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State v. Beck7/26/2005
fense instruction. Id. The trial court did give a self-defense instruction, patterned after MAICR 3d 306.06, but not the one proposed by the defendant. The instruction given hypothesized deadly force, as provided in section 563.031.2, while the defendant sought a self-defense instruction, also patterned after MAI-CR 3d 306.06, that hypothesized physical force, as provided in section 563.031.1 . As the Court noted, this was a critical distinction "because the standard for justifying non-deadly self-defense is much lower." Id. at 282. The instruction offered by the defendant did not comply with MAICR 3d 306.06 . The State argued that it was not error for the trial court to reject the defendant's instruction because it was not in proper form. While the Court noted in its opinion: "Even if no objection is made, the failure to instruct upon a defense supported by the evidence is plain error affecting substantial rights"; it did not address, in the body of the opinion, the issue of whether by proposing an incorrect instruction, the defendant was estopped from any appellate review, including plain error review. However, in a footnote, the Court noted: "Once [the defendant] injected self-defense into the case the trial court was required to instruct on self-defense, even in the absence of a request for such an instruction, and even if such an instruction was offered but not in proper form." Westfall, 75 S.W.3d at 281 n.9 (emphasis added). This is consistent with the reasoning in Derenzy and applying that rationale to cases of mandated self-defense instructions.
Based on the Court's opinion in Derenzy and its footnote in Westfall, and the fact that the trial court, here, found that the appellant had carried his burden of injecting the issue of self defense, as required by section 563.031.4, such that the giving of a proper self-defense instruction by the court was mandatory, the appellant did not waive plain error review of his self-defense instruction, Instruction No. 11.
In finding as we do, that the defendant does not waive plain error review of the giving of an approved patterned jury instruction submitted by him, we are mindful of our holding in State v. Goodwin, 891 S.W.2d 435, 438 (Mo. App. 1994), where we held that the use of an approved instruction, by definition, cannot be plain error. We cannot quibble with the logic of that case. How can the use of an approved instruction by a trial court be evident, obvious, and clear error to convict the court of plain error? To allow plain error review of the giving of an approved instruction would seem to place the trial court in a "Catch 22": Do not use the approved instruction and run the risk of being found guilty of plain error; or use it and still run the same risk. From a trial court's perspective, the "approved" label on the instruction would offer little in the way of assuring that the instruction is correct. Despite the apparent logic of Goodwin, holding that the giving of an approved instruction is not subject to plain error review, Derenzy and Westfall lead to the opposite conclusion. Both require that if an instruction, affecting substantial rights, is required, it must be in proper form, otherwise it is plain error. See State v. Goucher, 111 S.W.3d 915, 919 (Mo. App. 2003). Inasmuch as the substantive law controls over the form of an approved MAI-CR instruction, State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997), to be in "proper form" means that the instruction given must comport with the substantive law. Hence, we read Derenzy and Westfall for the proposition that the giving of an approved instruction does not preclude plain error review under Rule 30.20.
Having determined that the appellant did not waive plain error review of hi
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