self-defense instruction in Missouri

2025Burkett claimed he only wanted to scare Victim. 5 Analysis Burkett claims the trial court plainly erred in failing to sua sponte give a self- defense instruction to the jury. 3 "If the defendant injects self-defense into the case and there is substantial evidence to support a self-defense instruction, it is reversible error for the trial court to fail to submit a self-defense instruction to the jury under plain error review." State v. Bolden, 371 S.W.3d 802, 805 (Mo. banc 2012).

2020“It follows that, if the defendant carries the burden of introducing substantial evidence to support a defense- of-others instruction, it is error for the trial court to fail to submit a defense-of-others instruction to the jury just as it is error to fail to submit a self-defense instruction.” Id.

2002“In determining whether a self-defense instruction should have been submitted to the jury, the evidence is viewed in the light most favorable to defendant’s theory of self-defense.” Morrow, 41 S.W.3d at 59 ; Albanese, 920 S.W.2d at 923; Chambers, 671 S.W.2d at 783 .

1996Defendant appeals, insisting the trial court erred in failing to give Instruction A, tendered by Defendant, which, according to him, “instructed the jury on the issue of self-defense.” Citing State v. Chambers, 671 S.W.2d 781, 783 [3] (Mo. banc 1984), Defendant points out that in determining whether there was sufficient evidence to entitle him to a self-defense instruction, we must view the evidence in the light most favorable to him.

2025“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, and failure to do so is reversible error.” Id. (internal quotation marks, citation, and emphasis omitted).

2025The quantum of proof necessary to require a self-defense instruction is “substantial evidence,” which is “evidence putting a matter in issue.” State v. Bruner, 541 S.W.3d 529, 535 (Mo. banc 2018) (discussing State v. Westfall, 75 S.W.3d 278 , 280 n.7 (Mo. banc 2002), and subsequent cases).

2022Analysis “The trial court has an obligation to submit a self-defense instruction if the issue is supported by the evidence, when viewed in the light most favorable to the defendant.” 1 Notably, the theory presented to the circuit court did not focus on the handgun discharging while the unlawful entry was ongoing. 2 State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992).

2018This Court summarized the history of these terms and clarified their meaning in Westfall : The quantum of proof necessary to require the giving of a self-defense instruction has been variously defined as "substantial evidence," "evidence putting it in issue," "any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it," "supported by evidence," "any theory of the case which his evidence tended to establish," "established defense," and "evidence to support the theory." (Citations Omitted); State v. McQueen , 431 S.

2025Even if a defendant does not request a self-defense instruction, the trial court must instruct the jury on self-defense if there is substantial evidence to support it. 1 All rule references are to Missouri Court Rules (2024). 2 Westfall, 75 S.W.3d at 281 n.9; see also Missouri Approved Instructions-Criminal 4th 406.06 n.3 ("Whenever there is evidence supporting this defense, this instruction must be given.") (emphasis added).

2025This is so "even if a self-defense instruction is not requested or was requested but not in the proper form." State v. Whipple, 501 S.W.3d 507, 513 (Mo. App. E.D. 2016) (citing Westfall, 75 S.W.3d at 280-81 , 281 n. 9).

2018That quote does not support the proposition that this Court must disregard all evidence contrary to the giving of the self-defense instruction but rather simply reflects what this Court held in State v. Avery, 120 S.W.3d 196 , 201 (Mo. banc 2003) , that "self-defense is submissible, even where the defendant testifies that the killing was an accident, if the inconsistent evidence of self-defense is offered by the State or by defendant through the testimony of a third party." Contrary to the dissent's argument in favor of submitting a self-defense instruction, this does not either authorize or r

2016“A self-defense instruction must be submitted ‘when substantial evidence is adduced to support it[.]’” State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003) (quoting Westfall, 75 S.W.3d at 281 ).

2022We note that even under the defendant-favoring standard of review for appeals from a trial court’s failure to instruct on self- defense, which views the facts in the light most benefitting the defendant, such a standard does not “transform mere words or threats or simple assaults into justification for using deadly force.” Bruner, 541 S.W.3d at 534 n.2 (citing Lammers, 479 S.W.3d at 632 ; Dorsey, 113 S.W.3d at 317 ); see also Smith, 456 S.W.3d at 852 (finding the trial court did not err in refusing to submit a self-defense instruction where the record showed the defendant did not have a reason

2019"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." [State v. Smith, 456 S.W.3d 849, 852 (Mo. banc 2015)].

2023Missouri law recognizes that “[a] defendant is entitled to a self-defense instruction if substantial evidence and the reasonable inferences drawn therefrom support the theory propounded in the requested instruction.” Straughter, 643 S.W.3d at 321 (citing State v. Barnett, 577 S.W.3d 124, 126 (Mo. banc 2019); Westfall, 75 S.W.3d at 280 )).

2021“A self-defense instruction shall be submitted to the jury only ‘when substantial evidence is adduced to support it, even when that evidence is inconsistent with the defendant’s testimony.’” Id. at 94 (quoting Westfall, 75 S.W.3d at 281 ); State v. Young, 597 S.W.3d 214 , 227 (Mo. App. W.D. 2019) (quoting State v. Bruner, 541 S.W.3d 529, 534 (Mo. banc 2018)); see also Barnett, 577 S.W.3d at 126 . “‘Substantial evidence’ means evidence putting the matter in issue.” Whipple, 501 S.W.3d at 513 (internal quotation omitted).

2014See also State v. Bolden, 371 S.W.3d 802, 806, 805-06 (Mo. banc 2012) (“If the defendant injects self-defense into the case and there is substantial evidence to support a self-defense instruction, it is reversible error for the trial court to fail to submit a self-defense instruction to the jury under plain error review. [Westfall, 75 S.W.3d at 281 n. 9]”; State v. Mangum, 390 S.W.3d 853, 861 (Mo.App.

2013In addition, in Mangum , unlike here, “the record contains no indication that defendant proffered the self-defense instruction of which he now complains.” Mangum, 390 S.W.3d at 861 .

2017“Whether the evidence raises the issue of self-defense is a question of law.” State v. Kasparie, 498 S.W.3d 804, 811 (Mo. App. S.D. 2015) (quoting State v. Nunn, 697 S.W.2d 244, 246 (Mo. App. E.D. 1985)). ■ [8-10] A self-defense instruction shall be submitted to the jury only “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).

2016Westfall, 75 S.W.3d at 283 . 9 State v. Thomas, 161 S.W.3d 377, 379 (Mo. banc 2005) (citing State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984)). 11 “Whether the evidence raises the issue of self-defense is a question of law.” State v. Nunn, 697 S.W.2d 244, 246 (Mo.App. 1985).

2002As discussed by the Missouri Supreme Court in State v. McQueen, 431 S.W.2d *838 445, 448-49 (Mo.1968), and noted in many cases since McQueen, 2 the quantum of proof necessary to require the giving of a self-defense instruction has been defined in various ways: This quantum of proof has been variously defined as “substantial evidence,” State v. Rose, Mo., 346 S.W.2d 54 ; State v. Baker, Mo., 277 S.W.2d 627 ; State v. Singleton, Mo., 77 S.W.2d 80 ; “evidence putting it in issue,” State v. Ford, 344 Mo. 1219 , 130 S.W.2d 635 ; “any theory of innocence * * * however improbable that theory may seem

1992As discussed in State v. McQueen, 431 S.W.2d 445, 448-49 (Mo.1968), the quantum of proof necessary to require the giving of a self-defense instruction has been defined in various ways: This quantum of proof has been variously defined as “substantial evidence,” State v. Rose, Mo., 346 S.W.2d 54 ; State v. Baker, Mo., 277 S.W.2d 627 ; State v. Singleton, Mo., 77 S.W.2d 80 ; “evidence putting it in issue,” State v. Ford, 344 Mo. 1219 , 130 S.W.2d 635 ; “any theory of innocence * * * however improbable that theory may seem, so long as the most favorable construction of the evidence supports it,” S

1982The case is ruled by State v. Peal, 463 S.W.2d 840, 841-842 (Mo.1971), wherein Judge Morgan wrote: As noted, an accident instruction was given but defendant contends he also was entitled to a self-defense instruction ...

1976Under certain limited circumstances a defendant may be entitled to both submissions. ‘For example, if a defendant by his own testimony provides the basis for an accident instruction, it must be given; but if to the contrary, testimony of others shows defendant acted in self-defense, he also is entitled to a self-defense instruction.’ State v. Peal, supra.” State v. Walker, 525 S.W.2d 826, 828 [1] (Mo.App.1975).

2025This is so "even if a self-defense instruction is not requested or was requested but not in the proper form." State v. Whipple, 501 S.W.3d 507, 513 (Mo. App. E.D. 2016) (citing Westfall, 75 S.W.3d at 280-81 , 281 n. 9).

2021“A self-defense instruction shall be submitted to the jury only ‘when substantial evidence is adduced to support it, even when that evidence is inconsistent with the defendant’s testimony.’” Id. at 94 (quoting Westfall, 75 S.W.3d at 281 ); State v. Young, 597 S.W.3d 214 , 227 (Mo. App. W.D. 2019) (quoting State v. Bruner, 541 S.W.3d 529, 534 (Mo. banc 2018)); see also Barnett, 577 S.W.3d at 126 . “‘Substantial evidence’ means evidence putting the matter in issue.” Whipple, 501 S.W.3d at 513 (internal quotation omitted).

2016We determined that Marshall “chose a trial strategy to forego the self-defense instruction” and observed that “ ‘[i]f a party gets what he requests from the trial court, he should not be able to convict it of error, plain or otherwise, for complying with his request.’ ” Id. (quoting State v. Beck, 167 S.W.3d 767, 776 (Mo.App. 2005) (overruled on other grounds by Bolden, 371 S.W.3d at 806 )).

2015See also State v. Beck, 167 S.W.3d 767, 787 , 789 n. 5 (Mo.App.W.D.2005), overruled on other grounds by State v. Bolden, 371 S.W.3d 802, 805-06 (Mo. banc 2012) (under the self-defense statute, a reasonable belief by defendant of use or imminent use of unlawful force by the victim does not require proof that the victim’s acts of force were actually unlawful and the lawfulness of the victim’s act should not be confused with the purpose of the self-defense instruction, which is to determine the lawfulness of the defendant’s acts in response thereto).

2002The quantum of proof necessary to require the giving of a self-defense instruction has been variously defined as "substantial evidence," "evidence putting it in issue," "any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it," "supported by evidence," "any theory of the case which his evidence tended to establish," "established defense," and "evidence to support the theory." (Citations Omitted) State v. McQueen, 431 S.W.2d 445, 448-49 (Mo.1968). [8] State v. Griffin, 859 S.W.2d 816, 820 (Mo.App.1993); State v.

2002The quantum of proof necessary to require the giving of a self-defense instruction has been variously defined as "substantial evidence," "evidence putting it in issue," "any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it," "supported by evidence," "any theory of the case which his evidence tended to establish," "established defense," and "evidence to support the theory." (Citations Omitted) State v. McQueen, 431 S.W.2d 445, 448-49 (Mo.1968). [8] State v. Griffin, 859 S.W.2d 816, 820 (Mo.App.1993); State v.

2018This Court summarized the history of these terms and clarified their meaning in Westfall : The quantum of proof necessary to require the giving of a self-defense instruction has been variously defined as "substantial evidence," "evidence putting it in issue," "any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it," "supported by evidence," "any theory of the case which his evidence tended to establish," "established defense," and "evidence to support the theory." (Citations Omitted); State v. McQueen , 431 S.

2002The quantum of proof necessary to require the giving of a self-defense instruction has been variously defined as "substantial evidence," "evidence putting it in issue," "any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it," "supported by evidence," "any theory of the case which his evidence tended to establish," "established defense," and "evidence to support the theory." (Citations Omitted) State v. McQueen, 431 S.W.2d 445, 448-49 (Mo.1968). [8] State v. Griffin, 859 S.W.2d 816, 820 (Mo.App.1993); State v.

2016Westfall, 75 S.W.3d at 283 . 9 State v. Thomas, 161 S.W.3d 377, 379 (Mo. banc 2005) (citing State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984)). 11 “Whether the evidence raises the issue of self-defense is a question of law.” State v. Nunn, 697 S.W.2d 244, 246 (Mo.App. 1985).

2010“According to the case law interpreting [Section 563.031], to support a self-defense instruction, the evidence must show: (1) an absence of aggression or provocation on the part of the defender; (2) a real or apparently real necessity for the defender to kill in order to save himself from an immediate danger of serious bodily injury or death; (3) a reasonable cause for the defendant’s belief in such necessity; and (4) an attempt by the defender to do all within his power consistent with his personal safety to avoid the danger and the need to take a life.” State v. Thomas, 161 S.W.3d 377, 379 (

2024“However, this standard does not require the Court to disregard all evidence contrary to giving the self-defense instruction.” State v. Tate, 561 S.W.3d 483, 487 (Mo. App. E.D. 2018) (citing Bruner, 541 S.W.3d at 534 n.2).

2024In particular, “[i]n cases where the defendant is the initial aggressor, the court is precluded from giving a self-defense instruction.” Tate, 561 S.W.3d at 488 (finding the trial court did not err by refusing to give the defendant’s proffered self-defense instruction where the evidence, even viewed in the light favorable to the defendant, showed the defendant was the initial aggressor and that the victim’s use of force was lawful).

2022We note that even under the defendant-favoring standard of review for appeals from a trial court’s failure to instruct on self- defense, which views the facts in the light most benefitting the defendant, such a standard does not “transform mere words or threats or simple assaults into justification for using deadly force.” Bruner, 541 S.W.3d at 534 n.2 (citing Lammers, 479 S.W.3d at 632 ; Dorsey, 113 S.W.3d at 317 ); see also Smith, 456 S.W.3d at 852 (finding the trial court did not err in refusing to submit a self-defense instruction where the record showed the defendant did not have a reason

2007Dorsey, 113 S.W.3d at 317 (indicating that where defendant introduced a deadly weapon, a pocket knife, into a simple fight during which defendant was not injured, defendant was not entitled to a self-defense instruction).

2016If so, then, in accordance with the dictates of Jackson, it appears that the Smith court and the majority here may have become overpowered by the strong evidence and obvious inferences against giving a self-defense instruction, see Jackson, 433 S.W.3d at 400 (giving instruction in the face of such evidence and inferences “seems almost to beg of jury nullification”), ignored the principle that “no evidence ever proves an element of a criminal case until all 12 jurors believe it, and no inference ever is drawn in a criminal case until all 12 jurors draw it[,]” id., and yielded to the temptation

2016If so, then, in accordance with the dictates of Jackson, it appears that the Smith court and the majority here may have become overpowered by the strong evidence and obvious inferences against giving a self-defense instruction, see Jackson, 433 S.W.3d at 400 (giving instruction in the face of such evidence and inferences “seems almost to beg of jury nullification”), ignored the principle that “no evidence ever proves an element of a criminal case until all 12 jurors believe it, and no inference ever is drawn in a criminal case until all 12 jurors draw it[,]” id., and yielded to the temptation

2025State v. McKeown, 699 S.W.3d 533 , 537 (Mo. App. S.D. 2024) (finding no plain error in trial court’s erroneous omission of a cross-reference paragraph for involuntary intoxication in verdict director for murder in the first-degree); State v. Aldana, 681 S.W.3d 586 , 597 (Mo. App. W.D. 2023) (holding the omission of a mandatory cross-reference paragraph required by Notes on Use not plain error if jury is not misled); State v. Burns, 292 S.W.3d 501, 508 (Mo. App. S.D. 2009) (holding under the facts of that case the failure to cross-reference a self-defense instruction as required by the Notes on

2009State v. Hawkins, 58 S.W.3d 12, 18 (Mo.App.2001). 4 “The absence from a verdict director of an explicit cross-reference to a separate defense instruction ... has not been viewed as plain error.” Id., citing State v. Cooksey, 805 S.W.2d 709, 710-11 (Mo.App.1991), and State v. Dunlap, 706 S.W.2d 272, 277 (Mo.App.1986).

2023Clay, 533 S.W.3d at 715 (“[Defendant] argues that the notation ‘Submitted by Plaintiff’ on the self-defense instruction is proof the instruction was submitted solely by the state.

2022Although the Supreme Court in Clay has recognized a narrow exception to affording plain error review of instructional error where the record establishes that a defendant "invited the instructional error by proffering jointly with the state" a later challenged instruction, there is nothing in the record in this case to permit the conclusion that the challenged verdict directors were jointly proffered by Gannon.6 Clay, 533 S.W.3d at 715 (noting the record showed that defendant substantially participated in drafting and submitting a self-defense instruction).

2023Applying this objective standard ensures the application of the necessity defense is not employed haphazardly based on a defendant’s subjective perception that a necessity exists and limits the use of the defense to the State v. Thomas, 625 S.W.2d 115, 123 (Mo. 1981) (It is not the defendant’s subjective belief” alone that “determines whether a self-defense instruction is required; rather, the facts must reveal … [the] defendant reasonably believed” the use of force was necessary). 7 While a defendant’s beliefs may not be relevant to the analysis of whether the defense of necessity is submitte

2002The quantum of proof necessary to require the giving of a self-defense instruction has been variously defined as "substantial evidence," "evidence putting it in issue," "any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it," "supported by evidence," "any theory of the case which his evidence tended to establish," "established defense," and "evidence to support the theory." (Citations Omitted) State v. McQueen, 431 S.W.2d 445, 448-49 (Mo.1968). [8] State v. Griffin, 859 S.W.2d 816, 820 (Mo.App.1993); State v.

2020“A trial judge may not immediately recognize the need for a self-defense instruction in a case where no notice had been given to the judge that self-defense would be an issue.” Hiltibidal, 292 S.W.3d at 494 .

2015State v. Hiltibidal, 292 S.W.3d 488, 494 (Mo. App. W.D. 2009), “If the defendant injects self-defense into the case and there is substantial evidence to support a self-defense instruction, it is reversible error for the trial court to fail to submit a self-defense instruction to the jury under plain error review.” State v. Bolden, 371 S.W.3d 802, 805 (Mo. banc 2012). “ ‘Substantial evidence’ is evidence putting a *811 matter in issue.” State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003).

2002The refused instructions were labeled “Instruction No. A” and “Instruction No. C” and are included in the record on appeal. 3 Directions on the use of MAI-CR3d require the 306.00 Series of jury instructions to “be given where applicable, whether requested or not.” MAI-CR3d, “How to Use This Book Overview,” page i. “The self-defense instruction [i.e., MAI-CR3d 306.06] must be submitted when the evidence viewed most favorable to the defendant supports it.” State v. Bowman, 869 S.W.2d 901, 903 (Mo.App.1994).

1997State v. Bowman, 869 S.W.2d 901, 903 (Mo.App.

2022Our courts have construed substantial evidence to mean “any theory of innocence ... however improbable that theory may seem, so long as the most favorable construction of the evidence supports it.” State v. Bruner, 541 S.W.3d 529, 540 (Mo. banc 2018) (Wilson, J., dissenting) (quoting State v. Kinard, 245 S.W.2d 890, 893 (Mo. 1952)); see also State v. Stallings, 326 Mo. 1037 , 33 S.W.2d 914, 917 (Mo. 1930) (a defendant is 5 While Straughter dealt with a self-defense instruction, the law as stated therein also applies to other defenses.

2002As discussed by the Missouri Supreme Court in State v. McQueen, 431 S.W.2d *838 445, 448-49 (Mo.1968), and noted in many cases since McQueen, 2 the quantum of proof necessary to require the giving of a self-defense instruction has been defined in various ways: This quantum of proof has been variously defined as “substantial evidence,” State v. Rose, Mo., 346 S.W.2d 54 ; State v. Baker, Mo., 277 S.W.2d 627 ; State v. Singleton, Mo., 77 S.W.2d 80 ; “evidence putting it in issue,” State v. Ford, 344 Mo. 1219 , 130 S.W.2d 635 ; “any theory of innocence * * * however improbable that theory may seem