Opinion
No. WD 55460
Opinion Filed: July 20, 1999
APPEAL FROM CIRCUIT COURT OF SCHUYLER COUNTY, HONORABLE GARY L. DIAL, JUDGE.
Before: Lowenstein, P.J., and Spinden and Howard, JJ.
Scott Robert Beeler was convicted of involuntary manslaughter, § 565.024.1(1), RSMo 1994, and was sentenced to a seven-year term of imprisonment. He now appeals, claiming that the trial court erred by submitting an instruction on involuntary manslaughter as a lesser included offense because there was insufficient evidence to support a finding that he recklessly caused the death of the victim.
Reversed.
On December 31, 1996, Beeler was employed as the city marshal of Lancaster, Missouri. At 1:58 that morning, Beeler radioed the Schuyler County Sheriff's Department and asked the dispatcher to run a license check on Ashley McElroy. The dispatcher learned that McElroy's license had expired and relayed that information to Beeler around 2:05 a.m. Almost immediately afterward, Beeler again radioed the dispatcher and reported that "he had a man down." Beeler requested that Donnie Bruner, the Schuyler County sheriff, and his chief deputy, Carl Gottman, be called to the scene, along with Beeler's father.
When Sheriff Bruner arrived at the church parking lot where both McElroy's vehicle and Beeler's patrol car were stopped, an excited Beeler ran up to Sheriff Bruner's car and said, "Don, I'm tired of this shit. He pulled a hammer on me and I shot him." Sheriff Bruner asked Beeler where McElroy was, and Beeler replied "in the car." Sheriff Bruner walked toward McElroy's vehicle and Beeler followed him, saying "I hope the son of a bitch is dead."
Sheriff Bruner looked inside McElroy's vehicle and saw McElroy lying across the front seat. Sheriff Bruner also noticed there was a hammer on the floorboard of the car, under McElroy's foot. Investigators later found five shell casings near McElroy's vehicle, and all were determined to come from Beeler's pistol. The ensuing autopsy revealed that McElroy had suffered multiple gunshot wounds; it appeared that McElroy had first been shot in the upper left chest, then on the left side, and then subsequent shots hit him in the right hip, the left side of his lower back, and his left hand. Each of the first two wounds would have been fatal. The paths of the bullets were consistent with shots being fired from outside the window and with the body turning after the first frontal shot.
When asked by a medical worker at the scene who the victim was, Beeler replied "I'm tired of this fucking shit," then identified the victim as McElroy. Thomas Hall, a Missouri State Highway Patrolman, walked up to Beeler at the scene and asked, "Scotty, how are you doing?" Beeler's response, according to Hall's trial testimony, was something like "I'm doing fine, but that [expletive] isn't." Beeler also told Hall "Tom, you know a hammer can kill you. You know that I was right doing what I did."
In a written statement, Beeler said that he stopped McElroy's vehicle because one of its headlights was out. Beeler approached the vehicle, identified himself, and asked McElroy to roll down his window. McElroy replied that he couldn't because the window was broken. Beeler returned to his patrol car, radioed the dispatcher, and learned that McElroy's driver's license had expired. McElroy started his vehicle, pulled it alongside Beeler's patrol car, and asked Beeler what he was doing. Beeler replied that he was going to give McElroy a ticket for driving with an expired license, and McElroy became verbally abusive.
Beeler wrote that he told McElroy to relax, got out of his patrol car, and handed McElroy the ticket. As he did so, Beeler noticed McElroy's right hand moving under the seat "in a quick manner." Beeler turned to get his flashlight, and as he turned back McElroy was still moving, so Beeler hollered "Police, stop." Beeler then said that he saw "a weapon" in McElroy's hand, and McElroy's right side twisted toward him, and Beeler began shooting. Beeler wrote that, with his last shot, what looked like a hammer moved across the path of his flashlight.
Michael Platte, a criminal investigator with the Missouri State Highway Patrol, interviewed Beeler after he had composed the written statement. Beeler gave Platte an account of the incident that was essentially the same as his written statement. However, Beeler told Platte that, when he first saw McElroy reaching under the seat, he retrieved his flashlight from his patrol car, and when he reapproached McElroy's vehicle, McElroy was still reaching under the seat and moving his hand in an erratic fashion. Beeler related to Platte that he told McElroy to get his hands up in plain sight, and McElroy failed to comply. Then, Beeler said, he saw what appeared to be a weapon in McElroy's hand, so he began shooting. Beeler stated that he did not know what the object was, but knew it was a weapon.
Beeler was charged with murder in the second degree. At the close of trial, the jury was instructed on second-degree murder, self-defense, and, over the objection of Beeler's defense counsel, involuntary manslaughter. Beeler was convicted of involuntary manslaughter, and he was sentenced to a seven-year term of imprisonment.
In his sole point on appeal, Beeler claims that the trial court erred by submitting a jury instruction on involuntary manslaughter. Beeler contends that there was insufficient evidence to support a finding that he recklessly caused the death of McElroy, because his shooting of McElroy was an intentional act.
Involuntary manslaughter is a lesser included offense of second-degree murder. State v. Isom , 906 S.W.2d 870, 873 (Mo.App.S.D. 1995). A person commits the crime of involuntary manslaughter if he "recklessly" causes the death of another. Section 565.024.1(1), RSMo 1994; State v. Miller , 981 S.W.2d 623, 630 (Mo.App.W.D. 1998). Thus, to submit an instruction on involuntary manslaughter, sufficient evidence must be presented to support a finding of recklessness. Id.
A person who unreasonably believes that he must use force to defend himself from an imminent attack or uses an unreasonable amount of force cannot escape conviction on grounds of self-defense. State v. Redmond , 937 S.W.2d 205, 209 (Mo.banc, 1996). However, such a situation, which in pre-Code Missouri criminal law would be considered a type of "imperfect self-defense," warrants reducing what would otherwise be murder to some form of manslaughter. See Gene B. Schultz, Criminal Offenses and Defenses in Missouri, at pp. 212-213 (1986).
This raises the question of what form of manslaughter is the appropriate classification for a killing committed pursuant to an unreasonable belief in the need for deadly force in self-defense. The defining characteristic of involuntary manslaughter as a separate classification is that the victim's death is caused by reckless conduct on the part of the defendant. Section 565.024.1(1). In voluntary manslaughter, on the other hand, the victim's death is caused by intentional conduct on the part of the defendant, although this is mitigated by the fact that the defendant is under the influence of sudden passion arising from adequate cause. Section 565.023(1).
The issue, then, is whether a category of reckless conduct or intentional conduct better fits the circumstances of a case where a defendant shoots and kills the victim pursuant to an unreasonable belief that the shooting was necessary for self-defense. The State argues that, in such a situation, it is possible for both intentional conduct and reckless conduct to be involved. The defendant's act of pulling the trigger and shooting the victim is intentional conduct. At the same time, if the defendant has grossly deviated from the standard of care in assessing the circumstances to conclude that it was necessary to shoot the victim in self-defense, that act of assessment constitutes reckless conduct. Thus, if we were to accept the State's contention that both types of conduct are present, the question becomes which of these two components gets more to the heart of the crime and the basis for the defendant's culpability: the intentional shooting, or the reckless assessment of the need for the shooting?
In other jurisdictions, there is support for the way that the State frames the issue. In Shannon v. Commonwealth , 767 S.W.2d 548 (Ky. 1988), the Kentucky Supreme Court rejected the same claim that Beeler has made in this appeal, namely that because a killing claimed to be in self-defense is an intentional act, a reduction to reckless homicide is inappropriate. The court explained that, while an act may not be characterized as both intentional and reckless at the same time, the intentional act may be accompanied by a reckless belief that the circumstances justify his act, and the defendant is culpable because his belief in the need for self-protection was reckless. 767 S.W.2d at 550. See also Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167-199 (1987-88).
This portion of the Shannon decision was referred to as Shannon, Part I by the Kentucky Supreme Court in the more recent case of Elliott v. Commonwealth , 976 S.W.2d 416 (Ky. 1998), which was satisfied with this analysis. However, the latter half of the decision, which the Elliott court referred to as Shannon, Part II, concerned different issues, and was expressly overruled.
In People v. Sullivan , 503 N.E.2d 74 (N.Y. 1986), as in the case at bar, a law enforcement officer was subjected to criminal prosecution for the shooting death of a citizen during a police procedure. The New York Court of Appeals found reckless homicide to be the appropriate charge for the incident, despite the defendant's complaint that it was an intentional shooting. 503 N.E.2d at 77.
In agreement with these New York and Kentucky decisions is a line of cases from North Dakota which hold that, if a person is reckless in his belief in the necessity of using deadly force in self-defense, he will be guilty of reckless homicide. State v. Clark , 570 N.W.2d 195, 199 (N.D. 1997); State v. Leidholm , 334 N.W.2d 811, 816 (N.D. 1983). This is also the position of the American Law Institute (ALI), which incorporated it into the Model Penal Code. ALI Model Penal Code and Commentaries, Part I, § 3.09 at pp. 146, 152, and Part II, § 210.3 at pp. 73-75. The ALI concluded that "it makes more sense to assimilate the defendant who is reckless as to the existence of justifying circumstances to one who recklessly takes life than to assimilate him to one who purposefully does so." Id. , Part I, § 3.09 at p. 152. Section 562.016.4, the Missouri statute which defines recklessness to include a conscious disregard of circumstances, was derived from the Model Penal Code, Part I, § 2.02, which is accompanied by a comment which again affirms that a killing not be classified with purposeful homicides like voluntary manslaughter if the defendant acted in the unreasonable belief that his conduct was necessary to save his own life. ALI Model Penal Code, Part I, § 2.02, at p. 232.
There would also appear to be support for the way that the State frames the issue in Missouri statutory provisions defining "reckless" conduct for the purposes of involuntary manslaughter. A person acts "recklessly" when "he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. Section 562.016.4, RSMo 1994 (emphasis added); Miller , 981 S.W.2d at 630. It is crucial to note that, under this definition, a person may act recklessly with respect to a result or with respect to circumstances, as this distinction is central to the ensuing discussion.
While the State's way of framing the issue has support in other jurisdictions, and is consistent with the language of § 562.016.4, the Missouri case law on the relationship between imperfect self-defense and the categories of manslaughter has not recognized a distinction between a reckless assessment of the circumstances and the intentional conduct of shooting a victim. Instead, the Missouri cases state categorically that an intentional killing is inconsistent with involuntary manslaughter. In State v. Isom , 906 S.W.2d 870 (Mo.App.S.D. 1995), as in the case at bar, the defendant intentionally shot the victim, but claimed to have done so in self-defense. And, as in the case at bar, the trial court submitted, over the defendant's objection, an instruction on involuntary manslaughter.
In Isom , the Southern District reversed the defendant's conviction on involuntary manslaughter, holding that evidence that a defendant intended the act which caused the death supports submission of voluntary, not involuntary, manslaughter. 906 S.W.2d at 873. However, in Isom , unlike the case at bar, the State did not argue that evidence supported a finding of recklessness and, therefore, a submission of involuntary manslaughter. Instead, the State's position was that, even if there was no evidence to support an instruction on involuntary manslaughter, appellate relief should be denied on the basis of § 545.030.1(17), which is discussed below.
This court's recent decision in State v. Albanese , 920 S.W.2d 917 (Mo.App.W.D. 1996) includes language which is consistent with the holding in Isom . In Albanese , we held that an unjustified claim of self-defense constitutes an intentional act, which does not support the submission of an involuntary manslaughter instruction, as involuntary manslaughter "requires a reckless act culminating in an unintended result." 920 S.W.2d at 925.
The holdings in Isom and Albanese are consistent with other authorities which conclude that a homicide claimed to have been committed in self-defense is an intentional act, which precludes a conviction for involuntary manslaughter. United States v. Skinner , 667 F.2d 1306, 1309-1310 (9 th Cir. 1982); Torcia, Wharton's Criminal Law § 165 (14th Ed. 1979); LaFave and Scott, Criminal Law §§ 53, 77 (1st Ed. 1972).
The biggest obstacle for the State's position in the case at bar is MAI-CR3d 313.10, which defines "recklessly" and which was incorporated into the verdict-directing instruction submitting involuntary manslaughter in the case at bar:
In determining whether the defendant recklessly caused the death of [name of victim], you are instructed that a person acts recklessly as to causing the death of another person when there is a substantial and unjustifiable risk he will cause death and he consciously disregards that risk, and such disregard is a gross deviation from what a reasonable person would do in the circumstances.
The State's position in this case is based upon a distinction between being reckless about the consequences of an action, and being reckless about the need for an action. MAI-CR3d 313.10 only addresses the first of the two, which indicates that the latter is not a consideration in involuntary manslaughter. In so indicating, the instruction is an accurate presentation of existing Missouri case law.
While there was evidence in this case of Beeler being reckless about the need for firing his weapon, there was no evidence of Beeler being reckless about the consequences of firing his weapon, as he intentionally shot McElroy and he is presumed to have intended that death follow an act that is likely to have produced that result. Isom , 906 S.W.2d at 873-874 . Therefore, there was insufficient evidence to support the submission of this instruction for involuntary manslaughter. Id .
The State argues, as it did in Isom , that even assuming there was no evidence to support the submission of an involuntary manslaughter instruction, the defendant may not complain because of § 545.030.1(17), which provides that no judgment shall be affected "[b]ecause the evidence shows or tends to show him to be guilty of a higher degree of the offense than that of which he is convicted." The State contends that even if it was improper to instruct on involuntary manslaughter rather than voluntary manslaughter, it was an error that was favorable to him, so he cannot now complain.
The Isom court, when faced with this argument, considered the matter in light of the Missouri Supreme Court's decision in State v. Anding , 752 S.W.2d 59 (Mo.banc 1988). In Anding , the defendant, who was charged with capital murder but convicted of voluntary manslaughter, complained that there was no evidence to support the voluntary manslaughter instruction. The Missouri Supreme Court agreed and, despite the existence of § 545.030.1(17), determined that the defendant was either guilty of deliberate, premeditated murder or nothing at all, and ordered the conviction reversed and the defendant discharged. 752 S.W.2d at 62.
In Isom , the Southern District concluded that Anding was controlling, reversed the conviction, and ordered the defendant discharged. Later, the Eastern District, in State v. Martindale , 945 S.W.2d 669, 673 (Mo.App.E.D. 1997), agreed in principle with Isom , although the court affirmed the conviction on other grounds. Consistent with the holding by the Southern District in Isom and its approval by the Eastern District in Martindale , we find Anding to be controlling in the case at bar. Given the evidence presented in this case, and given the choices among the instructions that were properly submitted, Beeler was either guilty of second-degree murder or of nothing at all. Accordingly, the judgment of the trial court is reversed, and the defendant is ordered discharged.
All concur.