Bolden v. State

423 S.W.3d 803, 2013 WL 6181883, 2013 Mo. App. LEXIS 1399
Missouri Court of Appeals·Decided November 26, 2013·No. No. ED 98888·Published·Cited by 14 cases

Opinion

PATRICIA L. COHEN, Judge.

Introduction

Randy Bolden (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief. Movant claims the motion court clearly erred in denying his claim that defense counsel provided ineffective assistance when he “proposed” improper jury instructions that failed to include “multiple assailants” language as required by the Missouri Approved Instructions-Criminal on self-defense and defense of another.1 We affirm.

Factual and Procedural Background

1. Jury Trial

On the evening of April 21, 2007, Movant and his sister, Emily Bolden, drove to the home of Fannie Powell and her adult daughter, Tiffany Powell, in search of Movant’s then-girlfriend. A confrontation ensued, during which Emily2 stabbed Fannie eleven times and Tiffany received a stab wound to her hand.

The State charged Movant and Emily each with first-degree assault of Tiffany, first-degree assault of Fannie, and two counts of armed criminal action.3 The trial court tried Movant and Emily jointly in February 2009. At the trial, the State and the defense presented conflicting accounts of the April 2007 incident. According to the State’s theory of the case, which was supported by the testimony of Fannie, Tiffany, and a neighbor who witnessed the fight, Movant and Emily initiated the conflict. The State’s witnesses testified that Emily escalated a verbal confrontation to a physical fight when she stabbed Tiffany in the hand, and Movant then restrained Tiffany while Emily repeatedly stabbed Fannie.

In contrast, Movant and Emily’s theory of defense was that Fannie and Tiffany were the initial aggressors and that Emily was lawfully acting in defense of Movant when she stabbed Fannie. In support of the defense theory, Movant testified that he knocked on Fannie’s door because he was looking for his girlfriend and children. Shortly after Fannie answered the door, Tiffany and “a big guy” came outside and Fannie, Tiffany, and the man began to yell at Movant. As Movant was leaving, Tiffany stabbed Movant in the eye and the unidentified man hit Movant twice in the head, knocking him unconscious.

Emily testified that she was sitting in her car when Movant approached Fannie’s door and was confronted by Fannie, Tiffany, and “kind of a big guy.” Emily watched as Tiffany stabbed Movant in the face and the man hit Movant on the head, causing him to drop to the ground. Emily stated that she “grabbed” a knife and emerged from the car because “I just wanted to get my brother.” According to Emily, she “started swinging the knife” at Fannie after Tiffany hit her “with a blunt object” on the top of her head. Emily explained, “I was trying to get my brother. That’s all I wanted.... I was very afraid that my brother was going to be hurt and I was going to be hurt too.”

[806] During the jury instruction conference, the prosecutor and defense counsel jointly proffered a defense-of-another instruction,4 Instruction No. 14, modeled after MAI-CR 3d 306.08A. With respect to the joint submission, defense counsel stated as follows at the instruction conference:

For the record, I had an instruction of defense of others, and counsel for the state and I collaborated over what we thought would be the best version given the change in the law and our disagreements over the language and settled upon the instruction that was — ultimately submitted by the State.

Instruction No. 14 provided, in pertinent part:

A person can lawfully use force to protect another person against an attack unless, under the circumstances as she reasonable believes them to be, the person she seeks to protect would not be justified in using such force to protect [her]self. A person who is an initial aggressor, that is, one who first attacks or threatens to attack another is not justified in using force to protect [her]self from the counter-attack that [s]he provoked. If, under the circumstances as a person reasonably believed them to be, the person she seeks to protect was the initial aggressor, then she is not entitled to use force to protect the other person.
In order for a person lawfully to use force in defense of another person, such a defender must reasonably believe such force is necessary to defend the person she is trying to protect from what [s]he reasonably believes to be the imminent use of unlawful force.
But, a person acting in the defense of another person is not permitted to use deadly force unless she reasonably believes the use of deadly force is necessary to protect the person against death or serious physical injury.
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As used in this instruction, the term “reasonably believe” means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend [on] whether the belief turned out to be true or false.
On the issue of defense of another person as to Count III, you are instructed as follows:
First, if, under the circumstances as the defendant reasonably believed them to be, Randy Bolden was not the initial aggressor in the encounter with Fannie Powell, and
Second, if the defendant reasonably believed that the use of force was necessary to defend Randy Bolden from what the defendant reasonably believed to be the imminent use of unlawful force by [Fannie] Powell, and
Third, the defendant reasonably believed that the use of deadly force was necessary to protect Randy Bolden from death or serious or physical injury from the acts of Fannie Powell, then her use of deadly force is justifiable and she acted in lawful defense of another person.

As to Movant’s charge of first-degree assault of Fannie based on accessory liability, the prosecutor proffered Instruction No. 17, which was modeled on MAI-CR 3d [807]*807819.06 and modified by 304.04. Instruction No. 17 provided:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.
As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 21, 2007, in the State of Missouri, Emily Bolden attempted to kill or cause serious physical injury to Fannie Powell by stabbing her, and
Second, that Emily Bolden in the course of such conduct caused serious physical injury to Fannie Powell, and then you are instructed that the offense of assault in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

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Bolden v. State, 423 S.W.3d 803, 2013 WL 6181883, 2013 Mo. App. LEXIS 1399 (Mo. Ct. App. 2013).

423 S.W.3d 803 (Bolden v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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