MO 406.30 JUSTIFICATION: USE OF DEADLY FORCE IN SELF-DEFENSE — BATTERED SPOUSE

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

406.30 Justification: Use of Deadly Force in Self-Defense–Battered Spouse

PART A – GENERAL STATEMENT OF THE LAW

One of the issues (as to Count _____) (in this case) is whether the use of force by the defendant against [ name of victim] was lawful. In this state, the use of force, including the use of deadly force, to protect oneself is lawful in certain situations.

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

[1] A person can lawfully use force to protect herself against an unlawful attack. However, an initial aggressor, that is, one who first (attacks) (or) (threatens to attack) another, is not justified in using force to protect herself from the counter-attack that she provoked.

(A person who is the initial aggressor in an encounter can regain the privilege of using force in lawful self-defense if she withdraws from the original encounter and clearly indicates to the other person her desire to end the encounter. Then, if the other person persists in continuing the incident by threatening to use or by using force, the first person is no longer the initial aggressor, and she can then lawfully use force to protect herself.)

[ Use the material in [2] in ALL cases. The selection made in [2] of part A of the instruction must be consistent with the selection made in [2] of part B. Omit brackets and number.]

[2] In order for a person lawfully to use force in self-defense, she must reasonably believe such force is necessary to defend herself from what she reasonably believes to be the ((imminent) use of unlawful force by another person) ((imminent) commission of a forcible felony).

But (, under this instruction,) a person is not permitted to use deadly force unless she reasonably believes that the use of deadly force is necessary to protect herself against (death or serious physical injury) (the commission of a forcible felony).

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.

[ Use the material in [3] in ALL cases. Omit brackets and number.]

[3] 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. Evidence has been introduced that the defendant, as a result of [ name of victim]’s prior conduct, was suffering from “battered spouse syndrome.” If you believe that defendant was suffering from such syndrome, you must consider how the situation would appear to a person suffering from such syndrome. Thus, in determining whether the defendant’s beliefs as to her situation were reasonable, that determination should be based on what an otherwise reasonable person who is suffering from battered spouse syndrome would believe. It does not depend upon whether the belief turned out to be true or false.

[ Use the material in [4] only if the term “forcible felony” is used. Omit brackets and number.]

[4] A forcible felony includes [ Insert name(s) of any forcible felony used in this instruction.].

PART B — CASE-SPECIFIC STATEMENT OF THE LAW

On the issue of self-defense (as to Count _____) (in this case), you are instructed as follows: [ Select the appropriate paragraphs. Omit brackets and number.]

[ The material in [1] should be used unless there is no evidence the defendant was the initial aggressor. Use the appropriate portions of the paragraph. If there is no evidence that the defendant was the initial aggressor, skip the material in [1] and go to the material in [2].]

[1] First, if the defendant was not the initial aggressor in the encounter with [ name of victim], (or if she was the initial aggressor and clearly indicated to [ name of victim] her withdrawal from the encounter, [ See Notes on Use 3(a).]), and

[2] (First) (Second), if the defendant reasonably believed that the use of force was necessary to defend herself from what she reasonably believed to be the ((imminent) use of unlawful force) ((imminent) commission of [ Insert name(s) of forcible felony.]) by [ name of victim], and

(Second) (Third), the defendant reasonably believed that the use of deadly force was necessary to protect herself from (death or serious physical injury from the acts of) (the commission of [ Insert name(s) of forcible felony.] by) [ name of victim], then her use of deadly force is justifiable and she acted in lawful self-defense.

[ The material in [3] must be used in ALL cases. Omit brackets and number.]

[3] If you believe that the defendant was suffering from battered spouse syndrome, then in determining whether defendant was reasonable in believing the use of deadly force was necessary to protect herself from (death or serious physical injury) (the commission of [ Insert name of forcible felony.]), your determination must be based on what an otherwise reasonable person who is suffering from battered spouse syndrome would believe under the situation as it appeared to the defendant.

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 _______).

[ If the name of a forcible felony is used in this instruction, the material in [4] will be used. Omit brackets and number. In defining the felony, use MAI-CR 4th 433.00 if applicable, the statute defining the offense, or the applicable verdict directing instruction. See Notes on Use 6.]

[4] 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 6.]

[ If the term “serious physical injury” is used in this instruction, then the following paragraph defining that term must be used. Omit brackets and number.]

[5] 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.

PART C – 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 number.]

[1] [ Use either or both paragraphs as supported by the evidence.]

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 [ name of 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).

Evidence has been introduced that defendant was suffering from battered spouse syndrome. If you believe that defendant was suffering from battered spouse syndrome, then you must consider that in determining who was the initial aggressor in the encounter.

[2] Evidence has been introduced that [ name of 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 force was necessary to defend herself from the ((imminent) use of unlawful force) (or) (the commission of [ Insert name of forcible felony.]) by [ name of victim].

[3] Evidence has been introduced of the prior relationship between defendant and [ name of 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 force was necessary to defend herself from the ((imminent) use of unlawful force) (or) (the commission of [ Insert name of forcible felony.]) by [ name of victim], and you may also consider it in determining whether the defendant was suffering from battered spouse syndrome.

[4] Evidence has been introduced of acts of violence not involving the defendant committed by [ name of 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 force was necessary to defend herself from the ((use) (imminent use) of (unlawful force)) (or) (the commission of [ Insert name of forcible felony.]). 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 [ name of victim] against defendant) (and) (evidence of threats made by defendant against [ name of 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 [ name of 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 force was necessary to defend herself from the ((use) (imminent use) of (unlawful force)) (or) (commission of [ Insert name of forcible felony.]), and you may consider it in determining whether the defendant was suffering from battered spouse syndrome.

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

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 3d 306.07A (1-1-11). This form is to be used in lieu of MAI-CR 4th 406.06 when there is evidence the defendant was suffering from battered spouse syndrome. Section 563.033, RSMo 2016. See State v. Edwards, 60 S.W.3d 602 (Mo. App. 2001). This form does not include any applicable statutory changes since 2011. You should review any changes to the statute and determine if modifications need to be made to the form.

This instruction should be used only (1) when the issue of the lawful use of deadly force in self-defense has been raised by the evidence, and (2) when the notice provisions of Section 563.033 have been complied with, and (3) when the issue of whether the defendant was suffering from battered spouse syndrome has been raised by the evidence. In such a situation, this instruction will be used in lieu of MAI-CR 4th 406.06.

If evidence of battered spouse syndrome is raised in a self-defense situation where non-deadly force was used, modify MAI-CR 4th 406.06 using this instruction as a guide.

2. The “burden of injecting the issue” of self-defense is on the defendant. Whenever there is evidence supporting this defense, and evidence the defendant was suffering from battered spouse syndrome, 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 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 force will be included in the verdict director.

NOTE: If a cross-reference to a justifiable use of 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). The same issues arise if the defendant is charged with assault or any offense to which there can be a defense of justifiable use of force.

3. This instruction is divided into three parts.

The first part of the instruction, part A, sets out the general requirements for the lawful use of force in self-defense. Those portions that are relevant to the case will be used.

(a) Subject to some exceptions, the use of force in self-defense is not justified if the defendant was the “initial aggressor.” If there is no evidence indicating the defendant was the initial aggressor or provoked the incident, then the material in [1] of part A will not be used. If there is evidence the defendant was the initial aggressor, then the material in [1] of part A will be used. The paragraph in parentheses in the material in [1] of part A will be used if there is further evidence that the defendant withdrew from the encounter. See Section 563.031.1(1)(a).

(b) Section 563.031(1) provides that the defense of self-defense will be denied to a person who “was attempting to commit, committing or escaping after the commission of a forcible felony.” If such a situation arises, see MAI-CR 4th 406.06 Notes on Use 5(b) and modify this instruction in accord with part A [2] and part B [2] of MAI-CR 4th 406.06. Note that if the name of a forcible felony is used in this instruction, the felony must be defined.

4. The second part of the instruction, part B, gives specific instructions relating to the case.

(a) The material in [1] of part B will be used only if there is evidence that the defendant was the initial aggressor and there is an issue as to whether the defendant was justified in being the initial aggressor. The material in parentheses will be used only if there is also evidence of withdrawal.

(b) The material in [2] of part B will be used in all cases.

(d) The material in [4] of part B is a definition of “serious physical injury.” It should be used if the term “serious physical injury” is used in the instruction.

5. The third part of this instruction, part C, deals with matters of evidence. Some of them have been modified to deal with the battered spouse syndrome. For a general discussion, see Notes on Use 8 to MAI-CR 4th 406.06. 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. If any of the numbered paragraphs are used, part C will end with the sentence telling the jury to consider all the evidence.

6. Section 563.011(3), RSMo 2016, 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.”

In part B, 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 physical force or violence. A definition of the particular forcible felony must be given.

A defendant is entitled to defend himself from the use of unlawful force or the commission of a forcible felony. If the conduct of the victim constituting the source of the defendant’s claim of self-defense is assaultive in nature, the court will normally choose the “use or imminent use of unlawful force” language. In those instances where the defendant chooses to describe the source for the claim of self-defense in terms of the forcible felony of assault, care must be taken in choosing what degree of assault to submit as the forcible felony. If a second degree assault is used, the threshold test for using force may be easier to meet, but the proportionality test for measuring whether the force used by the defendant was reasonable may be more unfavorable. Conversely, if a first degree assault is used, the proportionality test may be more favorable to the defendant, but the threshold test for determining whether the defendant is entitled to use force may be more difficult. While it is the court’s primary duty to instruct on the law of self-defense, deference should be given to the defendant’s preference on the choice of the forcible felony.

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.

7. 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), see Notes on Use 10 to MAI-CR 4th 406.06 for the necessary modification.

8. Definitions.

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

“[ name of forcible felony],”

“serious physical injury.”

If the term is used in more than one instruction, the paragraph defining that term need not be included in this instruction. In that case, it must be defined in a separate instruction. If the term is not used, the paragraph defining that term should not be used.

The definition of “serious physical injury” is from Section 556.061, RSMo 2016. If the name of a particular forcible felony is used, such named felony must be defined. See Section 563.011(3), RSMo 2016, and Notes on Use 6. In defining a forcible felony, use MAI-CR 433.00 if applicable, 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.

(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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