State v. McDaniel

• Decision Date: 25 March 2008
• Docket Number: No. ED 89538.,ED 89538.
• Citation: State v. McDaniel, 254 S.W.3d 144 (Mo. App. 2008)
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Bryan McDANIEL, Defendant/Appellant.
• Court: Missouri Court of Appeals

254 S.W.3d 144

STATE of Missouri, Plaintiff/Respondent, v. Bryan McDANIEL, Defendant/Appellant.

No. ED 89538.

Missouri Court of Appeals, Eastern District, Division Two.

March 25, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 29, 2008.

Application for Transfer Denied June 24, 2008.

Brocca Leah Smith, Michael Freeman Jones—co-counsel, Clayton, MO, for appellant.

Shaun J. Mackelprang, Jayne T. Woods—co-counsel, Jefferson City, MO, for respondent.

BOOKER T. SHAW, Judge.

Bryan McDaniel appeals his jury convictions and corresponding sentences totaling 13 years for first-degree trespass, attempted assault in the first degree, armed criminal action, and attempted burglary in the first degree. On appeal, McDaniel contends that the trial court erred in (1) overruling his motion for acquittal on the attempted assault charge due to insufficient evidence, (2)(a) overruling his objection to the State's reference to McDaniel's tattoos during closing arguments, (2)(b) failing to declare a mistrial during closing arguments because the State encouraged the jury to "send a message," and (3) failing to declare a mistrial due to the State's references to McDaniel's use of a racial slur. The judgment is affirmed.

Facts

Viewed in the light most favorable to the verdict, the facts are as follows. On September 20, 2005, McDaniel rang the doorbell of one of his apartment building neighbors, Adrian Hudson, who resided there with his girlfriend, Cindy Green, their 10-month old baby, and Cindy's sister, Jazimine. Hudson opened the door, and McDaniel, holding out a handful of paper trash, complained that Jazimine had littered on or near the complex. Hudson denied that the litter belonged to anyone in his unit. The discussion escalated between the two, standing there in the threshold of the apartment. Papers were thrown and kicked, Hudson's shoe came off, McDaniel hit Hudson in the face with it, and Hudson swiped at McDaniel with a knife, cutting McDaniel's hand. Hudson and Green eventually managed to close and lock the door.

McDaniel disappeared briefly, returned with a fully-loaded semi-automatic assault rifle, cocked it with the safety off, his finger on the trigger, and began yelling infinite variations on the theme, "I'm going to get you, nigger! I'm going to kill you, nigger! Fuck you, nigger! You're dead!" McDaniel kicked on the door hard enough to shake the walls and pass light through the doorframe. He punched the door hard enough to break his own hand. Hudson and Green braced the door with a chair and called 911. A neighbor likened McDaniel's actions to that of a SWAT team attempting to breach an entryway. That same neighbor also called 911 and later testified, "I thought I was going to witness a murder."

At some point McDaniel placed his weapon against a nearby banister. He explained during cross-examination that he couldn't hold the gun and pound on the door at the same time. When the police arrived, McDaniel was holding the rifle, pacing, and still shouting the aforementioned obscenities.

Discussion

Point I — Sufficiency of Evidence

McDaniel contends that the trial court erred by overruling his motion for acquittal on the attempted assault charge because the evidence did not demonstrate that he took a substantial step to commit the actual assault. Our standard of review is whether there is sufficient evidence from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt, accepting all evidence favorable to the State and disregarding all evidence and inferences to the contrary. State v. Hopson, 168 S.W.3d 557, 561 (Mo. App. E.D.2005).

A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person. Section 565.050 RSMo 2000. A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. Section 564.011. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Id.

McDaniel cites Verweire v. Moore, 211 S.W.3d 89 (Mo.2006), where the Supreme Court of Missouri found insufficient evidence of a substantial step when the defendant pointed a pistol at the victim and threatened to pull the trigger but then retreated voluntarily. There, the Court was careful to note, "This is not a case like those in which the defendant was convicted because he would have injured the victim but for the malfunctioning of his weapon or the intervention of law enforcement." Id. at 92. (emphasis added) By contrast, McDaniel's actions, accompanied by his relentless and unambiguous threats, were sufficient to lead a reasonable trier of fact to conclude that he was taking substantial steps and would have persisted, but for the police, until he successfully entered the apartment and caused serious injury to its inhabitants. Point I is denied.

Point II — Prosecution's Statements During Closing Arguments

McDaniel alleges two trial court errors during closing arguments. First, he asserts that the court erred by overruling his objection when the State referred to him as "tattoo man" because the characterization was prejudicial. Second, McDaniel faults the court for not declaring a mistrial sua sponte when the State urged the jury to "send a message" because it incited the jury's emotions.

As a preliminary matter, the State invites this Court to dismiss this point for multiple preservation defects. Indeed, McDaniel alleges two distinct errors within the same point in violation of Rule 84.04(d). Moreover, neither point was properly preserved in the trial court. McDaniel objected to the tattoo reference at trial but failed to include it in his motion for a new trial as required by Rule 29.11(d). And McDaniel never objected to the State's suggestion that the jury send a message. Additionally, McDaniel raises a new argument in the text of his brief — regarding the State's description of him as a narrow-minded bigot — which he failed to articulate in the point relied on in violation of Rule 84.04(e).

McDaniel urges the Court to exercise its discretion to look past the procedural flaws and review his point(s) for plain error....