State v. O'Keefe

681 S.W.3d 615

STATE of Missouri, Respondent,

v.Joshua O’KEEFE, Appellant.

No. ED 110330

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED; October 24, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied December 05, 2023

Application for Transfer Denied January 30, 2024

Appeal from the Circuit Court of St. Charles County, Honorable Michael J. Fagras, Judge

For Appellant: William J. Swift, 1000 W. Nifong Blvd., Bldg. 7, Ste. 1000, Columbia, MO 65203.

For Respondent: Nathan J. Aquino, P.O. Box 899, Jefferson City, MO 65102.

KURT S. ODENWALD, Presiding Judge.

Introduction

Joshua O’Keefe ("O’Keefe") appeals from the trial court’s judgment following a jury conviction on first-degree manslaughter arising out of a road-rage incident. O’Keefe raises eight points on appeal. O’Keefe first argues the trial court plainly erred in refusing to instruct the jury on defense of others, in addition to self-defense, because substantial evidence showed O’Keefe reasonably believed that using physical force was necessary to protect his family, who were passengers in his vehicle. O’Keefe likewise contends the trial court abused its discretion in sustaining the State’s objections to his statements in closing argument that he acted in defense of others. O’Keefe further claims the trial court erred when it incorrectly instructed the jury on self-defense by including the term "deadly force" because pushing or punching Victim did not amount to "deadly force" and by omitting from the instruction that O’Keefe was permitted to defend against Victim’s forcible felony. In three related points, O’Keefe maintains the trial court abused its discretion in excluding evidence of Victim’s inhalant use because the evidence was relevant to causation, to whether Victim was the initial aggressor, and to whether O’Keefe reasonably believed that he needed to defend himself against Victim. Lastly, O’Keefe asserts the trial court plainly erred in allowing the State to mention in closing argument that O’Keefe did not raise a self-defense argument until the time of trial.

Because the record does not contain substantial evidence from which O’Keefe reasonably could believe his family was in immediate danger of death or serious harm at the time he used force against Victim, the trial court did not plainly err in declining to instruct the jury on defense of others, and we deny Point One. Similarly, the trial court did not err in precluding O’Keefe from raising the issue of defense-of-others during closing argument, and we deny Point Two. With regard to O’Keefe’s two claims of instructional error, the trial court did not err in including "deadly force" in the self-defense instruction because the use of deadly force was a disputed issue of fact for the jury to decide, and we deny Point Three. Because the record did not show that O’Keefe reasonably believed Victim posed an ongoing or imminent threat of committing a forcible felony when O’Keefe used physical force against Victim, the trial court correctly instructed the jury on self-defense, and we deny Point Eight. O’Keefe’s evidentiary claims relate to Victim’s alleged use of inhalants. The trial court did not err in excluding evidence of Victim’s inhalant use because O’Keefe’s offer of proof did not sufficiently support a finding that Victim was under the influence of an inhalant at the time of the incident, thus we deny Points Four, Five, and Six. Finally, because the State’s closing argument did not improperly comment on O’Keefe’s exercise of his constitutional right to remain silent following his arrest, the trial court did not plainly err in not sua sponte limiting the State’s argument, and we deny Point Seven. Accordingly, we affirm the trial court’s judgment.

Factual and Procedural History

This case stems from an incident occurring on westbound Interstate 64 in St. Charles on August 30, 2020. O’Keefe was driving a pickup truck with his Wife and Children (collectively, "Family") as passengers and was pulling a trailer. Victim was also driving a pickup truck westbound, and he became angry when a rock may have fallen off O’Keefe’s trailer and hit his windshield. Victim was not staying in his lane and twice "brake-checked" O’Keefe by pulling in front of his truck at a high speed, then slowing down and driving close without hitting him.

O’Keefe and Victim pulled their trucks over to the shoulder. Victim stopped his truck in front of O’Keefe’s truck. Both men were angry. Victim exited his truck and stood on the driver’s side. Victim was unarmed and did not make any threatening gestures. O’Keefe exited his truck and quickly approached Victim and struck him. According to numerous eyewitnesses, O’Keefe punched Victim in the face. The punch was very strong—"a very swift hard hit with one arm" and a "very hard punch." One witness described the punch as "the hardest [he had] ever seen anybody hit." Victim was sixty-eight years old and weighed 135 pounds. Additional witnesses observed O’Keefe forcefully pushing or punching Victim against the truck. Victim fell to the ground immediately, "like a rag doll," and lost consciousness. O’Keefe then picked up Victim and put him inside the truck, Witnesses called 911.

Victim died from his injuries. Specifically, Victim died from the injuries to his brain from a skull fracture. Victim had bruising around the right eye and a broken nose, consistent with being punched in the face. Victim had no injuries on his hands. Victim’s injuries resulting from the severe impact of his head to the ground were worse than if he had simply fallen.

After the incident, O’Keefe used a different cell phone to communicate with Wife, and Wife searched the internet for information regarding the incident. Accompanied by an attorney, O’Keefe turned himself in to police on September 2, 2020. The State charged O’Keefe with second-degree murder or, alternatively, first-degree involuntary manslaughter for the death of Victim. The State alleged O’Keefe struck Victim, causing Victim’s head to impact a hard surface.

Prior to trial, the State filed a motion in limine to exclude evidence that Victim was under the influence of toluene from glue-sniffing at the time of the incident. The trial court held the issue until after the State’s evidence, finding after hearing the parties’ arguments that the evidence of Victim’s inhalant use was too speculative without accompanying expert testimony.

The case proceeded to trial in October 2021. O’Keefe testified that Victim was screaming, belligerent, and intoxicated when exiting his truck. O’Keefe admitted he pushed Victim but denied that he punched Victim. O’Keefe testified that after he pushed Victim, whom O’Keefe alleged pushed him first, Victim fell down and hit his head. O’Keefe stated that Victim lost consciousness as O’Keefe was helping him into his truck. O’Keefe’s Wife and Children also testified in his defense, recounting that they were scared and crying due to Victim’s driving.

At the close of the State’s evidence, O’Keefe made an offer of proof regarding Victim’s inhalant use. O’Keefe called S.M., a forensic microbiologist from the St. Louis University forensic toxicology lab. S.M. testified about Victim’s toxicology reports and opined that while the results showed evidence of recent inhalant use, the results were inconclusive as to whether Victim was under the influence from toluene at the time of the incident. S.M. testified that Victim’s conduct during the incident was inconsistent with a person under the influence of toluene. A Missouri State Highway Patrol Trooper (the "Trooper") investigated the incident and heard evidence from Victim’s family members about Victim’s alleged chronic inhalant abuse, including that Victim’s son ("Son") found one open and three closed packages of glue in Victim’s truck. The Trooper, a certified Drug Recognition Expert ("DRE"), also testified that Victim’s conduct during the incident was inconsistent with a person under the influence of an inhalant.

The trial court held a jury instruction conference. O’Keefe orally proposed that the jury be instructed on defense of others but did not submit a written defense-of-others instruction.¹ The trial court instructed the jury on self-defense as follows:

One of the issues is whether the use of physical force by [O’Keefe] against [Victim] was lawful. On the issue of self-defense you are instructed as follows: In this state the use of physical force, including the use of deadly force, to defend oneself is lawful in certain situations. However, an initial aggressor is not justified in using physical force to defend himself from the counter attack that he provoked. In order for a person lawfully to use non-deadly physical force in self-defense he must reasonably believe such physical force is necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful force and he can only use physical force to the extent that he reasonably believes is necessary to defend himself.

But a person is not permitted to use deadly force unless he reasonably believes that the use of deadly force is necessary to protect himself against death or serious physical injury.

A person is not required to retreat before resorting to the use of physical force if he is remaining in a location the person has the right to be. The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty.

As used in this instruction, an "initial aggressor" is one who first attacks or threatens to attack another.

As used in this instruction, the term "reasonably believe" means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the

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