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State v. Beck7/26/2005
revision of MAICR 3d 306.06 (9-1-99), which was a revision of MAI-CR 3d 306.06 (9-1990), which was a revision of MAI-CR 3d 306.06 (1-1-87),abandoned the statutory language of "unlawful force" that was used in MAI-CR 2d 2.41.1, without any indication in the Notes on Use of MAI-CR 3d 306.06 as to why that was done.
We know of no case that found fault with MAI-CR 2d 2.41.1, mandating that the approved MAI-CR ignore the "unlawful force" language of section 563.031 in favor of the imminentdangerofharm language, and we cannot discern any legal reason for doing so. We would note that unlike section 563.031.1, dealing with the use of physical force, section 563.031.2, dealing with deadly force, does speak in terms of resulting harm or injury. It reads:
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.
Section 563.031.2. However, we note that MAI-CR 2d 2.41.1.2 handled that by instructing: "(If) the defendant reasonably believed it was necessary to use deadly force to protect himself against what he reasonably believed to be the (use) (imminent use) of unlawful force putting himself in an imminent danger of (death) (or) (serious physical injury) (or) (rape) (or) (sodomy) (or) (kidnapping) at the hands of [ name of victim ], then the defendant acted in lawful self-defense and must be acquitted[,]" in cases of deadly force. This is a correct statement of the law, reading section 563.031.1 and section 563.031.2 together. Hence, we believe that to correctly instruct the law of self-defense, MAI-CR 3d 306.06 should be revised to drop the "imminent danger of harm" language presently used, in favor of the "unlawful force" language of section 563.031, much as MAI-CR 2d 2.41.1 (1-1-79) did in paragraph 2 , which reads, in pertinent part:
(If the defendant was not the initial aggressor in the encounter with [name of victim ] and if) (If) the defendant reasonably believed it was necessary to use such physical force as he used in order to protect himself from what he reasonably believed to be the (use) (imminent use) of unlawful force by [ name of victim ], then the defendant acted in lawful self-defense and must be acquitted.
While we believe that MAI-CR 3d 306.06 is not a correct statement of the law of self-defense, to the extent it requires the jury to deliberate on whether the defendant acted justifiably in using force against another person because he had a reasonable belief that he was in "imminent danger of harm," rather than he had a reasonable belief that such other person was using or was about to use "unlawful force" against him, we cannot say that the use of the "imminent danger of harm" language in Instruction No. 11 resulted in manifest injustice or a miscarriage of justice to the appellant, warranting plain error relief under Rule 30.20 . This is so in that it is not readily apparent to us that Instruction No. 11, in instructing the jury to deliberate on whether the appellant had a reasonable belief that he was in "imminent danger of harm" from the victim, rather than instructing it on whether he had a reasonable belief as to the "use or imminent use of unlawful force" by the victim, so confused the jury that it failed to properly consider the appellant's claim of self-defense such that if Instruction No. 11 contained the unlawful-force language, rather than the imminentdanger-of-harm language, there would have been a different outcome in the appellant's case. In other w
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