State v. Miller, 15744

• Citation: 772 S.W.2d 782
• Decision Date: 04 May 1989
• Docket Number: No. 15744,15744
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Johnnie Dewayne MILLER, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 782

772 S.W.2d 782

STATE of Missouri, Plaintiff-Respondent, v. Johnnie Dewayne MILLER, Defendant-Appellant.

No. 15744.

Missouri Court of Appeals,

Southern District,

Division Two.

May 4, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

May 26, 1989.

Application to Transfer Denied Aug. 1, 1989.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Ronald D. White, Robinson, Turley, Turley & White, Rolla, Joseph W. Rigler, J. Max Price, Salem, for defendant-appellant.

PREWITT, Judge.

Defendant was charged with murder in the second degree and following jury trial convicted of involuntary manslaughter. He was sentenced to five years' imprisonment. Defendant appeals, presenting four points relied on.

For his first point defendant contends that the trial court erred in submitting involuntary manslaughter to the jury. Defendant argues in his brief that he was either guilty of murder in the second degree "or guilty of nothing at all" because there "were no facts to support submission of Involuntary Manslaughter as a lesser included offense".

Relevant here, involuntary manslaughter is committed if a person recklessly causes the death of another. § 565.024.1(1), RSMo Supp.1984. Such involuntary manslaughter can be a lesser included offense of first and second degree murder, § 565.025, RSMo Supp.1984.

The trial court should only instruct the jury on manslaughter as a lesser included offense if there is an evidentiary basis for convicting the defendant on that charge. State v. Anding, 752 S.W.2d 59, 62 (Mo. banc 1988). See also State v. Martin, 602 S.W.2d 772 (Mo.App.1980).

The question before us under this point then is whether the evidence supported the jury finding that defendant was guilty of recklessness in causing the death. To determine if the evidence was sufficient to support the conviction, we view the evidence and proper inferences therefrom in the light most favorable to the state. State v. Cook, 711 S.W.2d 208, 210 (Mo.App.1986); State v. Buffington, 588 S.W.2d 512, 514 (Mo.App.1979).

Under the applicable instruction a person "acts recklessly as to causing the death of another person when there is a substantial and unjustifiable risk he will cause death and he consciously disregards that risk, and such disregard is a gross deviation from what a reasonable person would do in the circumstances". MAI-CR3d 313.10.

The incident occurred in the late evening hours of October 26, 1985, at the Grant's Inn Tavern in Ironton. That evening defendant, accompanied by a female named Sandy Risher, had gone to the tavern and a discussion or quarrel had ensued between defendant and Brad Inman. Risher had previously lived with Inman. Risher and defendant left the tavern, but returned later. After they returned, Risher went outside the tavern to get cigarettes from the vehicle she and defendant were traveling in. Inman followed her as far as the lobby. Defendant followed Inman, then went on outside to the vehicle. When he saw Inman coming out of the tavern, defendant reached into the back of his vehicle to get a rifle. After he had it in front of him, the rifle discharged, causing the death of a patron in the bar. The evidence was in conflict as to what caused the rifle to fire.

Inman says that defendant pointed the rifle at him and fired it, but the bullet missed him. Defendant and Risher testified that just before the rifle fired, Inman was verbally threatening Risher and defendant and making threatening gestures toward them. Their testimony was that defendant was holding the weapon at his waist when Risher grabbed the rifle and it discharged. Defendant said he did not fire the weapon, but that it went off accidentally when Risher grabbed it. Defendant said that he did not get the rifle to shoot Inman, but to keep Inman away from him. He said there was a safety on the rifle that is put on or off with the same finger that you use to pull the trigger. Defendant stated that when he pulled the rifle out of the car he did not know if the safety was on or off, but that he knew the weapon was loaded.

There was evidence that there were as many as 25 people in the tavern and that the gun had been pointed toward the front door of it just before it was fired. The jury could have determined that defendant did not intentionally fire the weapon at Inman, but was reckless in holding a gun pointed toward the front door with the safety off when he could have anticipated that it might fire for some reason, including that someone might try to disarm him. The jurors could find that by handling the weapon and having it pointed toward the tavern when the safety was in such a position that it could be fired, the defendant was acting recklessly. The evidence was sufficient to support the submission and conviction. Point one is denied.

For his second point defendant contends that the trial court erred in not submitting an instruction on self-defense which he requested and tendered. As defendant concedes, whether self-defense should have been submitted as a defense to murder in the second degree is now moot because defendant was acquitted of that charge. The question is whether it should have been submitted as a defense to involuntary manslaughter.

The issues which defendant raised in his defense included self-defense and accident. These issues are inconsistent. Self-defense in a homicide matter involves a claim that a life was taken by an intentional act necessary because of apprehension of great bodily harm while accidental homicide involves an unintentional taking of a human life. State v. Hafeli, 715 S.W.2d 524, 529 (Mo.App.1986); State v. Sivils, 589 S.W.2d 617, 619 (Mo.App.1979). See also State v. Merritt, 734 S.W.2d 926, 930 (Mo.App.1987) (in homicides self-defense implies that a defendant acted intentionally for his own protection or that of others). But see State v. Branch, 757 S.W.2d 595, 599 (Mo.App.1988) (self-defense and accident no longer mutually exclusive under MAI-CR3d 304.11 D).

Among the cases cited by defendant are State v. Goforth, 721 S.W.2d 756 (Mo.App.1986), and State v. Cook, 696 S.W.2d 814 (Mo.App.1985). Neither is applicable here. Goforth did not involve evidence that the gun was fired accidentally or because of interference by a third person. There a semi-automatic rifle fired ten shots. 721 S.W.2d at 757. Cook did not involve manslaughter but assault. As self-defense was submitted to the jury there, whether a self-defense instruction should have been given was not an issue. There was also no issue in Cook as to whether the defendant was reckless in his handling of the weapon.

Self-defense might justify producing the weapon to prevent being attacked by Inman, but would not justify the reckless handling of it. Defendant was not entitled to the instruction on self-defense. Compare State v. Sivils, supra 589 S.W.2d at 619. See also People v. Tanthorey, 404 Ill. 520, 89 N.E.2d 403, 408 (1949) (self-defense instruction properly refused where defendant testified that shooting was accidental and he did not intend to fire the weapon); People v. Purrazzo, 95 Ill.App.3d 886, 51 Ill.Dec. 47, 53, 420 N.E.2d 461, 467 (1981), cert. denied 455 U.S. 948, 102 S.Ct. 1448, 71 L.Ed.2d 661 (1982) (self-defense relates to the intentional use of force; if gun is accidentally discharged, self-defense is out of the case); State v. Kerr, 14 Wash.App. 584, 544 P.2d 38, 40 (1975) (justifiable homicide instruction not authorized where defendant insists that he did not intend to shoot). It was also highly questionable whether self-defense was available to the charged crime on the facts which defendant presented. This point is denied.

For his third point defendant contends that the trial court erred in refusing the third-party defense instruction which he tendered. He tendered MAI-CR3d 306.08 premised on the theory that he acted in lawful defense of Sandra Risher. He states that because it is similar to self-defense, his argument on self-defense discussed in the previous point is applicable here. For the reasons given in denying Point II, Point III is also denied.

Defendant's remaining point is that the trial court erred in refusing to submit to the jury an excusable homicide instruction he tendered drafted from MAI-CR2d 2.28. ¹ Defendant acknowledges that the accident instruction was withdrawn in MAI-CR3d and relies on a portion of MAI-CR3d 304.11(D) which states:

"However, if, under unique circumstances, there is evidence of excuse not...