Opinion
No. ED78013
Filed: September 4, 2001
Appeal from the Circuit Court of the City of St. Louis, Honorable Timothy J. Wilson.
Dave Hemingway; 1139 Olive, Suite 200; St. Louis, MO 63101, for appellant.
Jeremiah W. (Jay) Nixon; Attorney General; Susan K. Glass; Assistant Atty. Gen., P.O. Box 899; Jefferson City, MO 65102-0899, for respondent.
Reginald Westfall (Defendant) appeals the trial court's judgment and sentence entered after a jury convicted Defendant of: assault in the first degree in violation of Section 565.050 RSMo 1994, armed criminal action in violation of Section 571.015, property damage in the second degree in violation of Section 569.120, and assault in the third degree in violation of Section 565.070. The trial court sentenced Defendant, as a persistent offender under Section 558.016, to concurrent terms of twenty years for the first degree assault and armed criminal action convictions, and to time served for the property damage and third degree assault convictions. We affirm.
All subsequent statutory citations are to RSMo 1994 unless otherwise indicated.
The jury also found Defendant not guilty of six other charged offenses.
Both of Defendant's points are directed only to the first degree assault and armed criminal action convictions that arose out of a physical altercation between Defendant and Robert Jenkins on February 2, 1999. During the altercation, which occurred in a parked vehicle, Defendant cut Jenkins on his head, face, and neck with a carpet knife. Jenkins's wounds required medical attention, caused pain and disability, and resulted in permanent, visible scars.
The other two convictions arose out of incidents involving different victims on different dates. We will not discuss those convictions further as they are not the subject of any point on appeal.
It is the type of knife that requires the push of a button to expose the sharp retracting blade that is kept housed in a protective sheath.
Defendant was charged with first degree assault and armed criminal action arising out of this altercation. The trial court gave a self-defense instruction with respect to the first degree assault charge. The jury convicted Defendant of first degree assault and armed criminal action for the February 2, 1999, incident. Prior to sentencing Defendant filed a motion titled "SUPPLEMENTAL MOTION OF ACQUITTAL OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL" (supplemental post-trial motion) that was untimely. At sentencing, the trial court advised Defendant he could pursue at another time in other proceedings a matter first presented in the supplemental post-trial motion regarding a letter from Tracie Westfall that Defendant had reportedly just received. The trial court then sentenced Defendant on these convictions to concurrent terms of twenty years. This appeal followed.
In his first point, Defendant urges the trial court erred in refusing a self-defense instruction tendered by Defendant with respect to the first degree assault charge. Defendant's proposed instruction, Instruction No. Z, authorized the jury to find Defendant used self-defense based on either non-deadly force or deadly force. Defendant urges the evidence supported such an instruction in that there was a question whether Defendant used deadly force or non-deadly force, and there was grounds for the use of deadly force. Therefore, Defendant urges, MAI-CR3d 306.06 and its Notes on Use required the instruction language offered by Defendant and refused by the trial court. Defendant further contends the failure to give the tendered instruction was not harmless.
The trial court gave an instruction based on MAI-CR3d 306.06, Instruction No. 20, regarding Defendant's use of self-defense during the altercation with Jenkins. Defendant's tendered instruction based on MAI-CR3d 306.06 was identical to the trial court's self-defense instruction with the exception that it included the following paragraph in Part B, in lieu of the sentence in Part B of the self-defense instruction given to the jury that begins "If the defendant was not the initial aggressor":
PART A — GENERAL INSTRUCTIONS
One of the issues as to Count I is whether the use of force by the defendant against Robert Jenkins was in self-defense. In this state, the use of force including the use of deadly force to protect oneself from harm is lawful in certain situations.
A person can lawfully use force to protect himself against an unlawful attack. However, an initial aggressor, that is, one who first attacks or threatens to attack another, is not justified in using force to protect himself from the counter-attack which he provoked.
In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger.
If he has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to protect himself.
But a person is not permitted to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes he is in imminent danger of death or serious physical injury.
And, even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to protect himself.
As used in this instruction, the term "reasonable belief" means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.PART B — SPECIFIC INSTRUCTIONS
On the issue of self-defense as to Count I, you are instructed as follows:
If the defendant was not the initial aggressor in the encounter with Robert Jenkins,
and if the defendant reasonably believed he was in imminent danger of death or serious physical injury from the acts of Robert Jenkins and he reasonably believed that the use of deadly force was necessary to defend himself, then he acted in lawful self-defense.
The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty under Count I.
As used in this instruction, the term "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.PART C — SPECIAL MATTERS
Evidence has been introduced of the prior relationship between defendant and Robert Jenkins including evidence of acts of violence. You may consider this evidence in determining who was the initial aggressor in the encounter and you may also consider it in determining whether the defendant reasonably believed he was in imminent danger of harm from Robert Jenkins.
Evidence has been introduced of threats made by defendant against Robert Jenkins. You may consider this evidence in determining who was the initial aggressor in the encounter.
You, however, should consider all of the evidence in the case in determining whether the defendant acted in lawful self-defense.
If the defendant reasonably believed he was in imminent danger of harm from the acts of Robert Jenkins and he used only such non-deadly force as reasonably appeared to him to be necessary to defend himself, then he acted in lawful self-defense, or if the defendant reasonably believed he was in imminent danger of death or serious physical injury from the acts of Robert Jenkins and he reasonably believed that the use of deadly force was necessary to defend himself, then his use of deadly force was in lawful self-defense.
We reverse due to instructional error "only if there is error in submitting an instruction and prejudice to the defendant. Rule 28.02(f)." State v. Taylor, 944 S.W.2d 925, 936 (Mo.banc 1997). While we have reversed convictions for a trial court's failure to include language in a self-defense instruction, an omission of language from a self-defense instruction does not entitle the defendant to relief where the evidence does not support the omitted language. State v. Jones, 921 S.W.2d 154, 155 (Mo.App.E.D. 1996); State v. Riley, 787 S.W.2d 314, 317 n. 1 (Mo.App.E.D. 1990); State v. Kennedy, 742 S.W.2d 223 (Mo.App.E.D. 1987). To ascertain whether or not the omission of language from an instruction is error, we view the evidence in the light most favorable to the defendant and "the theory propounded by the defendant."Jones, 921 S.W.2d at 155; see also Simmons, 725 S.W.2d at 163; Kennedy, 742 S.W.2d at 223-24. If the evidence tends to establish the defendant's theory, the defendant is entitled to an instruction on it. Jones, 921 S.W.2d at 155.
State v. Tilley, 826 S.W.2d 1, 2-3 (Mo.App.E.D. 1991); State v. Simmons, 725 S.W.2d 162 (Mo.App.E.D. 1987).
"The right of self-defense is a person's privilege to defend himself against personal attack." State v. Chambers, 671 S.W.2d 781, 783 (Mo.banc 1984). Section 563.031.1 authorizes a defendant's use of physical force upon another person under certain circumstances when and to the extent the defendant reasonably believes such force is necessary to defend himself from what the defendant reasonably believes is the other person's use or imminent use of unlawful force. A defendant may use deadly force against another person pursuant to Section 563.031.1 when the defendant reasonably believes deadly force is necessary to protect himself against death or serious physical injury, among other specified things. Section 563.031.2. "Deadly force" includes physical force which a defendant uses either with the purpose of causing or with knowledge it will "create a substantial risk of causing death or serious physical injury." Section 563.011(1). "Serious physical injury" is statutorily defined as "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body." Section 556.061(28). "Physical injury" is statutorily defined as "physical pain, illness, or any impairment of physical condition." Section 556.061(20).
The challenged instruction language used by the trial court must be used "[w]hen the evidence is clear that the defendant used deadly force." MAI-CR3d 306.06, Notes on Use 4(b)(2). The instruction language proposed by Defendant and refused by the trial court must be used "[w]hen there is some evidence that the defendant used deadly force and there is an issue as to whether the defendant used deadly force and there is also evidence supporting the use of deadly force in self-defense." MAI-CR3d 306.06, Notes on Use 4(b)(4).
"[T]he question of whether deadly force was used depends not only on the amount of force used but also on the defendant's purpose to cause, or awareness of the likelihood of causing, death or serious physical injury." MAI-CR3d 306.06, Notes on Use 4(b). Here, we conclude the evidence clearly demonstrates Defendant used deadly force against Jenkins. Therefore, there is no issue as to whether or not Defendant used deadly force and the trial court properly refused Defendant's tendered instruction.
The question is whether Defendant's use of a sharp knife on the head and neck of a person with whom Defendant is in a physical altercation should be characterized as "physical force" or "deadly force." We have considered the distinction between deadly and non-deadly physical force in the context of a defendant who was on trial for first degree assault in the shooting and injuring of a police officer through a closed door.State v. Moseley, 705 S.W.2d 613, 617-18 (Mo.App.E.D. 1986). The distinction was important in determining whether the trial court properly refused a modified defense of property instruction, which was only available if "physical force," rather than "deadly force," was used by the defendant. Id. at 617. We concluded "the lawful use of deadly force and not the lawful use of mere physical force," was presented by the evidence that the defendant "fired two shots at the door knowing that someone was on the other side" of the door. Id. at 618. In reaching this conclusion, we determined the defendant "should have realized that he was creating a substantial risk of causing, at the least, serious physical injury" by shooting through the door knowing someone was on the other side. Id. Defendant's theory "that he discharged his gun at the door to scare off intruders" was insufficient under the circumstances to support the giving of a defense of property instruction that required use of physical, rather than deadly, force by the defendant. Id.
In this case, we similarly conclude the evidence reveals Defendant should have realized he was creating a substantial risk of causing at least serious physical injury. Defendant testified in his own behalf and we summarize his testimony regarding events that took place on February 2, 1999, as follows: Defendant was separated from his wife, Tracie Westfall, but not divorced. She had been "seeing" the victim, Robert Jenkins, at various times over a period of several months. There had been prior encounters between Defendant and Jenkins. On the morning of February 2, 1999, Defendant had an interview for a construction or waterproofing job. Because he thought he would be asked to work that day, Defendant was wearing bib overalls and had his work tools in the several pockets. One of the tools was a "carpet knife" which he carried in a pocket on the front of his right leg.
Upon returning home from the interview, he walked to a school that one of his children attended and saw his car parked in the school parking lot. He did not see anybody in the car, and opened the front door on the passenger side intending to wait in the car until his wife returned. As he opened the door, he saw Jenkins leaning over the passenger floor area. Defendant got in on the passenger side with the right front door open and his leg draped outside the door, and told Jenkins to get out, but Jenkins started "beating the hell out of me." The door remained open with Defendant's leg sticking out as he tried to fend off Jenkins's blows. The car started to move, pulling Defendant toward the door and the door against his leg with Jenkins on top of him. The car moved through the lot, jumped the alley curb, and hit a wall, at which point it came to rest. Jenkins knelt over Defendant and continued beating him. Defendant tried to push Jenkins away but the seat-back fell, leaving Jenkins on top of him and the seat-back on top of his two-year-old daughter in the back seat.
According to Defendant's further testimony, Jenkins next began punching Defendant with what felt like a hard object. Defendant then reached into his pocket on the lower right leg of his overalls for a tool, pulled out the carpet knife, pushed a button to release the blade, and cut Jenkins several times around the head and neck, stating that he had "had enough." Defendant testified, "I just was trying to get him off me." At that point, Jenkins fled and Defendant drove off in the car with his daughter.
Jenkins's version of the facts was quite different. He testified that Defendant, immediately after getting into the car, said, "I'm going to teach you about messing with my wife," and started cutting him, after which Jenkins "threw my first lick." Jenkins also testified that the car was in gear with his foot on the brake and that it moved forward after the altercation began, coming to a stop against a wall.
A physician who examined Jenkins shortly after the incident noticed several lacerations on Jenkins's ear, nose, cheek, jawbone, and neck. Specifically, he testified the cuts on Jenkins included some that were one and a half centimeters long on the nose, five centimeters long on the cheek, five centimeters long down from the jaw bone, and seven centimeters across the middle of his neck. The injuries were superficial but left permanent scarring.
Viewing this evidence in the light most favorable to Defendant's theory that he cut Jenkins only in an effort to stop Jenkins from hitting him, the evidence supports only a deadly force self-defense instruction due to the effort Defendant used to cut Jenkins, the location of the cuts, as well as the scarring left by the cuts. In important part, Defendant's testimony indicates that, while he was involved in a physical altercation with Jenkins inside a car, he retrieved a closed knife from his pants pocket, maneuvered to expose the knife's blade, and then raised the knife to Jenkins's head and neck to use it. The record also reveals that Jenkins was left with several visible, permanent scars on his ear, face, and neck, including one that was approximately three inches across the middle of his neck. Such facial scarring constitutes "serious disfigurement" for purposes of the definition of "serious physical injury" in 556.061(28). See State v. Bledsoe, 920 S.W.2d 538 (Mo.App.E.D. 1996). Thus, the injuries Jenkins sustained constitute serious physical injury for purposes of the relevant statutory definition. Finally, the use of a knife during a physical altercation can constitute the use of deadly force requiring the giving of a self-defense instruction in an assault case. State v. Huffman, 711 S.W.2d 192, 194 (Mo.App.E.D. 1986).
Defendant urges we should not consider Bledsoe because it focused on whether or not the State made a submissible case of second degree assault, rather than on whether deadly or non-deadly force was used, in the defendant's attack on two individuals' chins with a glass bottle. While we recognize Bledsoe did not address whether the defendant used deadly or non-deadly force, it did address what constitutes "serious disfigurement" for the statutory definition of "serious physical injury" in Section 565.002(6) RSMo 1986, which is identical to the statutory definition of "serious physical injury" applicable in this case. Due to the identical language of the statutory definitions, we are not persuaded that it is improper to consider the interpretation in Bledsoe under the circumstances of this case.
Given the unique circumstances found in this case, the trial court did not err in refusing Defendant's tendered self-defense instruction, which included language not contained in the deadly force self-defense instruction submitted to the jury. Point one is denied.
In his second point, Defendant argues the trial court erred in failing to conduct a hearing on newly discovered evidence consisting of a statement by Tracie Westfall that she saw Jenkins hit Defendant with a jack handle on June 26, 1998. Defendant contends this evidence shows the perjury in Jenkins's rebuttal testimony in which he denied hitting Defendant on that date and in Tracie Westfall's deposition when she said she did not see the assault that day. This evidence, Defendant urges, is not cumulative because the self-defense issues for the February 2, 1999, incident were disputed at trial, and this evidence would probably produce a different result at trial because it corroborates Defendant's testimony through a hostile, prosecuting witness whose bias favored Jenkins. Defendant further urges that the untimely presentation of this statement was not the result of a lack of due diligence by Defendant but the result of Tracie Westfall lying to the police and in her deposition that she did not see the June 26, 1998, assault.
Defendant does not dispute that the supplemental post-trial motion presenting the letter was not filed until after the extended deadline for the filing of a motion for new trial.
The purported newly discovered evidence is an undated letter, in an envelope postmarked April 13, 2000, and filed April 20, 2000, stating in full:
To Whom It May Concern
I'm writing in regards to a insident that happen in the summer of 1998 that I and husband [Defendant] stayed at 3431 Louisiana. I'm writting because I want to let who read this what really happen that day.
That day in my back yard a fight was started by my brother Torrey Peebles and Robert Jenkins [Defendant] my husband was hit by Robert Jenkins [Defendant] was hit in the head and across his back with a jack used to jack up a car.
Tracie Westfall
To the extent it is proper for us to consider Tracie Westfall's letter, we conclude no further consideration of the letter is required. To obtain a new trial based on newly discovered evidence, a defendant must show
We recognize that the Missouri Supreme Court has stated a remedy for newly discovered evidence "no longer lies through direct appeal" once the time for a motion for new trial has expired. State v. Skillicorn, 944 S.W.2d 877, 896 (Mo.banc), cert. denied, 522 U.S. 999 (1997). Notably, however, that opinion expressly cited to State v. Mooney, 670 S.W.2d 510 (Mo.App.E.D. 1984), and State v. Williams, 673 S.W.2d 847 (Mo.App.E.D. 1984), and, instead of overruling them or otherwise characterizing them as having no value with respect to this issue, distinguished those decisions as having "no similarity whatever to Skillicorn's case." Skillicorn, 944 S.W.2d at 896.
(1) the evidence has come to the knowledge of the defendant since the trial; (2) it was not owing to want of due diligence that it was not discovered sooner; (3) the evidence is so material that it would probably produce a different result on a new trial; and (4) it is not cumulative only or merely impeaching the credibility of the witness.
State v. Whitfield, 939 S.W.2d 361, 367 (Mo.banc 1997). Moreover, "a motion for new trial based on newly discovered evidence must be accompanied by proof, either in the motion itself or by affidavits."State v. Davis, 698 S.W.2d 600, 602 (Mo.App.E.D. 1985). The absence of an affidavit or other proof is alone a sufficient basis for denying the motion for new trial based on newly discovered evidence. Id. at 603.
Defendant's supplemental post-trial motion was not accompanied by an affidavit or other evidentiary proof regarding Tracie Westfall's letter. Even if Defendant had provided proper evidentiary support for Tracie Westfall's letter, the letter does not clearly state that Tracie Westfall in fact saw any person hit Defendant or saw any person hit Defendant with a jack during the summer of 1998. On its face, Tracie Westfall's letter does not state she saw the June 26, 1998, incident or that Jenkins is the one who hit Defendant with a jack at that time. Therefore, this letter does not implicate any perjury either by Jenkins regarding the incident or by Tracie Westfall, who was not asked by either party during trial about this incident, and does not corroborate Defendant's version of the incident. Accordingly, the letter is not so material that it would probably produce a different result on a new trial.
The trial court did not err in failing to consider further Defendant's supplemental post-trial motion regarding Tracie Westfall's letter. Point two is denied.
Judgment affirmed.
Kathianne Knaup Crane, Judge: Concurs.
Charles B. Blackmar, Senior Judge: Dissents in separate opinion.
DISSENTING OPINION
I regret that I cannot join the majority opinion. The trial court, as I see it, ruled questions of fact as matters of law, and thereby deprived the defendant of jury submissions to which he was entitled under the law and the evidence.
The majority opinion properly enunciates the established proposition that, in deciding questions relating to criminal instructions, the court must accept the defendant's evidence as true and must give the defendant the benefit of all reasonable inferences which may be drawn from the evidence, disregarding the prosecution's evidence except to the extent that it supports the defendant's claims. State v. Jones, 921 S.W.2d 154, 155 (Mo.App.E.D. 1996). The opinion accurately summarizes the evidence the defendant relied on, based primarily on his own testimony, as required evidentiary support for his requested form of the self-defense instruction.
The opinion, however, errs in that it upholds the trial court in determining that, as a matter of law, the plaintiff used "deadly force" when he cut the victim with a knife. The court also must necessarily have concluded, as a matter of law, that his action "create[d] a substantial risk of death or serious injury," included in the statutory definition of "deadly force" in Section 563.011(1), RSMo. 1994. The only "serious physical injury" the jury could find in this case relates to the cuts on the victim's face and neck. This evidence might support, but does not compel, a finding under Section 556.061(28) that the defendant's actions "caused[d] serious disfigurement." There is no other evidence of serious physical injury.
The defendant claimed, essentially, that he saw his wife's car parked on a school parking lot and undertook to enter the vehicle on the passenger side. At this point he saw the victim in the car, leaning down on the front seat from the driver's side. He told the victim to get out of his car, whereupon the victim undertook to pummel and beat him, making use of something that felt like a hard object. The right front seat collapsed, so that the victim ended up on top of him. At this point the defendant reached for a carpet knife, a tool of his trade which he carried in a pocket on the front leg of his coveralls in anticipation of a call to work. The jury could find that, in carrying this knife, he had no contemplation that he would use it as a weapon. He made several quick strikes with the knife, inflicting superficial wounds around the face and neck, whereupon the victim fled. The defendant was entitled to a jury submission on his theory that he did not use deadly force, based on this evidence. The jury might have been persuaded by his explanation that "I was just trying to get him off me." The principal opinion poaches on the province of the jury when it states that ". . . the evidence clearly demonstrates Defendant used deadly force against Jenkins."
There was a jury question as to whether he used deadly force. There is no authority that the use of a knife necessarily constitutes the use of deadly force. The citation of State v. Bledsoe, 920 S.W.2d 538 (Mo.App.E.D. 1996), strongly relied on by the state and highlighted in the majority opinion, not only is of no help in supporting the position of the majority, but also has a positive tendency to mislead. That case simply holds that, in a court tried case, the judge could have concluded that deadly force had been used. There is not the least intimation that the trial court had to make that finding.
Bledsoe also upholds a finding by the trial judge that the defendant inflicted "serious disfigurement" on the victim. The opinion expressly states that "whether a victim suffers serious disfigurement is dependant upon the evidence of a particular case," thereby establishing that serious disfigurement is a question of fact. Bledsoe, 920 S.W.2d at 540. The present jury could find that the cuts the victim received, described by the examining physician as "superficial," constituted "serious disfigurement," but it did not have to make this finding. I am impressed by the statement of Judge Gerald M. Smith in his dissenting opinion inBledsoe, that the word "serious" with regard to disfigurement necessarily indicates that there can be disfigurement which is not serious.Bledsoe, 920 S.W.2d at 541. The degree of disfigurement, therefore, is a question of fact.
The principal opinion also holds that there is no issue of fact as to the defendant's knowledge of the consequences of his use of the knife. After stating, correctly in my view, that "[T]he question of whether deadly force was used depends not only on the amount of force used but also on the defendant's purpose to cause, or awareness of the likelihood of causing, death or serious physical injury," the court then deprives the defendant of the opportunity to argue that he had no such purpose of awareness! From the evidence, the jury could have found that the defendant was overpowered by the victim, who kept beating him, and that he spontaneously used the only means at hand to protect himself, without any opportunity for reflection on the possible consequences. The attribution of a mental state to the defendant seems to me to be without precedent. It certainly is not supported by any of the cases cited in the majority opinion.
The majority cites State v. Moseley, 705 S.W.2d 613, 617-18 (Mo.App.E.D. 1986), in which the court held that the defendant "should have realized that he was creating a substantial risk of causing, at the least, serious personal injury by shooting through the door knowing that someone was on the other side," and so was not entitled to a "defense of property" instruction, permitting only the use of non-deadly force. That case is a long way from this one, in that a gun was used, and in that there was no apparent indication of spontaneous reaction. The essence of the holding is that the defendant's reckless discharge of the gun precluded a claim of defense of property.
The problem of alternative instruction has vexed our courts for several years. State v. Anding, 752 S.W.2d 59 (Mo.banc 1988) was a case in which a jury reached a wholly irrational verdict of manslaughter, whereas the evidence showed that the defendant procured others to commit a murder, and should therefore have been found guilty of first degree murder or acquitted. The court held that the defendant's objection to the manslaughter instruction should have been sustained, and that the conviction based on the irrational verdict could not stand. This holding led to a series of cases in which trial judges limited the alternatives available to the jury, and there were numerous reversals. See, State v. Simmons, 725 S.W.2d 162 (Mo.App. 1987), State v. Tilley; 826 S.W.2d 1 (Mo.App.E.D. 1991) and State v. Huffman, 711 S.W.2d 192 (Mo.App.E.D. 1986) all cited in the principal opinion. The Supreme Court has made it clear in State v. Santillan, 948 S.W.2d 574 (Mo.banc 1997) and State v. Redmond, 937 S.W.2d 205 (Mo.banc 1996), that the court should freely allow criminal defendants to argue their contentions arising from the facts. The approach the majority opinion takes is not consistent with these holdings.
The jury, of course, might be totally unpersuaded by the defendant. The trial judge, given the severity of the sentence, obviously did not believe him. That was the judge's privilege, when the duty of sentencing fell to him. But the defendant and his counsel should be given the chance to argue his version of the facts to the jury. The jury well might believe that the defendant had no reason to fear for his life, or to fear serious bodily injury, and that, under the instructions given, it had no alternative to a guilty verdict.
Missouri has traditionally placed great emphasis on legally correct instructions. Error in instructions, properly preserved by request or objection, mandates reversal.
I would affirm the convictions which were not appealed from and on which the sentence has already been served. I do not disagree with the majority on the question of newly discovered evidence, but find it unnecessary to reach that issue because the problem could be corrected on retrial. I would reverse the judgments of the conviction for assault in the first degree and armed criminal action, and remand the case for new trial.