In the Missouri Court of Appeals
Eastern District
I)IVISION FOUR
STA'I`E OF MISSOURI, ) ED103699
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
v. ) 14SL-CR07287-01
)
MICHAEL B. CASEY, ) I~lonorable Steven H. Goldman
)
Appeilant. ) Fi]ed: Decem‘oer 27, 2016
Introduction
Michael Casey (Defendant) appeals thejudgment entered upon his conviction by a
jury of one count of second-degree murder and one count of armed criminal aetion, for
Which the trial court sentenced him to consecutive terms of life and 30 years in prison,
respectively Defendant argues that the trial court erred in failing to give two of his
proffered instructions to the jury and in excluding expert testimony regarding false
confessions We affirm.
Background
The State charged Defendant with one count of first-degree murder, one count of
first-degree assault, and two counts of armed criminal action, resulting from a shooting on
July 26, 2014. Earlier that evening, a University City high school held a reunion at Heman
Park in University City attended by approximately three to four hundred people A tight
broke out at some point, involving 15 to 20 people. Defendant was fighting a man he called
“Tigga,” When Mario Wallace (Victim) pulled Defendant off Tigga. Police arrived and
sprayed mace in the faces of several of those involved to break up the fight. Defendant
walked away with Romie Banks (Banks), one of those sprayed with mace.
Shortly after Defendant and Banks left the area, they saw Victim following them.
Victim Was yelling at them accusing them of attacking Victim’s friend during the fight.
Victim had his fists up in a fighting position and was challenging Defendant and Banks to
iight. Victim pulled his shirt up and said “l don’t have anything.” Pamela Christian
(Christian) was nearby and saw Victim yelling at Defendant and Banks. She told Victim
not to fight, and Victim responded, “Yes, nia’am” and started to walk away. Defendant
was standing next to Banks’ car. Christian saw Defendant reach into the car, pull out a
gun, and start shooting in Victim’s direction. Then Defendant and Banks got into the car
and drove away. Victim later died from a gunshot wound to his chest.l
On August 7, 2014, Police arrested Defendant and brought him to the police station
for questioning and to participate in a live lineup. They gave Defendant Miranda2
warnings, and Defendant signed a waiver form. Defendant initially denied being involved
in either the tight or the shooting He then admitted he was involved in the tight and that
Victim pulled Defendant off Tigga. He later admitted that he walked with Banks and that
the gun that killed Victim came from Banks’ car, but Defendant said Banks was the one
who shot Victim.
l Another man, Dejuan Walker (Walker), was shot in the knee, but he testified he did not see where thel shots
came from. The charges of first-degree assault and an associated armed criminal action stemmed from this
injury to Walker, but the jury acquitted Defendant of these charges
2 Miranda v. Arizona, 396 U.S. 868 (1969).
Police took a break from questioning Defendant and placed him in a live lineup.
Christian viewed the lineup and identified Defendant as the shooter. She became emotional
when she identified him, and she said she was sure Defendant was the person who shot
Victim. Police resumed questioning Defendant and then took a later break to take
Defendant’s fingerprints After that, they returned to the room and Defendant confessed
to shooting Victim. The next day, Defendant participated in a video reenactment of the
crime. Defendant grabbed the gun out of the car and fired it at Victim, who he said was
running toward him. Defendant said on the video that he was sorry for what happened and
wished he could take it back.
At trial, the trial court gave verdict directing instructions for the charged crime of
first-degree murder, as well as for the lesser-included charges of second-degree murder and
involuntary manslaughter. Defendant requested an instruction for voluntary manslaughter,
which the trial court denied. Defendant also requested that the trial court instruct the jury
regarding eyewitness testimony using a new Missouri Approved Instruction (MAI) that
had not yet become effective, and the trial court also denied this request, utilizing a current
MAI regarding eyewitness testimony instead. The jury convicted Defendant of second-
degree murder and armed criminal action. The trial court sentenced Defendant to
consecutive terms of life and 30 years in prison, respectively This appeal follows.
D_iseM
Defendant raises three points on appeal. First, he argues that the trial court erred in
refusing his proffered verdict directing instruction for voluntary manslaughter. Second, he
argues the trial court abused its discretion in refusing his proffered instruction regarding
eyewitness testimony Finally, Defendant argues the trial court abused its discretion in
excluding Defendant’S expert’s testimony regarding risk factors for false confessions in
interrogation procedures We discuss each in turn.
P_f>intl
Defendant argues the trial court erred in refusing his requested verdict directing
instruction for voluntary manslaughter because the evidence supported a finding that he
committed the murder under the influence of sudden passion arising from adequate cause.
We disagree
In determining whether the trial court erred in refusing an instruction, we view the
evidence in the light most favorable to Defendant State v. Avery, 120 S.W.3d 196, 200
(Mo. banc 2003). “A jury instruction for a lesser-included offense is required when the
evidence ‘provides a basis both for the acquittal of the greater offense and the conviction
of the lesser offense.”’ State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009) (quoting
M, 120 S.W.3d at 205).
Voluntary manslaughter is a lesser-included offense of first-degree murder.3
Section 565.025.2(1)(b).“ A person commits voluntary manslaughter by “caus[ing] the
death of another person under circumstances that would constitute murder in the second
degree . . . except that he caused the death under the influence of sudden passion arising
from adequate cause.” Section 565.023.1(1). The jury found Defendant guilty of second-
degree murder, and Defendant argues that the court should have instructed the jury to
3 We ncte, however, that it is not a nested of`f`ense, for which a trial court is required to instruct when requested
by a defendant State v. Payne, 488 S.W.Bd 161, 164 (Mo. App. E.D. 2016) (discussing applicability ofm
v. Jackson, 433 S.W.3d 390 (Mo. banc 2014); concluding voluntary manslaughter instruction is not nested
lesser-included offense of tirst~degree or second-degree murder and thus jury cannot convict defendant of
voluntary manslaughter simply by disbelieving part ol` evidence supporting first or second-degree murder
charge).
“ All statutory references are to RSMo. (2000), unless otherwise indicated
4
consider whether the additional elenrent of sudden passion arising from adequate cause
was present here.
“Sudden passion” is defined as “passion directly caused by and arising out of
provocation by the victim . . . which passion arises at the time of the offense and is not
solely the result of former provocation.” Section 565.002(7). “Adequatc cause” is “cause
that would reasonably produce a degree of passion in a person of ordinary temperament
sufficient to substantially impair an ordinary person’s capacity for self-control.” Section
565.002(1). The defendant must commit the offense “in sudden passion, and not after there
has been time for the passion to cool.” State v. Redmond, 937 S.W.2d 205, 208 (Mo. banc
1996). “Words alone, no matter how opprobrious or insulting, are not sufficient to show
adequate provocation.” l_d. “A manslaughter instruction is typically justified when the
victim perpetrates a battery upon the defendant.” State v. Arnel, 846 S.W.2d 245, 247 (Mo.
App. E.D. 1993).
Defendant argues that the evidence shows that in the immediate aftermath of the
physical fight in the park, Victim “carne at” Defendant and Banks with his fists raised and
wanting to fight. Defendant argues that because Victim was shot in the chest, this shows
he was coming toward Defendant when Defendant shot him, rather than walking away.
Defendant, though maintaining that Banks was the one who shot Victim, testified that they
reached the car and that Defendant was seated in the car before Victim caught up with
them. `
Even viewing the evidence in the light most favorable to Defendant, there is no
evidence here of a sudden passion on the part of Defendant or of adequate cause. Any
sudden passion that may have been present during the initial fight is not sufficient because
Defendant and Banl