MO 404.11 DEFENSES
Missouri Approved Instructions–Criminal (MAI-CR) 4th
In general, the initial preparation of verdict directors, and other instructions, will be the responsibility of the state. The Notes on Use to certain verdict directors provide that the language in the verdict director will be selected at the option of the state. Other verdict directors provide that specific language will be contained in the verdict director only upon the request of the defendant.
The basic premise underlying the options to submit defenses under MAI-CR 4th is that the parties should be allowed to choose the theories upon which their case will be presented to the jury. Thus, in many of the verdict directors, the state is given options as to how to submit elements of the offense and may elect to undertake a greater burden than the law requires if such a submission fits the facts of its case and will be easier to present to the jury.
In a number of instances, the Notes on Use provide that certain instructions “must be given” when the evidence supports them. This is not intended to prohibit the trial judge, in an appropriate case and in the judge’s sole discretion, from permitting the parties, on the record, to waive the giving of such an instruction. There are also instructions that “may be given” at the request of the parties – some upon the request of either party and others only upon the request of the defendant. However, the instruction on entrapment is treated differently. There, the state has the option of requesting the instruction unless the defendant accepts a withdrawal instruction. See MAI-CR 4th 410.28.
In any case where either or both parties are entitled to request an instruction, the court may give the instruction on its own motion except in the following instances:
(a) If prohibited from doing so in the Notes on Use to the instruction;
(b) MAI-CR 4th 408.14 (right of defendant or spouse to refrain from testifying) may not be given on the court’s own motion.
A. Elements in the Verdict Director
The verdict directing instructions set forth elements that must be submitted in all cases. In some instances where an element is essentially a negative one, such as the absence of sudden passion in second degree murder (MAI-CR 4th 414.04), that element is included in the pattern verdict director in parentheses as an element, to be given if called for under the evidence.
Whenever the statute specifies a culpable mental state with regard to one or more elements of the offense, that mental state is included in the verdict director.
Some statutes do not specify a culpable mental state. Consult Section 562.021, RSMo 2016, for an interpretation of these statutes.
Notes on Use to the pattern instruction for the verdict director should always be consulted.
B. Converse Instructions
A defendant is entitled to one converse instruction for each verdict director, which may converse one or more, but less than all, elements submitted in the verdict director. MAI-CR 4th 408.02.
The defendant (and only the defendant) has an option as to the use and the form of such converse. Notes on Use 2 to MAI-CR 4th 408.02.
Special attention should be paid to the treatment of “mistake of fact.” Evidence of a belief (mistaken or not) that is inconsistent with the mental element required for an offense is simply evidence that the defendant lacked the required culpable mental state. Any separate instruction based on such beliefs will simply be a converse to the mental element that it negatives.
C. Special Converse Instructions
MAI-CR 4th 408.02 requires most converses to be in the language of the verdict director. However, MAI-CR 4th 408.03, 408.04, and 408.06 allow the defendant to request instructions negating elements of the state’s case in language other than that used in the verdict director itself.
If defendant maintains that he was somewhere else at the time of the offense, the defendant may submit the alibi “defense” to the jury by requesting MAI-CR 4th 408.04 or 408.06. The verdict director will not cross-reference the alibi “defense” since this “defense” does not alter the elements to be proved by the state.
MAI-CR 4th 408.03 on mental disease or defect negating culpable mental state submits the “defense” that defendant did not have the required mental state. The verdict director will not cross- reference this “defense” since it does not alter the elements to be proved by the state.
The giving of MAI-CR 4th 408.03, 408.04, and 408.06 does not prohibit the giving of an MAI-CR 4th 408.02 converse instruction, except as restricted by Notes on Use 8 to MAI-CR 4th 408.03.
D. Excusable Homicides and Assaults
Section 563.070, RSMo 2016, provides that conduct that would constitute an offense under Chapter 565 “is excusable and not criminal when it is the result of accident in any lawful act by lawful means without knowingly causing or attempting to cause physical injury and without acting with criminal negligence.”
The Missouri Criminal Code requires a specific mental state for all degrees of homicide and assault. Therefore, the submission of what is commonly understood to be the defense of accident, i.e. “I didn’t mean to do it” or “the gun accidentally went off”, is accomplished by the submission of a converse instruction that converses the mental element contained in the verdict director.
With respect to the statutory definition of “excuse” contained in Section 563.070, RSMo 2016, it is impossible for conduct to “constitute an offense under Chapter 565” and still be a “lawful act by lawful means without criminal negligence” because of the Criminal Code’s requirement of a mental state for all homicides and assaults. Therefore, MAI-CR 4th does not contain any instruction based on this statutory definition of “excuse” because it is impossible to hypothesize a set of facts to which the statutory defense of excuse would apply.
E. Special Negative Defenses
The issues at trial upon which the defendant has the burden of injecting the issue (the burden of producing evidence), but the state has the burden of persuasion, have been labeled “special negative defenses.” See Section 556.061(3), RSMo 2016. For example, where evidence of self-defense is introduced in a homicide prosecution, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense.
The directions for “special negative defenses” applicable only to one offense (or closely related family of offenses) appear only in the Notes on Use to the verdict director for the specific offense, e.g., “claim of right” in stealing. See Notes on Use 9 to MAI-CR 4th 424.02.1. “Special negative defenses” applicable to more than one offense are set out in separate instructions, e.g., entrapment. See MAI-CR 4th 410.28. Some “special negative defenses” must be given if supported by the evidence (e.g., self-defense, MAI-CR 4th 406.06), others are available to either party upon request (e.g., involuntary intoxication, MAI-CR 4th 410.52), while still others place the burden upon defendant to request the instruction (e.g., belief in legality of conduct, MAI-CR 4th 408.16). A chart setting out these “special negative defenses” is attached. In considering the “special negative defenses” that might be available in a given case, this chart should always be consulted as well as the Notes on Use to the applicable verdict director.
The pattern verdict director forms do not contain a paragraph in parentheses cross-referencing to “special negative defenses.” For the method of including the reference to a “special negative defense,” see the applicable verdict director and its Notes on Use, the Notes on Use for the “special negative defense,” and Notes on Use 13 to MAI-CR 4th 404.02.
F. Affirmative Defenses
Unlike a “special negative defense,” the defendant bears the risk of nonpersuasion as to an affirmative defense. Section 556.061(2), RSMo 2016. If the jury does not believe that its existence is more probably true than not true, the defendant is not entitled to an acquittal on that basis. One of the affirmative defenses is lack of responsibility by reason of mental disease or defect. See MAI-CR 4th 406.02. When that affirmative defense is submitted, a separate instruction will be given, the “unless” clause of the verdict director will be modified, and the “However” clause deleted. See Notes on Use 15 to MAI-CR 4th 404.02. For example, if there is any evidence to support one of the affirmative defenses to statutory rape in the second degree, the parenthetical material that begins “unless you find and believe” must be given upon request in writing of either party, and, if such parenthetical material is given, the general converse beginning with “However, unless you …” will be omitted. See MAI-CR 4th 420.08. With the exception of lack of responsibility by reason of mental disease or defect, affirmative defenses are instructed only upon request. See the attached chart.
The pattern verdict director forms do not contain a paragraph in parentheses cross-referencing to affirmative defenses. For the method of including the reference to an affirmative defense, see the applicable verdict director and its Notes on Use, the Notes on Use for the affirmative defense, and Notes on Use 13 and 14 to MAI- CR 4th 404.02.
G. Lesser Included Offenses and Lesser Degree Offenses
The submission of an instruction for a lesser included offense is governed by Section 556.046, RSMo 2016, and caselaw interpreting the statute. Section 556.046.1 provides that a person may be convicted of any offense that is included in an offense that has been charged. An offense is considered an included offense when:
(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) it is specifically denominated by statute as a lesser degree of the charged offense; or
(c) it consists of an attempt to commit the offense charged or an attempt to commit an offense otherwise included therein.
A trial court is obligated to provide an instruction on a lesser included offense when the following requirements are met:
(a) a party timely requests the instruction as provided in Rule 28.02; and
(b) there is a basis in the evidence for acquitting the defendant of the charged offense; and
(c) there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested.
State v. Jackson, 435 S.W.3d 390 (Mo. banc 2014). Further, any requested instruction must be in proper form in order to be required. State v. Blurton, 484 S.W.3d 758 (Mo. banc 2016).
A party is entitled to an instruction on any theory the evidence establishes. The jury has the right to disbelieve all or any part of the evidence and the right to refuse to draw inferences from the evidence. This right of the jury to disbelieve the evidence and not draw inferences always supplies a sufficient basis in the evidence for acquitting the defendant of the charged offenses for purposes of determining when the court may instruct on a lesser included offense or must do so when a proper request for such an instruction is made. State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014). A defendant is not required to put on affirmative evidence, cast doubt on the state’s evidence, or negate the differential element of the greater offense for this to be true. Id. And, where the lesser included offense differs from the charged offense only in that it omits one element on which the state bears the burden of proof (i.e., a “nested” lesser included offense, see section 556.046.1(1)), evidence sufficient for the jury to find all of the elements of the charged offense necessarily is sufficient to find all of the elements of the “nested” lesser included offense. Therefore, the court may give (and, if a party makes a proper request, must give) an instruction for a “nested” lesser included offense. Id.
Instructions for lesser included offenses under section 556.046.1(2) and (3), and instructions for more than one lesser included offense for a given count, may be given when the requirements of section 556.046.2 and .3 are met. See Notes on Use 3(b) to MAI-CR 4th 404.02 for the language to be used in the introductory paragraphs for lesser included verdict directors.
Under Rule 28.02, a party shall submit to the court any lesser included instruction the party requests be given. The proffered instruction must be in the proper form. State v. Blurton, 484 S.W.3d 58 (Mo. banc 2016). Even if a defendant does not make a proper request, a valid post-conviction claim may exist if the failure to request the instruction is inadvertence by trial counsel rather than reasonable trial strategy. McNeal v. State, 412 S.W.3d 886 (Mo. banc 2013).
Section 565.029, RSMo 2016, sets out the lesser degree offenses of first and second degree murder charges. See also the Supplemental Notes on Use in MAI-CR 3d 314.00 for a discussion on submitting lesser included offenses in homicides.
H. Enhanced Offenses
Some statutes contain a provision that enhances the punishment if specified circumstances are present. See, e.g., rape in the first degree, Section 566.030.2, RSMo 2016. In general, the pattern verdict directors are drafted to submit the highest class of offense permitted by the statute. The Notes on Use to these verdict directors provide specific directions for modification of the instruction to submit the unenhanced version of the offense. The unenhanced offense may be submissible as a lesser included offense. The Notes on Use should be consulted when drafting a lesser included offense instruction.
I. Use of Evidence
There are several instructions available that provide guidance to the jury as to how to use certain evidence, e.g., MAI-CR 4th 410.40 (character evidence); MAI-CR 4th 410.04 (blood alcohol evidence). For other such instructions, see the instructions contained in the 408 Series and 410 Series.
J. Defenses Not in MAI-CR 4th
The defenses set out in MAI-CR 4th are not meant to be an exclusive list. For defenses not in MAI-CR 4th, use the guide for form of instructions set out in Supreme Court Rule 28.02(d).