Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable John D.
W. LYNCH, J.
J. Perry ("Defendant"), an inmate in the custody of
the Missouri Department of Corrections ("DOC"), at
South Central Correctional Center ("SCCC"), was
convicted of committing violence against fellow inmate, Carl
Johnson, by striking him on the head. See section
217.385. On appeal, Defendant claims that the trial
court erred by refusing to submit his proffered jury
instruction on the affirmative defense of duress. Concluding
that the proffered instruction was not supported by the
evidence, we affirm.
Court reviews de novo a trial court's decision
whether to give a requested jury instruction.'"
State v. Bruner, 541 S.W.3d 529, 534 (Mo. banc 2018)
(quoting State v. Jackson, 433 S.W.3d 390, 395 (Mo.
banc 2014)). "In determining whether a refusal to submit
an instruction was error, 'the evidence is viewed in the
light most favorable to the defendant and the theory
propounded by the defendant.'" State v.
Avery, 120 S.W.3d 196, 200 (Mo. banc 2003) (quoting
State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc
2002)). Viewed in accordance with this standard, the evidence
adduced at trial was as follows.
and Procedural Background
testified that, on October 2, 2014, the date of the charged
offense, he encountered Johnson while preparing to use a
floor buffing machine in one of SCCC's housing unit
wings. A disagreement ensued about who was responsible for
the job, and Johnson told Defendant, "we've got to
slide[, ]" which Defendant understood to mean that
Johnson wanted to fight. Johnson "swung on"
Defendant, and Defendant pushed back.
then went to his cell and, although Johnson followed,
Defendant's cell mate prevented Johnson from entering.
Johnson, addressing Defendant, then stated, "you gonna
have to see me[, ]" which Defendant took as a threat.
thereafter, left his cell to go to the "canteen."
Johnson followed and repeated his threat. Defendant testified
that he believed he needed to address the situation because,
otherwise, Johnson, who was bigger and taller, would hurt
before the incident giving rise to the State's charge
against Defendant, Victoria Tausend, a DOC correctional
officer, overheard Defendant yell, "you can't fight
anyway." She turned around and saw Johnson walking from
inside one of the prison housing units into the prison
courtyard. She then saw Defendant run after him. A security
camera, the footage from which was introduced into evidence
as State's Exhibit 1, captured the events that followed.
The video depicts Johnson walking toward the courtyard,
Defendant running into the frame, from behind, and Defendant
striking Johnson's head with his fist. A brief fight
then ensues, which is broken up by correctional officers.
the instruction conference, Defendant objected to the verdict
director on the basis that the jury should be instructed on
the affirmative defense of duress. Defendant proffered an
instruction based on MAI-CF.3d 310.24 that read:
If you find and believe from the evidence beyond a reasonable
doubt that the defendant engaged in the conduct submitted in
Instruction No.___, you will then decide whether or not at
that time he acted under duress.
If you further find and believe that it is more probably true
than not true,
First, that Carl Johnson threatened the imminent use of
physical force against ...