Tuesday, July 12, 2016
Appellate court rejects self-defense claim in murder of MSSU coach
The Missouri Southern District Court of Appeals has rejected Jeffrey Bruner's request to have his first degree murder conviction tossed.
In a 6-1 decision issued today, the court ruled Judge Gayle Crane did not err when she refused to allow Bruner's lawyers to submit an instruction that would have allowed the jury to consider self-defense.
Bruner shot Missouri Southern State University offensive line coach Derek Moore to death November 1, 2013, in the parking lot in front of the Northstar 14 theater.
The murder is described in the decision, which was written by Judge William W. Francis, Jr.
Bruner and his wife, Michelle Bruner, were estranged and Wife moved out of the marital home approximately
Bruner was “stunned” when he saw the picture and told his daughter “this isn’t right. You know, what your mom is doing is not right.” He was also “hurt,” “angry,” and felt “betrayed.” Bruner decided to go to the theater and confront Wife. Bruner’s daughter did not want to go with Bruner and asked that he take her home.
On the way home, the daughter testified Bruner told her “he didn’t want [her] to see him kill a man[,]” that she probably would not have a “mom or a dad by the end of the night[,]” and “he would be going to jail that night[.]”1 Upon arriving home, Bruner again viewed the picture of Wife and Victim. He then retrieved two loaded pistols from the house because of “how big [Victim] was in the picture.” Bruner returned to his car, one pistol concealed upon his person, the other placed in the passenger seat along with an extra ammunition clip.
On the way to the theater, Bruner texted Wife asking “WTF,” and a second text asking her where she was. Wife did not respond. Arriving at the theater, Bruner unsuccessfully scoured the parking lot for Wife’s Jeep.
After several laps around the parking lot, Bruner parked in a space facing the theater. Bruner texted his daughter to determine if she was okay, and then sought to confirm what clothing Wife was wearing that night.
After a significant period of time, Bruner observed Wife emerge from the theater with Victim. Bruner left his vehicle and approached the two, asking Wife, “[W]hat’s going on[?]” Wife replied, “We’re on a date.” Bruner responded that “they had not talked about dating,” and Wife told Bruner she did not need his permission to date. An argument then ensued between Bruner, Victim, and Wife.
Victim asked Bruner who he was and Bruner responded, “This doesn’t have to do with you. I just want to talk to my wife[.]” Victim stated, “She moved out pal.” Bruner observed Victim to be considerably larger than he was—Bruner was 5’11” and approximately 170 pounds; Victim was approximately 6’5” and “was really big.”
As Victim would approach Bruner during this argument, Bruner would take a few steps back. However, Bruner continued to remain in front of Victim even when Victim would move forward.
Eventually, the procession reached the street opposite the movie theater entrance. Bruner saw a median emerging out of his peripheral vision, and not wanting to trip over it, stopped moving backward. Wife and Victim walked around Bruner to his right, causing Bruner to pivot clockwise toward Wife and Victim.
Bruner testified on direct examination that at that point, Victim exclaimed, “I’m not from here, mother fucker, I’ll have your throat slit in two hours.” Bruner asked why Victim was threatening him, and Victim indicated he did not play “these redneck games.” Victim stepped onto the median and said “you don’t know who the fuck you are messing with.”
Bruner saw Victim move into a “fighting stance” and move his right arm such that Bruner perceived Victim was going to grab him.
Bruner then pulled the pistol from his jacket and shot Victim several times in the back, killing him. A three-day jury trial commenced on March 23, 2015. At the jury instruction conference, Bruner’s counsel tendered a self-defense instruction, pursuant to MAI-CR 306.06, Part A – General Statement of Law, which the State opposed. The trial court refused the instruction.
The jury found Bruner guilty of first-degree murder and armed criminal action, and recommended life imprisonment without parole on the first-degree murder charge, and five years’ imprisonment on the armed criminal action charge.
In a concurring opinion, Judge Daniel Scott wrote that even if every word Bruner said could be believed, "society has not yet devolved to 'ordinary reasonable and prudent' persons publicly emptying guns into one another."
Scott also noted Bruner's actions:
-Bruner pulled a gun and shot Moore from behind until Moore dropped, his spinal cord severed.
-Bruner stood over Moore and emptied the gun into his back, then kicked Moore’s head and face with heavy boots as he lay dying.
-Waiting for police to arrive, Bruner said: “They posted it all over Facebook. What’s a guy supposed to do?”
In his dissenting opinion, Judge Gary W. Lynch made it clear his disagreement was not with the verdict but with Judge Crane's decision not to allow the jury instruction. In his opinion,he outlined the case that Bruner's attorney made.
Defendant and Michelle Bruner (“Wife”) married in 1992. Over the course of the marriage, the couple had periods of marital difficulties and separation but had always reconciled. Around October 15, 2013, Wife moved out of the marital home into an apartment.
When she moved out, Wife denied that she was involved with another man or that she planned on divorcing Defendant and said she just “needed space.” Defendant believed that no one else knew the couple had separated, and that he “knew it would be hard for her to come back, if everybody knew what she was doing.”
After Wife moved into the apartment, Defendant visited her “at least every other day[,]” and “spent two nights there with her.” On October 31, 2013, Defendant bought Wife a small gift and arranged to meet her at her workplace to give it to her. When they met, Wife acted different, “[k]ind of cold and something didn’t feel right.” Defendant asked her if they could go out the next night, but Wife said she had to work.
The next night, however, Wife went on a date with Derek Moore, and a photo of the two of them was posted on her Facebook page with the caption, “date night.” Defendant’s fourteen-year-old daughter saw the post and showed the photo to Defendant while they were out having dinner that evening. Defendant was stunned, hurt, angry, and upset because Wife had told him she had to work that night.
It appeared to Defendant that the photo was taken at the local theater. Defendant texted Wife asking her where she was. Wife did not reply. After Defendant returned home with his daughter, he looked at the picture in the Facebook post on his daughter’s computer and decided he wanted to find Wife, talk to her, and save their marriage. Before leaving the house, he put a gun in his pocket “because of how big the guy was in the picture.” He thought if the man “tried to beat [him] up or something, that [he] would be able to back him off with it.”
Wife had previously “been with [men] that were of the same build[,]” and once told Defendant “that these guys could crush [him].” Defendant drove to the theater, parked in front, and waited for Wife to exit the theater. He “just wanted to talk to [Wife] and help her to see that what she was doing wasn’t right and to come back home . . . that God is going to punish her for what she’s done . . . [and he] wanted to save her from that.”
When Wife exited the front entrance of the theater alongside Moore, Defendant exited his vehicle and approached Wife near the theater entrance, asking her, “[W]hat’s going on.” Wife responded that she was on a date. When Defendant told her that they had not talked about dating, Wife told him, “I don’t need your permission.” Defendant pleaded with her, telling Wife he just wanted to talk and asked why they couldn’t work things out. At that time, Moore told Defendant, “[S]he moved out, pal[,]” and Defendant told Moore, “this doesn’t have to do with you.” Moore responded, “it f-ing does because we’re on a date.” Wife intervened, putting her hand to Moore’s chest “like she was holding him back from [Defendant].”
As Defendant continued talking to Wife, Moore kept interfering with their conversation. Defendant backed up “countless times” as Moore “kept saying over and over, again, who the fuck are you and every time he would step toward me and I would back up.” Defendant was 5’10” and estimated that Moore was 6’4” or 6’5” and “really big.” Defendant had backed up until he was close to tripping over a “sidewalk median.” He stopped there, while Wife and Moore “started like circling around [him] to [his] right.”
As Moore went around Defendant, Moore told him, “I’m not from here, mother fucker, I will have your throat slit within two hours.” At that time, Defendant turned his focus completely on Moore because Defendant “didn’t know when [Moore] was going to cut my throat” as “within two hours that’s any time there.”
Defendant testified that at that point, "I got this really sick feeling in my stomach. I felt like I was kind of like [spinning]. And it was like the sky was getting darker. Everything is – it’s like everything was getting farther, . . . farther away. And sounds were sounding like they were farther and farther away. And everything was like closing in on me. And by the time he said, you don’t know who the fuck you’re messing with[,] my vision was just about gone . . . . like I was [blacking] out or something . . . [Moore] was like getting blurry."
Moore had stepped up onto the median, while Defendant remained on the asphalt. Defendant then asked, “[W]hy are you threatening me[,]” to which Moore stated, “I don’t play these redneck games.”
Defendant testified, “I did see some kind of motion right before the shots were fired. . . . I know there was some kind of motion that he made.” Moore had taken “what [Defendant] would call a fighting stance[,] . . . sideways looking at [Defendant]” with his right shoulder closer to Defendant, and Defendant “saw his right arm move.”
Defendant sensed that he was then in danger, “perceived that [Moore] was trying to grab [him,]” backed up, and at the same time pulled his gun out. Moore told Defendant, “[Y]ou don’t know who the fuck you are messing with.”
At that point, Defendant fired his gun multiple times. Defendant could not remember much of what occurred after he shot Moore except that he was sitting in his car with his hands on the steering wheel, trying to recall what had happened. When he got out of his car, someone was approaching, and he told them to call 911, saying, “I think I just shot someone.” Moore died of his wounds, and Defendant was arrested and charged with first-degree murder and armed criminal action
Judge Lynch wrote, "Although no weapon was found on Moore’s person, the jury could have concluded that Defendant believed that Moore had a knife (or some other instrument capable of slitting Defendant’s throat) based on his testimony that Moore had threatened to slit his throat, assumed a fighting stance, and moved his arm toward Defendant.
"The jury also could have concluded that Defendant believed that having his throat slit would expose Defendant to the risk of death and Defendant was entitled to proportionally respond to the threat of deadly force with deadly force. Therefore, there was evidence putting at issue all three of the applicable section 563.031 elements of self-defense, as mirrored in Defendant’s proposed Instruction A, and that instruction should have been submitted to the jury."