State v. Leisure

• Decision Date: 11 September 1990
• Docket Number: No. 72482,72482
• Citation: 796 S.W.2d 875
• Parties: STATE of Missouri, Respondent, v. Anthony LEISURE, Appellant.
• Court: Missouri Supreme Court

Page 875

796 S.W.2d 875

STATE of Missouri, Respondent, v. Anthony LEISURE, Appellant.

No. 72482.

Supreme Court of Missouri,

En Banc.

Sept. 11, 1990.

As Modified on Denial of Rehearing

Oct. 16, 1990.

Richard H. Sindel, St. Louis, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

RENDLEN, Judge.

This appeal follows Anthony Leisure's manslaughter conviction in the bombing death of George "Sonny" Faheen. A divided court of appeals reversed the conviction with the majority basing their decision on State v. Anding, 752 S.W.2d 59 (Mo. banc 1988), deeming it reversible error to submit a manslaughter instruction as the evidence failed to support such submission. We affirm conviction.

The facts of this cause occurred amid a series of conspiracies and killings in the struggle between rival St. Louis factions for control of certain labor unions. This tapestry of crimes may be found detailed in State v. Leisure, 772 S.W.2d 674 (Mo.App.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 724, 107 L.Ed.2d 743 (1990) (defendant's brother) and State v. Leisure, 749 S.W.2d 366 (Mo. banc 1988) (defendant's cousin).

The relevant events in the killing of Faheen began August 11, 1981, when defendant's brother, Paul Leisure, was the victim of a car-bombing in St. Louis, resulting in severe crippling injuries. Family members, including defendant, and "business" associates met to discuss who was responsible for the bombing and concluded that one of three groups must have committed the crime: the Italians, the Martins, or the Michaels. Defendant met with John Vitale, the leader of the Italian faction and was told the bombing was a "family" matter. It was later learned that the persons involved were Jimmy (Beans) Michaels, Jimmy Michaels III, John Michaels, Norm Peters, Bob Peters, Jack Issa, Milton Schepp and George "Sonny" Faheen. Armed with this information, defendant held a meeting at his mother's house and informed his associates to find the parties believed responsible. Several of these associates followed Faheen and from this surveillance determined where he worked, the car he drove and where he usually parked during the day. On October 16, 1981, members of the group, other than defendant, placed a dynamite bomb in Faheen's car, which exploded, killing Faheen when he entered his car later that day.

Defendant, though not present when the bomb exploded, was charged with capital murder and was tried on that charge January 25, 1988. Found guilty by the jury of only manslaughter, he was sentenced to ten years' imprisonment. During the instruction conference, the state and defendant's counsel each submitted instructions patterned on the MAI-CR instructions for capital murder, second degree murder and manslaughter. A protracted discussion ensued as to the use and form of the instructions, including that for manslaughter.

In addition to his request for a manslaughter instruction, defense counsel urged the giving of an abandonment instruction, but the state argued the evidence was insufficient to submit the latter; defendant claimed that, although there was evidence that he originally participated in planning Faheen's death, he withdrew on October 16 before the bomb was detonated. The abandonment defense rested on testimony of a state's witness that defendant phoned and said, "Hold up. Don't do it." This message was relayed to the conspirator who was to detonate the bomb, but apparently he ignored the message and proceeded with the killing.

The affirmative defense of abandonment can be raised if there is evidence that, before the commission of the offense, a defendant "abandons his purpose and gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense." Section 562.041.2(3), RSMo 1986. It is questionable whether defendant's statement alone was sufficient to justify submission of an abandonment instruction, See, e.g., State v. O'Neal, 618 S.W.2d 31, 36-37 (Mo.1981), State v. Skillicorn, 635 S.W.2d 82, 83-84 (W.D.Mo.App.1982); Comment, Accomplice Liability under the 1979 Missouri Criminal Code, 44 Mo.L.Rev. 233, 265-268 (1979), as no evidence was presented that defendant gave "timely warning to law enforcement authorities" and it is doubtful that defendant's phone call constituted a "proper effort" to prevent this brutal killing. But without deciding the point, we note the trial court, in an abundance of caution and erring (if error it was) in favor of defendant, decided to instruct on abandonment. Both sides tendered proposed verdict directing instructions on capital murder, second degree murder, and manslaughter. Though the state's instructions made no mention of abandonment, defendant's verdict directors included the abandonment "tail" provided by Notes on Use 10 to MAI-CR 3d 304.04.

The court rejected the initial verdict directing instructions submitted by the parties, opting instead to give verdict directors with an abandonment "tail" as required by Notes on Use 4 to MAI-CR 2d 2.16. ¹ While expressing a preference for the instructions he had submitted, defense counsel, in reference to the MAI-CR 2d 2.16 abandonment "tail," stated, "I do want the instruction given under 2.16," and his only complaint was that the MAI-CR 2d 2.16 abandonment "tail" improperly shifted the burden of proof, a point not now raised. Defense counsel said: "I don't want to lose the instruction [i.e., verdict directing instruction pursuant to MAI-CR 2d 2.16], but I do want to say that I think it unconstitutionally shifts the burden of proof." (Emphasis added.)

After the court put the instructions in order and numbered them, defendant made objection to the refusal of his tendered instructions. Though his objections fill five and one-half pages of the transcript and many specific objections to instructions were raised, no objection was made to the giving of a manslaughter instruction other than counsel's statement: "I would object to the giving of all of the instructions."

Beyond question, defendant wanted and urged the giving of the manslaughter instruction. The situation was not one in which the trial court refused such instruction, thus raising a question of whether defendant was entitled to the same as a matter of law, nor one in which the trial court erred in giving the same without request or over the objection of defendant. Rather, the state and defendant each sought such instruction. The manslaughter instruction tendered by the state made no reference to abandonment while defendant's tendered instruction included the abandonment "tail" from MAI-CR 3d. The manslaughter instruction given by the court had an abandonment "tail" from MAI-CR 2d. Defendant, having proffered a manslaughter instruction with an abandonment "tail," is not in a position to complain that he was found guilty under an instruction he sought. See State v. Nelson, 459 S.W.2d 327, 334 (Mo.1970); State v. Martin, 56 S.W.2d 137, 139 (Mo.1932); State v. Adams, 497 S.W.2d 147, 154 (Mo.1973); State v. Euell, 583 S.W.2d 173, 178 (Mo.1979); State v. Preston, 673 S.W.2d 1, 9 (Mo.1984).

This Court has long held that a defendant cannot complain of an instruction given at his request. State v. Decker, 326 Mo. 946, 33 S.W.2d 958, 962 (1930); State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435, 437 (1948); State v. Burchett, 302 S.W.2d 9, 19 (Mo.1957); State v. Crockett, 419 S.W.2d 22, 25 (Mo.1967); State v. Adams, 497 S.W.2d 147, 154 (Mo.1973). State v. Nelson, 459 S.W.2d 327 (Mo.1970) dealt with a similar fact pattern, in which defendant, convicted of manslaughter, appealed alleging there was no evidence to support the manslaughter submission. The Court noted the instruction had been tendered by defendant and accordingly he was barred from complaining of such instructional error on appeal. Id. at 334. These cases for the most part involve situations in which the trial court submitted the exact instruction requested by the defendant. In this instance, the trial court, though rejecting defendant's version, gave an instruction substantially mirroring his request. There is no general requirement that the instruction given must precisely duplicate that requested for waiver of objection to occur. Rather, the question is whether the instruction given follows the lead and contains the essence of the defendant's tendered instruction, and, if so, defendant may not be heard on appeal to complain of the error he invited. State v. Martin, 56 S.W.2d 137, 139 (Mo.1932) (defendant complained of erroneous instruction but had asked for an instruction in almost identical language); State v. Falbo, 333 S.W.2d 279, 290 (Mo.1960).

A more recent case closely on point comes from the Court of Appeals, Eastern District. In State v. Davis, 608 S.W.2d 437 (Mo.App.1981), defendant had been charged with felony murder and during the instruction conference the State urged the "instructing down" sequence of first degree murder, second degree and manslaughter jury instructions. This "instructing down" was also requested by defendant. The court announced it was going to give the State's instructions and defendant raised no objection to the fact that no evidence supported the manslaughter submission. Defendant, found guilty of manslaughter, appealed and the Eastern District held that requesting the instruction for manslaughter, coupled with the fact defendant made no objection to its submission, barred defendant's complaint. Id. at 442.

In State v. Belk, 759 S.W.2d 257 (Mo.App.1988), the defendant submitted an instruction for manslaughter in a felony murder prosecution, which the trial court rejected but then submitted its own version under which defendant was convicted. The court of appeals determined that State v. Anding, supra, decided earlier that year, did not permit a defendant to complain on appeal of a manslaughter instruction given at the behest of defendant. Id. at 261.

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