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State v. Bruner

Court of Appeals of Missouri, Southern District

August 3, 2016

STATE OF MISSOURI, Respondent,
v.
JEFFREY L. BRUNER, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L. Crane, Circuit Judge

         En Banc

          OPINION

          WILLIAM W. FRANCIS, JR., J. AUTHOR

         A jury 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.

         Factual and Procedural Background

         In 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).

         Bruner 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[.]"[1]

         Upon 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.

         Arriving 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 pal."

         Bruner 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.

         Bruner 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.[2] Bruner then pulled the pistol from his jacket and shot Victim several times in the back, killing him.

         A 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.[3] The trial court refused the instruction.

         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.

         In his sole point relied on, Bruner argues that the trial court erred in failing to submit a self-defense instruction to the jury.

         Standard of Review

         We 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.

         Analysis

         Bruner 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.

         "The 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).

         A 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[6]. "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 306.06A[5].

         For a 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 2005).

         Here, 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.

         The 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.

         There 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).

         In 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.

         There 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.

         Mere 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.

         There 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.

         Finally, 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.

         In 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 life.
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.

         When 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 observed:

[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. Id.

         Here, 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.

         The trial court did not err in failing to submit a self-defense instruction. The judgment and sentence of the trial court are affirmed.

          MARY 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 DISSENTING OPINION

         CONCURRING ...


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