## Facts

- Jamie Avery lived with her boyfriend, John Hamilton, in his home and had previously had an intimate relationship with Bruce Paris.
- Paris made repeated harassing phone calls to Avery and Hamilton; Avery warned she would call police if the calls continued.
- On December 6, 2000, Avery agreed to meet Paris; she, Paris, and a friend drove around drinking, and Avery alleged Paris groped her and covered her mouth, prompting her to bite him.
- The group later went to Hamilton’s house, where Avery and Paris argued; Avery testified she repeatedly told Paris to leave, but he refused and blocked the door with his foot.
- Avery retrieved Hamilton’s revolver; the encounter escalated, and Paris was shot and killed during a struggle over the gun.
- At trial, Avery claimed the shooting was accidental and unintentional.
- The State introduced Avery’s prior inconsistent statements to police and to Hamilton that supported alternative versions: that the shooting was intentional but justified by self-defense or defense of premises, or mitigated by sudden passion arising from adequate cause.
- The trial court refused Avery’s requested jury instructions on self-defense, defense of premises, and voluntary manslaughter (lesser-included offense of second-degree murder).
- A jury convicted Avery of second-degree murder and armed criminal action, and she received consecutive 30-year sentences.

## Issues

1. Whether the evidence required a self-defense instruction, even though Avery testified the shooting was accidental.
2. Whether the evidence required a defense-of-premises instruction based on Paris’s alleged refusal to leave and interference with Avery’s attempt to make him exit the home.
3. Whether the evidence required a voluntary manslaughter instruction as a lesser-included offense of second-degree murder based on sudden passion arising from adequate cause.

## Decision

- The Supreme Court of Missouri (en banc) reversed the convictions and remanded for a new trial.
- The court held the trial court erred by refusing instructions on self-defense and defense of premises because evidence, viewed favorably to Avery, permitted a jury to find an intentional use of force that was justified.
- The court held the trial court erred by refusing a voluntary manslaughter instruction because evidence supported a finding that, if Avery intentionally killed Paris, she did so under sudden passion arising from adequate cause.
- The court rejected the State’s argument that Avery’s accident testimony eliminated the foundation for intentional-homicide defense and mitigation instructions where other evidence supported those theories.

## Legal Principles

- A defendant is entitled to an instruction on a defense or lesser-included offense when there is substantial evidence supporting it, viewed in the light most favorable to the defendant; evidence may be weak or inconsistent and still require instruction.
- A defendant’s trial testimony does not control the instructional analysis; the court must consider all evidence in the record, including prior statements introduced by the prosecution.
- Self-defense instructions are required when evidence supports that the defendant reasonably believed force was necessary to protect against imminent unlawful force.
- Defense-of-premises instructions are required when evidence supports that the victim unlawfully entered or remained on premises and the defendant reasonably believed force was necessary to prevent or terminate that unlawful entry or remaining.
- Voluntary manslaughter as a lesser-included offense must be submitted when evidence supports that the killing, if otherwise murder, occurred under sudden passion arising from adequate cause.

## Conclusion

Because the record contained evidence supporting self-defense, defense of premises, and voluntary manslaughter—despite Avery’s claim that the shooting was accidental—the trial court was required to instruct the jury on those theories, and the failure to do so required reversal and a new trial.


State v. Avery, 120 S.W.3d 196 (Mo. 2003) (en banc)