ST. LOUIS, MO (KTVI) - Is it a case of murder, or a case of a homeowner legally protecting himself under Missouri`s Castle Doctrine?
That is the question being asked after a 13-year-old African-American boy was shot and killed by a 60-year-old African-American man at about 12:45 A.M. Sunday morning.
The homeowner says Martinez Smith-Payne, 13, was one of three teenagers he caught taking items out of his unlocked car, parked behind his house in the 5900 block of Riverview Boulevard.
'He didn`t say anything, he just started shooting,' said Smith-Payne`s 14-year-old cousin, who said he was with him when he was shot.
The cousin asked not to be identified.
He says he was with Smith-Payne and another younger friend when they stopped to rummage through an unlocked car parked behind a house in the 5900 block of Riverview Boulevard, in the Northpoint neighborhood.
'We saw the car inside the gate, we hopped the gate, Martinez was on the passenger side, and me and the other young man was on the driver`s side, and we were rambling through his car, so the man came out and must have seen us. He fired at us and we hopped the gate, but Martinez didn`t make it over the gate,' the cousin said.
He says the three of them had been staying at their young friend`s house Saturday night when they decided to go for a late night bike ride.
He says around midnight they got hungry and began rummaging through cars looking for change to buy snacks.
It`s a decision he says they made together, but that ultimately, he feels responsible.
'I was supposed to be the oldest,' he said. 'I was supposed to be the one to tell them to not go in the cars.'
Ward 27 Alderman Chris Carter says several recent car break-ins have had residents in the Northpoint neighborhood on edge.
'I wish that we had more things for our youth to get involved in because at the end of the day that is what it boils down to,' Carter said, adding, 'but in another sense what was a 13-year-old child doing out at 1:00 A.M?'
St. Louis Police asked the Circuit Attorney for charges against the homeowner including second degree murder, but they say their request was refused.
The Circuit Attorney's office however, says the matter is under review, and that Missouri's Castle Doctrine, allowing homeowners to protect their property with deadly force if they feel threatened, is complicated and broadly written.
See the full statement from the Circuit Attorney and the Castle Doctrine statute below.
FOX 2 was unable to reach the homeowner for his side of the story.
The cousin's mother says so far the boys who were with Smith-Payne have not been charged with any crime under the Juvenile Code, but that the case is still under investigation.
The family of Martinez Smith-Payne is hoping the community can help pay for his funeral. The arrangements are being made through Serenity Funeral Home on Union Avenue.
Circuit Attorney`s Office Statement
November 30, 2015
The shooting death of 13-year-old Martinez Smith-Payne on Riverview Boulevard is a terrible tragedy. Missouri law regarding a homeowner`s right to protect himself and his property is complicated. The matter is currently under review by prosecutors in my office. We are reviewing the evidence, witness accounts and case law to ensure we are protecting the rights of both the victim and the homeowner. All individuals deserve a thoughtful review of the facts.
Use of force in defense of persons.
563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:
(a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
(b) He or she is a law enforcement officer and as such is an aggressor pursuant to section563.046; or
(c) The aggressor is justified under some other provision of this chapter or other provision of law;
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;
(3) The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.
- A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;
(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or
(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual claiming a justification of using protective force under this section.
- A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining. A person does not have a duty to retreat from private property that is owned or leased by such individual.
- The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
- The defendant shall have the burden of injecting the issue of justification under this section. If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.
(L. 1977 S.B. 60, A.L. 1993 S.B. 180, A.L. 2007 S.B. 62 & 41, A.L. 2010 H.B. 1692, et al. merged with H.B. 2081)