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State v. Perry

Court of Appeals of Missouri, Southern District, First Division

June 14, 2018

STATE OF MISSOURI, Plaintiff-Respondent,
v.
DORIAN J. PERRY, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable John D. Beger

          GARY W. LYNCH, J.

         Dorian 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.[1] 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.

         Standard of Review

         "'This 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.

         Evidentiary and Procedural Background

         Defendant 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.

         Defendant 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.

         Defendant, 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 him.

         Immediately 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.[2] A brief fight then ensues, which is broken up by correctional officers.

         During 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 ...

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