Summary
finding no evidence for a defense-of-others instruction where the person the defendant shot at may have been approaching a group containing the defendant’s mother with the intention to elevate a verbal altercation to a fistfight but was unarmed and not actually engaged in an assault against the defendant’s mother when the defendant retrieved and discharged his firearm
Summary of this case from State v. O'KeefeOpinion
WD 83542
08-24-2021
STATE of Missouri, Respondent, v. Tyjuan CALDWELL, Appellant.
Grant J. Shostak, St. Louis, for appellant. Richard A. Starnes, Jefferson City, for respondent.
Grant J. Shostak, St. Louis, for appellant.
Richard A. Starnes, Jefferson City, for respondent.
Before Division One: Alok Ahuja, P.J., Lisa White Hardwick, and Anthony Rex Gabbert, JJ.
Alok Ahuja, Judge
Following a jury trial, Tyjuan Caldwell was convicted in the Circuit Court of Jackson County of four counts: second-degree (felony) murder; unlawful use of a weapon; and two associated counts of armed criminal action. The circuit court sentenced Caldwell to a total term of twenty years’ imprisonment. Caldwell appeals. He argues that the circuit court erred in failing to give a defense-of-others jury instruction which he requested. We affirm.
Because Caldwell contends that the circuit court erred by failing to instruct the jury on defense-of-others, consistent with the applicable standard of review we discuss the facts in the light most favorable to Caldwell. State v. Mangum , 390 S.W.3d 853, 856 (Mo. App. E.D. 2013) ; State v. Crawford , 904 S.W.2d 402, 404 n.2 (Mo. App. E.D. 1995).
Caldwell was charged with second-degree murder, unlawful use of a weapon, and two counts of armed criminal action in the shooting death of Bernice Brown in Kansas City. The indictment alleged that Caldwell shot and killed Brown while shooting at another individual, Daveion Carter. Caldwell did not contest at trial that he fired the shot that killed Brown.
On the morning of August 1, 2018, Caldwell was at 5023 Chestnut Avenue in Kansas City, where he lived with his mother, Lashawnta George; his younger brother, Tre'Yuan Caldwell ; his uncle, Leonard Calhoun; and George's husband. Throughout the morning and early afternoon, Carter called and texted Caldwell numerous times about the return of money that Carter had given Caldwell a week or two earlier. Carter was staying with his family, who lived a few blocks away at 5333 Chestnut Avenue. Carter lived with his mother, Bernice Brown; his sister, Ky'Neichia Brown; and his mother's fiancée, Gary Newman. Newman and Lashawnta George are first cousins. The two households had previously had a good relationship.
Because various individuals involved in this case share the same surname, we refer to some of these individuals by their first names for clarity's sake. No familiarity or disrespect is intended.
Around 2:00 p.m. on August 1, 2018, Carter decided to go to Caldwell's home to talk in person about the money Caldwell owed him. Carter drove and parked his car on the street in front of Caldwell's home. Carter texted Caldwell around 2:25 p.m., that he was "at your house waiting to pull up." Some time later, between 2:55 and 3:10 p.m., Carter knocked on the front door and Caldwell's younger brother, Tre'Yuan, answered. Carter asked to talk with Caldwell, who came to the door. Caldwell told Carter that the money was "dead," which Carter understood to mean he was not getting it back. Caldwell testified at trial that when Carter started to "show[ ] signs of aggression" by flexing his fists, Caldwell punched Carter in the jaw. Caldwell and Carter began fighting outside in the front yard.
Lashawnta George, Tre'Yuan, and Calhoun went outside, and George pulled Caldwell and Carter apart. Calhoun and Tre'Yuan chased Carter out of the yard and, along with George, chased Carter down the street. Calhoun said not to let Carter get to his car "because he has a gun in his car." As he was running away Carter said, "I'll be back. I got something for ya'll."
George called Newman, telling him what had just happened and that Carter and Caldwell had gotten into a fight. Carter arrived home on foot, and told Newman his version of events. Five to ten minutes later, Newman drove Carter back to Caldwell's house, where Carter had left his car. Newman parked on the street next to the driveway of 5023 Chestnut, behind Carter's car. When they pulled up, Tre'Yuan and George were outside but Caldwell had gone back inside the house. Carter and Newman both got out of the car. Carter walked up towards the yard where Tre'Yuan was, saying "anybody can get it." When Carter "raised up at [George] like he was going to do something," Tre'Yuan stepped in between Carter and George. Carter then punched Tre'Yuan in the face two times. The situation quickly became "chaotic."
Newman followed George inside the house where she grabbed a kitchen knife; he took it from her when she went back outside holding the knife.
After being hit in the face, Tre'Yuan went inside to get cleaned up. Caldwell, who had been inside the house, heard a commotion and went upstairs to see what was going on. He testified that he saw Tre'Yuan walk in the front door "clutching his face" and "covered in blood." Looking outside, Caldwell testified that he saw Newman "holding my mom back as she tried to approach [Carter]," and that he saw a knife in the yard towards the street. Believing that Tre'Yuan had "sustained serious injuries as a stab wound," and after seeing George "like crying, trying to get to [Carter] and [Newman] holding her back," Caldwell became "scared that my little brother had got stabbed." Caldwell testified that he went downstairs and retrieved a handgun hidden under the dryer in the basement of the home.
Brown (Carter's mother) and Ky'Neichia (his sister) drove to Caldwell's home after they were told by one of Ky'Neichia’s brothers that Caldwell's family had jumped Carter during the initial altercation. They parked a few houses down the street from 5023 Chestnut when they saw Carter sitting on the curb. Brown and Ky'Neichia got out of the car. While walking towards Caldwell's home, they started arguing with and yelling at George in the middle of the street, while Newman stayed between them. Carter stayed by Brown's car.
After retrieving the gun, Caldwell ran outside. He testified that he saw "my mom [George] with the victim Ms. [Brown] and her daughter [Ky'Neichia] and [Newman] all in the street like getting ready to fight in front of my car. And I seen [Carter] like ... still in fighting mode." Caldwell testified that Carter was down by Brown's car about two-and-a-half houses away. Caldwell testified that, after seeing Tre'Yuan covered in blood, he was scared that Tre'Yuan had been seriously injured and that "my mom could sustain serious injuries" "since she was the only one out there at the time with all of these other people." Caldwell testified that he felt he had to "defend my own and my family" and that he felt like his "family was in danger." Caldwell testified that he shot at Carter, aiming at his legs to scare him. Carter, who had been down the street by Brown's car, began "walking up" when Caldwell started shooting.
Brown sustained a single gunshot wound to her head, killing her.
Caldwell dropped the gun and ran inside, where he remained until police arrived at the scene and took him into custody.
A jury trial was held on June 17-21, 2019.
Before the case was submitted to the jury, the State clarified that it would submit Count I (second-degree murder) only on a felony murder theory, based on the fact that Brown's death occurring during the course of Caldwell's commission of unlawful use of a weapon for shooting at Carter (Count III). The State explained that it would not submit a conventional second-degree murder charge. The defense requested that the jury be instructed on self-defense/defense-of-others as to Count III (unlawful use of a weapon). The trial court granted the defense's request in part, and submitted a defense-of-others instruction with respect to Tre'Yuan Caldwell, but not as to Caldwell's mother, Lashawnta George. The trial court instructed the jury on Count III that, "[u]nless you find beyond a reasonable doubt that the defendant did not act in lawful defense of Treyuan [sic ] Caldwell, you must find the defendant not guilty under Count III."
The jury returned its verdict finding Caldwell guilty of second-degree felony murder, unlawful use of a weapon, and two counts of armed criminal action. On August 30, 2019, the circuit court sentenced Caldwell to a total term of twenty years’ imprisonment: twenty years for second-degree felony murder; twenty years for unlawful use of a weapon; and ten years each for the two armed criminal action convictions, with all of the sentences to be served concurrently.
Caldwell appeals.
Discussion
Caldwell's sole Point on appeal argues that the trial court erred when it failed to instruct the jury on defense-of-others as to Lashawnta George.
Like self-defense, defense of another is a "justification" defense. When reviewing a claim of error related to instructing on a justification defense, we view the evidence in the light most favorable to the defendant. Whether a justification defense has been raised by the evidence is a question of law. We review questions of law de novo.
State v. Cummings , 514 S.W.3d 110, 116 (Mo. App. W.D. 2017) (citations, internal quotation marks, and footnote omitted).
As the Missouri Supreme Court has explained, the "defense-of-others" justification defense is an "extension of the self-defense justification, in that the actor may do in another's defense anything the person himself may have lawfully done in the circumstances." State v. Bolden , 371 S.W.3d 802, 805 (Mo. 2012) (citations omitted). As a general rule, "[a] self-defense [or defense-of-others] instruction must be submitted when substantial evidence is adduced to support it" and "[f]ailure to submit a self-defense [or defense-of-others] instruction when required by the evidence constitutes reversible error." State v. Avery , 120 S.W.3d 196, 200 (Mo. 2003), overruled on other grounds by State v. Barnett , 577 S.W.3d 124 (Mo. 2019) ; accord State v. Rice , 597 S.W.3d 322, 326 (Mo. App. E.D. 2019). "Substantial evidence" is "evidence putting a matter in issue"; that is, "evidence that, if true, is probative of the issues from which the jury can decide the case." Rice , 597 S.W.3d at 326 (citations and internal quotation marks omitted).
Section 563.031 provides in relevant part:
Statutory references refer to the 2016 edition of the Revised Statutes of Missouri.
1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person ...
....
2. A person shall not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony ....
Under § 563.031, "[t]he use of deadly force [in the defense of another] is justified only when the defender reasonably believes deadly force is necessary to protect ... another from immediate danger of death or serious bodily harm." State v. Whipple , 501 S.W.3d 507, 517 (Mo. App. E.D. 2016) (citing State v. Crudup , 415 S.W.3d 170, 175-76 (Mo. App. E.D. 2013) ). Reasonable belief means "a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief." Id. (quoting State v. Smith , 456 S.W.3d 849, 852 (Mo. 2015) ). A defender is not entitled to use "more force than he reasonably believes necessary to prevent harm to the defended person," and the force used "may not exceed that which the defended person would be justified in using." State v. Dale , 874 S.W.2d 446, 449 (Mo. App. W.D. 1994) (citations omitted).
Caldwell did not dispute at trial that he shot at Carter, killing Brown; and no party disputes that Caldwell wielded deadly force in doing so. See § 563.011(2) (defining "deadly force").
At trial, Caldwell sought a defense-of-others instruction with respect to both Tre'Yuan and George, as justification for the charge of unlawful use of a weapon by shooting at Carter (which resulted in Brown's death). The court refused the instruction with respect to George. Caldwell argues that based on the evidence presented at trial, he was justified in using deadly force against Carter in defense of George, his mother, because he reasonably believed it necessary to protect George from immediate danger of death or serious bodily harm. Even viewed in the light most favorable to Caldwell, however, there is no evidence (let alone substantial evidence) that he reasonably believed George was in immediate danger of death or serious bodily harm.
As the Southern District has explained, "[b]efore a self-defense [or justification] instruction is necessary, there must be evidence from which a reasonable inference could be drawn." State v. Kasparie , 498 S.W.3d 804, 812 (Mo. App. S.D. 2015) ; see also State v. Isbell , 524 S.W.3d 90, 94 (Mo. App. E.D. 2017) (a justification instruction such as defense-of-others or self-defense is required "only when substantial evidence is adduced to support it"; citation and internal quotation marks omitted). Even viewed in the light most favorable to Caldwell, no evidence adduced at trial would support a reasonable belief that deadly force was necessary to defend George against the threat of imminent death or serious bodily injury by Carter.
At the time of the shooting, George, Brown, and Ky'Neichia were arguing and yelling in the middle of the street, with Newman attempting to get in between them. None of the individuals involved in this altercation were armed, and no physical fight was then occurring. Carter was more than two houses away, near Brown's parked car. While Carter may have been in a "fighting mode," and may have started to walk towards George, Brown, and Ky'Neichia, both Caldwell and his mother acknowledged that they never saw Carter holding a weapon.
The circumstances of the shooting, viewed in the light most favorable to Caldwell, do not present "substantial evidence" supporting a defense-of-others instruction. At best, the evidence indicates that Carter may have been approaching the group including Caldwell's mother with the intent of engaging in a fistfight. But "[d]eadly force cannot be used to repel simple assault or battery." State v. Crudup , 415 S.W.3d 170, 176 (Mo. App. E.D. 2013) (citation and internal quotation marks omitted); see also State v. Burks , 237 S.W.3d 225, 229 (Mo. App. S.D. 2007). There is no indication that any action by Carter justified the use of deadly force by Caldwell in the protection or defense of his mother, George. Where there is "no evidence in the record" to support a justification defense, the circuit court does not err by refusing to submit the defense. State v. Chambers , 714 S.W.2d 527, 530-31 (Mo. 1986) ; State v. Powers , 913 S.W.2d 138, 141 (Mo. App. W.D. 1996).
Caldwell relies on State v. Jones , 627 S.W.2d 322 (Mo. App. W.D. 1982). In Jones , the defendant sought a defense-of-another instruction to a charge of manslaughter. The evidence adduced at trial established that the defendant shot the victim after the victim had struck the defendant's sister, knocking her to the floor. Id. at 323. In addition, after defendant's sister was knocked to the floor, the victim's wife "then attacked [her] with a wine bottle." Id. The defendant's sister called out for help, and as defendant entered the room, he saw "his sister prostrate with [the victim] bending or kneeling and striking the girl with his fists." Id. On appeal, this Court held that the evidence – viewed in a light favorable to the defendant – entitled the defendant to the submission of a defense-of-another instruction. Id. at 324.
Unlike Jones , Carter was not actually engaged in an assault against Caldwell's mother when Caldwell discharged his firearm, and no weapon was involved in any such assault. To the contrary, Carter was at Brown's car – apparently unarmed – and had merely begun to approach George, Brown, Ky'Neichia, and Newman when Caldwell began firing. No evidence was adduced to show that, when he started shooting, Caldwell had a reasonable belief that deadly force against Carter was necessary to protect George from imminent death or serious harm. Consequently, the trial court did not err in rejecting the defense's request for a defense-of-others instruction as to George because such an instruction was not supported by substantial evidence adduced at trial.
The State also argues that, even if it was error for the circuit court not to submit a defense-of-others instruction as to George, Caldwell cannot establish that he was prejudiced, because the jury was given a defense-of-others instruction with respect to Tre'Yuan, and convicted Caldwell nonetheless. The State argues that there is no basis in this record to conclude that the jury may have found Caldwell's actions to be justified in defense of George , when it did not find those actions justified in defense of Tre'Yuan. While the State's argument has some force, we need not address it given our conclusion that the circuit court did not err in refusing to give a defense-of-others instruction as to George.
Conclusion
The judgment of the circuit court is affirmed.
All Concur.