State v. Taylor, Nos. 54611

• Decision Date: 23 April 1991
• Docket Number: Nos. 54611,54686 and 58504
• Citation: 807 S.W.2d 672
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kevin Levell TAYLOR, Defendant-Appellant. Kevin Levell TAYLOR, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 672

807 S.W.2d 672

STATE of Missouri, Plaintiff-Respondent, v. Kevin Levell TAYLOR, Defendant-Appellant.

Kevin Levell TAYLOR, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 54611, 54686 and 58504.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 23, 1991.

Ellen H. Flottman, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

CRANE, Judge.

A jury convicted Kevin Levell Taylor of one count of assault in the first degree, in violation of § 565.050 RSMo 1986, one count of attempted robbery in the first degree, in violation of §§ 564.011 and 569.020.1 RSMo 1986, and two counts of armed criminal action, in violation of § 571.015 RSMo 1986. Taylor was sentenced to fifteen years for assault, five years for attempted robbery, and three years for each armed criminal action, all sentences to be served consecutively. Taylor's motion for post-conviction relief under Rule 29.15 was denied. Taylor appeals from the judgment of the trial court and the order of the motion court. We affirm the convictions and the order of the motion court.

Direct Appeal

For his direct appeal Taylor's sole point is that the trial court erred in submitting instructions to the jury on both the assault and attempted robbery charges because this subjected him to double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 19 of the Missouri Constitution. We disagree.

The evidence relevant to this issue, viewed in the light most favorable to the verdicts, discloses that Taylor made plans to rob Popeye's Restaurant, where he was employed. Prior to the event in question he made inquiries concerning the alarm system. He also told one acquaintance of his intention to rob an unidentified place and asked another for suggestions on how to break into a place. The night before the incident, he telephoned the night manager at Popeye's and asked how much cash was on hand and offered to come into the restaurant to help close up, which offer was turned down.

Sharon McDaniel was the second assistant manager of Popeye's. One of her duties was to take the previous day's receipts, located in the safe, to the bank. The safe could only be opened between 7:30 and 8:30 a.m.

About 7:30 a.m., on March 22, 1987, a day Taylor was not scheduled to work, he came to the door of Popeye's. McDaniel let him in. He told her that the manager told him to come in to work. Taylor did not clock in. He went to the preparation area and began cutting chicken into fillets with a butcher knife. Later, McDaniel went to the office and removed the receipts from the safe. Taylor followed her, making small talk. McDaniel placed the money on the desk and sat down. Taylor then put his arm around her and pushed the butcher knife against her stomach. Taylor grabbed her from the chair and she fell to the floor. As she tried to move away from him, he stabbed her three times in the chest.

After this attack, McDaniel feigned unconsciousness. When she saw that Taylor was standing over her with the knife a length and a half over her neck, she rolled into him, knocking him over and jarring the knife from his hand. McDaniel grabbed the knife but Taylor then grabbed it back from her, causing a fourth stab wound to her hand. As he swung the knife at her, she grabbed it away from him again. Taylor then struggled to push her into a cooler but could not get her all the way in. He asked her to give him the knife. When she refused, he walked back towards the preparation area. McDaniel managed to get into the office, closed the door, causing it to lock automatically, and called an ambulance. Because she was afraid she was going to die, she wrote "Kevin Taylor for the money" on a pad of paper. Taylor, seeing that McDaniel had locked herself in the office, fled.

McDaniel suffered serious physical injury from the wounds. She was admitted to the hospital with four stab wounds, three to the chest and one to the left hand. Her pericardium and diaphragm were lacerated. Her condition was listed as critical but stable and the prognosis was guarded. She required immediate surgery and all of the stab wounds required treatment and suturing.

Although it has not been raised by either party, as an initial matter we must address whether double jeopardy attaches to the submission of jury instructions where multiple crimes have been charged in the same case. The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This guarantee is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Article I, § 19 of the Missouri Constitution is more limited, providing that "nor shall any person be put again in jeopardy of life or liberty for the same offense, after once being acquitted by a jury." However, the common-law rule that "no person shall for the same offense be twice put in jeopardy is in force in this state ..., and precludes a second conviction and punishment for the same offense." State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 63 (Mo.1930) (citation omitted). Our Supreme Court has found no readily discernible difference between the Fifth Amendment guarantee against double jeopardy and the common law guarantee as applied in Missouri. State v. Richardson, 460 S.W.2d 537, 538 (Mo. banc 1970); State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978). See also, State v. Bowles, 754 S.W.2d 902, 907 (Mo.App.1988).

The guarantee against double jeopardy affords a defendant three basic protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

State v. Thompson, 610 S.W.2d 629, 634 (Mo.1981), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 122 (1981), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969). See also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977).

Since the case before us does not involve a second prosecution, the protection against double jeopardy available to defendant in this case is that against multiple punishments for the same offense. This protection "is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425, 433 (1984). The protection against multiple punishments for the same offense does not, however, prohibit the state from prosecuting multiple offenses in a single prosecution. Id., 467 U.S. at 500, 104 S.Ct. at 1541, 81 L.Ed.2d at 434. The double jeopardy protection against multiple punishments does not arise until the time of sentencing. Id. Thus, defendant cannot claim that submission of multiple offenses to the jury constituted double jeopardy.

Defendant raises no point of error concerning sentencing and did not object to sentencing on double jeopardy grounds at trial. Nevertheless, because of the substantial rights involved, we will review under Rule 30.20 the question whether the protection against double jeopardy prohibits the multiple punishments imposed by the trial court. We conclude that it does not.

The issue is whether the attempted robbery and the assault are the same offense, so that multiple punishments would be barred by the prohibition against double jeopardy. The test for determining whether two offenses are "the same" for double jeopardy purposes has been established by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger, the Court held that "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. State v. Treadway, supra, 558 S.W.2d at 651 (Mo. banc 1977); State v. Sprous, 639 S.W.2d 576, 577 (Mo.1982); State v. Childs, 684 S.W.2d 508, 511 (Mo.App.1984); State v. Bowles, supra, 754 S.W.2d at 908; State v. Pettis, 748 S.W.2d 793, 794 (Mo.App.1988); State v. Applewhite, 771 S.W.2d 865, 871 (Mo.App.1989).

The Blockburger test is "a rule of statutory construction". Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275, 282 (1981). The Blockburger test "focuses on all of the statutory elements of each offense." State v. Murray, 630 S.W.2d 577, 582 (Mo. banc 1982). "If each crime requires proof of a fact that the other does not, the test is satisfied, notwithstanding substantial overlap in the evidence offered to establish the crimes." Id. (citing Albernaz, supra, 450 U.S. at 338, 101 S.Ct. at 1142, 67 L.Ed.2d at 281 (1981)); See also Brown v. Ohio, supra, 432 U.S. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 194; State v. Franklin, 752 S.W.2d 937, 942 (Mo.App.1988).

Defendant was charged in Count I with assault in the first degree by knowingly causing serious physical injury to Sharon McDaniel by stabbing her. This conduct was in violation of § 565.050.1 RSMo 1986, which provides that "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."

Defendant was charged in Count III with attempted robbery in the first degree by stabbing Sharon McDaniel with a knife in order to take U.S. currency from her possession. This conduct was in violation of § 569.020.1 and § 564.011.1 RSMo 1986. Section 569.020.1 defines...