FROM THE CIRCUIT COURT OF JASPER COUNTY, MISSOURI The
Honorable Gayle L. Crane, Judge
Denvir Stith, Judge.
Jeffrey L. Bruner appeals his convictions on charges of
first-degree murder and armed criminal action, alleging the
circuit court erred by refusing to submit a self-defense
instruction. This Court recently reaffirmed in State v.
Smith, 456 S.W.3d 849, 852 (Mo. banc 2015), that if
substantial evidence is presented of the elements of
self-defense, then the issue is injected and self-defense
must be submitted by instructing the jury that the State has
the burden of proving a lack of self-defense beyond a
reasonable doubt. Here, the circuit court determined Mr.
Bruner failed to inject the issue of self-defense because
self-defense was not supported by the evidence. While the
burden of producing evidence sufficient to inject
self-defense is a minimal burden, this Court agrees it was
not met here. For that reason, the circuit court did not err
in refusing the self-defense instruction. The judgment is
PROCEDURAL AND FACTUAL BACKGROUND
the evidence in the light most favorable to submission of a
self-defense instruction, the record shows Mr. Bruner and his
wife, Michelle Hale, were estranged. Mr. Bruner testified
that to his knowledge she was not seeing anyone else, though
he was aware she had met a college football coach for a lunch
date. He later learned the coach was Derek Moore.
Bruner was convinced he and his wife would reconcile. They
had been married more than 20 years, and she had several
extramarital affairs, once filing for divorce. Following each
affair, the couple reconciled and Ms. Hale pledged her
fidelity to Mr. Bruner.
Ms. Hale moved out of their marital home two weeks earlier,
Mr. Bruner sometimes visited her at her apartment, even
spending the night and having sexual relations with her on
occasion. The day before the shooting, Mr. Bruner met with
his wife and asked if she would go out to dinner with him the
next night. She declined, saying she would have to work late.
day of the shooting, Mr. Bruner picked up his 14-year-old
daughter after she and a friend watched a movie at a local
movie theater. Mr. Bruner and his daughter went to eat at a
nearby McDonald's. While there, the daughter saw a
Facebook posting of her mother (Ms. Hale) with another man
(Mr. Moore), apparently standing in front of the movie
theater, captioned "Date Night." The daughter
showed her father the picture, and the image upset him.
Bruner testified he decided to go directly to the movie
theater to talk with his wife to fix his marriage and to save
her from "divine punishment;" he believed
"what she was doing wasn't right" and
"that God is going to punish her for what she's
done." While Mr. Bruner and his daughter were on the way
to the movie theater, he sent Ms. Hale two texts. One said
merely, "WTF, " and the other, "where are you
at." Mr. Bruner received no response. The daughter told
her father she wanted to go home because she did not want to
see her mom and dad fighting. Mr. Bruner responded jokingly,
"It's not like I'm going to kill a man." He
also jokingly said, "I wouldn't put it past [your
mother, a police officer, ] to try to put me in jail."
Mr. Bruner turned around and drove his daughter home. While
there, he asked his daughter to display the Facebook post on
the larger home computer screen, in part so he could
ascertain whether the picture was taken at the same movie
theater at which he just had picked up his daughter. He also
grabbed two loaded guns (one gun belonged to Ms. Hale, which
she carried while jogging) and an extra clip because he knew
the man in the picture was very big and, "if he tried to
beat me up or something, that I would be able to back him off
with it." Mr. Moore was around 6′4″ or
6′5″, and Mr. Bruner was 5′10″ and
weighed about 175 pounds.
Bruner drove to the movie theater but could not find Ms.
Hale's vehicle in the parking lot. He then parked in the
lot near the movie theater's only exit. While waiting
asked her whether there were any other Facebook posts and
confirmed his wife was wearing a black dress. The record also
shows Mr. Bruner attempted to call his wife, but the call
went unanswered and was logged as a "missed call."
Bruner saw Ms. Hale and Mr. Moore about to exit the movie
theater. He left his car and approached the couple just after
they exited the building as they were standing on the
concrete sidewalk. Mr. Bruner stood slightly below the curb
in the asphalt driveway, facing the movie theater, and
addressed comments to his wife. Mr. Moore moved in front of
Ms. Hale and approached Mr. Bruner. Mr. Bruner stepped
backward and made clear he was not interested in speaking to
Mr. Moore. Mr. Moore stepped toward Mr. Bruner repeatedly,
and each time, Mr. Bruner stepped backward. At some point,
Ms. Hale interposed herself and placed a hand on Mr.
Moore's chest as if to restrain him. As the three
approached the concrete median (another concrete sidewalk a
step higher than the asphalt driveway separating the driveway
from the parking lot), Mr. Bruner stopped backing up to avoid
tripping on the median.
Hale and Mr. Moore then walked past Mr. Bruner, who pivoted
to remain facing them. Mr. Moore was up on the median while
Mr. Bruner remained down on the asphalt driveway. Mr. Bruner
testified Mr. Moore was in a "fighting stance, "
which he described as not facing him square on, but standing
"sideways looking at [him], " with one shoulder
closer to him than the other. Mr. Moore did not move toward
Mr. Bruner, nor attempt to hit him, but he did say,
"I'm not from around here, motherf**ker, I'll
have your throat slit in two hours." Mr. Bruner
responded to Mr. Moore, "Why are you threatening
me?" Mr. Moore replied, "I don't play these
redneck games, " and then said, "You don't know
who the f**k you are messing with."
Bruner did not testify that he then killed Mr. Moore in
self-defense or that he did so because he feared for his
life. Rather, his defense was that he did not act out of his
own volition. Mr. Bruner testified that, immediately after
Mr. Moore's last statement, the stress caused him to go
into a dissociative mental state he described as feeling
almost like passing out. He says he experienced something
like tunnel vision, darkness, and seeing and hearing
everything as if from a distance. It felt as if everything
was "closing in on [him]." Mr. Bruner said he then
took out the gun and shot Mr. Moore multiple times.
Bruner testified, that due to his dissociative state, he did
not so much choose to fire the gun; rather, it was as if he
was not acting with volition: "I remember seeing the gun
come out and I remember seeing one or two shots and I
remember hearing three." On cross-examination, he
mentioned for the first time that he had seen Mr. Moore's
arm move just before the shooting, and he perceived Mr. Moore
"was trying to grab [him], " although he says what
he saw was blurry and indistinct due to his mental state,
which he described as reducing his vision. Mr. Bruner
described the shooting as something happening while he was in
a surreal mental state: "It's like it wasn't
even me. I don't know how to explain it. I think I said
it was kind of like your [sic] falling asleep and all of a
sudden you flinch." Mr. Bruner did not remember, but did
not deny, shooting Mr. Moore an additional three times or
kicking him in the head after he went down, which is what
witnesses testified occurred. Mr. Bruner did not testify he
saw or thought Mr. Moore had a weapon. Rather, when asked if
he remembered a weapon on Mr. Moore, he replied, "No. I
did not." He also never testified he was afraid Mr.
Moore would cause him death or serious physical injury, or
commit a forcible felony against him, or, indeed, that he
feared Mr. Moore would punch him. He also said he did not
consider leaving the scene, and testified, "I wished I
had thought to leave."
Bruner testified his next lucid moment was sitting behind the
wheel of his vehicle in the parking lot. He said he then saw
individuals in the crowd coming toward him, left the gun in
the car and went back out, told those coming toward him he
was unarmed, removed his coat, dropped it to the ground to
show he was unarmed, and lay there until the police came. He
did not remember anything he said to anyone.
Bruner explained his conduct by presenting expert testimony
that, at the time of the shooting, he suffered from acute
stress disorder that caused him to experience dissociation
and depersonalization in the face of trauma or life
threatening situations, and this explained his confused
memory of the shooting. The expert diagnosed Mr. Bruner with
acute stress disorder, which he described as an early stage
of post-traumatic stress disorder. Acute stress disorder is
characterized by an abnormal reaction to a stressful
situation, and the expert testified that one of the
diagnostic criteria is exposure to a life-threatening
situation. Here, the expert testified it was Ms. Hale's
infidelity that caused stress for Mr. Bruner, which, if
internalized, "can create a buildup that can ultimately
result in an explosive reaction." On cross-examination,
the expert said the diagnosis was not supported by any of the
tests conducted but was based solely on Mr. Bruner's own
statements and the evidence and pleadings at trial, the
latter of which he admitted are normally not considered by a
clinician in making a diagnosis.
Bruner's daughter also testified. Supportive of her
father, she said he was angered by the Facebook post she
showed him. They drove directly home from McDonald's (not
toward the theater first). Her father said he was taking her
home because he did not want her to see him kill a man. Her
father also told her he would be going to jail that night
and, by the end of the night, she would have neither a mother
nor a father.
retired police chief and homicide investigator, who was at
the movie theater attending a movie, testified that, while
Mr. Bruner was lying on the ground, he said, "They
posted it all over Facebook. What's a guy supposed to
do?" Another movie patron testified that before the
police arrived and while Mr. Bruner was lying on the ground,
he said, "Yeah. I did it. Twenty-one years of marriage
and this is what it comes down to."
physical evidence and medical examiner's testimony showed
the gun was fired seven times, and Mr. Moore was hit six
times: once on the outside of the right shoulder, once on the
thumb side of his left forearm, once on the front of the left
forearm, and three times in the back. Wounds on the palm of
one hand were consistent with at least one shot being fired
while the palm was against the pavement. Multiple witnesses
testified, after the first three shots were fired, they saw
Mr. Moore go down, first to his knees, then to all fours, at
which point Mr. Bruner stepped closer or leaned over Mr.
Moore and fired the additional shots into him. Multiple
witnesses also testified, after the gun was empty, Mr. Bruner
kicked or stomped on Mr. Moore in the head and face or
accordance with the defense's opening statement and
closing argument, the defense took the position that the
stress of his wife's repeated infidelities and
blind-siding him with the revelation that she had been dating
another man caused Mr. Bruner to suffer from acute stress
disorder that led to the dissociative mental state and
inability to control his impulses. The defense argued,
therefore, Mr. Bruner did not act with deliberation or upon
cool reflection and should be found not guilty of
first-degree murder, defined in section 565.020 as
"knowingly caus[ing] the death of another person after
deliberation upon the matter." The defense focused on
evidence tending to show Mr. Bruner did not form the intent
to kill Mr. Moore at McDonald's, at home, while waiting
in the theater parking lot, or when initiating the
conversation with his wife.
State argued at trial the only element of first-degree murder
at issue was deliberation, defined as cool reflection on the
matter for any length of time, and Mr. Bruner began such
deliberation the moment he saw the Facebook posting. The
State emphasized evidence tending to show Mr. Bruner had
already decided to kill a man at that point. The court
submitted a verdict director for first-degree murder with
lesser-included offense instructions for second-degree murder
and voluntary manslaughter, and armed criminal action
associated with conviction for one of the homicide crimes.
The circuit court also submitted an instruction based on
MAI-CR 3d 308.03, allowing the jury to consider whether Mr.
Bruner had a mental disease or defect in deciding whether he
acted with the state of mind required for first-degree
murder. The defense also sought a self-defense instruction.
It was denied on the basis there was no evidence from the
defendant's testimony or from any of the other witnesses
that the defendant had any reasonable belief he was defending
himself from imminent serious physical injury or death. The
jury found Mr. Bruner guilty of first-degree murder and armed
criminal action. Mr. Bruner appealed. Following an opinion by
the court of appeals, the case was transferred to this Court
under Rule 83.04. Mo. Const. art. V, § 9.
STANDARD OF REVIEW
defendant claims error in failing to give a self-defense
instruction. "This Court reviews de novo a
trial court's decision whether to give a requested jury
instruction." State v. Jackson, 433 S.W.3d 390,
395 (Mo. banc 2014); accord State v. Comstock, 492
S.W.3d 204, 205-06 (Mo. App. 2016). "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, '
[State v. Westfall, 75 S.W.3d 278, 281 (Mo. banc
2002)], and failure to do so is reversible error."
Smith, 456 S.W.3d at 852 (citation omitted).
"In determining whether the circuit court erred in
refusing to submit an instruction on self-defense, the
evidence is viewed in the light most favorable to the
THE CIRCUIT COURT DID NOT ERR IN REFUSING TO SUBMIT
SELF-DEFENSE BECAUSE INSUFFICIENT EVIDENCE WAS PRESENTED TO
time of trial, section 563.031.5 provided, "The
defendant shall have the burden of injecting the issue of
justification under this section" and "injecting
the issue" was defined in section 556.051 as follows:
When the phrase "The defendant shall have the
burden of injecting the issue" is used in the
code, it means
(1) The issue referred to is not submitted to the trier
of fact unless supported by evidence; and
(2) If the issue is submitted to the trier of fact any
reasonable doubt on the issue requires a finding for the
defendant on that issue.
(Emphasis in original and added).
statute, therefore, requires the defendant to bear the burden
of showing self-defense is "supported by evidence"
to inject self-defense, at which point the burden shifts to
the State to prove a lack of self-defense beyond a reasonable
doubt. Through the years, Missouri courts have
used various terms to describe what quantum of evidence
satisfies the burden of injecting ...