MO 406.30 JUSTIFICATION: USE OF DEADLY FORCE IN SELF-DEFENSE — BATTERED SPOUSE
Missouri Approved Instructions–Criminal (MAI-CR) 4th
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.
(v. 7-1-17)