State v. Lumpkin
| Decision Date | 30 March 1993 |
| Docket Number | Nos. WD,s. WD |
| Citation | 850 S.W.2d 388 |
| Parties | STATE of Missouri, Respondent, v. Michael Dale LUMPKIN, Appellant. Michael Dale LUMPKIN, Appellant, v. STATE of Missouri, Respondent. 43969, WD 45930. |
| Court | Missouri Court of Appeals |
Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.
William L. Webster, Atty. Gen., Michael J. Spillane, Asst. Atty. Gen., Jefferson City, for respondent.
Before BRECKENRIDGE, P.J., and SHANGLER and SPINDEN, JJ.
Michael Lumpkin appeals from his convictions for first degree assault, § 565.050, RSMo 1986, 1 and armed criminal action, § 571.015. He was sentenced, as a prior and persistent offender, to consecutive terms of twenty and ten years imprisonment, respectively. Lumpkin also appeals from the motion court's denial of his Rule 29.15 motion for postconviction relief. Lumpkin raises five points on appeal, claiming that the trial court erred in: 1) refusing to submit a defense of premises instruction; 2) denying his request for a mistrial due to the State's improper closing argument; 3) submitting an improper instruction defining reasonable doubt; 4) denying him postconviction relief because he was denied effective assistance of counsel due to his counsel's failure to preserve error for review on appeal; and 5) denying him postconviction relief without an evidentiary hearing because he was denied effective assistance of counsel due to trial counsel's failure to investigate.
The convictions and the judgment on the postconviction motion are affirmed.
On October 25, 1989, Officer Herbert Robinson, an undercover police officer working with the street narcotics unit of the Kansas City Police Department, approached a house at 5840 Wabash in Kansas City, Missouri. He made a $20 crack cocaine purchase from a black woman whom he found on the porch of the house. This purchase allowed the police to obtain a search warrant for the house. On November 2, 1989, at approximately 8:00 p.m., Robinson, three other undercover officers and about a dozen officers from the 8050 Tactical Response Squad returned to the area to execute the search warrant. Robinson approached the house to make a second drug purchase as verification that the residence was still a "drug house." Robinson wore three layers of clothing under which his gun and a radio transmitting device were concealed.
Robinson knocked on the door of the house at 5840 Wabash and Lumpkin, gun in hand, answered the door. Robinson asked for a $20 rock and was told by Lumpkin that there were "no happenings." Robinson inquired as to the whereabouts of the black woman from whom he had previously purchased crack cocaine. Tony Barrett then came to the door, yelled obscenities at Robinson, pushed Robinson and then struck Robinson with his fist. Lumpkin shot Robinson in the right shoulder and slammed the door shut. The bullet traveled completely through Robinson's right shoulder, shattered a bone and knocked Robinson to the floor of the porch. Robinson testified that he drew his gun as he was getting up, jumped over the porch railing and utilized the monitoring device to call for assistance. Robinson also testified that he had not attempted to draw his gun prior to being shot by Lumpkin.
Lumpkin ran out the back door of the house, threw the gun down in the backyard and hid out until he was arrested. The gun, containing four live rounds and one spent casing, was found in the backyard. A spent bullet was found on 59th Street approximately 105 feet from the porch of the house. John Cayton, the chief forensic firearms and tool mark examiner at the Regional Criminalistics Laboratory, in Kansas City, Missouri, tested the bullet and testified that it was fired from the gun found in the backyard of 5840 Wabash.
Lumpkin was convicted by a jury of first degree assault, § 565.050, and armed criminal action, § 571.015. Lumpkin was sentenced, as a prior and persistent offender, to consecutive terms of twenty and ten years imprisonment, respectively. Lumpkin filed a pro se Rule 29.15 motion on September 9, 1991. Appointed counsel filed an amended motion on November 19, 1991. The motions alleged that Lumpkin had received ineffective assistance of counsel. The motion court denied Lumpkin's postconviction motion, without an evidentiary hearing, on January 3, 1992. Lumpkin appeals both from his convictions and from the denial of his motion for postconviction relief. Lumpkin admitted the shooting, claiming it was in self-defense and in defense of premises.
Lumpkin raises five points on appeal, arguing that the trial court erred in: 1) refusing to submit his proposed instruction on defense of premises because, through his testimony, evidence was presented requiring such an instruction; 2) denying his request for a mistrial during the State's closing argument when the State deliberately misstated the contents of an exhibit; 3) submitting instruction number four defining reasonable doubt, which is patterned after MAI-CR3d 302.04, because the instruction does not present a constitutional definition of reasonable doubt; 4) denying him postconviction relief because he was denied effective assistance of counsel in that trial counsel failed to object and include as an allegation of error in the motion for new trial both that the State's closing argument was improper and that the trial court erred in giving instruction number four defining reasonable doubt; and 5) denying him postconviction relief without an evidentiary hearing because he was denied effective assistance of counsel in that his counsel failed to adequately investigate.
In Point I, Lumpkin argues that the trial court erred in refusing to submit his proposed Instruction No. A regarding defense of premises. Lumpkin asserts that the Notes on Use require the defense of premises instruction to be given whenever there is evidence that the defendant could have believed that the victim was attempting to commit burglary and that he presented such evidence through his testimony. In addition, Lumpkin argues that because his conviction for first degree assault was erroneous, his conviction for armed criminal action underlying the first degree assault was also erroneous.
A defense of premises 2 instruction must be given by the trial court only when there is evidence of attempted unlawful entry and evidence that the lawful occupant reasonably believed 1) immediate danger of entry existed; 2) the entry was being attempted in order to kill or inflict serious bodily harm on the occupant; and 3) deadly force was required to prevent the entry. State v. Battle, 625 S.W.2d 252, 254 (Mo.App.1981). See also State v. Ivicsics, 604 S.W.2d 773, 777 (Mo.App.1980). Section 563.036.2, which predates Battle and Ivicsics, requires that in order to use deadly force in defense of premises, the defendant must reasonably believe "it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit arson or burglary upon his dwelling." The defendant bears the burden of injecting the issue of defense of premises. Section 563.036.3.
The "Notes on Use" following MAI-CR3d 306.10 require the trial court to submit the defense of premises instruction if "there is evidence that the defendant could have believed the victim" was attempting to commit burglary. Lumpkin argues he met this standard by testifying that he subjectively believed Robinson was attempting to commit burglary. In making this argument, Lumpkin fails to consider the language of § 563.036 and of MAI-CR3d 306.10, both of which require that the defendant's belief be objectively reasonable.
The defense of premises is a defense of justification as is self-defense. Chapter 563. In Missouri, defense of premises is, essentially, accelerated self-defense. Ivicsics, 604 S.W.2d at 777. The two defenses differ in terms of time and space in that defense of premises is applicable prior to and during the intruder's entry into the dwelling, but once the intruder has entered without resistance, the principles of self-defense apply. Id. Since there are no Missouri cases establishing the quantum of proof necessary before giving a defense of premises instruction, it is helpful to consider the quantum of proof required for giving a self-defense instruction. The quantum of proof for self-defense has been defined as "substantial evidence," "evidence putting it in issue," "any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it," "supported by evidence," "any theory of the case which his evidence tended to establish," "established defense," and "evidence to support the theory." State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992) (citations omitted). Once sufficient evidence injects the issue of self-defense into the case, it is a question of fact for the jury whether the defendant's belief in the necessity of using deadly force was reasonable in defense of self. Id.
In determining whether Lumpkin has presented evidence sufficient to inject the issue of defense of premises, it is necessary for him to present evidence that under its most favorable construction supports a finding of defense of premises. It is not sufficient solely that the defendant believed in his or her own mind that the other person was attempting to enter the premises to commit burglary; the belief must also be objectively reasonable. Ivicsics, 604 S.W.2d at 778. Although Lumpkin testified that he believed Robinson was going to shoot him and then break into the house to burglarize it, the evidence does not support such a belief. Robinson had not threatened Lumpkin or Barrett physically nor had he indicated an intention, either verbally or through his actions, to enter the premises. Lumpkin testified that during the confrontation, Robinson did not move from the spot in which he was standing when Lumpkin opened the door.
The trial court found that...
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