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State v. Beck7/26/2005
3d at 200. This definition simply circles back to the definition of"injecting the issue" found in section 556.051 and the requirements of MAI-CR 3d 306.06, Note on Use 2, such that regardless of the nomenclature, the Court's stated requirement, as to the quantum of evidence necessary to support the submission of a self-defense instruction, "substantial evidence," is consistent with section 556.051 and MAI-CR 3d 306.06, Note on Use 2.
Once the defendant carries his burden of injecting the issue of self-defense, the State has the burden to prove beyond a reasonable doubt that he did not act in lawful self-defense, and the jury must be instructed accordingly. White, 92 S.W.3d at 191. This instruction must be given once the issue is injected even if it is not requested. State v. Bowman, 869 S.W.2d 901, 903 (Mo. App. 1994). Here, the trial court found that the appellant had carried his burden of injecting the issue of self-defense and, accordingly, instructed the jury on that issue in Instruction No. 11, set out, supra, which was patterned after MAI-CR 3d 306.06.
For the evidence to support the giving of a self-defense instruction, there necessarily has to be evidence establishing each of the elements of self-defense, which are found in section 563.031. See MAICR 3d 306.06, Note on Use 1 (section 563.031 is the lone statutory reference for the instruction). Section 563.031 reads:
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 reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided
(a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
(b) He is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or
(c) The aggressor is justified under some other provisions of this chapter or other provision of law;
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would not be justified in using such protective force.
2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping or serious physical injury through robbery, burglary or arson.
3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
4. The defendant shall have the burden of injecting the issue of justification under this section.
Subsections 3 and 4 of the statute do not address the elements of self-defense. Rather, they deal with the use of physical restraint and the requirement that the defendant inject the issue into the case, respectively. Subsection 2 only applies in cases involving deadly force, and subdivision (2) of subsection 1 only applies in cases of physical force used in defense of third persons. Hence, in cases such as ours, involving self-defense using physical force, the required elements that must be shown to warrant an instru
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