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State v. Beck7/26/2005
pp. 1995). In other words, the instruction cannot hypothesize self-defense with respect to the use of physical force against the victim as a response by the defendant to the unlawful acts of force of a third person. However, while it is clear that section 563.031.1 limits the use of physical force against the victim by the defendant to a response to the use or imminent use of unlawful force by the victim and the victim alone, the "extent" to which the defendant may respond with physical force is not so limited.
In defending against the unlawful acts of force of the victim, the defendant is necessarily and logically trying to avoid resulting harm or injury. And, in fact, this is the bedrock upon which self-defense is based in this state - that a person should be allowed to use reasonable and necessary force against another to protect against harm or injury. See In the Interest of J___ M___, 812 S.W.2d 925, 932 (Mo. App. 1991). In that vein, as we noted, supra, section 563.031.2, dealing with a defendant's using deadly force,speaks expressly in terms of avoiding death or serious physical injury. Likewise, section 563.026, governing the justification of using physical force in cases of emergency and necessity, speaks in terms of avoiding injury. And, although section 563.031.1 does not speak expressly in terms of avoiding injury, we believe that is inherent in self-defense such that in determining the reasonableness of the defendant's response to the unlawful acts of force of the victim, the fact finder can consider the harm or injury that the defendant reasonably believed he was avoiding in using physical force against the victim.
Given our interpretation of section 563.031.1,Instruction No. 11, to conform therewith, had to instruct the jury to consider whether the appellant, in stabbing the victim, had a reasonable belief that: (1) the victim was using unlawful force by grabbing him from behind; and (2) such use of physical force by the appellant against the victim, in response thereto, was necessary to defend himself. However, as we discuss, supra, the determination of the reasonableness of the appellant's response to the victim's alleged unlawful use of force against him depends, in part, on the harm or injury that the appellant reasonably believed he was avoiding by using physical force against the victim. Hence, if Instruction No. 11 prohibited the jury's consideration of this issue, as the appellant claims, that would be error. However, as noted, supra,the State contends that Instruction No. 11 not only did not prohibit the jury's consideration of the issue in question, but properly instructed it to consider it.
In our case, the appellant is contending that in using physical force against the victim, specifically, stabbing him, which he contends was in response to the victim's unlawful force of grabbing him from behind, he was trying to avoid the harm and injury that would result from not only the acts of the victim, but the acts of the victim's friends. In that regard, he testified that it was necessary for him to stab the victim because he believed: (1) it was his only means of escaping the victim's hold; and (2) the victim's friends were approaching with the intent to assault him with the weapons they were brandishing. Accordingly, he argues that the jury should have been instructed in Instruction No. 11 that, in considering whether he had a reasonable belief that stabbing the victim was necessary to defend against the alleged unlawful act of the victim, grabbing him from behind, to avoid what he reasonably believed was imminent harm or injury, that it could consider the acts of the victim's friends. The State concedes this proposition, but argues that Instruction No. 11 did just
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