State v. Ivicsics

• Decision Date: 26 August 1980
• Docket Number: No. 40599.,40599.
• Citation: 604 S.W.2d 773
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Daniel L. IVICSICS, Defendant-Appellant.
• Court: Missouri Court of Appeals

604 S.W.2d 773

STATE of Missouri, Plaintiff-Respondent, v. Daniel L. IVICSICS, Defendant-Appellant.

No. 40599.

Missouri Court of Appeals, Eastern District, Division Four.

August 26, 1980.

COPYRIGHT MATERIAL OMITTED

James G. Gregory, Montgomery City, for defendant-appellant.

John Ashcroft, Atty. Gen., by Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SATZ, Judge.

Defendant, Daniel Ivicsics, stabbed his brother, Robert Ivicsics. Robert subsequently died. A jury found defendant guilty of manslaughter, and he was sentenced to eight years imprisonment. Defendant raises 8 points on appeal. Finding one to have merit, we reverse and remand for a new trial and address those other issues which may arise on retrial.

Prior to the stabbing, defendant and his brother Robert were not on friendly terms. Robert had threatened to kill defendant and, just prior to the stabbing, he had threatened to shoot defendant. On the evening of September 19, 1977, defendant and Robert began arguing and fighting inside defendant's trailer. Defendant ordered Robert to leave the trailer and, when Robert refused to do so, a Michael Atwood, who was also at the scene, forcibly pushed Robert out of the trailer. What then ensued is the subject of dispute.

According to the state's evidence, Robert then ran to his car, reached under the seat of the car and turned to go back to the trailer. Defendant ran from the trailer toward Robert and the two met about 10 to 15 feet from the trailer. Robert "swung at", "grabbed" or "reached out for" defendant and defendant stabbed Robert with a bayonet in the abdomen.

According to defendant, after Robert was pushed out of the doorway of the trailer, defendant went to his room in the trailer and got out his old army bayonet. Defendant went to the doorway of the trailer. Robert was attempting to force his way back into the trailer through the doorway. Defendant thought Robert had a gun. Fearing for his life, defendant stabbed Robert "at the front door of the trailer", and Robert staggered back into the street and fell.

There is no dispute that, after the stabbing, defendant left in his car. Nor is there any dispute that Robert was taken to a hospital in Mexico, Missouri for treatment of an abdominal stab wound and that he was later transferred to another hospital for further treatment. Septicemia, a bacterial infection of the blood, developed at the site of Robert's wound and he died on October 6, 1977. According to the doctor who performed the autopsy, Robert died of "septicemia, following an abdominal stab wound".

The trial court gave an instruction on self defense and did not give an instruction on defense of habitation. Defendant contends the failure to give an instruction on defense of habitation was prejudicial error. We agree.

If supported by the evidence, a trial court must submit an instruction on justifiable homicide, whether or not requested to do so. Rule 26.02; State v. Austin, 367 S.W.2d 485, 486 (Mo.1963); MAI-CR 2.40. In the instant case, the instruction given by the trial court informed the jury that defendant was justified in killing Robert if he did so in self defense. However, a homicide may also be justified as a defense of habitation and, if the evidence supports this defense, an instruction must be given on the defense of habitation either along with or rather than an instruction on self defense. State v. Kizer, 230 S.W.2d 690, 691 (Mo.1950); State v. Shiles, 188 S.W.2d 7, 9 (Mo.1945).

Self defense, as its name implies, defines a defender's privilege to defend himself against a personal attack. Defense of habitation, as its name implies, defines a defender's privilege to defend his dwelling against an unlawful entry. The two defenses are separate and distinct. However, in Missouri, they closely track one another, and, when, as here, there is evidence that an entry is being made for the purpose of attacking the defender, the question arises whether the distinction between the two defenses still remains; and, more specifically, whether an instruction submitting self defense adequately submits the defense of habitation.

In the instant case, we are concerned with the use of deadly force. 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 the 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 invoke this privilege, the defender must "have done everything in his power, consistent with his own safety, to avoid the danger . . ., and he must retreat, if retreat is practicable", before responding to the threatened harm with deadly force. State v. Sherrill, 496 S.W.2d 321, 325-326 (Mo.App.1973). Self defense does not grant the defender the privilege to use deadly force against an obviously nondeadly attack. State v. Brown, 502 S.W.2d 295, 299 (Mo.1973); State v. Stubenrouch, 591 S.W.2d 42, 46 (Mo.App.1979).

Similarly, defense of habitation grants a defender the privilege to use force to defend his dwelling against an unlawful entry. E. g. State v. Brookshire, 353 S.W.2d 681, 690 (Mo.1962). There are still strong societal reasons for recognizing the dwelling as a place of refuge in which the occupant may expect to be free from personal attack even of a non-deadly character, and, thus, forceful argument is still made that an unlawful entry of a dwelling for the purpose of an assault may be resisted by deadly force if this reasonably seems necessary, even though the circumstances do not justify the belief there was actual danger of death or serious bodily harm. Leverette v. State, 122 S.E.2d 745, 746-747 (Ga.App.1961); People v. Eatman, 405 Ill. 491, 91 N.E.2d 387, 389-390 (Ill.1950). Under this reasoning, defense of habitation differs from self defense by authorizing the use of deadly force against a non-deadly personal attack. Apparently, in Missouri, we do not accept this argument and distinction. In dicta and by clear implication, our courts have consistently refused to extend the privilege of using deadly force to prevent an entry attempted for the mere purpose of making a personal assault which is neither intended nor likely to kill or to inflict serious bodily harm. See State v. Hargraves, 188 Mo. 337, 87 S.W. 491, 495 (1905); State v. Taylor, 143 Mo. 150, 44 S.W. 785, 789 (1898); see also, State v. Brookshire, supra at 691-692. Thus, our Supreme Court explicitly defined the defense of habitation as follows:

"`When an assault on a dwelling and an attempted forcible entry are made under such circumstances as to create a reasonable apprehension that it is the design of the assailant to commit a felony or to inflict on the inmates a personal injury which may result in the loss of life or great bodily harm, the danger that the design will be carried into execution being imminent and present, the lawful occupant of the dwelling may lawfully prevent the entry, even by the taking of the life of the intruder.' (Italics added.) Vol. I, Wharton, Criminal Law and Procedure, § 220." State v. Brookshire, supra at 691.

This approved definition indicates the amount of force privileged by the defense of habitation is no different than the amount of force privileged by self defense. Moreover, the Court noted the two defenses differ in only two respects. Defense of habitation differs from self defense by exempting the occupant from the duty to retreat, if feasible before using deadly force, State v. Brookshire, supra at 690, State v. Lawrence, 569 S.W.2d 263, 265 (Mo. App.1978). It also differs from self defense by authorizing "protective acts to be taken earlier than they otherwise would be authorized, that is, at the time when and place where the intruder is seeking to cross the protective barrier of the house". State v. Brookshire, supra at 692. Once the intruder has entered the house without resistance, the usual principles of self defense apply, except there is no duty to retreat. State v. Brookshire, supra at 692. In short, in Missouri, defense of habitation is nothing more than accelerated self defense, and the difference between the two defenses is a function of time and space.

To focus on this difference when a personal attack is in issue, we paraphrase our courts' definition and concept of defense of habitation in language which tracks the definition of self defense. 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. This paraphrase makes the similarity between defense of habitation and self defense obvious when a personal attack is in issue. It also emphasizes the crucial difference between the two defenses. In self defense, the defender must have reasonable cause to believe the danger of harm from personal attack is immediate before he is justified in responding to the attack. In defense of habitation, the defender need not wait until the danger of harm is immediate; rather, he may respond when he has reason to believe there is immediate danger the unlawful entry will occur. The significance of this difference is apparent when the defender is a great distance from a closed doorway which an intruder, bent on violence, is attempting to enter. Under those facts, a jury could sensibly find the defender was justified in using deadly force in...