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State v. Beck7/26/2005
cially determined." Rule 28.02(f). Here, however, the appellant does not challenge Instruction No. 11 on the basis that it failed to comply with the mandatory self-defense approved instruction, MAI-CR 3d 306.06, and its Notes On Use. In fact, he concedes the contrary. Nonetheless, he still claims that Instruction No. 11 was erroneous because, without modification, it failed to correctly instruct the jury that, under the law of self-defense, it could consider not only the actions of the victim, but the actions of the victim's friends, in determining whether the appellant had a reasonable belief as to the need to defend himself against the unlawful force used by the victim. If the appellant is correct, that in cases of multiple assailants, MAI-CR 3d 306.06 conflicts with the substantive law of self-defense, then it should not be followed, or in other words, should be modified to comply with the substantive law. See Carson, 941 S.W.2d at 520 (holding: "If an instruction following MAI-CR3d conflicts with the substantive law, any court should decline to follow MAICR3d or its Notes on Use.") .
Section 563.031 governs the " se of force in defense of persons." Pursuant to section 563.031.4: "The defendant shall have the burden of injecting the issue of justification under this section." (Emphasis added.) If a term or phrase is defined in the statute, that definition controls in the application of the statute. State v. Rousseau,34 S.W.3d 254, 259 (Mo. App. 2000). Section 556.061 provides, in pertinent part: "In this code, unless the context requires a different definition, the following shall apply: . . . that the "' urden of injecting the issue' has the meaning specified in section 556.051[.]" Section 556.051 provides:
When the phrase "The defendant shall have the burden of injecting the issue" is used in the code, it means
(1) The issue referred to is not submitted to the trier of fact unless supported by evidence; and
(2) If the issue is submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue.
We see nothing about the context of section 563.031.4 that would require a definition of the phrase, "injecting the issue," other than that found in section 556.051 . Hence, the statutory definition of "injecting the issue," found in section 556.051 controls as to section 563.031.
MAI-CR 3d 306.06, Note on Use 2 provides: "The 'burden of injecting the issue' of self-defense is on the defendant. This language comports with section 563.031.4 and section 556.051 . "Whenever there is evidence supporting this defense, this instruction must be given." MAI-CR 3d 306.06, Note on Use 2. In determining whether the evidence supports the giving of a self-defense instruction, the evidence has to be viewed in a light most favorable to the defendant. Vogel v. State, 31 S.W.3d 130, 141 (Mo. App. 2000).
The Missouri Supreme Court, in State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003), without any reference to section 563.031.4; section 556.061; section 556.051;or MAI-CR 3d 306.06, Note on Use 2, held that a self-defense instruction must be submitted "when substantial evidence is adduced to support it." (Citations omitted.) Neither section 556.051 nor MAI-CR 3d 306.06, Note on Use 2,make any reference to "substantial" evidence as being the quantum of evidence necessary to satisfy the defendant's burden to "inject the issue" of self-defense, section 563.031.4,mandating a self-defense instruction. They simply speak in terms of "evidence." However, the Court in Avery defined "substantial evidence," for purposes of supporting an instruction on self-defense, as "evidence putting a matter in issue." 120 S.W.
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