State v. Hafeli
| Decision Date | 11 February 1986 |
| Docket Number | No. 49237,49237 |
| Citation | 715 S.W.2d 524 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Robert M. HAFELI, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James Jay Knappenberger, Private Atty., Clayton, for defendant-appellant.
John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant, Robert M. Hafeli, appeals his jury conviction in St. Louis County Circuit Court of Manslaughter by Culpable Negligence, Section 559.070 RSMo 1969 1 for which he was sentenced to the Department of Corrections and Human Resources for a term of four years. Defendant contends on appeal that the court erred (1) in denying defendant's motion for Bill of Particulars because the indictment charging him with murder second degree, and in the alternative, with manslaughter by culpable negligence in handling a gun was totally defective in that the charging of defendant in the alternative required the preparation of defenses on two separate and non-exclusive charges; (2) in refusing to submit to the jury defendant's proposed instructions on no duty to retreat in one's own home; (3) in refusing to submit to the jury defendant's instruction regarding the defense of justification as an adjunct to the manslaughter instruction; and (4) in refusing to allow the testimony of specific acts of violence by the victim because it was relevant and material as to the victim's violent disposition and defendant's fear.
We review the evidence in the light most favorable to the state.
At the time of the victim Diane Gilbin's death, she and her two daughters were living with the defendant in his home. 2 The victim and the defendant had been in a relationship for approximately one year.
On the evening of April 16, 1982 the couple went to two different taverns where they drank alcoholic beverages and danced. At approximately one o'clock in the morning on April 17, 1982, they left the tavern and returned to defendant's home.
A minor argument began between the two parties on the way home from the last drinking establishment. This argument escalated once they arrived at the defendant's house. Defendant asked the victim to make love with him when they were in the bedroom, but she vehemently refused. Defendant left the bedroom and threw a beer bottle down the hallway at the wall. Defendant proceeded to pick up the glass from the broken beer bottle and the victim came out of the bedroom. The argument continued, and the victim tried to make some telephone calls but defendant prevented her from doing so by hanging up the telephone. Subsequently the victim threw the telephone at the defendant. While threatening to kill defendant, the victim went into the kitchen, and rummaged around in a drawer containing kitchen knives. She was observed by defendant to have grabbed two knives and a fork. Consequently, defendant went into the bedroom, retrieved a pistol, and returned to the kitchen carrying the gun at his side. After returning to the kitchen the defendant and the victim were standing approximately one to two feet apart. The victim again threatened to kill defendant and raised her arms above her head. Defendant observed a "glimmer of steel" in her hand, ducked down, and tried to cover himself, but collided with the victim's arm causing his gun to discharge. As a result the victim was fatally wounded. The police were summoned. They found at the scene two knives, one near the victim's feet, and one underneath her left hand. On one of the knives the right thumbprint of the victim was found. They also found defendant's gun on the kitchen table.
An autopsy revealed that the blood alcohol level of the victim at the time of death was .258. 3 There was conflicting expert testimony as to whether a person may actively function at such a high level of intoxication.
There was testimony at trial from several witnesses as to the victim's reputation for being more aggressive and loud when intoxicated. There was also testimony by defendant concerning previous actions of the victim that could be construed as threats upon his life or well-being.
Defendant at the instruction conference objected to the court's failure to give an instruction submitted by him concerning no duty to retreat in one's own home. Following the instruction conference closing arguments took place, the case was submitted to the jury, and a verdict of guilty on the charge of manslaughter by culpable negligence was returned. This appeal followed.
Defendant initially contends that the trial court erred in denying his motion for a Bill of Particulars because the indictment charging him with murder in the second degree, and in the alternative, with manslaughter by culpable negligence in the handling of a gun was totally defective in that the charging of the defendant in the alternative required the preparation of defenses on two separate and non-exclusive charges.
A motion for a Bill of Particulars is addressed to the discretion of the trial court and its ruling should not be disturbed unless there is an abuse of discretion. State v. Cox, 352 S.W.2d 665, 672 (Mo.1962). State v. Feeler, 634 S.W.2d 484, 486 (Mo.App.1981). The court in this indictment charging the defendant with manslaughter by culpable negligence, Section 559.070 RSMo 1969 (now Section 565.024.1(1) RSMo 1984) followed MACH-CR 16.18(b). Rule 23.01(e) states:
All indictments or information which are substantially consistent with the forms of indictment or information which have been approved by this court shall be deemed to comply with the requirements of this Rule 23.01(b).
See: State v. Ball, 654 S.W.2d 336, 339 (Mo.App.1983). Defendant has not demonstrated how he was prejudiced by the failure of the trial court to grant him a Bill of Particulars nor have we ascertained any prejudice. 4 Nor do we conclude that the trial court abused its discretion in this respect. Therefore, we rule this Point against defendant.
Defendant next contends that the trial court erred in refusing to submit to the jury his proffered instructions that defendant had no duty to retreat within his own home. One of these instructions, "Instruction A," reads as follows:
The defendant has no obligation to retreat when he is in his own home.
The other, "Instruction B," reads as follows:
The defendant has no duty to retreat when he is in his own home.
Defendant's position is that there is no duty to retreat in one's own home, and such an instruction should be given as part of a series to be submitted with justifiable or accidental homicide.
The state supports the court's refusal to give such an instruction on the premise that the evidence in this case does not support the theory of defense of habitation, therefore an instruction on no duty to retreat would have been incorrect. The state's reliance on the defense of habitation to resolve this issue is appropriate.
The defense of habitation refers to the circumstances where a person is justified in committing a homicide to prevent an entry into his home.
The defense of habitation grants the lawful occupant of a dwelling the privilege to use deadly force to prevent an attempted unlawful entry into the dwelling, if the occupant had reasonable cause to believe that (1) there is immediate danger the entry will occur, (2) the entry is being attempted for the purpose of killing or inflicting serious bodily harm on the occupant and (3) deadly force is necessary to prevent the unlawful entry.
State v. Ivicsics, 604 S.W.2d 773, 777 (Mo.App.1980). We agree with the state that the evidence in this case does not support an instruction regarding the defense of habitation. There was no attempted unlawful entry into defendant's home. The victim was in defendant's home legally and with his consent. The lack of evidence precluding the use of the defense of habitation, however, does not negate the necessity to submit to the jury an instruction regarding the lack of a duty to retreat.
When attacked in his own house, one may justify or excuse the killing of his assailant if such act is apparently necessary to save his own life or to protect himself from great bodily harm. In such case, it is the question of the law of self-defense and not the law of defense of habitation which is involved. ... Therefore, what protective action the occupant may take after the aggressor has effected his entry depends upon the facts and circumstances then existing, and a homicide then occurring is justifiable only under the usual rules of self-defense or to prevent therein the commission of a felony, except that there is no duty to retreat. (emphasis added)
State v. Brookshire, 353 S.W.2d 681, 691, 692 (Mo.1962). See also, State v. Neria, 526 S.W.2d 396, 398 (Mo.App.1975); State v. McGowan, 621 S.W.2d 557, 559 (Mo.App.1981); State v. Gardner, 606 S.W.2d 236, 239 (Mo.App.1980). 5
The court specifically stated at trial that there was enough evidence to support a self-defense instruction. However, the instruction submitted by the court contained no provision explaining that the defendant had no duty to retreat. Under normal circumstances this would be the correct way in which to instruct the jury concerning the doctrine of self-defense.
Self defense grants a defender the privilege to use deadly force in the effort to defend himself against personal harm threatened by the unlawful act of another, if the defender has reasonable cause to believe that (1) there is immediate danger and threatened harm will occur; (2) the harm threatened is death or serious bodily injury; and (3) deadly force is necessary to overcome the harm as reasonably perceived. State v. Sanders, 556 S.W.2d 75, 76 (Mo.App.1977); State v. Jackson, 522 S.W.2d 317, 319 (Mo.App.1975). In addition, to...
To continue reading
Request your trial
-
Grimes v. McAnulty, 95-SC-745-MR
...case of voluntary shooting in self-defense. What is sauce for the goose is sauce for the gander. Id. at 425; compare State v. Hafeli, 715 S.W.2d 524 (Mo.Ct.App.1986), in which the defendant specifically testified that the killing was Finally, it has never been the law of this Commonwealth t......
-
People v. Everette, 1-87-1978
...Chatman; People v. Purrazzo; People v. Dzambazovic; People v. Johnson (1964), 54 Ill.App.2d 27, 203 N.E.2d 283; see also State v. Hafeli (Mo.App.1986), 715 S.W.2d 524. As a general rule, however, inconsistent theories may be submitted to the jury. The United States Supreme Court recently he......
-
Grimes v. McAnulty
...of voluntary shooting in self-defense. What is sauce for the goose is sauce for the gander. [82] Id. at 425; compare State v. Hafeli, 715 S.W.2d 524 (Mo. Ct. App. 1986), in which the defendant specifically testified that the killing was [83] Finally, it has never been the law of this Common......
-
State v. Waller
...appear. Missouri courts currently admit evidence of the victim's prior acts of violence upon the defendant. See, e.g., State v. Hafeli, 715 S.W.2d 524, 530 (Mo.App.1986). To distinguish between violent acts directed at the defendant and acts directed toward third persons of which the defend......