Missouri Approved Instructions – Criminal (MAI-CR)
406.00 SERIES INSTRUCTIONS REQUIRED WHETHER REQUESTED OR NOT

406.06 Justification: Use of Force in Self-Defense

One of the issues (as to Count ))) (in this case) is whether the use of physical force by the defendant against [ Identify victim.] was lawful. On the issue of self-defense (as to Count )))_ (in this case), you are instructed as follows:

In this state the use of physical force (, including the use of deadly force,) to defend oneself is lawful in certain situations. [ Select the appropriate paragraphs. Omit brackets and number.]

[ Use the material in [1] unless there is no evidence the defendant was the “initial aggressor.” Omit brackets and number.]

[1] However, an initial aggressor is not justified in using physical force to defend himself from the counter attack that he provoked.

(A person who is the initial aggressor in an encounter can regain the privilege of using physical force in lawful self-defense if he withdraws from the original encounter and clearly indicates to the other person his desire to end the encounter. Then, if the other person persists in continuing the conflict by threatening to use or by using unlawful force, the first person is no longer the initial aggressor, and he can then lawfully use physical force to defend himself.)

[ Use the material in [2] only if there is evidence that defendant’s use of physical force was in connection with the commission of or escape after the commission of a forcible felony. The forcible felony cannot be the felony for which the defendant is charged and is claiming self-defense. See Notes on Use 6. See Notes on Use 8 as to what constitutes a forcible felony and how to deal with an attempted forcible felony. Omit brackets and number. Use the lead in “And a” if the material in bracket [1] is used but the material in parentheses dealing with withdrawal is not used. Use the lead in “But a” if the material in bracket [1] is not used. Use “A” if the material on withdrawal is used.]

[2] (And a) (But a) (A) person is not justified in using physical force to defend himself if he was (attempting to commit) (committing) (escaping after the commission of) [ Insert name of forcible felony, which cannot be the felony for which the defendant is charged and is claiming self-defense.]

[ Use the material in [3] in all cases. Omit brackets and number. See Notes on Use 7 as to what constitutes deadly force. The parenthetical term “non-deadly” should only be selected if the material in [4] is used.]

[3] In order for a person lawfully to use (non-deadly) physical force in self-defense, he must reasonably believe such physical force is necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful force and he can only use physical force to the extent that he reasonably believes is necessary to defend himself.

[ Use the material in [4] only if there is evidence the defendant used deadly force. Omit brackets and number.]

[4] But a person is not permitted to use deadly force unless he reasonably believes that the use of deadly force is necessary to protect himself against (death or serious physical injury) (the commission of a forcible felony).

A person is not required to retreat before resorting to the use of physical force to defend himself if he is (lawfully (entering) (remaining) in a (dwelling) (residence) (vehicle)) (on private property (owned) (leased) by the person) (in a location the person has the right to be).

The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty (under Count ______).

(As used in this instruction, an “initial aggressor” is one who first (attacks) (or) (threatens to attack) another.)

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 upon whether the belief turned out to be true or false.

(As used in this instruction, “deadly force” means physical force which is used with the purpose of causing or which a person knows to create a substantial risk of causing death or serious physical injury.)

(As used in this instruction, the term “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.) (As used in this instruction, the term [ Insert name of forcible felony within quotation marks.] means [ Insert definition of the forcible felony. See Notes on Use 8 and 12.].)

EVIDENTIARY MATTERS

[ Insert any of the following numbered paragraphs that are supported by the evidence and requested in writing in proper form by either party. Omit brackets and numbers.]

[1] Evidence has been introduced (of the reputation of the defendant for being [ Insert trait or traits, such as ” peaceful and law-abiding” or “violent and turbulent.“])

(and) (of the reputation of [ Identify victim.] for being [ Insert trait or traits.]). You may consider this evidence in determining who was the initial aggressor in the encounter (and for no other purpose).

[2] Evidence has been introduced that [ Identify victim.] had a reputation for being (violent) (violent and turbulent) ([ other trait or traits indicating aggressiveness]), and that the defendant was aware of that reputation. You may consider this evidence in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force by [ Identify victim.].

[3] Evidence has been introduced of the prior relationship between defendant and [ Identify victim.] (including evidence of (arguments) (and) (acts of violence)). You may consider this evidence in determining who was the initial aggressor in the encounter (, and you may also consider it in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the (use) (or) (imminent use) of unlawful force by [ Identify victim.].

[4] Evidence has been introduced of acts of violence not involving the defendant committed by [ Identify victim.] and that the defendant was aware of these acts. You may consider this evidence in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force. You may not consider this evidence in determining who was the initial aggressor in the encounter or for any other reason.

[5] Evidence has been introduced (of threats made by [ Identify victim.] against defendant) (and) (evidence of threats made by defendant against [ Identify victim.]). You may consider this evidence in determining who was the initial aggressor in the encounter.

[6] If any threats against defendant were made by [ Identify victim.] and were known by or had been communicated to the defendant, you may consider this evidence in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force by [ Identify victim.].

[ If any of the numbered paragraphs above are used, the following sentence will be used at the end.]

You, however, should consider all of the evidence in the case in determining whether the defendant acted in lawful self-defense.

Notes on Use

1. Section 563.031, RSMo 2016. This is a revision of MAI-CR 4th 406.06 (7-1-17). This instruction should be used for offenses committed on or after October 14, 2016.

2. Section 563.031.2(1), allows the use of deadly force in self-defense to protect against “any forcible felony.” Section 563.031.2(2), allows the use of deadly force in self-defense against a person who unlawfully enters a dwelling, residence or vehicle. Section 563.031.2(3) allows the use of deadly force against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property of the owner or lessor.

This instruction covers the basic use of physical force in self-defense. The use of physical force in self-defense relative to dwellings, private property and vehicles is not covered by this instruction. That use of physical force in self-defens e is covered by MAI-CR 4th 406.10 .

Section 563.031 also covers defense of third persons. To submit that defense, use MAI-CR 4th 406.08 .

When evidence of battered spouse syndrome is admitted on the issue of self-defense, use MAI-CR 4th 406.30 in lieu of MAI-CR 3d 406.06 .

3. Whenever there is evidence supporting this defense, this instruction must be given.

4. A paragraph making a cross-reference to this instruction will be added to the verdict director as follows:

(Second) (Third) ([ next numbered paragraph]), that defendant did not act in lawful self-defense as submitted in Instruction No. )__,

If there is evidence supporting more than one claim of justifiable use of physical force, such as evidence supporting both self-defense and the use of deadly force by a person lawfully in a dwelling or vehicle (see MAI-CR 4th 406.10 ), a separate numbered cross-reference paragraph for each instruction on the justifiable use of physical force will be included in the verdict director.

NOTE: If a cross-reference to a justifiable use of physical force is included in a verdict director, such cross-reference must also be included in the verdict directors for any lesser included offenses. State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000).

5. Subject to some exceptions, the use of physical force in self-defense is not justified if the defendant was the initial aggressor. The material in [1] will be used unless there is no evidence that the defendant was the initial aggressor. The material in parentheses will be used only if there also is evidence the defendant withdrew from the initial encounter. See Section 563.031.1(1)(a).

Section 563.031.1(1)(b) provides that an “initial aggressor” is justified in using physical force if he is “a law enforcement officer and as such is an aggressor pursuant to Section 563.046.” If the defendant is a law enforcement officer making an arrest, you should use MAI-CR 4th 406.14 .

Section 563.031.1(1)(c) provides that an “initial aggressor” is justified in using physical force if he is justified in being the aggressor under another provision in chapter 563 or some other provision of the law. See MAI-CR 4th 406.10 , Use of Physical Force in Self-Defense While in a Dwelling, Residence or Vehicle; MAI-CR 4th 406.12, Use of Physical Force in Defense of Property; MAI-CR 4th 406.16 Use of Physical Force by Private Person Making an Arrest; MAI-CR 4th 406.18 , Use of Physical Force to Prevent Escape from Confinement.

If there is no applicable form that provides for the situation that the person is claiming a statutory right to be the “initial aggressor,” modify the material in [1] to submit the defendant’s claim that he had the right under the law to be the “initial aggressor.” For example, Section 563.031.2(3) provides that a person may use physical force to defend himself against a person who “unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual.” Therefore, a property owner is allowed to be the initial aggressor in order to use physical force to defend himself from a trespasser. In addition, Section 563.041.1 provides that a person has a right to use physical force to prevent stealing or damage to a person’s property and as a result is allowed to be the initial aggressor to protect his property. See MAI-CR 4th 406.12 .

6. Section 563.031.1(3), denies the right to use physical force in self-defense to a person who “was attempting to commit, committing or escaping after the commission of a forcible felony.”

For example, if the defendant is charged with assault on a bank guard and claims self-defense to save his life by shooting the guard, and if there is evidence that at the time defendant was robbing the bank, the jury will be instructed by including [2]. The forcible felony referred to in those sections will be the bank robbery. The reference to a forcible felony will be a felony other than the assault or homicide offense for which the defendant is claiming self-defense. If the defendant is charged with assault and there is no evidence that the defendant was committing any other forcible felony at the time of the charged offense, the material in [2] will not be used.

Section 563.011(3), defines “forcible felony” as “any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense.”

The term “forcible felony” is not used in the instruction. Instead, the name of the forcible felony is used. If the felony involved is murder, robbery, burglary, arson or kidnapping, simply insert the appropriate word from the statutory list. If the felony involved is an assault, a forcible sexual offense, or a felony not listed in the statute, use only a felony that by its definitional elements involves the use or threat of force or violence. A definition of the particular forcible felony must be given.

7. The material in [3] and [4] deals with the type of physical force used by the defendant and the reasonable belief of the defendant as to the necessity to use the amount of force that was used. In most cases, there will be no dispute over whether deadly force was used by the defendant. However, if there is a dispute as to whether deadly force was used, then the material in both [3] and [4] should be included and the optional language (non-deadly) should be included in [3].

Section 563.011(1), states that 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.

The question of whether deadly force was used depends not only on the amount of physical force used, but also on the defendant’s purpose to cause, or awareness of the likelihood of causing, death or serious physical injury. In some cases, there will be a question as to whether the defendant had such a purpose or awareness. The fact that death or serious physical injury did or did not result from the defendant’s conduct does not necessarily mean there is no issue as to the use of deadly force.

For example, striking someone with a broom handle may or may not be the use of deadly force; it may depend on whether or not death or serious injury resulted. If the evidence shows that the defendant used a firearm and intentionally shot the victim, then the case would be one in which it is clear the defendant used deadly force.

The selection of the material in [3] and [4] will be made as follows: If there is no evidence as to the use of deadly force, use [3] only and do not include the optional language (non-deadly). If there is evidence that deadly force was used and there is no dispute as to that issue, use [3] and [4] and do not include the optional language (non-deadly) in [3]. If it is disputed whether the level of physical force used was deadly or non-deadly, use [3] and [4] and use the optional language (non-deadly) in [3].

8. A defendant is entitled to defend himself from the use of unlawful force and is entitled to use deadly force if he reasonably believes such physical force is necessary to protect himself from a forcible felony. Deference should be given to the defendant’s preference on the choice of the forcible felony that describes the victim’s conduct.

If an attempt to commit a forcible felony is used, use the following language:

A person attempts to commit [ name of forcible felony] if, with the purpose of committing [ name of forcible felony], he makes a substantial step toward the commission of [ name of forcible felony]. A substantial step means conduct that is strongly corroborative of the person’s firmness to commit [ name of forcible felony]. (It does not matter that it was factually or legally impossible to commit [ name of forcible felony] if such commission could have occurred had the circumstances been as the person believed them to be.)

A definition of the forcible felony being attempted must be given.

9. The last part of this instruction deals with matters of evidence. Paragraphs [1], [2], [3], [4], [5], or [6], or any combination of them, will be used if supported by the evidence and if requested by either party or on the court’s own motion. Paragraph [1] is a limiting instruction as to the use of reputation evidence. This evidence is relevant in determining who the initial aggressor was. The option of using evidence of character is initially with the defendant. If the issue of character is opened up by the defendant, the state may then also introduce character evidence. If the evidence of the bad reputation of the victim is not known to the defendant, then evidence of bad reputation of the victim is admissible only on the issue of who was the initial aggressor and is not admissible as evidence of reasonable fear on the part of the defendant. Paragraph [2] deals with the use of evidence of the bad reputation of the victim that is known by the defendant to show reasonable fear of the use of unlawful force, death or serious physical injury or the commission of a forcible felony. If there is no evidence the defendant was aware of the reputation of the victim, or the only reputation evidence is as to the reputation of the defendant, then the phrase in parentheses at the end of paragraph [1], which limits the use of this evidence, should be used.

Paragraph [2] deals with evidence of the defendant’s awareness of the bad reputation of the victim. This may be given if there is evidence of the defendant was aware of the bad reputation of the victim. If paragraph [2] is given, the phrase in parentheses at the end of paragraph [1] should not be used.

Paragraph [3] deals with the prior relationship between the defendant and the victim. If there is evidence of arguments or acts of violence in the prior relationship between the defendant and the victim, then the appropriate matter in parentheses should be used. The last phrase in parentheses as to the use of the evidence to show apprehension on the part of the defendant may be used when the evidence of the prior relationship is relevant to the defendant being in reasonable fear of the victim.

Paragraph [4] deals with evidence of specific acts of violence committed by the victim that do not involve the defendant. If the defendant is aware of these acts, they are relevant as to whether the defendant was in reasonable apprehension of the use of unlawful force from the acts of the victim. State v. Waller, 816 S.W.2d 212 (Mo. banc 1991); State v. Rutter, 93 S.W.3d 714 (Mo. banc 2002).

Paragraph [5] deals with threats by the victim against the defendant and threats by the defendant against the victim. This evidence is relevant in the jury’s determination of who was the initial aggressor.

Paragraph [6] deals with threats by the victim against the defendant of which the defendant was aware. This evidence is relevant in the jury’s determination of the defendant’s beliefs in the encounter.

Any or all of these six paragraphs may be given provided they are supported by the evidence. If any of the numbered paragraphs are used, the instruction will end with the sentence telling the jury to consider all of the evidence.

10. Transferred Intent. If there is evidence that the defendant acted in self-defense against an attack by one person (A, the attacker), but injures or kills another person (B, a bystander), this instruction should be modified:

a. In the opening paragraph, change the opening sentence as follows: One of the issues (as to Count )) (in this case) is whether the use of physical force by the defendant that resulted in (injury to) (the death of) [name of B, bystander] was in lawful self-defense.

b. When inserting [Identify victim], use the name of A, the attacker.

For discussion of transferred intent, see State v. Zumwalt, 973 S.W.2d 504 (Mo. App. 1998).

11. Section 563.031.4 provides that physical restraint can be used as protective force in self-defense. If an issue of the lawful use of physical restraint is raised by the evidence, this instruction will need to be modified as follows:

Modify the second sentence of the opening paragraph so that it reads:

“In this state, the use of physical force, including the use of physical restraint, to defend and protect oneself is lawful in certain situations.”

Then add the following paragraph to the material in [2]: In addition, the use of physical restraint as a protective force is lawful provided the individual takes all reasonable measures to end the restraint as soon as it is reasonable to do so.

12. Definitions.

(a) When the following terms are used in this instruction, the paragraph defining that term must be used:

“deadly force,”

“forcible felony,”

“[name of forcible felony],”

“serious physical injury.”

If the term is not used, the paragraph defining that term should not be used.

The definition of serious physical injury is based on Section 556.061, RSMo 2016.

If the name of a particular forcible felony is used, that felony must be defined. See Section 563.011(3), and Notes on Use 6 as to what felonies can be a “forcible felony.” In defining a forcible felony, use MAI-CR 4th 433.00 , the statute defining the offense, or the applicable verdict directing instruction. Also include any mandatory definitions of terms used in the definition of the forcible felony.

The definition of “deadly force” is from Section 563.011, RSMo 2016.

The definition of “forcible felony” is from Section 563.011, RSMo 2016.

(b) The following term, if used in the instruction, may be defined by the court on its own motion, and must be defined upon written request in proper form by the state or by the defendant: “purpose.”

See MAI-CR 4th 433.00 .

 

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