In Division STATE OF MISSOURI, ) ) Respondent, ) No. SD38459 ) v. ) Filed: April 7, 2025 ) RICHARD NEIL BURKETT, ) ) Appellant. ) APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY Honorable William E. Hickle, Judge Opinion on Motion for Rehearing or to Transfer to Supreme Court In its "MOTION FOR RECONSIDER [sic] BY THE COURT EN BANC OR REHEARING UNDER RULES 30.26 AND 84.17 OR APPLICATION FOR TRANSFER UNDER RULES 30.27 AND 83.02[,]" the State argues this Court's opinion "overlooks controlling Missouri Supreme Court case law on waiver of instructional plain error." In support, the State directs us to State v. Jackson-Bey, 690 S.W.3d 181 (Mo. banc 2024)—however, Jackson-Bey is inapplicable, as it dealt with waiver in the context of the verdict director for first-degree assault, not self-defense. See id. at 186-87.

As set out in more detail in this Court's opinion, governing case law from our Supreme Court and our intermediate appellate courts have found "[s]elf-defense is a special negative defense pursuant to which the defendant has the burden of injecting into the evidence the issue of self-defense while the State continues to have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense." State v. Kendrick, 550 S.W.3d 117, 122 (Mo. App. W.D. 2018) (internal quotations and citation omitted). The trial court's failure to instruct on self-defense where there is substantial evidence to support it effectively relieves the prosecution of its burden to prove the defendant did not act in self-defense, a required element of its case. See id. The State's remaining case law and analysis is likewise unavailing, as it is premised on the same erroneous reasoning.

The State's "MOTION FOR RECONSIDER [sic]" is denied.

MARY W. SHEFFIELD, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, C.J. – CONCURS JEFFREY W. BATES, J. – CONCURS