State v. Taylor

• Decision Date: 05 July 2005
• Docket Number: No. 25954.,25954.
• Citation: 166 S.W.3d 599
• Parties: STATE of Missouri, Respondent, v. Larry Dale TAYLOR, Appellant.
• Court: Missouri Supreme Court

166 S.W.3d 599

STATE of Missouri, Respondent, v. Larry Dale TAYLOR, Appellant.

No. 25954.

Missouri Court of Appeals, Southern District, Division Two.

July 5, 2005.

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Amy Bartholow, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant Larry Dale Taylor ("Defendant") appeals his conviction, following a jury trial, for two counts of assault of a law enforcement officer in the second degree, violations of section 565.082, and one count of resisting arrest, a violation of section 575.150.¹ Defendant was sentenced to concurrent sentences of twenty years imprisonment for felony assault of a law enforcement officer in the second degree; one year confinement in the county jail for misdemeanor assault of a law enforcement officer; and seven years imprisonment for resisting arrest. Defendant now alleges two points of trial court error discussed more fully below. We affirm the judgment of the trial court.

Defendant does not challenge the sufficiency of the evidence to support the judgment. This Court accepts as true all evidence supporting the verdict, including all favorable inferences therefrom and disregards all contrary evidence and inferences. State v. Dunn, 21 S.W.3d 77, 79 (Mo.App.2000).

The record reveals that on the evening of October 26, 2001, two McDonald County Sheriff's Department officers, Deputy Harvey Gow ("Gow") and Sergeant Carl Cosper ("Cosper"), along with two reserve officers, went to Defendant's home to arrest him on two outstanding parole warrants. Cosper knocked on Defendant's door and the door was opened by a young woman who was later identified as Jeanie Bird ("Bird"). Bird refused to allow the officers to enter the residence even after the officers informed her that they had a warrant. When the officers were finally able to enter the residence, they located Defendant and informed him that he was under arrest. As Cosper approached Defendant with handcuffs in hand, Defendant pulled a knife out from behind his back, raised the knife over Cosper's head "as if to stab [him] in the chest area," and told the officers to leave his house. Gow immediately drew his service weapon and pointed it at Defendant. Gow told Defendant to "[d]rop the knife." Defendant threatened that if the officers touched him, he would kill them. The officers were able to convince Defendant to drop his knife and Gow then put his weapon away. As the officers continued to discuss Defendant's outstanding warrants with him, he again became agitated and pulled a second knife from his waistband. At that time he told the officers "let's get it on right here, right now. Either you kill me or I'm going to kill you." Again the officers were able to convince Defendant to put the knife down. After further discussion with Defendant, he agreed to speak with either Chief Deputy Tom West ("West") or Sheriff Robert Evenson ("Evenson") about possibly turning himself in.

Cosper called Evenson and informed him of the situation at Defendant's residence. Evenson called the Special Emergency Response Team ("SERT") for assistance and proceeded to Defendant's home. While Cosper and Gow awaited Evenson's arrival, they continued to talk calmly with Defendant. While they were talking with Defendant, Defendant removed a large medieval battle axe from a wall in his home and began to carry it around with him.

Upon their arrival, Evenson and West talked with Defendant in his bedroom and it became clear to them that Defendant was not going to leave the residence peacefully. While Evenson and West were talking with Defendant in his bedroom, the SERT officers arrived. Evenson told Defendant that he was going to go call the judge to see if he could get permission to have Defendant turn himself in the next day and Evenson and West exited the bedroom.

In the meantime, the SERT officers stationed themselves in Defendant's bathroom and planned to lure Defendant out of the bedroom and either set off a "flash bang" distraction device or shoot Defendant with a beanbag gun. Cosper got Defendant to come out of his bedroom by requesting some aspirin. When Defendant emerged from his bedroom, the SERT officers attempted to set off the "flash bang" device, but the device failed to detonate. The team then shot Defendant in the chest or stomach with a beanbag gun in an effort to subdue him; however, when Defendant was struck with the beanbag he pulled two knives out of the waistband of his pants and threatened to kill all of the officers on the scene. Defendant was then shot with the beanbag gun a second time, which forced him to drop at least one of the knives. Defendant then fled into his bedroom and shut the door. With Bird barricaded in his bedroom with him, Defendant tried to use the battle axe to hold the door closed. The officers attempted to gain entry into the bedroom by kicking down the door, but ended up engaged in a pushing match with Defendant on the other side of the door. Defendant offered to allow Bird to leave the room and the officers moved away from the door to allow her to exit. Once Bird left the room, Defendant again barricaded the door and refused to emerge. When the SERT officers forced the bedroom door open, they "dog-piled" Defendant and handcuffed him. Gow then put leg irons on Defendant and he was taken into custody.

Following a jury trial, Defendant was convicted and sentenced to a total of forty-eight years imprisonment. This appeal followed.

In his first point on appeal, Defendant maintains the trial court plainly erred in allowing the State to discuss the fact that Defendant was on parole at the time he committed the offenses for which he was convicted. Defendant argues that such a plain error resulted in manifest injustice and violated his right to due process. Defendant's second point on appeal asserts the trial court plainly erred in failing "to quash the venire panel sua sponte and declare a mistrial." Specifically, he maintains that "in front of the entire [jury] panel, several venirepersons implied that [Defendant] was a bad person who had committed bad acts in the past ...;" accordingly, the entire panel was "poisoned" and Defendant did not receive "a fair trial from an impartial jury."

Defendant concedes that both allegations of trial court error were not properly preserved for appeal and that he failed to raise either matter in his motion for new trial as required under Rule 29.11(d). Nonetheless, he now requests this Court to review his points for plain error.

"`An assertion of plain error under Rule 30.20 places a much greater burden on a defendant than an assertion of prejudicial error.'" State v. Reynolds, 72 S.W.3d 301, 305 (Mo.App.2002) (quoting State v. Deckard, 18 S.W.3d 495, 497 (Mo.App. 2000)). Rule 30.20 provides, in pertinent part, that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." If in our discretion we decide to review Defendant's claim of plain error, Defendant must show that the trial court's error so substantially violated his rights that manifest injustice or a miscarriage of justice would result if the error is left uncorrected. State v. White, 92 S.W.3d 183, 189 (Mo.App.2002). Plain error "is error that is evident, obvious and clear." White, 92 S.W.3d at 189. "The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review." Id.

Defendant's first point on appeal states in full:

The trial court plainly erred, resulting in manifest injustice, by: 1) allowing the State to tell the jury during opening statement that at the time of the alleged offenses [Defendant] was a parolee, that parole warrants had been issued two different times for parole violations, and that there was another outstanding bench warrant for [Defendant's] arrest for felonious restraint; 2) allowing the State to call parole officer Nancy Manire as a witness for the sole purpose of establishing that [Defendant] was on parole and that two warrants had been issued for his parole violations; 3) allowing the State to elicit from law enforcement witness that they had arrested [Defendant] on previous occasions and had gone to his home to serve parole warrants; 4) allowing the State to introduce the physical warrants into evidence; 5) allowing cross-examination of [Defendant] as to his parole status, his failure to report or complete drug screens, and 6) in failing to declare a mistrial sua sponte after the introduction of all of this evidence, because the trial court's failure to act violated [Defendant's] right to due process of law and a fair trial by a fair and impartial jury guaranteed by the 5th, 6th, and 14th Amendments to the U.S. Constitution and Article I, Sections 10 & 18(a) of the Missouri Constitution, in that [Defendant's] parole status constituted evidence of uncharged crimes was unnecessary to explain the officer's conduct in going to his home, and was more prejudicial than probative on any issue at trial, and led the jury to infer that [Defendant] must be guilty of the present offenses.²

During its opening statement in the present matter, the State remarked that on the evening of Defendant's arrest, Defendant's probation and parole officer had issued "two warrants for [Defendant's] arrest...." A "felony warrant ... for [Defendant's] failure to cooperate and give a drug screen ..." was issued along with a bench warrant "for [Defendant's] arrest on another pending charge, and that charge was felonious restraint."

In its case in chief, the State called Defendant's probation and parole officer, Nancy Manire ("Manire") to establish that "there was an active warrant that was proper" when the police went to Defendant's home on...