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State v. Bruner

Supreme Court of Missouri, En Banc

January 16, 2018

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

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

          Laura Denvir Stith, Judge.

         Defendant 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 affirmed.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         Considering 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.

         Mr. 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.

         Although 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.

         On the 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.

         Mr. 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."

         Nonetheless, 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.

         Mr. 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."

         Mr. 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.

         Ms. 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."

         Mr. 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.

         Mr. 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."

         Mr. 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.

         Mr. 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.

         Mr. 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.

         A 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."

         The 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 stomach.

         In 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[1] 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.

         The 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.

         II. STANDARD OF REVIEW

         The 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 defendant."[2] Id.

         III. THE CIRCUIT COURT DID NOT ERR IN REFUSING TO SUBMIT SELF-DEFENSE BECAUSE INSUFFICIENT EVIDENCE WAS PRESENTED TO INJECT SELF-DEFENSE

         At the 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).[3]

         The 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.[4] Through the years, Missouri courts have used various terms to describe what quantum of evidence satisfies the burden of injecting ...


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