Opinion
No. ED 82455
Filed: May 18, 2004
Appeal from the Circuit Court of St. Louis City, Honorable Dennis M. Schaumann.
Andrea K. Spillars, Stephanie Morrell (co-counsel), Jefferson City, Missouri, for respondent.
Gary E. Brotherton, Columbia, Missouri, for appellant.
Before Kathianne Knaup Crane, J. and Mary K. Hoff, J. concurring.
Ronnie Gonzales appeals the judgment entered on his convictions for murder in the second degree and armed criminal action. We remand with directions.
I. BACKGROUND
Gonzales was at a neighbor's home on Halloween night when another neighbor, Mike Gossir, arrived. According to the homeowners, Gonzales made a joking or sarcastic comment to Gossir: "This is Halloween. Where's your uniform or mustache, whatever?" or "Where's your false face or your wig or mustache?" Gonzales then walked over to the foyer where Gossir was standing, and Gossir said "What did you hear about talking about me?" They exchanged heated words and pushed each other. The homeowners did not know who pushed first, but, as he was backing up into the kitchen, Gossir was pushed hard enough that he fell onto the floor. When he got up and started to back out of the kitchen, Gonzales put his hands behind his back and then went into Gossir's chest with a knife. Gossir died of a single entry puncture wound.
At trial, Gonzales claimed that he acted in self-defense. According to his testimony, when Gossir arrived, he asked Gonzales "Why don't you threaten me now, Ronnie." Gonzales told him he did not know what he was talking about and started towards the door. But Gossir blocked the door knob, and they started arguing. Gonzales also did not remember who started the pushing, but claimed that it was Gossir who pushed him onto the kitchen floor. As Gonzales was getting up, Gossir came towards him, and to "protect his life" Gonzales grabbed something that turned out to be a knife and held it out in front of him. Gossir raised his hand like he was going to punch Gonzales, and Gonzales ducked. He assumed that Gossir then must have run into the knife.
Gonzales was acquitted of murder in the first degree, but was found guilty of murder in the second degree and armed criminal action. He appeals.
II. DISCUSSION
A. Victim's Reputation
Gonzales argues that the court abused its discretion by excluding evidence of Gossir's reputation for violence. We agree.
Gonzales attempted to introduce such evidence through his own testimony and the testimony of several other residents in the neighborhood to support his self-defense theory that Gossir was the initial aggressor. At the beginning of trial, the court denied Gonzales's request to allow the neighbors' testimony, but indicated that counsel could make an offer of proof with those witnesses the following day.
When Gonzales testified, he stated that he knew who Gossir was from the neighborhood, but they were not friends. When asked "Do you know what kind of reputation Mike Gossir had in that neighborhood?" the court sustained the State's lack of foundation objection. At the bench, however, the court indicated that it would allow counsel to make an offer of proof to establish what Gonzales's testimony would be regarding Gossir's reputation for violence. After Gonzales finished testifying, the court reiterated that its ruling had been that counsel could make an offer of proof as to Gonzales's testimony the next day. But the court then stated that it would only allow an offer of proof as to the neighbors' testimony:
Well, if you're prepared to proceed in the morning with the other witnesses for your offer of proof, I'll allow you to make your offer of proof. As to your client testifying, there was no foundation laid and there's no need for an offer of proof, in my estimation, as to what he would have testified as to Mr. Gossir's reputation because there was nothing there that he offered regarding any foundation for — knowledge of that.
In their offers of proof, the neighbors testified that Gossir had a reputation for being hot-headed, short-tempered, bizarre and aggressive. Their testimony was excluded. Gonzales's motion for a new trial based on the erroneous exclusion of this evidence and refusal to allow an offer of proof as to his own testimony was overruled.
When self-defense is an issue, the defendant may present evidence of the victim's general reputation for violence in the community or evidence of prior specific acts of violence by the victim against the defendant and others. See State v. Waller, 816 S.W.2d 212, 213-16 (Mo. banc 1991) (abrogating prior rule that only general reputation testimony admissible). Specific acts of violence by the victim against persons other than the defendant are only admissible, however, to show the reasonableness of the defendant's fear of being harmed by the victim, not to show who was the initial aggressor:
This seems to include evidence of violence, turbulence and aggression. See generally State v. Buckles, 636 S.W.2d 914, 922 (Mo. banc 1982); see also Missouri Approved Instructions — Criminal 3rd 306.06, Part C [2] (9-1-99).
The trial court must caution the jury that the evidence is to be considered solely with regard to the reasonableness of the defendant's apprehension that the victim was about to inflict bodily harm upon the defendant, and not for the purpose of establishing that the victim probably acted in conformity with prior acts of violence. The trial court should caution the jury that the character of the deceased and the deceased specific past violent acts are not otherwise relevant to the issues before them.
Id. at 216; see also Missouri Approved Instructions — Criminal 3rd 306.06, Part C [4] (9-1-99); but see WILLIAM A. SCHROEDER, MISSOURI PRACTICE SERIES — MISSOURI EVIDENCE, section 404.3(b)(2)(B) (2d ed. Supp. 2003) (noting Supreme Court dicta in State v. Oates, 12 S.W.3d 307, 312-13 (Mo. banc 2000) suggesting that prior acts of violence by victim raise inference that victim was first aggressor). Here, because Gonzales offered the evidence about Gossir's character to show who was the initial aggressor, only general reputation testimony could have been admissible.
When using the victim's violent reputation to show that the defendant reasonably feared the victim, the defendant must show that he was aware of that reputation. Waller, 816 S.W.3d at 215-16. It has been suggested that the defendant's knowledge of the victim's violent reputation is not relevant, however, when the evidence is offered to show who was the initial aggressor. SCHROEDER, supra, section 404.3(b)(2)(C). We tend to agree that while a defendant's claim that he feared the victim because the victim was violent is only plausible if the defendant knew about that character trait, the same knowledge is not necessary to show that the victim was the first aggressor. The Notes on Use for the applicable MAI — approved and adopted by the Supreme Court — are consistent with this position: "If the evidence of the bad reputation of the victim is not known to the defendant, then the evidence of such reputation is admissible only as evidence of who was the initial aggressor and is not admissible as evidence of reasonable fear of harm on the part of the defendant." MAI — CR 3rd 306.06, Notes on Use 6.
Nevertheless, State v. Johns seems to require a showing of the defendant's knowledge when the reputation evidence is offered to show initial aggression:
When the defendant asserts self-defense, a victim's reputation for violence is generally admissible on the question of who is the aggressor. But the defendant must show that he was aware of the victim's violent reputation or of "the specific act or acts of violence."
34 S.W.3d 93, 111 (Mo. banc 2000) (emphasis added). In Johns, the defendant confessed to killing the victim, but claimed self-defense. Id. at 101. He testified that after all three had been drinking together, the victim chased down the defendant and his companion in their car, smashed the car and assaulted the companion. Id. The defendant contended that he tried to intervene, but the victim knocked him down; when the victim reached into his pocket, the defendant shot him in self-defense. Id. The defendant also claimed that the victim had threatened to kill him. Id. at 102. The Court concluded that because there was no evidence that the defendant knew of the victim's violent behavior when drinking, the trial court did not err in excluding evidence that the victim was prone to fighting when he drank. Id. at 111.
Although, as Professor Schroeder notes, the Court in Johns does not expressly state the purpose for which that evidence was offered, based on the factual background and the italicized language quoted above, we must assume that the evidence was offered to show that the victim was the initial aggressor. See SCHROEDER, supra, section 404.3(b)(2)(C), n. 42 and n. 43. There is nothing, on the other hand, to suggest that the evidence in Johns was offered to show the defendant's reasonable fear of the victim. Thus, until further clarification by the Supreme Court, we must read Johns to require a showing that the defendant knew of the victim's violent reputation when, as in this case, that evidence is offered to prove who was the initial aggressor.
In this case, excluding testimony about Gossir's general reputation for violence, without knowing what Gonzales would have said about his knowledge of that reputation, was an abuse of discretion. If Gonzales knew that Gossir had a reputation for violence, then his testimony and the neighbors' proffered testimony on that subject would have been admissible. The trial court's refusal to allow Gonzales to make an offer of proof to establish the admissibility of his and the neighbors' testimony requires remand An offer of proof is not only necessary to preserve the record for appeal, but also to permit the trial court to consider the proponent's claim of admissibility. See generally Evans v. Wal-Mart Stores, Inc., 976 S.W.2d 582, 584 (Mo.App.E.D. 1998). Thus, for its own benefit — and for ours — a trial court must allow a party to make an offer of proof where, as here, permission to do so is requested and the content thereof is legally relevant. See, e.g., State v. Binnington, 978 S.W.2d 774, 776 (Mo.App.E.D. 1998) (refusing offer to prove victim's violent propensities not error because evidence legally irrelevant to concealed weapons charge); see also generally BENCH BOOK FOR MISSOURI TRIAL JUDGES, Volume I, section 37.82.6 (1995) (instructing judges to permit party to make offer of proof).
Contrary to the trial court's statement, Gonzales was not required to demonstrate the admissibility of the evidence he was told he would be allowed to present in his offer of proof before that proffer was made.
Although in similar situations our courts have remanded for a new trial, a more limited remand is appropriate and sufficient to remedy the error in this case. See State v. Strughold, 973 S.W.2d 876, 884-85 (Mo.App.E.D. 1998) (in sex offense case, trial court's refusal to allow defendant to make offer of proof as to admissibility of victim's bad reputation for honesty was abuse of discretion requiring remand for new trial); see also Foster v. Village of Brownington, 76 S.W.3d 281, 287 (Mo.App. W.D. 2002) (trial court's refusal to allow plaintiff to make offer of proof of additional evidence was abuse of discretion preventing proper consideration of plaintiff's motion to reopen case and requiring remand for new trial).
On remand, we direct the trial court to conduct a hearing at which Gonzales may present the offer of proof regarding the victim's reputation that he was precluded from making at trial. See State v. Bost, 820 S.W.2d 516, 519 (Mo.App.W.D. 1991) (where defendant's offer of proof at trial lacked all evidence necessary to establish admissibility of victim reputation evidence, court remanded solely for proffer of additional evidence). After the offer of proof, the trial court must first determine whether the proffered evidence is admissible. If it is admissible, then the court must set aside the judgment on Gonzales's convictions and order a new trial. See id. If it is not admissible, then the court must enter an order denying Gonzales's proffer, which he will be permitted to appeal as a final judgment. See id.
Because Gonzales will not necessarily receive a new trial on remand, we must address whether any of the other errors he raises on appeal justify reversing the judgment and ordering a new trial. They do not.
B. Initial Aggressor
The following language is only to be included in a self-defense instruction if there is evidence that the defendant first attacked or threatened to attack the victim:
[A]n initial aggressor, that is, one who first attacks or threatens to attack another, is not justified in using force to protect himself from the counter-attack that he provoked.
MAI — CR 306.06. If there is no evidence indicating that the defendant was the initial aggressor or that he provoked the incident, then the above language "will not be used." Id., Notes on Use 3(a). Gonzales argues that the court erred by including the "initial aggressor" language in the self-defense instruction because there was no evidence that Gonzales initiated the attack.
Gonzales did not challenge the court's instructions in his motion for new trial. Thus, this point is not preserved and may only be reviewed for plain error. See State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001); see also Rules 28.03 and 30.20. Instructional error seldom constitutes plain error. State v. Thomas, 75 S.W.3d 788, 791 (Mo.App.E.D. 2002). Gonzales must demonstrate that by giving this instruction the trial court "so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury's verdict." State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003). We find no error, plain or otherwise.
In fact, the motion for new trial maintains that the jury was "properly instructed" in this instruction, which was given at Gonzales's request after his two alternative self-defense instructions were refused. Our courts are hard-pressed to find prejudice under these circumstances. See, e.g., State v. Preston, 673 S.W.2d 1, 9 (Mo. banc 1984); see also State v. Brown, 752 S.W.2d 382, 384 (Mo.App.E.D. 1988).
When there is contradictory evidence as to who was the initial aggressor, that issue is a question of fact and is properly submitted to the jury. State v. Hayes, 88 S.W.3d 47, 59 (Mo.App.W.D. 2002); see also State v. White, 738 S.W.2d 590, 593 (Mo.App.E.D. 1987). Here, the evidence was disputed as to who spoke first and what was said. It was for the jury to resolve that dispute and determine whether anything Gonzales or Gossir said constituted a threat of attack or whether, instead, the attack was initiated when it became physical. Although there is no evidence as to who started the pushing, there was contradictory evidence as to who was pushed hard enough to fall over. This conflicting evidence was sufficient to create an issue of fact as to who was the initial aggressor. Therefore, Gonzales cannot show that this instruction so misdirected the jury that its verdict was affected.
Point denied.
C. Restrictions on Cross-Examination
Gonzales argues that the trial court abused its discretion by refusing to allow him to impeach the homeowner with his taped statement after the following exchange during cross-examination:
Q: Do you remember saying, "No, actually I've got to be fair about it, [Gossir] is the one who asked him, said he heard he was talking about him or something and [Gossir] started it?" Did you say that to the police officer?
A: Well, I tell you like I said earlier, I don't know how many officers talked to me. People talked to me. And I don't know exactly word for word what was said. You know.
Q: Do you believe that you could have said that?
* * *
A: I will agree to words to that effect. I don't know the exact words. [Gossir] was — [Gossir] was asking [Gonzales] something about talking, hearing something about him talking to him. They were both argumentative.
Q: Okay. But you remember telling the police officers that you believed [Gossir] started it?
A: I didn't exactly say [Gossir] started it, no. I didn't say [Gossir] started anything. I didn't.
The court denied Gonzales's request to play the taped statement during cross-examination, but noted that he could use the tape in his own case. In his case, Gonzales put on the officer who had recorded the statement:
Q: And you asked [the homeowner], "So when [Gonzales] approached him and started cussing him," and [the homeowner] responded, "No, actually I've got to be fair about it, [Gossir] is the one that asked him, said he heard he was talking about him or something, and it was [Gossir] started it."
A: That was on the tape, yes, ma'am.
Playing the tape during the homeowner's testimony would have been cumulative to the officer's testimony. Therefore, even if restricting use of the tape was an abuse of the court's broad discretion to control cross-examination, that error was harmless. See State v. Minor, 755 S.W.2d 318, 320 (Mo.App.E.D. 1988) (error excluding testimony is harmless where evidence "of similar import" subsequently introduced without objection).
Point denied.
D. Uncharged Misconduct
Gonzales argues that the court erroneously admitted evidence of uncharged misconduct by allowing the homeowners to testify that he told them that he had a "confrontation" or "an argument" at a tavern before arriving at their home. Gonzales did not object to this evidence at trial, and, therefore, we will only reverse if admission thereof was plain error resulting in manifest injustice or a miscarriage of justice. See Rule 30.20; State v. Christeson, 50 S.W.3d 251, 269 (Mo. banc 2001). Even assuming evidence of the incident at the bar was irrelevant, there was no testimony as to the nature of the "confrontation" or "argument" or its effect on Gonzales. Therefore, it is impossible to say that knowing Gonzales had said he had a confrontation or argument impacted the jury's verdict and caused an injustice.
Point denied.
III. CONCLUSION
The case is remanded with directions to conduct a hearing at which Gonzales may present the offer of proof regarding the victim's reputation that he was precluded from making at trial. Further proceedings on remand shall be consistent with this opinion.