                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION THREE

STATE OF MISSOURI,                            ) No. ED107254
                                              )
       Plaintiff/Respondent,                  ) Appeal from the Circuit Court
                                              ) of the City of St. Louis
vs.                                           )
                                              )
CHRISTOPHER ENDICOTT,                         ) Honorable Jason M. Sengheiser
                                              )
       Defendant/Appellant.                   ) Filed: February 25, 2020

                                            Introduction

       Christopher Endicott (Appellant) appeals from the trial court’s judgment entered after a

jury found him guilty of second degree murder and armed criminal action. Because the trial

court committed plain error by failing to instruct the jury on use of force in defense of another,

the judgment is reversed and the case is remanded.

                               Factual and Procedural Background

       Appellant and several companions were socializing one night at 1860 Saloon in the City

of St. Louis. Present in Appellant’s group were Dominique Wells (Wells) and Marvin Maggard

(Maggard); they were later joined by two other friends, Jovan Tucker (Tucker) and Donovan

Houltan (Houltan).

       Around 1:30 a.m. the group left the saloon, with plans to move on to a different bar. The

group planned to travel in two separate vehicles, with Wells driving one and Houltan driving the

other. As the group left the bar to retrieve their vehicles, they encountered Jarrett Greene
(Victim). Maggard and Victim recognized one another and greeted each other enthusiastically.

Witnesses testified both Maggard and Victim appeared to be extremely intoxicated, slurring their

words, swaying, and nearly knocking one another over as they embraced in greeting.

       After greeting Victim, Maggard turned to the group and announced, “Hey, y’all, this is

my homeboy,” and invited Victim to accompany the group to the next bar. The rest of the group

exchanged glances, which they later testified indicated they did not want to bring the intoxicated

stranger along with them. Appellant spoke up on the group’s behalf and told Victim he was not

welcome to accompany them that evening. Wells also told Victim he could not ride with him,

and returned to his vehicle to wait for Appellant and Maggard.

       Houltan and Tucker took this as a cue to head towards their vehicle. Maggard and

Victim, ignoring Appellant’s refusal, made as if to accompany them. When Houltan noticed

Maggard and Victim about to enter his vehicle, he quickly locked it using his key fob, blocking

their entry. Appellant, noticing Victim had disregarded his discouragement, came over to

intervene. According to Houltan, Appellant again told Victim “very politely” he was not

welcome to accompany them that evening, but perhaps some other night they might all meet up.

At this Victim became angry, pulled a gun from his pocket, racked it, and pointed it at

Appellant’s face, saying, among other things, “I trump you.”

       As Victim pointed his gun at Appellant’s face, Maggard intervened to try to calm Victim.

As Maggard spoke to Victim, Houltan and Tucker slipped into their vehicle and began driving

away. However, concerned for their friends, they lingered on the street nearby where they could

watch and make sure their friends left safely.

       Maggard was able to mollify Victim, and Victim put away his gun. Appellant and

Maggard walked towards Wells’ vehicle where Wells waited, sitting in the driver’s seat. Victim



                                                 2
initially began walking away from the group after the first encounter but turned around and

approached Wells’ vehicle. Victim first approached the passenger side of Wells’ vehicle where

Maggard and Appellant stood. Surveillance footage depicted Victim reengage in conversation

with Appellant, and Appellant raise his arms as if surrendering. Appellant later told police

Victim again showed him the gun, removed the magazine several inches, and then replaced it in

the gun. Victim then walked around Wells’ vehicle, opened the rear door, and partially entered

the vehicle behind Wells. Appellant, who had retrieved his own firearm, circled to where Victim

was entering Wells’ vehicle, pointed the gun at Victim’s face, and ordered Victim to the ground.

Victim exited Wells’ vehicle to confront Appellant and swiped at Appellant’s gun with his hand.

Appellant later told police Victim had his own gun in his hand as he attempted to enter Wells’

vehicle and that Victim used his gun to strike out at Appellant’s gun. However, investigators

testified at trial that Victim’s gun was found in his right pocket with no magazine, and two empty

magazines were found in his left pocket. Investigators also testified Victim was found holding a

metallic lighter in his hand. Surveillance footage of the incident showed Victim swing his arm

towards Appellant, and Appellant fire his gun twice. Victim began to reel backwards and fall,

and Appellant stepped towards him firing more shots. Victim collapsed in front on Wells’

vehicle, and Appellant fired several more shots at Victim.

       After the shooting, Appellant and the others left the scene. A short time later police

arrived, finding Victim dead. Police made contact with the saloon owner, who provided police

with surveillance footage showing the shooting. A search of Victim’s body revealed a Glock

handgun in his pocket, which was unloaded. Victim’s pockets also contained a digital scale, a

bottle of vodka, and what appeared to be cocaine. A medical examination of Victim revealed a

blood alcohol content of .292 and cocaine in his system.



                                                3
        Three and a half hours after the shooting, Appellant surrendered himself at a police

station, along with Wells, Houltan, and Tucker. All four made statements to the police;

Appellant admitted shooting Victim. Appellant also turned over the gun he used to shoot Victim

to the police.

        The State of Missouri (State) charged Appellant with first-degree murder and armed

criminal action. The case went to trial, resulting in a mistrial due to a hung jury. The case went

to trial a second time. The jury heard the testimony of the saloonkeeper, several investigators,

and the testimony of both Houltan and Tucker, who witnessed the encounter. The surveillance

footage depicting the shooting was played to the jury. Appellant chose not to testify. Neither

Maggard nor Wells testified.

        In addition to the charged offenses, the trial court instructed the jury on murder in the

second degree and voluntary manslaughter. The trial court also instructed the jury on use of

force in self-defense, and self-defense in vehicles. After deliberation, the jury returned a verdict

of guilty of second-degree murder and armed criminal action. This appeal follows.

        Additional facts necessary to our analysis appear in the discussion section below.

                                          Points on Appeal

        Appellant brings three points on appeal. However, Appellant’s second point is

dispositive of this appeal. Point II claims the trial court plainly erred by not sua sponte

instructing the jury on use of force in defense of another person. Because we agree the trial court

plainly erred, we reverse the judgment on this point.




                                                  4
                                               Standard of Review

           Although Appellant claims the trial court should have instructed on use of force in

defense of another, he did not request such an instruction, nor did he include this claim in his

motion for a new trial. As such, Appellant requests plain error review.

           Unpreserved instructional errors are reviewed under the plain error standard, and we will

reverse when a manifest injustice or miscarriage of justice would otherwise result. State v.

Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001). Failure to give a mandatory instruction

is trial court error, and is grounds for reversal on plain error review. State v. Bolden, 371 S.W.3d

802, 806 (Mo. banc 2012), citing State v. Westfall, 75 S.W.3d 278, 284 (Mo. banc 2002). “An

appellate court, when confronted with the argument that the trial court erred in refusing to

instruct on self-defense, must view the evidence and all reasonable inferences in the light most

favorable to the defendant.” State v. Miller, 91 S.W.3d 630, 632 (Mo. App. W.D. 2002),

citing State v. Francis, 60 S.W.3d 662, 673 (Mo. App. W.D. 2001). Whether a use of force

justification defense has been raised by the evidence is a question of law, which we review de

novo. State v. Cummings, 514 S.W.3d 110, 116 (Mo. App. W.D. 2017). Self-defense and use of

force in defense of another are closely-related justification defenses, governed by the same

statute. Section 563.031.5.1 As such, many cases discussing aspects of one are applicable to the

other, and are sometimes used interchangeably herein. See Bolden, 371 S.W.3d at 805 (use of

force in defense of another “is essentially an extension of the self-defense justification”).

                                                     Discussion

           Appellant claims the evidence adduced at trial warranted an instruction on use of force in

defense of another, such that the trial court committed plain error by not proffering it, despite the



1
    All statutory references are to RSMo Cum. Supp. 2013, unless otherwise specified.

                                                          5
defense not requesting it. Specifically, he claims substantial evidence showed Appellant used

deadly force in defense of Wells, the driver of the vehicle that Victim was attempting to enter.

       The use of force, including deadly force, to protect others is lawful in some

circumstances under Section 563.031. This Court has previously explained:

       In regard to the concept of self-defense, what one may do for himself, he may do
       for another.... Defense of another is available if, under the circumstances as the
       actor reasonably believes them to be, the person whom he seeks to protect would
       be justified in using such protective force in defense of himself. The
       reasonableness of a defendant’s belief in the necessity of using force is a question
       for the jury. Therefore, whenever there is evidence supporting this defense, this
       instruction must be given.

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

       The defendant has the burden of injecting the issue of justification into the case; if

successful, the State bears the burden of proving beyond a reasonable doubt that the defendant

did not reasonably believe force was necessary. Section 563.031.5. “A justification defense

must be given when ‘substantial evidence’ has been presented to support it.” Cummings, 514

S.W.3d at 116. “Substantial evidence” means enough evidence to “put[] a matter in issue.”

State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003). The evidence may come from the

defense’s own case, the State’s case, or the testimony of third parties. Cummings, 514 S.W.3d at

116. “If the evidence tends to establish the defendant’s theory, or supports differing conclusions,

the defendant is entitled to an instruction on it.” Westfall, 75 S.W.3d at 280. “Moreover, the

instruction must be given even if the evidence supporting the defense is inconsistent with the

defendant’s testimony or theory of the case and regardless of whether the defendant requested

it.” Cummings, 514 S.W.3d at 116. “If a justification defense is injected into the case by any

evidence, the judge must instruct, even if the defendant does not desire such an instruction.” Id.

at 117 (emphasis in original). “Failure to submit an instruction on a justification defense that is



                                                 6
supported by the evidence constitutes reversible error.” Id. at 116-17, citing Avery, 120 S.W.3d

at 200.

          In order to be entitled to an instruction on use of force in defense of another, substantial

evidence must show Appellant possessed a reasonable belief Wells himself would have been

privileged to use deadly force in his own defense. This is established by showing Appellant

reasonably believed that (1) Wells was not the initial aggressor, and physical force was necessary

to defend Wells from what Appellant reasonably believed to be the use or imminent use of

unlawful force by another; (2) Appellant reasonably believed deadly force was necessary to

protect Wells against death, serious physical injury, or any forcible felony; (3) and Wells did not

have a duty to retreat. State v. Pounders, 913 S.W.2d 904, 907 (Mo. App. S.D. 1996); see also

State v. Kendrick, 550 S.W.3d 117, 123-24 (Mo. App. W.D. 2018), citing State v. Bruner, 541

S.W.3d 529, 536-37 (Mo. banc 2018) (updating elements of self-defense in accordance with

statute).

          Our review of the record, in the light most favorable to Appellant, reveals ample evidence

to support Appellant may have acted in defense of Wells. The evidence at trial shows Appellant

had taken it upon himself to be spokesperson and defender of the group during Victim’s

intrusion. Tucker testified that because she was the only female in the group, she was happy to

have Appellant step forward and speak for her when they encountered the threatening stranger.

Houltan testified when Victim brandished his weapon and pointed it at Appellant, Houltan was

standing behind Appellant and in the line of fire. Houltan testified he feared for his life because

if Victim had shot at Appellant, Houltan likely would have been hit as well. Given that Victim

was acting intoxicated and belligerent, such a fear was reasonable, and demonstrates Victim had

menaced not just Appellant but others in the group as well. Tucker testified she assumed



                                                    7
Victim’s gun was loaded when he racked it, and she and Houltan sneaked by Victim to escape in

Houltan’s car while Appellant was the focus of Victim’s ire. Houltan testified that after he and

Tucker made it into the vehicle, they lingered nearby to watch because he feared for the safety of

“my friends,” meaning Appellant, Wells, and Maggard, who were still in the presence of the

intoxicated and armed stranger. Houltan also testified that after he heard the gunshots he feared

Appellant was the one who had been shot because Houltan knew Victim was armed.

         Although neither Wells nor Appellant testified at trial, sufficient evidence was presented

from Appellant’s statements to police, the eyewitness accounts of Houltan and Tucker, and the

surveillance footage of the shooting to show Appellant may have reasonably believed Wells was

in imminent danger when Victim began entering the car behind Wells. Victim had been told

more than once he was not welcome to accompany the group. Victim had responded to this

discouragement by brandishing a gun and threatening deadly force.2 Uninvited and unwanted,

the armed Victim began to enter the car behind Wells. Appellant was present as all these events

occurred, and was able to form a reasonable belief that Wells was in imminent danger from

Victim.

         At trial there was conflicting evidence about what transpired at the moment of the

shooting, but viewed in the light most favorable to Appellant, the evidence supports Appellant

may have reasonably believed force was necessary to defend Wells. The evidence at trial

strongly supports that Victim had threatened Appellant with his gun during the first encounter at

Houltan’s vehicle. Appellant also told police that afterwards, when Victim approached Wells’

vehicle, Victim again displayed his gun to Appellant, pulled out the magazine, and offered to


2
  The Missouri Supreme Court has held that brandishing a deadly weapon constitutes “deadly force” because “the
risk of death or serious physical harm is significantly elevated when one of the parties to an angry confrontation
displays a handgun.” State v. Parkhurst, 845 S.W.2d 31, 36 (Mo. banc 1992). So it was in this case, as the
escalation towards the deadly shooting was initiated by Victim’s decision to threaten the group with a gun.

                                                         8
provide Appellant with the magazine or bullets. Appellant told police Victim then replaced the

magazine in the gun and walked to the driver’s side of the vehicle and began to enter the back

seat, with the gun still in his hand. Appellant stated that when he circled the vehicle to confront

Victim, and when Victim struck at Appellant’s gun, Victim’s gun was in his hand. Tucker

testified that after the shooting when the group met and discussed the events that had just

transpired, Wells stated he saw a gun in Victim’s hand as he began entering his vehicle.

       The State points out that evidence suggesting Victim’s gun was in his hand as he entered

Wells’ vehicle is contradicted by other evidence; specifically, the surveillance video does not

show Victim’s gun in his hand at the moment of the shooting, and investigators at the scene

found Victim’s gun in his pocket unloaded, with two magazines in a different pocket. However,

this does not defeat Appellant’s claim. As stated above, we review Appellant’s claim by viewing

all evidence and inferences in the light most favorable to Appellant. Therefore, where the

evidence conflicts as to whether Victim’s gun was in his hand when he entered the vehicle, we

view it in the light most favorable to Appellant’s account. This is not to say we must disregard

the irrefutable physical evidence to the contrary. The surveillance footage depicting the shooting

continued to record up until police arrived at the scene of the shooting. If Victim’s gun was in

his hand when he was shot, then there is no reasonable explanation for how investigators

subsequently found it in his pocket.

       However, this is not dispositive for two reasons. First, our analysis focuses not on what

the circumstances were, but on how they reasonably appeared to Appellant. Section 563.031.1;

see also MAI-CR3d 306.08A (“reasonably believe” means grounds for defendant to have formed

a belief in necessity of force. “This depends upon how the facts reasonably appeared. It does

not depend upon whether the belief turned out to be true or false.”). Thus, the relevant inquiry is



                                                 9
not whether it was true or false that Victim’s gun was in his hand, but whether it was reasonable

for Appellant to have believed it was. Our review of the record shows sufficient evidence to

support Appellant’s reasonable belief Victim was holding his gun. Victim had brandished his

weapon at Appellant not once but twice immediately preceding the shooting. Evidence also

suggests Appellant could have mistaken a metallic lighter in Victim’s hand for Victim’s gun.

This belief, mistaken or not, may have been reasonable under the circumstances, as it was

nighttime and the shooting happened very quickly, mere moments after Victim had brandished

his gun at Appellant and threatened him.

       Second, we note the case does not turn solely on whether Victim’s gun was in his hand,

or even whether Appellant reasonably believed it was. Wherever the gun happened to be at the

moment of the shooting, the uncontradicted evidence showed Victim was still armed when he

began entering Wells’ vehicle. If Victim had decided to use his gun against the vehicle’s

occupants, he needed only to reach into his pocket to retrieve it. Even if Appellant did not see

Victim’s gun in his hand, Appellant may have reasonably believed Victim was readily capable of

retrieving his gun and using it against the vehicle’s occupants.

       The manifest injustice that may be caused by deficient instructions is not limited to the

instruction phase of the trial. When the jury is incompletely instructed, they are not only

ignorant of the relevant law but risk being misled by counsel’s argument. See State v. Hiltibidal,

292 S.W.3d 488, 494 (Mo. App. W.D. 2009) (prosecutor’s argument may compound

instructional error and mislead jury). Such a risk was present here: During closing arguments, the

prosecutor pointed out to the jury that Appellant had not withdrawn from the encounter when he

had an opportunity, but instead had followed Victim to the driver’s side of the vehicle where he

was attempting to enter. The prosecutor argued the jury may infer Appellant’s guilt from this



                                                10
fact, as it showed Appellant did not reasonably fear for his own life because he followed the

danger instead of fleeing from it. However, at oral argument the State conceded that, although it

disputed whether Appellant lawfully occupied a vehicle at the time of the shooting, there was no

question that Wells was lawfully occupying the vehicle Victim was attempting to enter. This

means under the justification statute Wells would not have had a duty to retreat before using

force against Victim. Section 563.031.3 (“A person does not have a duty to retreat from a

dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully

remaining.”). The State’s argument to the jury thus compounds the instructional error, because

the jury was not permitted to consider whether withdrawal was an option for Wells, or whether

Wells even had a duty to withdraw.

       We acknowledge Appellant asked for and received two instructions on self-defense, and

the jury rejected them both. We also acknowledge a jury could reject Appellant’s claim he acted

in defense of another on the same or similar grounds. However, where it is supported by the

evidence, an instruction on use of force in defense of another must be given, even where it is

inconsistent with Appellant’s defense at trial. Cummings, 514 S.W.3d at 117. Instructing on

other theories of justification in no way obviates the trial court’s obligation to instruct on all

theories of justification supported by the evidence. State v. Jones, 627 S.W.2d 322, 323 (Mo.

App. W.D. 1982). Without proper instructions, we are left to conjecture on whether the jury

found Appellant guilty on a correct and lawful basis. Because the jury was not given an

instruction on the issue of whether Appellant acted in lawful defense of Wells, they were unable

to consider all legal theories supported by the evidence under which Appellant’s action may have

been justified. Such an error is reversible under a plain error standard. Hiltibidal, 292 S.W.3d at




                                                  11
495 (“Once there is a finding of error in failing to properly instruct on self-defense, a manifest

injustice will generally be found.”).

        “The defense-of-others justification is essentially an extension of the self-defense

justification, in that the actor may do in another’s defense anything the person himself may have

lawfully done in the circumstances.” Bolden, 371 S.W.3d at 805 (citations omitted). “It follows

that, if the defendant carries the burden of introducing substantial evidence to support a defense-

of-others instruction, it is error for the trial court to fail to submit a defense-of-others instruction

to the jury just as it is error to fail to submit a self-defense instruction.” Id. “A trial judge may

not immediately recognize the need for a self-defense instruction in a case where no notice had

been given to the judge that self-defense would be an issue.” Hiltibidal, 292 S.W.3d at 494.

“Nonetheless, this case illustrates the substantial burden placed on the trial court to be alert to

evidence raising the issue of self-defense.” Id. Here, sufficient evidence was adduced at trial to

raise the issue of use of force in defense of another, which, under well-established precedent,

rendered its instruction mandatory.

        Nevertheless, the State argues that, notwithstanding the ample precedent invoked by

Appellant, trial courts in fact have no obligation to instruct the jury on justification defenses

when unrequested by the defendant. In support of this proposition, the State directs the Court’s

attention to a footnote in this Court’s prior case, State v. Isbell, 524 S.W.3d 90, 93 n.4 (Mo. App.

E.D. 2017):

        We express reservations regarding Defendant's claim, because the subsequent
        statutory history appears to have abrogated [the duty of the trial court to sua
        sponte offer self-defense instructions]. The former statutes, upon which this duty
        was premised, mandated trial courts to instruct upon all questions of law arising in
        the case, “whether requested or not.” See Section 5231 (1909), Section 4025
        (1919), Section 3681 (1929), Section 4070 (1939), Section 546.070 (1949),
        546.070 (1978). This directive was removed by the Missouri Legislature in
        1984. See Section 546.070 (1986), Section 546.070, RSMo Cum. Supp. 2015.

                                                   12
         Missouri Supreme Court Rules have also eliminated similar mandates.
         Compare Rule 26.02(6) (1966) with Rules 27.02 (2016) and 28.02 (2016).

         There are several problems with the State’s reliance on State v. Isbell. For example, as

the State acknowledges, this footnote is dictum. In Isbell, this Court ultimately found the

defendant was not entitled to an instruction on self-defense because such an instruction was not

supported by substantial evidence. Id. at 94. Thus, the issue of whether the trial court was

obligated to sua sponte instruct on self-defense on the basis of substantial evidence at trial was

not before this Court.

         We are hesitant to follow the dictum in Isbell, as it would mean contravening precedent

from the Missouri Supreme Court, which we are without authority to do. See Bolden, 371

S.W.3d at 805; Westfall, 75 S.W.3d at 280-81, 284 (“Failure to provide the required instruction,

or give it in accordance with an accompanying Note on Use, may have adversely influenced the

jury and is reversible error.”). Further, such a holding from this Court would conflict with the

Missouri Approved Instructions for criminal law. Use of force in defense of another is included

in the MAI–CR3d 306.00 series titled “INSTRUCTIONS REQUIRED WHETHER

REQUESTED OR NOT.” The notes on use accompanying the instruction mandate, without

qualification, “Whenever there is evidence supporting this defense, this instruction must be

given.” MAI-CR3d 306.08A, n.2.3 “Failure to give an MAI-CR instruction in accordance with

an accompanying note on use is error.” State v. White, 58 S.W.3d 627, 633 (Mo. App. W.D.

2001); Rule 28.02(f).4 A holding from this Court abrogating the trial court’s obligation to

instruct on use of force in defense of another when supported by the evidence absent a request



3
  This contrasts with other instructions in MAI-CR3d, which explicitly state they are to be given “only upon request
of the defendant”. MAI-CR3d 308.02, n.2. This distinction adds further support to our view the trial court retains
an independent duty to deliver mandatory instructions.
4
  Mo. R. Crim. P. (2018).

                                                         13
from the defendant would conflict with the Missouri Approved Instructions, contravene the

authority of the Missouri Supreme Court, and subject trial courts to inconsistent precedents. As

such, we decline to so hold.

         Finally, the State complains Appellant may not make this claim of error because use of

force in defense of another was not the defense’s primary theory of the case. However, where

justification is raised in the evidence, “[t]he judge must give the instruction regardless of whether

it was requested or not, and regardless of whether self-defense is inconsistent with the

defendant’s defense.” Hiltibidal, 292 S.W.3d at 494 (citations omitted); see also Cummings, 514

S.W.3d at 117 (trial court obligated to instruct on defense of others justification even when

defense objects to the instruction). In short, Appellant does not have a burden to demonstrate

that use of force in defense of another was his main defense at trial, but only that sufficient

evidence was injected into the proceedings such that it puts the matter at issue, and may form the

basis of acquittal.

                                                     Conclusion

         Because substantial evidence was adduced at trial to warrant an instruction on use of

deadly force in defense of another, the trial court committed plain error by not offering such an

instruction to the jury. Therefore, the judgment of the trial court is reversed, and this matter is

remanded for a new trial.5




5
  Appellant’s first point on appeal claims the trial court plainly erred by failing to sua sponte define the term “lawful
occupancy” in the instruction submitted to the jury regarding use of force in defense of an occupant of a vehicle.
Appellant concedes he did not request the trial court define “lawful occupancy” for the jury, and thus did not
preserve this error for review. Not only did Appellant not supply the trial court with a proposed definition for
“lawful occupancy”, but he also did not supply this Court with one. The trial court did not plainly err by not defining
a term which is undefined in the pattern jury instructions because the notes on use explicitly forbids it. MAI-CR3d
333.00, n.2.F. Deviation from approved instruction forms and accompanying notes on use by the trial court is
presumptively erroneous; therefore, the trial court did not plainly err by adhering to them. White, 58 S.W.3d at 633;
Rule 28.02(f).

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                                       SHERRI B. SULLIVAN, J.
Mary K. Hoff, P.J., and
Angela T. Quigless, J., concur.




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