State v. Miller

772 S.W.2d 782, 1989 Mo. App. LEXIS 617, 1989 WL 45470
CourtMissouri Court of Appeals
DecidedMay 4, 1989
Docket15744
StatusPublished
Cited by23 cases

This text of 772 S.W.2d 782 (State v. Miller) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Miller, 772 S.W.2d 782, 1989 Mo. App. LEXIS 617, 1989 WL 45470 (Mo. Ct. App. 1989).

Opinions

[783]*783PREWITT, 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 318.10.

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 In-man 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 [784]*784tavern 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.

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Bluebook (online)
772 S.W.2d 782, 1989 Mo. App. LEXIS 617, 1989 WL 45470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miller-moctapp-1989.