyke intervention: the man and the woman were in angry argument. They exchanged jostles, then Grier opened the car door, took out the CB antenna, and beat her about the upper body with that-or some other long metal object. The defendant slapped the woman, she fell to the ground and, thus prostrate, he kicked her in the stomach and "all over (and) with pretty good licks" with the metal object as well (defense witness Welch). The woman cried and whimpered, got up and was finally forced into the front seat of the car. As the defendant went around the car (to reinsert the CB antenna on the trunk (?)) VanDyke came up to Grier, struck at him and pinned the upper arms down within the vise of his own grasp. This composite of events from all the witnesses, the defendant himself included, presented at most a jury issue as to whether Grier was the aggressor as between himself and the woman-and hence as between Grier and VanDyke and so provoked the assault upon the defendant by the intervenor in defense of the woman. That issue was found beyond a reasonable doubt in favor of the prosecution under the submission of MAI-CR 2.40 which then governed self-defense. The contention of provocation as a matter...