Reply Brief of Samuel Whitaker in SC98856

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IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. SC98856 ) SAMUEL WHITAKER, ) ) Appellant. )

APPEAL TO THE SUPREME COURT OF MISSOURI FROM THE CIRCUIT COURT OF IRON COUNTY, MISSOURI FORTY-SECOND JUDICIAL CIRCUIT THE HONORABLE KELLY W. PARKER, JUDGE

APPELLANT’S SUBSTITUTE REPLY BRIEF

James Egan Mo. Bar No. 52913 Attorney for Appellant Woodrail Centre 1000 West Nifong Building 7 Suite 100 Columbia, Missouri 65203 Phone: (573) 777-9977 Fax: (573) 777-9974 Email: [email protected]

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INDEX

Page

TABLE OF AUTHORITIES ...... 3

JURISDICTIONAL STATEMENT ...... 4

STATEMENT OF FACTS ...... 5

ARGUMENT ...... 6

CONCLUSION ...... 21

CERTIFICATE OF COMPLIANCE ...... 22

APPENDIX

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TABLE OF AUTHORITIES

Page

CASES:

State v. Avery, 120 S.W.3d 196 (Mo. banc 2003) ...... 13

State v. Barnett, 577 S.W.3d 124 (Mo. banc 2019) ...... 14-15

State v. Bruner, 541 S.W.3d 529 (Mo. banc 2018) ...... 11, 12-13, 15, 20,

State v. Hayes, 785 S.W.2d 661 (Mo. App. W.D. 1990) ...... 9

State v. Kendrick, 550 S.W.2d 117 (Mo. App. W.D. 2018) ...... 20

State v. Ryan, 229 S.W.3d 281 (Mo. App. S.D. 2007) ...... 6-7, 8

State v. Waller, 816 S.W.2d 212 (Mo. banc 1991) ...... 6, 8

State v. Westfall, 75 S.W.3d 278 (Mo. banc 2002) ...... 12-13

State v. Whipple, 501 S.W.3d 507 (Mo. App. E.D. 2016) ...... 20

CONSTITUTIONAL PROVISIONS:

U.S. Const., Amend. VI ...... 6, 11

U.S. Const., Amend. XIV ...... 6, 11

Mo. Const., Art. I, § 10 ...... 6, 11

Mo. Const., Art. I, § 18(a) ...... 6, 11

STATUTES

Section 563.031 RSMo. (Cum. Supp. 2010) ...... 17, 18

Section 569.160 RSMo. (2000) ...... 18

Section 569.170 RSMo. (2000) ...... 18

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JURISDICTIONAL STATEMENT

Sam incorporates the Jurisdictional Statement from his initial brief here.

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STATEMENT OF FACTS

Sam incorporates the Statement of Facts from his initial brief here.

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ARGUMENT

The trial court erred in excluding Defendant’s Exhibit EE, which was a properly certified conviction of the victim for aggravated battery from 1991, because this action violated Sam’s right to a fair trial and the right to due process guaranteed by the Sixth and Fourteenth Amendment to the United

States Constitution and Article I, Sections 10 and 18(a) of the Missouri

Constitution, in that the evidence was appropriate corroboration of Sam’s testimony about the conviction. Sam was prejudiced because his credibility about his version of events was critical to his defense of self-defense and any argument concerning the remoteness in time of the conviction was not relevant as Sam had already testified about the conviction.

A. The State’s reliance on State v. Ryan, and State v. Waller is misplaced.

In its brief, the State argued the case of State v. Ryan, 229 S.W.3d 281 (Mo.

App. S.D. 2007) supported the exclusion of Defendant’s Exhibit EE (State’s Brief, pp.

21-22). However, Ryan does not support the State’s argument. In Ryan, the defense wanted to present certain acts of violence by the victim. Id. at 285. The trial court allowed the defendant to testify about the victim’s prior acts of violence towards himself and a woman named Rebecca, but it would not allow any other evidence of this, including cross-examination of Rebecca. Id. at 285-86. In the offer of proof,

Rebecca testified there had been between two and ten incidents of physical abuse. Id.

The trial court also excluded another witness’ testimony regarding the victim’s abuse

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towards Rebecca. Id. In an offer of proof, this witness testified that Rebecca had told her that the victim had abused her in the past. Id.

The Court of Appeals held that the trial court did not abuse its discretion because the evidence of victim’s abuse towards Rebecca was not relevant to show why the defendant was afraid of the victim. Id. Specifically, the trial court noted that the defendant’s own testimony about the victim’s abuse towards Rebecca was not specific, and the type of abuse towards Rebecca was not “of a similar quality as those allegedly committed by [v]ictim preceding the attack.”

Ryan is not applicable to Sam’s case. Sam was not seeking to have any witnesses testify as to prior acts of Streeval against another person. Nor was Sam trying to introduce any evidence as to the specifics of the past event. Rather, Sam was wanting to present the conviction to corroborate that Streeval had, in fact, gone to prison for assaulting someone. The defense made it clear that the purpose of the evidence was for corroboration, not to show that Sam was afraid of Streeval.

Moreover, as Sam discussed in his initial brief, Sam testified that he knew Streeval had gone to prison for a long period of time, and that Streeval said that he “bashed a homosexual” (TR 545). This is certainly the type of act that is “of a quality of contributing Sam’s fear of the victim.” This incident showed that Streeval was a violent man who would use any pre-text to act aggressively against a person.

Moreover, the fact that Streeval continued to brag about this incident in the present raises the inference that when he bragged about this past behavior, he was threatening to repeat it in the present. This implied threat of repeating the behavior in the present

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makes the past behavior relevant as to what Sam reasonably believed Streeval was going to do in the present.

The State, in its brief, also cited to this Court’s holding in State v. Waller, 816

S.W.2d 212, 216-18 (Mo. banc 1991), as support for the trial court’s ruling. The State noted that Waller cautioned against allowing into evidence prior acts of the victim that are too remote in time and also that trial courts should not “permit matters of questionable relevance” (State’s Brief, p. 23). Waller, however, is just as unhelpful to the State as Ryan for two reasons. First, the issue of the conviction being too remote in time is not applicable here as Streeval bragged about it in the present and implied he would repeat this behavior in the present.

Second, the State conveniently ignored Waller’s holding that a defendant

“should be permitted to substantiate his claim of justification[.]” Id. at 216. The independent proof of Streeval’s conviction was necessary to help Sam substantiate his claim of justification by helping to show that Sam was testifying honestly when he testified that Streeval had an assault conviction and that he went to prison for it when he was younger. Sam testified about Streeval’s conviction from 1991 (TR 545). Sam was also allowed to testify that Streeval went to prison for ten to fifteen years when he was young (TR 545). Defendant’s Exhibit EE showed that Streeval was born in 1971.

Therefore, Streeval would have been in his twenties when he went to prison.

Defendant’s Exhibit EE would have corroborated Sam’s testimony that Streeval had a conviction that he went to prison for when he was young. This corroboration would

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have substantiated Sam’s claim of justification by showing the jury his testimony could be trusted.

It cannot be overstated that Sam’s credibility was crucial to his defense, and the only evidence of Streeval’s conviction was Sam’s own testimony. As Sam noted in his initial brief, Missouri courts have acknowledged that a defendant’s testimony is viewed with skepticism, and that corroboration is critical. See State v. Hayes, 785

S.W.2d 661, 663 (Mo. App. W.D. 1990). The State argued that Hayes does not stand for the proposition that a trial court must allow “any evidence the defendant claims is corroborative” (State’s Brief, p. 25). Sam is not suggesting that it does. But it would defy logic to ignore the likely scenario that at least some jurors were wondering why the defense did not provide proof of this conviction. Indeed, in closing argument, the prosecutor argued to the jury that if a deed existed showing Sam to be the owner of the property existed, he would have presented it (TR 748). While the prosecutor did not directly argue to the jury that an adverse inference should be drawn by the absence of independent proof of Streeval’s conviction, it is highly unlikely that the jury would not have also considered the lack of corroboration on other aspects of

Sam’s testimony.

Finally, in its brief, the State argued:

But the certified copy of the conviction was not probative on Defendant’s knowledge of Victim’s conviction. (Tr. 547). Defendant only knew what Victim had told him. Offering the exhibit was simply an effort to show that Victim acted in conformity with a prior bad act. This is not permitted.

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(State’s Brief, p. 24). This argument is completely without merit. The certified copy of the conviction would have shown the jury that Streeval actually had a conviction that Sam knew about. Sam’s credibility was crucial. Without this corroboration, there is a reasonable probability that the jury viewed Sam’s testimony with more skepticism, particularly given that it concerned the victim in this case.

The trial court erred when it did not allow the defense to present Defendant’s

Exhibit EE into evidence and Sam was prejudiced. This Court should reverse Sam’s conviction on Count I and remand his case for a new trial. Since the conviction on

Count II was predicated on a finding of guilt on Count I, the conviction for Count II must also be reversed and remanded for a new trial.

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II.

The trial court erred by refusing to submit to the jury Defendant’s proposed self-defense instruction, which included arson as a forcible felony in addition to burglary, because this action violated Sam’s right to a fair trial and the right to due process guaranteed by the Sixth and Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the

Missouri Constitution, in that there was substantial evidence Sam reasonably believed that the victim was going to commit the act of arson and the law allows deadly force to be used to protect one’s self from the forcible felony of arson.

A. The State ignored the standard of review.

In its brief, the State argued:

To be entitled to a self-defense instruction, the defendant bears the burden of injecting the issue of justification by showing that there is “substantial evidence” of self-defense, which means that there is evidence putting the matter of self-defense in issue. [State v.] Bruner, 541 S.W.3d (529], 534-536 [Mo banc 2018). While the evidence is viewed in the light most favorable to the defendant, this does not mean that this Court “must disregard all evidence contrary to the giving of the self-defense instruction,” nor will the Court supply missing inferences. Id. at 534 n.2. (State’s Brief, p. 33). Later in its brief, the State argued:

Here, there was no evidence that Defendant had a reasonable belief that he needed to use deadly force to defend himself against the crime of arson at the time he shot Victim inside the trailer. (Tr. 673). As the trial court noted, viewing the light in the evidence most favorable to giving the instruction, Defendant was leaving the trailer with the gas jug when he killed Victim and he did not kill Victim in order to protect himself from the crime of arson….

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Defendant’s argument ignores the fact that there is no evidence that Defendant was aware that Victim had two lighters in his pocket at the time he was killed. His argument also ignores the fact that Defendant testified that he saw Victim abandon the gas jug before shutting himself in the master bathroom away from Defendant. (Tr. 578-579, 642-644, 648). Defendant testified that he heard Victim on the phone with the police screaming for help. (Tr. 578-579, 642-644, 648). His argument additionally fails to account for the fact that Defendant stated that he walked down the hallway and picked up the can of gas and presumably was able to feel and hear whether or not the can was full or empty. (Tr. 581). The argument also ignores the fact that Defendant would have been able to smell and see a fire if one had been set in the immediate enclosed space, and that Defendant did not state that he had a reasonable fear after he picked up the gasoline jug that Victim was going to set the trailer on fire. (Tr. 582-84). The argument is illogical because it would mean that Defendant, who was familiar with the layout of the trailer, had a belief that Victim was going to barricade himself inside a bathroom with no immediate means of exiting the trailer and set the trailer on fire in the hopes of causing Defendant, who was armed and able to freely exit the trailer, serious physical injury. Defendant’s argument makes no sense.

(State’s Brief, pp. 37, 38-39). The State’s argument ignored the standard of review.

Its argument has taken language from a footnote from this Court’s holding in Bruner, and has used that language to justify using evidence that is not favorable to giving the instruction that included arson as a forcible felony. Regarding the quote from the footnote, this Court stated:

The dissent argues that, in viewing the evidence in the light most favorable to the defendant, this Court must both give the defendant all reasonable inferences and disregard all evidence contrary to giving the self-defense instruction. It cites to Westfall, which simply holds, “Moreover, an instruction on self-defense must be given when substantial evidence is adduced to support it, even when that evidence is inconsistent with the defendant’s testimony.” 75 S.W.3d at 281. That quote

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does not support the proposition that this Court must disregard all evidence contrary to the giving of the self-defense instruction but rather simply reflects what this Court held in State v. Avery, 120 S.W.3d 196, 201 (Mo. banc 2003), that “self-defense is submissible, even where the defendant testifies that the killing was an accident, if the inconsistent evidence of self-defense is offered by the State or by defendant through the testimony of a third party.” Contrary to the dissent’s argument in favor of submitting a self-defense instruction, this does not either authorize or require the courts to supply speculative or missing inferences, nor does it transform mere words or threats or simple assaults into justification for using deadly force.

Bruner, 541 S.W.3d at 534 (emphasis added). A look at the language from Bruner, however, shows how the State has taken the language from this footnote out of context.

In Bruner, the defendant was convicted of first degree murder and argued on appeal that a self-defense instruction should have been submitted to the jury. Bruner,

541 S.W.3d at 530. This Court rejected this claim holding that, at most, the evidence showed the victim was swearing, threatening the defendant, and about to grab him.

Id. at 538. This was not enough to justify the use of deadly force. Id. This Court also reaffirmed the principle that words alone do not justify the use of deadly force. Id.

This Court stated that it did view the evidence in a light most favorable to the defendant but that, it would not give “him unreasonable, speculative, or forced inferences[.]” Id.

Thus, the language from the footnote and the general opinion indicate that while the evidence must be looked at in a light most favorable to the defendant, the

Court may not supply speculative or forced inferences. Regarding the comment about

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disregarding contrary evidence and inferences, the language from the footnote is not saying that is not correct. Rather it is saying that the case the dissent cited did not support that argument. Moreover, this Court’s opinion in State v. Barnett, 577

S.W.3d 124 (Mo. banc 2019), does demonstrate that contrary evidence and inferences should be disregarded.

In Barnett, the defense asked for a self-defense instruction, but this was denied when the trial court sustained the State’s objection to the instruction because the defendant denied committing the stabbing. Id at 126. This Court held that as long as there was substantial evidence to support the instruction, it must be given, even if the defendant’s own testimony does not support it. Id. at 127. This Court held that

“substantial evidence” meant “any theory of innocence…however improbable that theory may seem, so long as the most favorable construction of the evidence supports it. Id. at 128. (citation and internal quotations omitted). “ If the evidence tends to establish the defendant’s theory, or supports differing conclusions, the defendant is entitled to an instruction on it.” Id. (citation and internal quotations omitted). This

Court then repeated the evidence that was presented at trial, crossing out the evidence that did not support the self-defense instruction. Id. at 129.

Moreover, this Court in Barnett stated:

To be sure, there is ample evidence in this case negating self- defense. Under the standard set forth in [State v.] Cole, [377 S.W.2d 306 (Mo. 1964)], however, the Court can consider only the evidence that supports a self-defense instruction. Cole, 377 S.W.2d at 307. Here, when only the above mentioned evidence is considered, there can be no doubt substantial evidence exists to support a theory of self-defense.

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Barnett, 577 S.W.3d at 129 (emphasis in original). Thus, even though there may be evidence in the record that negates self-defense in Sam’s case, this Court may consider only the evidence that supports a self-defense instruction.

The State, however, took the language from the footnote in Bruner out of context, and it ignored this Courts analysis from Barnett altogether. The State then proceeded to argue that some of the defendant’s own testimony did not support the self-defense instruction, and these statements supported its argument that the self- defense instruction was not warranted. Indeed it even claimed that the trial court still considered the evidence in a light most favorable to Sam when it based its decision to not submit the requested self-defense instruction on a statement Sam made in his testimony. See Respondent’s Brief, p. 37. In other words, the State made arguments that are appropriate for a jury, not this Court.

For example, the State asserted that Sam’s argument about Streeval having two lighters is something Sam did not know. This is true, but given that Streeval had two lighters, and that no evidence was presented that Streeval was a smoker, the presence of the lighter helped to confirm that Sam’s concern about Streeval burning down the house was valid.

The State argued that Sam saw Streeval “abandon” the gas can. However, that does not mean that Sam had not already poured out gasoline in the bathroom. The

State argued that Sam would presumably be able to tell if the gas can was full or empty, but this assumed the entire gas can was used. The bathroom was not that big and it would not have taken that much gas to be an accelerant.

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The State argued that Sam would have been able to smell and see a fire if one had been set. That argument fails for the simple reason the fire may not have been set yet. The State argued that Sam did not testify “he had a reasonable fear after he picked up the gasoline jug that [Streeval] was going to set the trailer on fire.” This argument fails, however, because Sam testified that when Streeval had kicked the door on top of him, he was trying to get the gas can out of the house so that Streeval did not burn down the trailer (TR 583). Thus, Sam had a reasonable fear that Streeval was going to set the house on fire. Further, it is a reasonable inference that Sam believed Streeval was going to take the gas can and use it to start the fire after kicking the door on top of him. Since Sam had no duty to retreat, he was in imminent danger of being harmed from flames and smoke once the fire had started.

The State argued that Sam’s argument was illogical since it would mean Sam would have to believe that Streeval was going to set the fire while he was in the bathroom with no means of escape. The flaw in the State’s argument is that it ignored the standard of review. According to Sam’s testimony, Streeval was acting irrationally by ranting about burning his face off (TR 626). Streeval also tried to grab the shotgun from Sam (TR 575). Then after being shot, Streeval picked up a gas can and ran into the trailer (TR 576). This behavior showed that Streeval was not thinking or behaving rationally, and Sam cannot be faulted for being concerned that Streeval’s irrational behavior would continue inside the trailer.

Moreover, even if Sam’s testimony of what he did once inside the trailer is disregarded, there is still substantial evidence that Sam acted in self-defense. Given

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that Streeval threatened to burn down buildings on the property, including the disputed property (TR 459, 473, 475, 489, 494, 556, 574), and given that Streeval had the presence of mind to carry a gas can into the trailer after being shot, Sam had a reasonable belief that Streeval was going to burn down the trailer. Once inside the trailer, Sam had no duty to retreat. Further, there was no evidence that the fire department was close by or that there were fire extinguishers in the house. Since he had no duty to retreat, Sam would be in imminent harm once the fire had been started.

Therefore, even if Sam had walked down the hall and shot Streeval, substantial evidence would exist that he was acting in self-defense to protect himself from the forcible felony of arson.

The State’s arguments are arguments for a jury, not this Court. Should this

Court grant Sam relief by reversing his convictions and remanding for a new trial, the prosecutor will be free to make these arguments to a jury to attempt to convince them that Sam did not act in self-defense.

Looking at the evidence in a light most favorable to the verdict, Sam was not the initial aggressor. See section 563.031.1. 1 Streeval tried to first take the gun away from Sam and then ran into Sam’s house with the intention to commit arson. Sam had no duty to retreat, as he was in his house on his property. See section 563.031.3

Finally, Sam reasonably believed that he needed to use deadly force to protect himself

1 Cum. Supp. 2010. 17

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from the forcible felony of arson. See section 563.031.2(1). Sam should have been able to submit the self-defense instruction that included arson as a forcible felony.

B. The self-defense instruction that was submitted was not broad enough

to include Sam’s theory that he was acting in self-defense from the

forcible felony of arson.

In its brief, the State argued that Sam was not prejudiced since the self-defense instruction included the forcible felony of burglary (State’s Brief, pp. 41-43).

Specifically, the State argued that burglary was defined for the jury as unlawfully entering a building, or unlawfully remaining in a building, with the intent to commit a crime inside (State’s Brief, p. 42). The State argued that arson was one of those offenses and defense counsel argued this to the jury (State’s Brief, pp. 42-43). This argument fails for two reasons.

First, the crime of burglary is committed by entering unlawfully into a building, or remaining unlawfully in a building, with the intent to commit a crime.

See section 569.160 RSMo. (2000) and section 569.170 RSMo. (2000). In other words, entering or remaining unlawfully is the crime. The jury may very well have believed that while the crime the person intends to commit might justify deadly force, the crime of entering or remaining unlawfully with the intent to commit a crime did not in these circumstances. Moreover, the fact that defense counsel argued that arson was one of those crimes does not support the State’s argument. The jury does not receive instructions from the arguments of defense counsel. The jury receives them from the trial court. Therefore, what counsel argued was irrelevant.

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Second, the jury may not have been convinced that Streeval was in the house unlawfully or that his entry into the trailer, if unlawful, was knowing. Throughout the trial, the jury heard conflicting evidence about whose trailer this actually was. Sam was charged in Count III for burglary in the first degree for unlawfully entering an inhabitable structure owned by Streeval for the purpose of committing murder (LF

47). He was acquitted of this charge (LF 36:3). This acquittal, however, does not mean that the jury was convinced that Streeval knew he did not have a right to be in the building. The instruction specifically stated that a person commits burglary if he knowingly enters unlawfully or knowingly remains unlawfully (LF 33:6). Unless the jury believed Streeval was in the building unlawfully, and knew that he was, it would not have found he was committing burglary. Thus, the crime of arson would not have been included. Therefore, the failure to include the words “or arson” would have been prejudicial because the jury would not have known that Sam could use deadly force to protect him from the forcible felony of arson even if there was no burglary.

C. The State’s arguments ignored the plain language of the statute and

the changes in the case law.

In its brief, in footnote 7, the State argued that Sam was incorrect that the amendments to the self-defense statute support his argument that being in danger of imminent harm is not necessary in certain circumstances before deadly force may be used (State’s Brief, pp. 37-38). Sam will not repeat his arguments from his original brief here (Appellant’s Substitute Brief, pp. 46).

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However, the cases the State cited show that it has overlooked how self- defense law has changed recently. This is because these cases all applied a different standard of self-defense law. For example, in State v. Whipple, 501 S.W.3d 507, 517

(Mo. App. E.D. 2016), the Court of Appeals applied a four-part test before force and deadly force could be used:

1) [the defendant] did not provoke or was not the aggressor; (2) [the defendant] had reasonable grounds for believing he was faced with immediate danger of serious bodily harm; (3) [the defendant] did not use more force than was reasonably necessary; and (4) [the defendant] did everything in his power and consistent with his own safety to avoid the danger.

(citation omitted). In Bruner, however, this Court explicitly stated that “it is the statute that necessarily must govern what is required to inject self-defense.

Bruner,541 S.W.3d at 537 (emphasis added). “Reliance on cases addressing what is required under a different test, therefore, is not helpful, and should no longer be followed.” Id. Bruner was decided in 2018. See also State v. Kendrick, 550 S.W.3d

117, 13, n. 4 (Mo. App. W.D. 2018), where the Western District acknowledged that

Bruner “dismissed this four-part as no longer instructive[.]” All of the cases the State cited in footnote 7 were decided before then and thus are not helpful to the State’s argument.

This Court should reverse Sam’s conviction for voluntary manslaughter and remand for a new trial. Since that conviction was the basis for Count II, the armed criminal action conviction, Count II must be reversed and remanded for a new trial as well.

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CONCLUSION

For the foregoing reasons, this Court should reverse Sam’s convictions and remand his case for a new trial.

Respectfully submitted,

/s/ James Egan ______James Egan, Mo. Bar No. 52913 Attorney for Appellant Woodrail Centre 1000 W. Nifong, Building 7, Suite 100 Columbia, MO 65203 Phone: (573) 777-9977 Fax: (573) 777-9974 Email: [email protected]

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Certificate of Compliance

I, James Egan, hereby certify to the following. The attached brief complies with the limitations contained in Rule 84.06(b). The brief was completed using

Microsoft Word, Office 2010, in Times New Roman size 13 point font. Excluding the cover page, the signature block, this certificate of compliance, and appendix, the brief contains 4,444 words, which does not exceed the 7,750 words allowed for an appellant’s reply brief.

/s/ James Egan ______James Egan