Sunday, December 3, 2017

State v. Clay

            In State v. Clay, defendant Clay appealed his conviction for second degree murder and armed criminal action citing improper jury instructions even though his counsel actively participated in the drafting of the instructions.[1]  Defense counsel failed to request, or object to the absence of, “withdrawal” language in the self-defense instruction proffered to the jury at the trial court.[2]  Consequently, the jury never considered whether Clay had regained the privilege of self-defense after he was found to be the initial aggressor.[3]  The Supreme Court of Missouri properly affirmed Clay’s conviction[4] and reestablished the historical maxim that “nullus commondum capere protest de injuria sua propria,” or “no one shall be allowed to profit from his own wrong.”[5]

I. Facts and Holding
            On March 3, 2013, defendant Clay hosted three men at his house: Steven McGhee, Jeff Becklean, and Joel White.[6]  Clay and White began an argument that quickly escalated into a physical altercation.[7]  As a result, Clay stabbed McGhee twice in the arm and White at least twice.[8]  It is unclear whether McGhee attempted to break up the fight or was also attacking Clay.[9]  Defendant Clay then walked upstairs, retrieved his gun, and demanded the three men leave his house.[10] 
The three men obediently exited his house, but remained on his driveway.[11]  Clay walked outside with his gun and demanded the three men leave his property, which began another verbal altercation with White.[12]  At trial, Clay testified that he followed the three men outside with his gun because he was worried White would damage his truck.[13]  Defendant Clay then shot and killed White.[14] Clay was subsequently charged with second degree assault and armed criminal action for stabbing McGhee and second degree murder and armed criminal action for shooting White.[15]
            In his 2015 jury trial, Clay argued he stabbed McGhee while defending himself from White’s attack and shot White in self-defense after White attacked and threatened him in his driveway.[16]  Clay testified he walked White off his property and began walking back to his house until White followed him back and grabbed his arm.[17]  Clay asserted he then shot White.[18]
Becklean testified he was unsure who started the fight in the basement, but White threw the first punch.[19]  He also testified the defendant pistol whipped White with his gun and White “pitched forward” before he was shot by defendant Clay.[20]  Additionally, video from a neighbor’s security camera was admitted into evidence.[21]
The jury convicted defendant Clay of second degree murder and felony armed criminal action in the killing of White, but acquitted Clay of the charges for stabbing McGhee.[22] Clay appealed.[23]

II. Legal Background
            Missouri Revised Statutes section 563.031.1(1)(a) avers the initial aggressor cannot use force in self-defense unless “[h]e or she has withdrawn from the encounter and effectively communicated such withdrawal” and the other combatant “persists in continuing the incident by the use or threatened use of unlawful force.”[24]  The Missouri Approved Instructions mirror the statute, providing optional “withdrawal” language should there be “evidence that the defendant withdrew from the encounter.”[25]
            State v. Westfall held “failure to instruct upon [self-defense] supported by the evidence is plain error affecting substantial rights.”[26]  Three years later, the Missouri Court of Appeals, Western District, held a defendant did not waive plain error review of his self-defense instruction even though it was proffered by the defendant.[27]  In 2012, the Supreme Court of Missouri overruled the court of appeals, announcing in State v. Bolden it “defies logic and the clear directives of Missouri law” to permit a defendant to proffer an instruction to the trial court, and then complain that the trial court’s submission of that instruction to the jury is reversible error.[28]

III. Instant Decision
            Defendant Clay appealed his conviction asserting three counts of instructional error – two of which claimed the trial court improperly instructed the jury on self-defense.[29]  More specifically, Clay asserted the trial court plainly erred by submitting the Missouri Approved Instruction without the “withdrawal” language and corresponding statute.[30]  The “withdrawal” language would have instructed the jury to determine whether Clay had regained the privilege of self-defense by withdrawing from the conflict.[31]
            The court noted the Missouri Approved Instruction with “withdrawal” language would have been appropriate because the defendant testified at trial, which was sufficient evidence of self-defense to merit the Instruction.[32]  Clay argued he had not waived the plain error review of the instruction because the instruction contained the notation: “Submitted by Plaintiff.”[33]  After reviewing the record, the court disagreed, observing that Clay’s counsel actively participated in drafting and submitting the self-defense instruction to the trial court.[34]  As evidence, the court reminded Clay his counsel aided in striking “from harm” from the prosecution’s proposed instruction.[35]  Further, after the trial court received the proposed instruction from the prosecutor, it invited Clay’s attorney to review any recent changes.[36]  After reviewing the proposed instruction, Clay’s counsel stated: “Looks good.”[37]  Consequently, the court rejected Clay’s appeal that the trial court improperly instructed the jury, holding that it could not permit Clay to “take advantage of self-invited error, or error of his own making.”[38]
            Clay also appealed asserting the trial court erroneously failed to instruct the jury on the lesser included offense of voluntary manslaughter, failing to exclude evidence of Clay’s possession and use of marijuana and marijuana paraphernalia, and failing to exclude evidence of Clay’s brass knuckles.[39]  In affirming the trial court’s judgment, the Supreme Court of Missouri rejected all of Clay’s points of appeal.[40]
IV. Comment
            In properly affirming Clay’s conviction,[41] the Supreme Court of Missouri upheld the common law principle that one should not benefit from their own wrongdoing.[42]  It could be argued it was Clay’s attorney who made the mistake, not Clay himself.  Had there been evidence beyond Clay’s testimony that indicated he acted in self-defense, the court may have focused on the mistakes of Clay’s counsel, rather than Clay, in reversing the conviction.  While the contents of the neighbor’s video of the incident were never cited in the court’s opinion, the Kansas City Star’s article on the jury verdict indicated that it conflicted with Clay’s testimony.[43]  The Supreme Court of Missouri was not going to deviate from judicial norm unless there was believable evidence. 
-  Gavin Thomas

[1] State v. Clay, No. SC96016, 2017 Mo. LEXIS 480 (Mo. 2017) (en banc).
[2] Id. at *7-8.
[3] Id. at *6-7.
[4] Id. at *21-22.
[5] Neiman v. Hurff, 93 A.2d 345, 347 (N.J. 1952).
[6] Clay, at *2.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *2-3.
[11] Id. at *3.
[12] Id.
[13] Id. at *4.
[14] Id. at *3.
[15] Id.
[16] Id.
[17] Id. at *4.
[18] Id. at *4-5.
[19] Id. at *3-4.
[20] Id. at *4.
[21] Id. According to an article in the Kansas City Star, the neighbor’s security video contradicted Clay’s testimony. The video did not show White lunging toward Clay requiring Clay to shoot in self-defense. Glenn E. Rice, Kansas City killer gets 25-year prison sentence, The Kansas City Star (2015), (last visited Nov 20, 2017).
[22] Id. at *5.
[23] Id.
[24] Mo. Rev. Stat. § 563.031.1(1)(a).
[25] Clay, at *7 (quoting Notes on Use, paragraph 4(a)).
[26] 75 S.W.3d 278, 281 (Mo. 2002) (en banc).
[27] State v. Beck, 167 S.W.3d 767, 777 (Mo. App. 2005) (emphasis added).
[28] 371 S.W.3d 802, 806 (Mo. 2012) (en banc).
[29] Clay, at *5.
[30] Id. at *5-6.
[31] Id. at *6.
[32] Id. at *7.
[33] Id. at *8.
[34] Id.
[35] Id. at *8-9.
[36] Id. at *9.
[37] Id.
[38] Id. at *13 (quoting State v. Oudin, 403 S.W.3d 693, 698 n.10 (2013)).
[39] Id. at *13-17
[40] Id. at *22. These points of appeal are beyond the scope of this Note.
[41] Id.
[42] Neiman v. Hurff, 93 A.2d 345, 347 (N.J. 1952).
[43] Glenn E. Rice, Kansas City killer gets 25-year prison sentence, The Kansas City Star (2015), (last visited Nov 20, 2017).