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A defense of premises instruction must be given by the trial court only when there is evidence of attempted unlawful entry and evidence that the lawful occupant reasonably believed 1) immediate danger of entry existed; 2) the entry was being attempted in order to kill or inflict serious bodily harm on the occupant; and 3) deadly force was required to prevent the entry.
Officer Herbert Robinson, an undercover police officer working with the street narcotics unit of the Kansas City Police Department, approached a house at 5840 Wabash in Kansas City, Missouri. He made a $ 20 crack cocaine purchase from a black woman whom he found on the porch of the house. This purchase allowed the police to obtain a search warrant for the house. Robinson and other officers returned to the area to execute the search warrant. Robinson knocked on the door of the house, and defendant Michael Lumpkin, gun in hand, answered the door. Robinson asked for a $ 20 rock and was told by Lumpkin that there were "no happenings." Robinson inquired as to the whereabouts of the black woman from whom he had previously purchased crack cocaine. Someone then came to the door, yelled obscenities at Robinson, pushed Robinson and then struck Robinson with his fist. Defendant shot Robinson in the right shoulder and slammed the door shut. Defendant ran out the back door of the house, threw the gun down in the backyard and hid out until he was arrested. Defendant was subsequently convicted by a jury of first degree assault, § 565.050, and armed criminal action, § 571.015. Defendant appealed, arguing that the trial court erred in refusing to submit a defense of premises instruction.
Under the circumstances, did the trial court err in refusing to submit a defense of premises instruction?
The court ruled that a defense of premises instruction must be given by the trial court only when there was evidence of attempted unlawful entry and evidence that the lawful occupant reasonably believed immediate danger of entry existed, the entry was being attempted in order to kill or inflict serious bodily harm on the occupant, and deadly force was required to prevent the entry. Further, the court held that defendant bore the burden of injecting the issue of defense of premises. Also, the court found that the defense of premises was a defense of justification as was self-defense, and that defense of premises was essentially accelerated self-defense. The court affirmed the judgment convicting defendant, concluding that defendant's subjective belief, without an evidentiary basis to create a question of fact as to its reasonableness, did not meet the quantum of proof necessary to give a defense of premises instruction.