Stiers v. State

HOWARD, P.J.,

dissenting.

The majority is correct when it notes “[a] self-defense instruction must be submitted “when substantial evidence is adduced to support it, even when that evidence is inconsistent with the defendant’s testimony.’” State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003) (citation omitted). However, a defense inconsistent with the defendant’s testimony is only available where the State or a third party offers evidence of the defendant’s prior inconsistent statements supporting self-defense. Id. at 200-01. See also State v. Houcks, 954 S.W.2d 636, 639 (Mo.App. W.D.1997). In the current case, neither the State nor Stiers offered such evidence. In order to make the pieces fit, the majority opinion takes a pair of scissors to the jigsaw puzzle — it infers the jury was at liberty to force together inconsistent facts to arrive at an operative history unsupported by evidence. I disagree.

I would hold the motion court was not clearly erroneous in failing to find ineffective assistance of counsel because Strickland’s prejudice prong was not met. Prejudice can only be found where there is a reasonable probability that, but for the omission of an available instruction, the result would have been different. Slater v. State, 147 S.W.3d 97, 100 (Mo.App. W.D.2004). The jury could not have rationally concluded that Stiers justifiably subjected Shaon to a substantial risk of serious injury while restraining her because neither of their narratives supports such a finding and facts derived from each narrative cannot fit together to amount to justifiable felonious restraint.

The current case probes the limits of the jury’s ability to string together facts from antithetical narratives. To claim self-defense for felonious restraint, Stiers must acknowledge he intentionally subjected Shaon to a substantial risk of serious injury. Houcks, 954 S.W.2d at 639 (holding “[s]elf-defense is an admission by the person invoking the defense that the person committed the alleged act.”). However, Stiers flatly denies doing so. Nor did the State produce evidence of self-defense, the only exception to the rule that the defendant must produce evidence of self-defense for the instruction to be available. Id.

The prosecuting witness, Shaon, and the defendant Stiers, presented widely discrepant accounts of the events of the night of June 10, 2000. One describes Stiers prudently acting to protect his property and personal safety while the other describes Stiers feloniously restraining the innocent Shaon. The State produced evidence that Stiers lured Shaon to his home, threatened her with a knife, beat her, choked her, cut her chest with the knife, bound her hands behind her back, sexually assaulted her, and kept her restrained for no less than three hours. Much of this version of events relies on the testimony of Shaon.

According to Stiers, he awoke to find Shaon had entered his house and was rum*267maging through his personal effects. They had been in a relationship for fifteen or sixteen years and Shaon had a history of pawning Stiers’ property. When Stiers approached Shaon, he believed she put something in her pocket. She refused to tell him what she had placed in her pocket or agree to empty her pockets. When Stiers attempted to retrieve what he believed to be his property by reaching into her pocket, Shaon slapped him. Stiers slapped back. Shaon then grabbed a knife off the kitchen table and told Stiers to let her go. Stiers renewed his demand that Shaon empty her pockets. After she refused, Stiers attempted to disarm her. When he approached, she kicked him in the groin. A struggle ensued and blows were mutually exchanged. Shaon dropped the knife after Stiers knocked her into a ladder. When she attempted to kick him in the groin again, he “held her down” for approximately five minutes. During this time, the two had a “long conversation” until Shaon became less agitated. He then “helped her up” and, after Stiers offered, she chose to sleep on his bed. Stiers slept elsewhere. According to Stiers, he “did not try to bind her, restrain her, in any way.”

When determining if a criminal defendant has demonstrated prejudice by the omission of a defense instruction, we look to the elements of the crime charged and the jury’s verdict to determine if the proposed instruction could have affected the verdict. Stiers was charged with felonious restraint. That crime occurs when a defendant “knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury.” RSMo § 565.120. Serious physical injury is defined as “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” RSMo § 556.061(28). A self-defense instruction is generally available when a defendant can demonstrate that he was not the initial aggressor, had a reasonable belief that he was faced with the necessity of defending himself from bodily harm, used no more force than necessary, and attempted to avoid the confrontation. State v. Miller, 91 S.W.3d 680, 635 (Mo.App. W.D.2002). See also RSMo § 563.031. While the two narratives are inconsistent, they do not conflict on the issue of whether there was justification to expose Shaon to a high degree of force while restraining her. Stiers’ defense is that he did not use force that created a substantial risk of death or disfigurement when restraining Shaon. Nothing in Shaon’s description of events would permit a finding of justification for felonious restraint. No reasonable scenario can be teased from the evidence to support a self-defense instruction.

Stiers presents a story, which, if believed, would compel the jury to acquit.1 The jury, however, did not believe Stiers’ claim that he did not use the requisite high degree of force for felonious restraint. Shaon’s story also does not support a meritorious self-defense instruction. It lacks any compelling justification for Stiers’ actions. It is a story of gratuitous violence and undeserved imprisonment. A self-defense instruction was, therefore, unneces*268sary and its absence did not alter the result. Stiers was therefore not prejudiced.

Furthermore, not only does neither version of events support a useful self-defense instruction, reasonable combinations of the evidence do not support a useful self-defense instruction. A self-defense instruction is generally not available where the defendant does not admit the underlying crime. Houcks, 954 S.W.2d at 639. “The only exception to the rule precluding the submission of the inconsistent defense is that the evidence of the inconsistent defense was offered by either the state or proved by a third party witness called by the defense.” Id. (emphasis added). This exception is employed where the State offers a prior statement of the defendant which supports self-defense. See State v. Randolph, 496 S.W.2d 257, 262 (Mo. banc 1973); Avery, 120 S.W.3d at 202-03. It has not been employed to cobble together evidence provided by both the State and the defendant. While the jury is free to believe portions of any one individual witness’s testimony and disregard other portions, it is not free to interpolate significant facts or sew together conflicting evidentiary parts to construct a Frankenstein-fact-pattern unsupported by the evidence.

The majority’s reliance on State v. Thompson, 147 S.W.3d 150 (Mo.App. S.D. 2004), is misplaced. It argues, “the jury was entitled to take bits and pieces from several witnesses’ testimony and the physical evidence in order to draw its own picture of what actually occurred.” Thompson, however, does not endorse the micro-editing embraced by the majority. The precedent holds that the jury may believe some, all, or none of any one witness’s version of events. See State v. Buhr, 169 S.W.3d 170, 175 (Mo.App. W.D.2005). It does not speak to the situation at hand— where the jury would be forced to cut and paste the testimony of several witnesses to arrive at a contrived history.2 The jury could not have found that Stiers was justified in restraining Shaon and, in so doing, exposed her to risk of serious physical injury-this version of events is not in evidence. A hybrid version of events, in which Stiers feloniously restrained Shaon and was justified in doing so, the only scenario in which the additional instruction would be useful, is unsupported by the evidence.

The majority writes, “the jury could reasonably have accepted [Stiers’] account of how his fight with Shaon transpired, but disbelieved his testimony about the amount of force he used based upon the physical evidence or a portion of Shaon’s testimony.”3 This scenario demonstrates the weak joints in the majority opinion. It assumes, without stating so, that it is permissible to import the degree of force used from Shaon’s testimony into Stiers’ narrative. The majority treats the degree of force used like a sliding scale that the jury is at liberty to adjust at will. A jury may certainly navigate through conflicting evidence and believe, or disbelieve, portions of testimony. But, its findings must rely *269on a coherent version of events supported by the evidence. The majority would have a difficult time describing the historical chain of events that would have supported a self-defense instruction.4

Ultimately, this case reduces to the fact that neither party submitted evidence or proposed a theory in which Stiers would have been justified to use extreme force while restraining Shaon. To imply the jury could string together facts from the antithetical accounts would impermissibly sanction the interpolation of significant facts not in evidence. The jury could, therefore, not have properly used a defense-of-self instruction. Because the jury could not have used a self-defense instruction, Stiers was not prejudiced in its absence.

For the reasons stated above, I would affirm.

. By way of illustration, had Stiers been charged with false imprisonment instead of felonious restraint, Stiers would have been prejudiced by the omission of the self-defense instruction. False imprisonment consists of all of the elements of felonious restraint except it does not include exposing another to a substantial risk of serious injury. See RSMo § 565.130.1. Stiers admits to restraining Shaon and, thus, without a defense instruction, his own testimony would produce a conviction.

. The majority insinuates that this rule of law would prohibit the jury from believing Stiers! testimony that Shaon instigated the incident and threatened him with a knife while disbelieving Stiers’ testimony regarding the amount of force he utilized to protect himself. I disagree. In this scenario, the jury only believes and disbelieves portions of one person’s evidence, namely Stiers. I only imply that the importation of the degree of force is impermissible and that without that importation Stiers cannot demonstrate prejudice.

. The physical evidence, however, is inconsistent with Stiers’ narrative. The knife wound on Shaon’s chest is antithetical to a justified use of force and the conduct causing the bruises does not, standing alone, amount to exposure to a substantial risk of serious injury-

. The two possibilities suggested by the majority impermissibly imply facts not reasonably inferable from the evidence. There is no evidence that Stiers "wielded” a knife against Shaon during a fight. There is only evidence that he cut her while she was bound (her testimony) and that she wielded the knife against him (his testimony). Furthermore, even assuming Stiers applied such great force to Shaon’s neck that it amounted to deadly force, the record does not demonstrate how that high degree of force could have been justified. In both versions of events, Shaon was disarmed.