State v. Phroper, WD

CourtCourt of Appeal of Missouri (US)
Citation619 S.W.2d 83
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Donnie Ray PHROPER, Appellant. 31557.
Decision Date12 May 1981

Michael Paul Harris, P. C., and Ronald M. Sokol, St. Joseph, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Catheryn B. Starke, Asst. Atty. Gen., Kansas City, for respondent.



Defendant was charged with assault in the first degree committed by means of a dangerous instrument, a class A felony (Section 565.050.1(1) and .2, RSMo 1978). 1 He was found guilty by a jury, however, of assault in the second degree, a class D felony (Section 565.060.1(3)(a)(b), RSMo 1978), and his sentence was assessed at five years confinement in the Department of Corrections. Judgment and sentence were entered and pronounced accordingly.

Defendant presents five points on appeal: (1) the evidence, when measured by defendant's defense theories of "imperfect self-defense" and "over-provocation", was insufficient as a matter of law to support submission of either assault in the first degree 2 or assault in the second degree; (2) the term "recklessly" contained in Instruction No. 10 (MAI-CR 2d 19.06.1, "Assault in the Third Degree Class A Misdemeanor") was inadequately defined in Instruction No. 5 (MAI-CR 2d 33.00, "Definitions General Form) as it failed to reflect defendant's defense theories of "imperfect self-defense" and "over-provocation"; (3) Instruction No. 6 (MAI-CR 2d 2.41.1, "Justifiable Use of Force in Self-Defense") erroneously omitted an optional paragraph in view of defendant's defense theories of "imperfect self-defense" and "over-provocation" and the term "deadly force" used therein was not defined in Instruction No. 5; (4) the trial court erred in not considering defendant's request for probation; and (5) the trial court erred in not obtaining a presentence investigation report before pronouncing sentence. Should defendant prevail on either of the first three points, reversal and remand for a new trial would be in order. On the other hand, should he prevail solely on point four or five, affirmance and remand for the limited purpose of resentencing would be the most he could hope for.

A detailed resume of the evidence, that offered by the defendant as well as that offered by the state, is unavoidable as three of the five points question various instructions in an evidentiary context. A resume of the evidence adduced from various witnesses presented by the state will be undertaken first.

On the night of May 8, 1979, at approximately 10:45 P.M. Gary L. Church, Jr., (Church) was in his second floor apartment on King Street, in St. Joseph, Missouri. Access to Church's apartment was by means of a door located on the street level. Church responded to a knock on the door and stepped out onto the sidewalk. Upon doing so he encountered a group of four or five males several years junior to him in age. Church was several years out of high school and weighed approximately two hundred and five pounds. The group had a surly attitude and, for some unexplained reason, had come to assault Church. The door which Church stepped out of was equipped with an automatic self-locking device which prevented him from getting back inside.

One of the young men jumped on Church's back and several of the others hit him with their fists and made a concerted effort to force him off of his feet and down onto the sidewalk. Church successfully warded off his assailants and they temporarily retreated to a position five or ten feet away. They then renewed the assault but were still unable to bring Church down. Upon being thwarted a second time, Church's assailants once again temporarily retreated to a position five or ten feet away. Church was acquainted with the defendant. However, events were happening so fast that he was unable to identify defendant as one of the participants in the two attacks just mentioned.

After the second attack, Church angrily exclaimed, "Well, there's one of me and five of you, I'll take you on one at a time, come on." The group then started towards Church at which time he recognized defendant as the person in the forefront. Church grabbed defendant by the shoulders, shoved him upon the hood of a car parked along the curb, and struck him several times on the face with his fists.

Church, concerned about what the remaining members of the group behind him might be up to, released defendant and momentarily turned away from him. As he turned back towards defendant he saw that he was bleeding. He then noticed, for the first time, that defendant had a knife in his hand. Church exclaimed, "You cut me with that knife", to which defendant responded, "Don't f______ with me". Defendant then left the scene and Church made his separate way across the street to a fast food restaurant where he received emergency medical treatment. Shortly thereafter Church was taken by ambulance to a local hospital where he underwent surgery for three stab wounds, one in the left buttock area, one in the left side and one in the left shoulder. He was hospitalized for six days, three of which were spent in the intensive care unit because of internal bleeding.

A resume of the evidence presented by defendant, principally his own testimony, is next in order. According to defendant, he and a companion were walking down the street in the vicinity of the victim's apartment on the night in question. As they did so, they casually fell in behind a group that "was going down to fight somebody". Defendant was acquainted with several members of the group and he and his companion followed them. The group, including defendant, stopped when they arrived at Church's apartment, although defendant stayed in the background. When Church stepped out of the apartment door onto the street several persons in the group which defendant had joined jumped on Church and started hitting him with their fists. At first, defendant just stood and watched the fight. A short time later defendant stepped in and grabbed one of the fellows who had jumped on the victim's back and pulled him off. When he did so, the rest of the group "split away" from the victim. Defendant then put his left hand in his rear pocket and started to turn around. Just as he did so the victim grabbed defendant's throat with his left hand and shoved him up against the hood of the car that was parked along the curb. Defendant denied that he made any "movement towards" the victim.

After shoving defendant up against the hood of the car, the victim choked defendant with his left hand and hit him "four times" about the face with his right fist. While this was going on, defendant's left arm was immobilized, and he was unable to extricate his left hand from his rear pocket. Defendant was being choked and hit with such force that he was unable to breathe and "was bleeding". He became "scared", reached into his right pocket with his right hand, removed a pocketknife which had a two and one-half inch folding blade, opened the blade of the pocketknife with his right hand, and "cut" in the direction of the victim's left arm in an attempt to free himself. The pocketknife, as noted, had a folding blade, not a switchblade. When defendant got free he put his knife back in his pocket and walked home. Defendant was five feet six inches in height and weighed approximately 127 pounds on the night in question. According to defendant, the blows which the victim inflicted upon him caused his nose to swell and bleed, broke one of his teeth, and shoved a partial plate he was wearing "up into the roof of ... (his) gums." 3 Defendant admitted that he had previously been convicted of "common assault" and "stealing over fifty dollars".

This case has been plagued with confusion from the very outset because defendant has summarily assumed that the doctrine of "imperfect self-defense" is applicable in assault cases. Prior to enactment of The Criminal Code, where an aggressor entered into an encounter without a felonious intent, during the course of which he was assaulted with such violence that he was obliged to kill to save his own life, he could defend on the basis of "imperfect self-defense" which reduced the grade of the offense to manslaughter but did not justify the homicide. State v. Fuller, 302 S.W.2d 906 (Mo.1957); State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725 (1950); State v. Cable, 117 Mo. 380, 22 S.W. 953 (1893); and State v. Parker, 106 Mo. 217, 17 S.W. 180 (1891). The distinction between self-defense justifying a homicide and imperfect self-defense reducing the grade of the offense is spelled out in State v. Partlow, 90 Mo. 608, 4 S.W. 14 (1887), and State v. Parker, supra. Unfortunately, defendant conveniently ignores the fact that it was made clear long ago in State v. Melton, 102 Mo. 683, 15 S.W. 139 (1891), that the doctrine of "imperfect self-defense" is inapplicable in assault cases. Another area of confusion plaguing this case is the meaning, source and effect attributable to what defendant has denominated "over-provocation". Defendant argues, with respect thereto, that even though he was the aggressor, the choking and blows administered upon him by the victim during the course of the ensuing affray were so provocative that his stabbing of the victim was a reasonable response which reduced the offense, as a matter of law, to something less than either assault in the first degree or assault in the second degree. Viewed in the context just mentioned, defendant's self proclaimed doctrine of "over-provocation", notwithstanding its appellation, is one and the same as the doctrine of "imperfect self-defense", a doctrine held inapplicable in assault cases. State v. Melton, supra. Defendant cites State v. Bartlett, 170 Mo. 658, 71 S.W. 148 (1902), in support of his improvidently designated doctrine of "over-provocation". A careful reading of the case discloses that the undisputed ...

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