State v. Phillips, 60896
| Decision Date | 29 June 1979 |
| Docket Number | No. 60896,60896 |
| Citation | 583 S.W.2d 526 |
| Parties | STATE of Missouri, Respondent, v. Archie Lee PHILLIPS, Appellant. |
| Court | Missouri Supreme Court |
Robert C. Babione, Public Defender, Cornelius T. Lane, Jr., Sp. Asst. Public Defender, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, for respondent.
This case was transferred after opinion by the then St. Louis Court of Appeals, and we now consider the same as on original appeal.
Archie Lee Phillips was found guilty of murder second degree by a jury and punishment was assessed at 35 years by the trial court. In order to reach its verdict, the jury had to have found that the victim, Pierre Walker, died as a result of a shoot-out between the appellant and one Edward Nathan Bell. The evidence supported such a conclusion.
On December 31, 1974, a conversation started between the appellant and Bell in a Chinese carry-out after the former allegedly became fresh with Bell's girlfriend, Brenda Taylor; the appellant and Bell went outside; the latter went across Union Boulevard towards his car and the appellant walked south on the east side of Union Boulevard; appellant entered Hudson's record shop and came out with a gun. Testimony by a bystander indicated that appellant began firing shots at Bell. A shoot-out between Bell and Phillips ensued, with the victim (seven year old Pierre Walker) being killed in the crossfire.
On voir dire, the State's attorney was allowed to ask the jury if they could find the appellant guilty even if the State could not prove who actually fired the shot that killed the victim. The court called Brenda Taylor as a court witness, over the objection of the defense counsel, even though said witness had previously testified before the Grand Jury and had been endorsed as a State's witness. Ms. Taylor had testified at the trial of Bell, wherein Bell was acquitted.
This case was submitted to the Jury by instructions including MAI-CR 2.40 on self-defense. The court also gave the State's tendered instruction on self-defense which was not approved in MAI-CR. The State also submitted an instruction on murder second, modified to include the issue of transferred intent. Appellant's instruction MAI-CR 6.08 on Manslaughter was refused by the trial court.
On appeal it is alleged that the trial court erred by: (1) allowing the State on voir dire to ask the jury for a commitment to find the appellant guilty; (2) calling Brenda Taylor as a court's witness; (3) giving the State's tendered instruction of self-defense; and, (4) failure to give appellant's manslaughter instruction.
We find the appellant's third objection dispositive and reverse and remand for a new trial on the ground that the trial court erred in the giving of an extra self-defense explanation instruction in addition to the MAI-CR instruction designed to cover the issue.
An examination of the history of MAI-CR is warranted. In 1964 this court embraced the concept of pattern jury instructions when it adopted Missouri Approved Instructions (MAI) for use in civil cases. The value of that system and the benefits it offered quickly became apparent and the Board of Governors of the Missouri Bar decided that pattern jury instructions for use in criminal cases should also be formulated. A committee chaired by Judge Orville W. Richardson was formed. After years of study and preparation the committee brought its work product to this court, where additional time and energy were expended in an effort to eliminate perceivable bias. The result was adoption of Supreme Court Rule 20, which became effective January 1, 1974.
Subparagraph (c) of Rule 20.02 states that:
(c) MAI-CR Excludes Use of Other Forms. Whenever there is an MAI-CR instruction or verdict form applicable under the law to the facts, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other on the same subject.
This rule is essentially the same as Supreme Court Rule 70.02(b) which applies to civil cases.
The need for making use of the approved pattern instructions mandatory was best explained by the Missouri Supreme Court Committee on Jury Instructions in its 1963 report:
There are hundreds of currently acceptable instructions which use language more favorable to one site or the other than the proposed instructions. If counsel are permitted to "improve" the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such "improvement" by one counsel will prompt an offsetting "improvement" by his opponent and after a while the court will not be able to find the original with a divining rod.
Missouri Approved Jury Instructions (2d ed. 1969) p. XXVII
This rationale is as equally applicable to criminal cases as it is to civil cases.
In the present case the court submitted MAI-CR 2.40, modified, at the request of the appellant on the issue of self-defense. MAI-CR 2.40 is a justifiable homicide instruction which, the Notes on Use state, should be slightly modified and used in assault cases where applicable under the law and the evidence. This instruction was warranted by the facts in this case. Modification for assault was necessary because the case is based on a felony murder theory with assault as the underlying felony. It was submitted as Instruction 7, an MAI-CR 2.40 modified instruction.
The court then, at the request of the respondent (State), introduced an additional instruction explaining that the law of self-defense does not give one a right to attack another or a right to retaliate or seek revenge. It was submitted as Instruction 8. This instruction was not from MAI-CR, nor is there any similar instruction provided for in MAI-CR. The respondent based the instruction on one which was found not to be prejudicial in the case of State v. Williams, 522 S.W.2d 641 (Mo.App.1975). While it is true that a similarly worded instruction was approved in Williams, and that Williams was tried after the adoption of MAI-CR, Williams relied on pre-MAI cases. More importantly, the instruction in Williams was not challenged on the basis that it was an Additional instruction upon a subject covered by MAI-CR and the contention, that the additional instruction was erroneous because it was not authorized by MAI-CR, was not specifically met.
The respondent contends that the extra instruction was necessary because MAI-CR 2.40, while setting forth general law on self-defense, does not address itself to the issue of whether self-defense can be claimed by one who has entered into a difficulty with another in order to punish or wreck vengeance upon him. Thus, respondent asserts, Instruction 8 addressed itself to an area not covered by MAI-CR 2.40 and therefore supplemented, rather than transplanted, the pattern instruction. Such supplementation, it is contended, does not violate Supreme Court Rule 20.02.
At the outset, we note that the instructions tendered by both sides in this case were defective. The wording could not have helped but confuse the jury.
Instruction 7, tendered by the appellant, is set forth below as it was submitted to the jury.
One of the issues in this case is whether the [ADDED: assault] [DELETED: [death]] of [ADDED: Edward Nathan Bell] [DELETED: [name of victim]] was a justifiable [ADDED: assault] [DELETED: [homicide]]. By [ADDED: "justifiable assault"] [DELETED: ["justifiable homicide"]] is meant the [ADDED: assault] [DELETED: [killing]] of another in lawful self-defense. On that issue you are instructed as follows:
1. The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant acted in lawful self-defense, then you must find the defendant not guilty.
2. If the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that is [DELETED: [it]] was necessary for him to act as he did to protect himself from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.
3. Even if the defendant provoked the use or threat of force against himself, nevertheless if he in good faith withdrew or attempted to withdraw from the difficulty and clearly indicated to [ADDED: Edward Nathan Bell] [DELETED: [name of victim]] that he desired to withdraw and end the use of force, and if [ADDED: Edward Nathan Bell] [DELETED: [name of victim]] then began, continued and resumed the use or threat of force on his part, and if the defendant at that time had reasonable cause to believe and did believe [ADDED: at that time] [DELETED: [that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that]] it was necessary for him to act as he did to protect himself from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.
4. In determining whether or not the defendant acted in lawful self-defense you should consider all of the evidence in the case.
(If [ADDED: Edward...
To continue reading
Request your trial
-
State v. Lute
...and we are obliged to so hold unless the contrary clearly appears. State v. Graves, 588 S.W.2d 495, 497 (Mo. banc 1979); State v. Phillips, 583 S.W.2d 526, 527-28 (Mo. banc 1979); State v. Clifton, 549 S.W.2d 891, 895 (Mo.App.1977); State v. Billingsley, 534 S.W.2d 484, 486 (Mo.App.1975). T......
-
Clark v. Missouri & Northern Arkansas R.R.
...similar to those raised by Clark have been firmly rejected by the appellate courts of this state for more than 25 years. In State v. Phillips, 583 S.W.2d 526 (Mo. banc 1979), our Supreme Court admonished all Missouri litigants as [I]f we are to have a system of patterned instructions, those......
-
State v. Peoples
...judicially determine. State v. Finn, 243 S.W.2d 67, 73(16) (Mo.1951); State v. Bounds, 305 S.W.2d 487, 491(6) (Mo.1957); State v. Phillips, 583 S.W.2d 526, 531(5) (Mo. banc 1979). Rule The judgment is reversed and remanded. All concur. 1 The thesis of the prosecution that the blow by Jones ......
-
State v. Cockrum
...based upon technical grounds. State v. Eye, 415 S.W.2d 729 (Mo.1967); State v. Mace, 357 S.W.2d 923, 924-925 (Mo.1962). In State v. Phillips, 583 S.W.2d 526, 527-528 (Mo. banc 1979) the Missouri Supreme Court discusses the history of MAI-CR and states that the rationale for prohibiting chan......