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State v. Westfall9/4/2001
Appeal From: Circuit Court of the City of St. Louis, Hon. Timothy J. Wilson
Opinion Vote: AFFIRMED. Crane, J., concurs.
Blackmar, S.J., dissents in separate opinion.
Opinion:
Reginald Westfall (Defendant) appeals the trial court's judgment and sentence entered after a jury convicted Defendant of: assault in the first degree in violation of Section 565.050 RSMo 1994, armed criminal action in violation of Section 571.015, property damage in the second degree in violation of Section 569.120, and assault in the third degree in violation of Section 565.070. The trial court sentenced Defendant, as a persistent offender under Section 558.016, to concurrent terms of twenty years for the first degree assault and armed criminal action convictions, and to time served for the property damage and third degree assault convictions. We affirm.
Both of Defendant's points are directed only to the first degree assault and armed criminal action convictions that arose out of a physical altercation between Defendant and Robert Jenkins on February 2, 1999. During the altercation, which occurred in a parked vehicle, Defendant cut Jenkins on his head, face, and neck with a carpet knife. Jenkins's wounds required medical attention, caused pain and disability, and resulted in permanent, visible scars.
Defendant was charged with first degree assault and armed criminal action arising out of this altercation. The trial court gave a self-defense instruction with respect to the first degree assault charge. The jury convicted Defendant of first degree assault and armed criminal action for the February 2, 1999, incident. Prior to sentencing Defendant filed a motion titled "SUPPLEMENTAL MOTION OF ACQUITTAL OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL" (supplemental post-trial motion) that was untimely.
At sentencing, the trial court advised Defendant he could pursue at another time in other proceedings a matter first presented in the supplemental post-trial motion regarding a letter from Tracie Westfall that Defendant had reportedly just received. The trial court then sentenced Defendant on these convictions to concurrent terms of twenty years. This appeal followed.
In his first point, Defendant urges the trial court erred in refusing a self-defense instruction tendered by Defendant with respect to the first degree assault charge. Defendant's proposed instruction, Instruction No. Z, authorized the jury to find Defendant used self-defense based on either non-deadly force or deadly force. Defendant urges the evidence supported such an instruction in that there was a question whether Defendant used deadly force or non-deadly force, and there was grounds for the use of deadly force. Therefore, Defendant urges, MAI-CR3d 306.06 and its Notes on Use required the instruction language offered by Defendant and refused by the trial court. Defendant further contends the failure to give the tendered instruction was not harmless.
The trial court gave an instruction based on MAI-CR3d 306.06, Instruction No. 20, regarding Defendant's use of self-defense during the altercation with Jenkins. Defendant's tendered instruction based on MAI-CR3d 306.06 was identical to the trial court's self-defense instruction with the exception that it included the following paragraph in Part B, in lieu of the sentence in Part B of the self-defense instruction given to the jury that begins "If the defendant was not the initial aggressor":
If the defendant reasonably believed he was in imminent danger of harm from the acts of Robert Jenkins and he used only such non-deadly force as reasonably appeared to him to be necessary to defend himself, then
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