State v. Morley, 15201

• Decision Date: 22 March 1988
• Docket Number: No. 15201,15201
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Christopher MORLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 66

748 S.W.2d 66

STATE of Missouri, Plaintiff-Respondent, v. Christopher MORLEY, Defendant-Appellant.

No. 15201.

Missouri Court of Appeals,

Southern District,

Division Two.

March 22, 1988.

Motion for Rehearing or Transfer

Denied April 12, 1988.

Lew Kollias, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Judge.

A jury found defendant Christopher Morley guilty of voluntary manslaughter (§ 565.023), ¹ and he was sentenced to imprisonment for seven years. Defendant appeals.

The charge arose out of an incident which occurred on November 27, 1986, in Poplar Bluff. The victim, William Dorian, 19, was fatally stabbed by defendant during an altercation between Dorian on the one hand, and defendant, 17, and his three companions on the other. The companions were Walter Painter, 16, Jody Fouts, and George Morley, 20. Fouts' age does not appear in the record, but he is older than Painter.

Defendant's sole point is that the evidence is insufficient to support the verdict "in that the evidence did not establish that defendant failed to act in lawful self-defense beyond a reasonable doubt, as defendant used deadly force only in response to, and to protect himself from, the victim's use of deadly force, when the victim swung a dangerous instrument at defendant after striking him several times previously with said instrument. Defendant only used the amount of force necessary to prevent or dissuade further attack upon him with the dangerous instrument, and did not continue the use of force upon the victim beyond that which was necessary to protect himself."

Defendant does not challenge the sufficiency of the evidence to support a finding of all of the elements of voluntary manslaughter as that offense is defined in § 565.023.1(1). His position is that the evidence showed, as a matter of law, that he was acting in self-defense and thus entitled to acquittal. The trial court gave an instruction on self-defense, based on MAICR3d 306.06. Defendant has not challenged the correctness or sufficiency of that instruction.

In assessing the sufficiency of the evidence to support the verdict, this court views the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the verdict and ignores evidence and inferences contrary to the verdict. State v. Mallett, 732 S.W.2d 527, 530 (Mo. banc 1987). Any portion of defendant's evidence which supports a finding of guilty is also to be considered because defendant, by putting on evidence, takes the chance of aiding the state' case. State v. Johnson, 447 S.W.2d 285, 287-290 (Mo.1969); State v. Manning, 612 S.W.2d 823, 825 (Mo.App.1981).

At approximately 9:30 on November 27, 1986, Walter Painter, Jody Fouts, George Morley and defendant were conversing in front of Painter's home. Dorian emerged from a house about one-half block away. Dorian was about the same height as defendant and possibly thinner. Although it was a cold evening, Dorian wore only a jacket and a pair of shorts.

A member of defendant's group referred to Dorian as a "fag." Dorian took off his jacket and walked toward the group. They walked toward Dorian. Dorian threatened to whip all four of them. Defendant obtained a jack handle, weighing three or four pounds, from George's bicycle. George offered to fight with Dorian. Rather than fighting George, Dorian kicked at defendant. When Dorian lunged at him, defendant swung the jack handle and struck Dorian. Dorian grabbed the jack handle, twisted it from the hands of defendant, and threw it onto a lawn across the street.

While the others stood cursing and threatening Dorian, defendant crossed the street and retrieved the jack handle. As Dorian argued with George and Painter, defendant walked up behind Dorian with the jack handle. Dorian turned around, saw defendant holding the jack handle, and jerked it away from defendant again. Dorian began swinging the jack handle at defendant, striking him three or four times in the chest and ribs. Defendant removed a knife from his coat pocket and opened it. When Dorian drew the jack handle back to strike defendant again, defendant drew back the knife. Dorian swung the jack handle at defendant. Defendant ducked and thrust the knife into Dorian's chest. The stab wound was the sole cause of Dorian's death. He died at the scene.

Section 563.031 reads, in pertinent part:

"1. A person may, subject to the provisions of subsection 2, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided

(a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

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(c) The aggressor is justified under some other provision of this chapter or other provision of law;

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would not be justified in using such protective force.

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 unless he reasonably believes that such deadly force is necessary to protect himself or another person against death, serious physical injury, rape, sodomy or kidnapping.

* * *

4. The defendant shall have the burden of injecting the issue of justification under this section."

Generally, where the evidence is conflicting, the issue of self-defense is one for the jury. State v. Chambers, 671 S.W.2d 781, 782 (Mo. banc 1984); State v. Teter, 724 S.W.2d 538, 541 (Mo.App.1986); State v. Christie, 604 S.W.2d 806, 808 (Mo.App.1980); State v. Miller, 653 S.W.2d 222, 224 (Mo.App.1983); State v. Phroper, 619 S.W.2d 83, 88 (Mo.App.1981). "Acquittal of an accused by reason of self-defense as a matter of law, so as to bar submission of the charged offense to the jury, is relegated to those exceptionally rare instances where all the undisputed and uncontradicted evidence clearly establishes self-defense." State v. Christie, supra, at 808. "Rarely is self-defense declared by law so as to bar the submission of the homicide offense altogether." State v. Miller, supra, at 224.

Although defendant has the burden of injecting the issue of self-defense, § 563.031.4, it does not matter which side produces the evidence or from whose witness it comes. State v. Fincher, 655 S.W.2d 54, 58 (Mo.App.1983). If there is evidence to support that issue, the burden rests upon the state to prove beyond a reasonable doubt that the homicide was not justified. Defendant bears no burden of proof on the issue of self-defense, but merely bears the burden of "injecting" the issue into the case from whatever evidentiary source. Id.

Under the circumstances here, defendant was not entitled to use deadly force upon Dorian unless defendant reasonably believed "that such deadly force [was] necessary to protect himself or another person against death [or] serious physical injury...." § 563.031.2. As used in that statute, "deadly force" means physical force which the actor uses with the purpose of causing, or which he knows to create a substantial risk of causing, death or serious physical injury. § 563.011(1). "Serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body. § 556.061(26). Generally an imminent assault and battery does not justify resistance by deadly force. State v. Stiles, 712 S.W.2d 42, 45 (Mo.App.1986); State v. Fincher, supra, at 60; State v. Sprake, 637 S.W.2d...