State v. Avery

120 S.W.3d 196 (2003)

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Nature of the Case

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Facts

P moved into the house of John Hamilton as his girlfriend. That same month P had a sexual encounter with Bruce Paris. D and Paris began making plans to go to Chicago but Paris broke up with D to get back with an ex-girlfriend. D made verbal threats against Paris. Paris went to Chicago alone. Two weeks before returning to Missouri, he made numerous harassing telephone calls to D and Hamilton. D threatened to call the police. Two days after his return to town, Paris told a friend he wanted to see D. That friend saw D in a bar and told her, and eventually, the friend and D drove to meet Paris. They drank heavily and smoked marijuana. D bit Paris when he grabbed her breast and covered her mouth. Everyone went to Hamilton’s house and D drove the friend back to his car. The friend went to Gibbs’ house and told her about Paris at Hamilton’s home. Gibbs called Hamilton who was in California on business and told him what was going on. Hamilton called D and D said all she wanted was to tell Paris to leave them alone. D repeatedly asked Paris to leave but he refused. D became scared and got Hamilton’s revolver. She displayed the weapon and ordered Paris to leave. Paris left on foot. D went to walk the dog with the revolver. She heard noises and saw a figure approaching and got scared. She ran back to the house. but accidently left the door open. She pointed the revolver at the door. Paris entered the doorway got upset at seeing the gun and threatened to beat her up and then went toward D and tried to grab the revolver. The story from this point changed but D now claims the gun went off accidently as they struggled for it and called the Sheriff and said she shot an intruder. .D called Hamilton to tell him what happened. He stated she was 'extremely upset' and 'pretty hysterical.' She told Hamilton that Paris 'came at me and I shot him.' Paris' pants were unzipped and they found a picture of D with a note on it from her in his pocket. D admitted that she had given Paris the picture earlier that evening. Paris had seen the picture sitting on her coffee table and asked to keep it. D said that he could keep it if he promised to leave her alone. An autopsy revealed alcohol in Paris' stomach and one of D's hairs, with the root still attached, clutched in his hand. The jury was instructed on first-degree murder, second-degree murder, involuntary manslaughter, and armed criminal action. D was convicted. D asked for instructions on self-defense, defense of premises, and voluntary manslaughter but they were refused because D said the shooting was accidental. The court also refused the voluntary manslaughter instruction, believing that no evidence was produced on the element of the heat of passion. D appealed.