FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L.
Crane, Circuit Judge
WILLIAM W. FRANCIS, JR., J. AUTHOR
convicted Jeffrey L. Bruner ("Bruner") of
first-degree murder and armed criminal action. Bruner was
sentenced to life in prison without parole on the murder
conviction, and five years in prison for the armed criminal
action, with the sentences to run concurrently. Bruner
presents one point on appeal asserting the trial court erred
in failing to give the jury a self-defense instruction.
Finding no merit to Bruner's point, we affirm the trial
court's judgment and sentence.
and Procedural Background
State v. Smith, 456 S.W.3d 849 (Mo. banc 2015), our
supreme court considered the failure of the trial court to
submit a self-defense instruction. As it commenced the
discussion of the factual and procedural background, the
court reviewed the evidence "in the light most favorable
to the verdict[.]" Id. at 850. We do not do so
here because in reviewing whether the trial court erred in
failing to submit a self-defense instruction, we view the
evidence in the light most favorable to the defendant.
Id. at 852. This standard of review contemplates
focusing on the best possible evidence for defendant, even
where that evidence conflicts with defendant's own
testimony, to determine whether self-defense was put at
issue. Id. We mention contrary evidence only to
provide context for Bruner's contentions. Gale v.
State, No. SD34119, 2016 WL 3569416, at *2 (Mo.App. S.D.
June 30, 2016).
and his wife, Michelle Bruner ("Wife"), were
estranged and Wife moved out of the marital home
approximately two weeks before November 1, 2013. While Bruner
and his daughter were eating out on the evening of November
1, 2013, Bruner's daughter showed Bruner a picture that
had been posted on Facebook of Wife and Victim, taken outside
of what appeared to be a nearby movie theater. Bruner was
"stunned" when he saw the picture and told his
daughter "this isn't right. You know, what your mom
is doing is not right." He was also "hurt, "
"angry, " and felt "betrayed." Bruner
decided to go to the theater and confront Wife. Bruner's
daughter did not want to go with Bruner and asked that he
take her home. On the way home, the daughter testified Bruner
told her "he didn't want [her] to see him kill a
man[, ]" that she probably would not have a "mom or
a dad by the end of the night[, ]" and "he would be
going to jail that night[.]"
arriving home, Bruner again viewed the picture of Wife and
Victim. He then retrieved two loaded pistols from the house
because of "how big [Victim] was in the picture."
Bruner returned to his car, one pistol concealed upon his
person, the other placed in the passenger seat along with an
extra ammunition clip. On the way to the theater, Bruner
texted Wife asking "WTF, " and a second text asking
her where she was. Wife did not respond.
at the theater, Bruner unsuccessfully scoured the parking lot
for Wife's Jeep. After several laps around the parking
lot, Bruner parked in a space facing the theater. Bruner
texted his daughter to determine if she was okay, and then
sought to confirm what clothing Wife was wearing that night.
After a significant period of time, Bruner observed Wife
emerge from the theater with Victim. Bruner left his vehicle
and approached the two, asking Wife, "[W]hat's going
on[?]" Wife replied, "We're on a date."
Bruner responded that "they had not talked about dating,
" and Wife told Bruner she did not need his permission
to date. An argument then ensued between Bruner, Victim, and
Wife. Victim asked Bruner who he was and Bruner responded,
"This doesn't have to do with you. I just want to
talk to my wife[.]" Victim stated, "She moved out
observed Victim to be considerably larger than he was-Bruner
was 5'11" and approximately 170 pounds; Victim was
approximately 6'5" and "was really big."
As Victim would approach Bruner during this argument, Bruner
would take a few steps back. However, Bruner continued to
remain in front of Victim even when Victim would move
forward. Eventually, the procession reached the street
opposite the movie theater entrance. Bruner saw a median
emerging out of his peripheral vision, and not wanting to
trip over it, stopped moving backward. Wife and Victim walked
around Bruner to his right, causing Bruner to pivot clockwise
toward Wife and Victim.
testified on direct examination that at that point, Victim
exclaimed, "I'm not from here, mother fucker,
I'll have your throat slit in two hours." Bruner
asked why Victim was threatening him, and Victim indicated he
did not play "these redneck games." Victim stepped
onto the median and said "you don't know who the
fuck you are messing with." Bruner saw Victim move into
a "fighting stance" and move his right arm such
that Bruner perceived Victim was going to grab
him. Bruner then pulled the pistol
from his jacket and shot Victim several times in the back,
three-day jury trial commenced on March 23, 2015. At the jury
instruction conference, Bruner's counsel tendered a
self-defense instruction, pursuant to MAI-CR 306.06, Part A -
General Statement of Law, which the State
opposed. The trial court refused the
jury found Bruner guilty of first-degree murder and armed
criminal action, and recommended life imprisonment without
parole on the first-degree murder charge, and five years'
imprisonment on the armed criminal action charge. On June 15,
2015, the trial court took up Bruner's motion for new
trial asserting trial court error in refusing Bruner's
Instruction A, the self-defense instruction. After hearing
argument, the trial court overruled the motion. The trial
court then imposed sentence pursuant to the jury's
recommendation. This appeal followed.
sole point relied on, Bruner argues that the trial court
erred in failing to submit a self-defense instruction to the
review a trial court's decision not to submit a
self-defense instruction de novo. State v.
Johnson, 470 S.W.3d 767, 768 (Mo.App. E.D. 2015). In so
doing, we view the evidence in the light most favorable to
the defendant. Smith, 456 S.W.3d at 852.
argues there was sufficient evidence for a self-defense
instruction, and that the trial court therefore erred in
failing to submit that instruction to the jury.
circuit court must submit a self-defense instruction when
substantial evidence is adduced to support it, even when that
evidence is inconsistent with the defendant's testimony,
and failure to do so is reversible error."
Smith, 456 S.W.3d at 852 (internal quotation and
citation omitted). "'Substantial evidence' is
evidence putting a matter in issue." State v.
Avery, 120 S.W.3d 196, 200 (Mo. banc 2003).
"Whether the evidence raises the issue of self-defense
is a question of law." State v. Nunn, 697
S.W.2d 244, 246 (Mo.App. E.D. 1985).
defendant may be justified in the use of physical force when
he reasonably believes such force is necessary to defend
himself from what he reasonably believes to be the use or
imminent use of unlawful force by another. § 563.031.1,
RSMo Cum.Supp. (2013). The use of deadly force, however,
requires he "reasonably believes that such deadly force
is necessary to protect himself . . . or another against
death, serious physical injury, or any forcible
felony[.]" § 563.031.2(1), RSMo Cum.Supp. (2013).
"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." MAI-CR 3d 306.06A. "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." MAI-CR 3d
defendant to be entitled to the submission of self-defense
instructions in the use of deadly force, there must be
substantial evidence putting in issue four prerequisites:
(1) an absence of aggression or provocation on the part of
the defender, (2) a real or apparently real necessity for the
defender to kill in order to save himself from an immediate
danger of serious bodily injury or death, (3) a reasonable
cause for the defender's belief in such necessity, and
(4) an attempt by the defender to do all within his power
consistent with his personal safety to avoid the danger and
the need to take a life.
State v. Thomas, 161 S.W.3d 377, 379 (Mo. banc
even when considering the evidence in the light most
favorable to Bruner, there was not substantial evidence of
such elements in order to warrant a self-defense jury
instruction. Compiling the facts most favorable to Bruner,
there was evidence that Victim cursed at Bruner, that Victim
stepped toward Bruner several times causing Bruner to step
back, that Victim was physically larger than Bruner, that
Victim threatened to have Bruner's throat slit in two
hours, and that Victim stepped up on a median and moved his
right arm such that Bruner perceived that Victim was
"trying to grab him." This is not sufficient
evidence for a self-defense instruction.
dissent's portrayal of self-defense evidence (and maybe
more importantly, purported inferences therefrom, few or none
of which Bruner ever asserted during trial) overlooks a more
fundamental requirement that there be substantial
evidence to support the self-defense instruction.
was no substantial evidence from which a reasonable
fact-finder could deduce that there was a real or apparent
necessity for Bruner to kill in order to save himself from an
immediate danger of serious bodily harm or death. From the
most favorable view, the evidence was that Victim made a
verbal threat to Bruner that, "I will have your throat
slit within two hours." That threat, coupled with the
Victim moving into a fighting stance and "raising his
arm, " is not substantial evidence of "a real or
apparently real necessity for [Bruner] to kill in order to
save himself from an immediate danger of serious
bodily injury or death." Id.
"Immediate" means instant, without the passage of
time. "[T]he mere possibility that an event may happen
in the future does not create an immediate danger
underlying the right to kill in self-defense." State
v. Martin, 666 S.W.2d 895, 899 (Mo.App. E.D. 1984)
(emphasis added). There was no evidence that Victim had a
knife. In fact, the only evidence presented was that
Victim did not have a knife-and even more
importantly as to self-defense-Bruner never thought
Victim had a knife. There is not only lacking a positive
quantum of evidence in support of this element-there is no
substantial evidence. There is not a positive quantum of
evidence to meet any of the definitions of "substantial
evidence" set forth in State v. Weems, 840
S.W.2d 222, 226 (Mo. banc 1992).
Dorsey v. State, 113 S.W.3d 311, 316 (Mo.App. S.D.
2003), this Court explained that "[i]n order to be
entitled to a self-defense, the defendant may not use more
force than what appears reasonably necessary and mere battery
would not justify the use of a weapon against an unarmed
assailant." Given that there was no evidence that Victim
had a knife, or any other deadly weapon or dangerous
instrument (in fact positive evidence that Victim did not),
or that Bruner ever thought, reasonably or otherwise, that
Victim had any deadly weapon or dangerous instrument,
Dorsey dictates that there was no real or apparent
necessity for Bruner to use deadly force.
is no reasonable available inference from this evidence that
would create the immediate danger underlying the right to
kill in self-defense. "An inference is a conclusion that
is drawn from established facts and must be both logical and
reasonable." State v. Mickle, 164 S.W.3d 33, 50
(Mo.App. W.D. 2005). It is neither logical nor reasonable to
conclude that there was a real or apparent necessity for
Bruner to kill to save himself from an immediate danger of
serious bodily injury or death.
insults are insufficient provocation to justify an assault,
much less a killing. State v. Wiley, 337 S.W.3d 41,
45 (Mo.App. S.D. 2011). Bruner testified that it appeared to
him that Victim was reaching for him, but even where there is
an assault and battery without a weapon, Missouri courts have
obliged the victim to endure the assault without resorting to
the use of deadly force. Id. Further, while Victim
said he would have Bruner's throat slit in two hours,
this amounted to mere threat, which is insufficient for
self-defense. Smith, 456 S.W.3d at 852.
also is no substantial evidence to support the third element
under Thomas, that there be "a reasonable cause
for the defender's belief in such necessity" to use
deadly force. 161 S.W.3d at 379. Victim was larger than
Bruner, and stepped onto a median making him appear even
taller. It does not follow from this evidence that
Bruner's belief of having his throat slit was any more
reasonable. No matter Victim's size or physical position
in relation to Bruner, Bruner affirmatively testified that
Victim did not have a knife with which to carry out his
threat. It would have been, based on the evidence in the
light most favorable to Bruner, unreasonable for Bruner to
believe in the need to use deadly force. See Dorsey,
113 S.W.3d at 316.
there is no substantial evidence that Bruner did "all
within his power consistent with his personal safety to avoid
the danger and the need to take a life, " the fourth
element under Thomas. Bruner indicated that he
backed away from Victim, and then stopped in front of a
median. However, even Bruner testified that he should have
simply left the scene. Further, the only evidence presented
was that Bruner shot Victim several times in the back, and
then when Victim fell to his knees, Bruner shot Victim
several more times. That Bruner backed away from Victim early
in the encounter does not obviate the fact that he shot
Victim while Victim's back was turned and while Victim
was lying on his hands and knees on the ground.
State v. Chambers, 714 S.W.2d 527 (Mo. banc 1986),
our supreme court examined a self-defense instruction after a
prior conviction was reversed for failure to give such an
instruction. The facts at the second trial demonstrated the
defendant entered a bar and verbally confronted the victim,
leading to an argument. Victim told defendant that defendant
did not scare him and that defendant could have a piece of
him if defendant wanted. Defendant left the bar. Within
seconds after victim left the bar, witnesses reported
defendant hit victim with a pistol, knocked victim to the
ground, and then shot victim when victim got up with his
hands raised in the air. Before the shot, another witness
yelled that victim had a knife, but there was no weapon of
any kind found on victim. The supreme court concluded that
there was no trial court error in refusing the instruction at
the second trial, explaining:
Furthermore, the evidence which defendant relies upon to
support his theory of self-defense is woefully unconvincing
that there existed either an apparent or real necessity for
him to use deadly force to avoid serious bodily injury or
death. Additionally, defendant's construction of the
facts in this case fails to notice an absence on his part to
do all within his power consistent with his personal safety
to avoid the danger and the need to take the victim's
Instead of immediately leaving the bar, he actively
encouraged the victim to accompany him outside to settle the
argument. And waiting outside the bar was the car in which
defendant arrived. Rather than avoid any real or apparent
danger that existed, defendant instead chose to confront the
victim. Only after defendant knocked the victim to the
ground, shot him in the chest, and beat the victim further
did defendant flee in the waiting vehicle.
We have conducted a searching examination of the trial
transcript and have considered the evidence in a light most
favorable to defendant, and we are unable to conclude that
there was sufficient evidence to support an instruction on
self-defense or to allow the trier of fact to conclude that
defendant's conduct was reasonable. Thus, we find no
error in the trial court's refusal to submit
defendant's tendered instruction on self-defense.
Chambers, 714 S.W.2d at 531. As in
Chambers, the evidence here is woefully unconvincing
to support a self-defense instruction.
our supreme court recently examined a case with similar facts
in Smith, 456 S.W.3d 849, the court considered the
evidence in the light most favorable to defendant and
[Victim] threatened to fight, yelled at, and came within
inches of [Defendant]. [Victim] neither hit nor exhibited a
weapon to [Defendant]. No one, including [Defendant], saw a
weapon on [Victim] during the incident. [Defendant] testified
that not until [Victim] had run away and stopped between two
dumpsters did he 'figure' that [Victim] was looking
for a gun.
Id. at 852. Based on these facts, our supreme court
held that defendant "was not faced with a real or
apparently real necessity to use deadly force to defend
himself against [Victim] when he fired the first gunshot
before [Victim] ran away." Id. On that basis,
the court held that the trial court did not err in refusing
to submit a self-defense instruction to the jury below.
like in Smith, Victim yelled at, threatened, and
moved close to Bruner, but there was no evidence that Victim
exhibited or possessed any sort of weapon. Based on these
facts, which the supreme court found decisive in
Smith, it would simply be inconsistent to find that
the trial court in the present case erred in not submitting a
self-defense instruction. Indeed, it was Smith,
handed down just two weeks earlier, that was discussed at
this instruction conference before the trial court
refused Bruner's tendered self-defense instruction.
trial court did not err in failing to submit a self-defense
instruction. The judgment and sentence of the trial court are
W. SHEFFIELD, C.J. - CONCURS NANCY STEFFEN RAHMEYER, J. -
CONCURS JEFFREY W. BATES, J. - CONCURS GARY W. LYNCH, J. -
DISSENTS IN SEPARATE OPINION DANIEL E. SCOTT, J. - CONCURS IN
SEPARATE OPINION DON E. BURRELL, JR., J. - CONCURS IN