DocketNumber: No. SC 96650
Citation Numbers: 540 S.W.3d 858
Judges: Powell
Filed Date: 2/13/2018
Status: Precedential
Modified Date: 1/21/2022
Thomas Oates was charged with two counts of second-degree murder (conventional murder) and two counts of armed criminal action. A jury convicted Oates of two counts of second-degree murder (felony murder) and two counts of armed criminal action. On appeal, Oates argues the circuit court erred in: (1) refusing to instruct the jury on self-defense as to felony murder; and (2) submitting instructions on felony murder for the second-degree murder counts. The circuit court's judgment is affirmed.
I. Factual and Procedural History
Oates went to a gas station to sell marijuana to a prospective buyer, Darrah Lane, who had arranged the meeting. Oates brought a gun with him. When Oates arrived, he walked over to Lane's vehicle. She was seated in the driver's seat and accompanied by Leon Davis, who sat in the passenger's seat. With the driver's side window down, Oates leaned into the vehicle to discuss the sale and presented a plastic storage container full of marijuana. Lane took the lid off the container, smelled the marijuana, and passed the container to Davis. As Davis examined the marijuana, the parties negotiated the sale. When the parties could not come to an agreement, Oates reached into the vehicle in an attempt to retrieve the marijuana from Davis. At that point, Lane stepped on the vehicle's gas pedal. Oates, caught halfway in the moving vehicle, lunged into the vehicle through the window and fell into the backseat. Oates then shot and killed both Lane and Davis.
Oates was charged with two counts of second-degree murder and two counts of armed criminal action. For the second-degree murder counts, the indictment charged Oates with "conventional murder" rather than "felony murder."
At trial, Oates testified that, after he fell into the backseat of Lane's vehicle, Davis pulled out a gun. Believing Davis was going to shoot him, Oates pulled out his own gun and shot Davis. Oates further testified Lane then reached for Davis' gun, and Oates shot her because he believed Lane was going to shoot him.
For the second-degree murder counts, the circuit court instructed the jury on conventional murder, the lesser offenses of voluntary manslaughter and involuntary manslaughter, and, in the alternative, felony murder. At Oates' request, the circuit court instructed the jury on self-defense as to conventional murder, voluntary manslaughter, and involuntary manslaughter. The circuit court, however, refused Oates' request to instruct the jury on self-defense as to felony murder, reasoning self-defense was not a defense to felony murder as a matter of law.
The jury convicted Oates of two alternative counts of felony murder and the accompanying two counts of armed criminal action. Oates filed a motion for new trial, arguing the circuit court erred in refusing to instruct the jury on self-defense as to felony murder and in submitting instructions on felony murder for the second-degree murder counts. The circuit court overruled Oates' motion. Oates appealed and, after opinion, the court of appeals transferred the case to this Court pursuant to article V, § 10 of the Missouri Constitution.
II. Refusing to Instruct on Self-Defense as to Felony Murder
In his first point on appeal, Oates argues the circuit court erred in refusing to instruct the jury on self-defense as to felony murder. This Court has previously held self-defense, as a matter of law, is not a defense to felony murder. See, e.g., State v. Newman ,
Turning to Oates' argument, he cites §§ 563.031.1 and 563.074.1
While Oates is correct that § 563.031.1(3) did not preclude self-defense as a justification for his use of force because he was not committing a forcible felony,
Accordingly, the dispositive question is whether Oates was prosecuted for his use of force, which self-defense could justify, or for a different act not involving the use of force, which self-defense could not justify. When a defendant's use of force causes the death of a person and the State charges the defendant with conventional murder or manslaughter , the criminal act being prosecuted is the defendant's use of force. See §§ 565.021.1(1), 565.023.1(1), 565.024.1(1), RSMo 2000. As such, self-defense is an available justification. See §§ 563.031.1, 563.074.1. Therefore, the circuit court in this case appropriately instructed the jury on self-defense as to conventional murder, voluntary manslaughter, and involuntary manslaughter. But felony murder is different. When a defendant's use of force causes the death of a person and the defendant is charged with felony murder , the criminal act being prosecuted is not necessarily the defendant's use of force.
A person commits felony murder if he or she "commits any felony and, in the perpetration of that felony, another person dies as a result of the perpetration of that felony." State v. Burrell ,
*862Burrell ,
Such is the case here. Because Oates' underlying felony for felony murder did not involve the use of force, he was not prosecuted for his use of force. Rather, he was prosecuted for committing a felony (attempting to distribute a controlled substance) that resulted in the death of the victims. Consistent with the statutory definition of felony murder, Oates was not prosecuted for felony murder because it was his use of force that caused the victims' deaths; he was prosecuted for felony murder because he committed a drug felony that resulted in their deaths.
The verdict directors confirm this. For conventional murder, voluntary manslaughter, and involuntary manslaughter, the verdict directors each required the jury to find "the defendant caused the death of [the victim] by shooting [him or her]." Requiring the jury to find Oates shot the victim necessarily required the jury to find Oates used force, evincing prosecution for his use of force. In contrast, the verdict directors for felony murder required the jury to find Oates "committed attempted distribution of a controlled substance," "[the victim] was killed by being shot," and "[the victim] was killed as a result of the perpetration of that attempted distribution of a controlled substance." Most notably, the verdict directors for felony murder did not require the jury to find Oates shot the victim and, therefore, did not require the jury to find Oates used force. Unlike the other verdict directors, the verdict directors for felony murder reflected prosecution for deaths that occurred as a result of a felony, not Oates' use of force.
In short, because self-defense justifies only the use of force, it is a defense only to prosecution for the defendant's use of force. See §§ 563.031.1, 563.074.1. For felony murder, Oates was not prosecuted for his use of force. Therefore, the circuit court did not err in refusing to instruct on self-defense as to felony murder. Point I is denied.
III. Submitting Instructions on Felony Murder
In his second point on appeal, Oates argues the circuit court erred in submitting instructions on felony murder for the second-degree murder counts. Relying on several state and federal constitutional provisions, Oates argues submitting the felony-murder instructions violated his constitutional rights to due process and to be tried for the offenses for which he was *863charged in that he was indicted only on conventional murder for the second-degree murder counts, and felony murder is not an included offense of conventional murder. When the State filed a notice of intention to submit felony murder as an alternative to conventional murder, Oates filed a motion to strike the notice. Oates' motion to strike, however, did not invoke any of the constitutional provisions on which he now relies. "To preserve a constitutional claim of error, the claim must be raised at the first opportunity with citation to specific constitutional sections." State v. Driskill ,
Oates' unpreserved constitutional claim is subject to discretionary review only for plain error. See Driskill ,
IV. Conclusion
The circuit court's judgment is affirmed.
All concur.
The offense of second-degree murder has two different provisions and manners of committing the offense. See § 565.021.1, RSMo 2000. For ease and distinction, this Court will refer to the different provisions and manners as "conventional murder" and "felony murder." A person commits second-degree murder under the conventional murder provision if he or she "[k]nowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person." Section 565.021.1(1), RSMo 2000. A person commits second-degree murder under the felony murder provision if he or she "[c]ommits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony." Section 565.021.1(2), RSMo 2000.
"Statutory interpretation is an issue of law that this Court reviews de novo." State v. Johnson ,
Statutory citations are to RSMo Supp. 2011 unless otherwise indicated.
"Forcible felony" is defined as "any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense." Section 563.011(3).
If the underlying felony involves the defendant's use of force, then a prosecution for felony murder would be a prosecution for the defendant's use of force. However, § 563.031.1(3) precludes self-defense from being an available justification if the defendant was committing a "forcible felony."