FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable
Kathleen A. Forsyth, Judge.
PATRICIA BRECKENRIDGE, JUDGE.
Clay appeals from a judgment convicting him of murder in the
second degree, section 565.021, RSMo 2000, and armed criminal
action, section 571.015.1, RSMo 2000. Mr. Clay asserts the
trial court plainly erred by submitting an incorrect
self-defense instruction, refusing an instruction on his lack
of duty to retreat, and failing to instruct the jury on the
lesser included offense of voluntary manslaughter. Mr. Clay
further asserts the trial court plainly erred by failing to
exclude evidence of uncharged misconduct. Finally, Mr. Clay
asserts the trial court erred by allowing the state to argue
in its closing argument that he had a duty to retreat from
the conflict while prohibiting him from arguing he did not
have a duty to retreat.
Clay's claim that the self-defense instruction submitted
was erroneous for failing to instruct the jury that an
initial aggressor can "withdraw" is not meritorious
because he jointly drafted the self-defense instruction,
thereby waiving plain error review of this claim. Mr. Clay
also waived any plain error review related to his claim that
the trial court improperly refused to submit the instruction
proffered by Mr. Clay on lack of a duty to retreat for the
same reason. Additionally, the trial court did not plainly
err by declining to instruct the jury on the lesser included
offense of voluntary manslaughter or by failing to exclude
evidence of uncharged misconduct, and there was no error in
the trial court's rulings regarding closing arguments.
The judgment is affirmed.
and Procedural History
evening of March 3, 2013, Steven McGhee, Jeff Becklean, and
Joel White were at Mr. Clay's home. Mr. Clay and Mr.
White engaged in a verbal conflict that escalated into a
physical altercation. At some point, Mr. Clay stabbed Mr.
McGhee twice in the arm and Mr. White at least two times. The
testimony varies as to whether Mr. McGhee was trying to break
up the fight or was also attacking Mr. Clay.
Clay broke away from the fight, went upstairs to retrieve his
gun, and demanded everyone leave his house. After the three
men exited the house but were still in the driveway, Mr. Clay
went outside with the gun. He demanded the men leave his
property. Mr. Clay and Mr. White continued yelling at one
another. Mr. Clay shot and killed Mr. White.
Clay was charged with second degree assault and armed
criminal action for stabbing Mr. McGhee and second degree
murder and armed criminal action for shooting Mr. White.
trial was held January 20 to 23, 2015. At trial, Mr.
Clay's defense was he stabbed Mr. McGhee when he was
defending himself against Mr. White's attack and he shot
Mr. White in self-defense after Mr. White attacked and
threatened him in the driveway. Mr. Clay further asserted he
was justified in exiting his home after ousting the men from
his home because he had no duty to retreat from his property
pursuant to section 563.031.3.
testimony of Mr. Clay, Mr. Becklean, and Mr. McGhee varied
significantly regarding the altercations giving rise to
criminal charges against Mr. Clay. All agree a verbal
confrontation in Mr. Clay's basement between Mr. Clay and
Mr. White escalated into a physical altercation. Mr. Becklean
testified he was unsure who started the physical altercation
between Mr. Clay and Mr. White but Mr. White "may
have" been the one who threw the first punch. Mr. Clay
testified he stabbed Mr. White, causing him to back off. Mr.
Becklean further testified that, after the three men left Mr.
Clay's home, he saw Mr. Clay "pistol whip" Mr.
White with his gun. He also testified Mr. White "pitched
forward, started to kind of like stumble forward, " and
Mr. Becklean then heard a gunshot. A video from a
neighbor's security camera that recorded the events was
admitted in evidence.
Clay's testimony was that he told Mr. White to leave when
they were in the basement. Mr. White punched him, and the two
men fought. Mr. Clay testified he twice stabbed Mr. McGhee
when Mr. McGhee tried to grab him. Mr. Clay further testified
that, once the three men left his home, he followed them
outside and brandished his gun because he thought Mr. White
was attempting to damage his truck. Mr. Clay testified he
asked the men to leave his property, and Mr. Clay walked Mr.
White off his property and turned and walked back toward his
house with his arms at his side. Mr. White followed him back
onto Mr. Clay's property. Mr. Clay testified Mr. White
insulted him and attempted to grab his arm and attack him.
Mr. Clay testified he fired as he backed up and was trying to
get away from Mr. White.
jury acquitted Mr. Clay of the charges for stabbing Mr.
McGhee but convicted Mr. Clay of the class A felony of second
degree murder and felony armed criminal action for shooting
and killing Mr. White. The trial court sentenced Mr. Clay to
concurrent sentences of 25 years in prison for second degree
murder and ten years in prison for armed criminal action.
Clay appeals. This Court transferred the case following an
opinion from the court of appeals and, therefore, has
jurisdiction pursuant to Mo. Const. art. V, sec. 10.
Error Review Waived for Self-Defense Instructions
appeal, Mr. Clay asserts three counts of instructional error.
In his Points I and II, Mr. Clay asserts the trial court
improperly instructed the jury on self-defense. In Point VI,
Mr. Clay asserts the trial court erroneously failed to
instruct the jury on the lesser included offense of voluntary
manslaughter. In his Point I, Mr. Clay asserts the trial
court plainly erred by submitting the "initial
aggressor" language from MAI-CR 3d 306.06A without also
instructing the jury that an initial aggressor may regain the
privilege of self-defense by withdrawing from the encounter.
Plain error review is discretionary, and this Court will not
review a claim for plain error unless the claimed error
"facially establishes substantial grounds for believing
that manifest injustice or miscarriage of justice has
resulted." State v. Brown, 902 S.W.2d 278, 284
(Mo. banc 1995) (quoting Rule 30.20).
self-defense instruction submitted at trial required the jury
to determine whether Mr. Clay was the initial aggressor. If
the jury determined Mr. Clay was not the initial aggressor,
the instruction required the jury to determine whether he
reasonably believed force or deadly force was necessary to
defend himself from Mr. White. Mr. Clay asserts the
instruction was erroneous because, if the jury determined Mr.
Clay was the initial aggressor, the instruction did not
require the jury to determine whether he regained the
privilege of self-defense by withdrawing from the conflict.
Mr. Clay asserts the trial court's failure to include the
"withdrawal" language is plain error resulting in
563.031.1(1)(a) provides that an initial aggressor generally
cannot use force in self-defense unless he or she withdraws
from the encounter and then effectively communicates such
withdrawal but the other person "persists in continuing
the incident by the use or threatened use of unlawful
force." Consistent with section 563.031.1(1)(a), MAI-CR
3d 306.06A provides optional "withdrawal" language
that "will be used if there is further evidence that the
defendant withdrew from the encounter." Notes on Use,
¶4(a). As Mr. Clay notes, his testimony was evidence
indicating he withdrew from the encounter. Although the
self-defense instruction included the "initial
aggressor" language from MAI-CR 3d 306.06A while
omitting the ...