The Case of the Shootout at 1860’s Saloon

Discussing: State v. Endicott, ED107254

Opinion filed by the Missouri Court of Appeals, Eastern District, February 25, 2020.

You and your friends just closed down 1860’s in Soulard. It is about 1:30am, and you’re looking to go to a different bar now to keep to the good times rolling. As you are leaving, one of your buddies sees another friend of his (let’s call him Dave) and invites him along to the next bar. You and your friends give each other “the look”. You know, the one that says, “I don’t know if this is a good idea to bring Dave along”. Seeing as everyone had the same thought, you speak up and tell Dave that he cannot come along that night, and maybe some other night you would all get together. That’s when Dave pulled a gun, racked it, and pointed it at your face!

Then your friend, who knows Dave, got involved to de-escalate. Your other friends were already in their car, but they stayed close by to make sure everyone left safely. From there things look like they are going to be alright. Dave walks away, but as you and your friends get in the car, you notice Dave is coming back. He points the gun at you again and tries to enter the vehicle behind your friend who is driving.

By this point, you already got your own gun ready. You point your gun at Dave’s face and order him to get on the ground. That’s when Dave gets out of the vehicle and tries to take your gun from you. What happens next is something most people hope never happens: you have to shoot your gun at a person. You shoot Dave twice, and he collapsed in front of the car.  You panic and leave the scene immediately.

The police arrive at the scene shortly afterwards to find that Dave is dead. The police review the security camera footage from the bar and search Dave’s body. The search found he had an unloaded Glock, a digital scale, a bottle of vodka, and cocaine. An autopsy showed newcomer had cocaine in his system and a blood alcohol content (BAC) of .292.

About three and a half hours later, you and your friends turn yourselves in and make statements to the police (which by the way is your first mistake. You should never talk to the police unless you have a lawyer with you). In your statement, you admitted to shooting Dave and turned over the gun you used to the police. Then you were charged with first-degree murder and armed criminal action.

Now you’re in a jam, so you do the smart thing and hire a lawyer.

The case went to trial where the jury heard the testimony of the barkeep, numerous investigators, and two of your friends who were with you that night. The jury also got to see the security camera footage before the close of evidence. After the close of evidence, the court gave jury instructions on lesser included charges such as second-degree murder and voluntary manslaughter. The court also gave jury instructions on the use of force in self-defense and self-defense in vehicles but did not give a jury instruction on defense of another.  After deliberation, the jury returned a verdict of guilty of second-degree murder and armed criminal action. So now it’s time to appeal the verdict.

When an appeal happens, there is a “Standard of Review”. The “Standard of Review” is the lens through which a higher court examines the record of a lower court to determine if there are grounds to reverse the lower court’s decision. In this case, the Standard of Review is “plain error” review. This means that unless the record shows the lower court made a plain error that results in a manifest injustice or miscarriage of justice. These are subjective terms, but prior case law provides guidance about their actual meaning. Specifically, that failure to give mandatory jury instructions is plain error and grounds for reversal. Even more specifically, when confronted with the argument that the trial court erred in refusing to instruct on self-defense or the closely related justification of defense of another, then the standard of review changes to de novo (which means viewing the evidence in the light most favorable to the defendant). Your lawyer argues that the evidence presented in the trial warranted a jury instruction on the use of force in defense of another, because you were defending your friend who was in the driver’s seat of the car that Dave was trying to enter.

The Law

So when are you justified to used force to defend another person?  The law says you can use force to defend someone else if you believe the person you are defending would have the right to use force to defend themselves.[1] Whether or not the person using force to defend someone else has a reasonable belief is a question for the jury. Therefore, when there is evidence supporting this defense, the jury instruction MUST be given so the jury can consider it during deliberation.[2]

Like any other defense, it is the defendant’s job to bring up self-defense and/or defense of another, then the burden shifts to the State to prove that the defendant didn’t have a reasonable belief that force was necessary. Justification defenses, like self-defense or defense of another, must be given when there is “Substantial Evidence”[3] to support it. “Substantial Evidence” in this context means enough evidence to put the matter at issue where reasonable minds could find that a defendant was justified in using force[4], and that evidence could come from the defendant’s case, the State’s case, or third parties.[5] Once the the defense is at issue, the court HAS TO give the jury instruction on the defense, even if the defendant does not want it.[6]

So applying the law to this case, it means if you can show that (1) you were not the initial aggressor (i.e. you did not start the conflict); (2) you reasonably believed force was necessary to defend your friend from the unlawful use of force by another; (3) you reasonably believed deadly force was necessary to protect your friend against death, serious injury, or forcible felony; and (4) you did not have a duty to retreat.

Now let’s apply the law to the facts of the case and see if the elements have been met. Dave was very intoxicated and brandished a weapon after being told he was not welcome in the group that evening. Not only that, he racked the gun in front of you! So even though the gun was empty, it is reasonable to believe that if someone points a gun at your face and racks it, that they are ready to shoot. Then after being told he could not join the group and leaving, he came back and again brandished his weapon and tried to enter the vehicle behind your friend who was in the driver’s seat. Putting all these facts together, there is enough evidence to show that you were not the initial aggressor, you had a reasonable believe deadly force was necessary to protect your friend from Dave because he had a gun and tried to enter the vehicle by force, and because you were in and around your friend’s car and were lawfully allowed to be there, you did not have a duty to retreat.[7]

Cases like this demonstrate how important jury instructions are. It is important to remember that a jury of your peers is just that. It is not a panel of lawyers or people trained in the law, it’s a panel of ordinary people from all walks of life. If they are not given the proper instructions, it can DRAMATICALLY change the outcome of a case. Unfortunately, this sort of thing happens all the time all over the country. The United States Justice system may be the best in the world, but it still is not perfect.  More importantly, remember this could happen to ANYONE, including you!

[1] See RSMo 563.031 for a list of exceptions.

[2] State v. Vancil, 976 S.W.2d 628, 630 (Mo. App. E.D. 1998).

[3] State v. Cummings, 514 S.W.3d 110, 116 (Mo. App. W.D. 2017).

[4] State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003).

[5] Cummings 514, S.W.3d at 116.

[6] Id. at 117.

[7]RSMo 563.031.3.

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