State v. Taylor
| Decision Date | 30 September 1987 |
| Docket Number | No. 14856,14856 |
| Citation | 739 S.W.2d 220 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Larry TAYLOR, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Dan L. Birdsong, Thomas, Birdsong, Clayton & Haslag, Rolla, for defendant-appellant.
William L. Webster, Atty. Gen., Kurt A. Hentz, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Larry Taylor (Defendant) was convicted of manufacturing marijuana and possession of more than 35 grams of marijuana. Both charges originated in McDonald County; the cases were consolidated and tried in Phelps County, pursuant to a change of venue.
On appeal, defendant raises four points: (1) the trial court erroneously permitted the state to present evidence of the separate crime of assault; (2) the trial court permitted the state to make references to the assault in closing argument; (3) the trial court abused its discretion in failing to grant defendant a continuance; and (4) the trial court committed plain error in permitting the state to introduce a tape-recorded statement containing hearsay statements. For the reasons hereafter stated, we reverse and remand for new trial.
On October 4, 1984, McDonald County Deputy Sheriff John Heiskell was called to the home of Darlene Kinslow's 1 sister. Ms. Kinslow arrived shortly after Deputy Heiskell. During a brief interview with Ms. Kinslow, Heiskell observed bruises and abrasions on her face. Heiskell and Ms. Kinslow then went to the McDonald County Sheriff's office where she permitted photographs to be taken of various injuries on her legs, back, arms and face, and gave a tape-recorded interview to Deputy Heiskell. She also signed a "Consent to Search" authorizing law enforcement authorities to search her residence and outbuildings located on the property. She and defendant had been cohabitating in a trailer house near Anderson, Missouri. Officers then obtained an arrest warrant for defendant. Although it is unclear from the record, the warrant was apparently issued based upon an alleged assault, discussed in detail hereafter.
Armed with Ms. Kinslow's consent to search and an arrest warrant for defendant, Heiskell, the McDonald County Sheriff and other law enforcement officers proceeded to the residence. When they arrived, defendant and his sister were in the process of leaving. Defendant was arrested.
In the trailer house officers found a large quantity of marijuana, easily enough to exceed the 35 gram threshold to qualify as a felony. Outside in a shed, officers found more marijuana which had been placed on top of a horizontal screen which was supported by blocks on each end. Beneath the screen was an electric heater with the blower directed to blow up through the screen and facilitate the drying of the marijuana. Defendant was thereafter charged with possession of the marijuana found in the trailer house and manufacturing the marijuana found in the outbuilding. Following a jury trial, he was sentenced consecutively to twelve years for manufacturing marijuana and to six years for possession of marijuana.
In defendant's first point, he asserts the trial court erred by permitting the state to present evidence of an unrelated assault on Ms. Kinslow. During opening statement defense counsel made the following comment regarding what happened on the evening before the trailer was searched:
At the trial and during the state's case, the state elicited the details of the assault administered to Ms. Kinslow by defendant. This evidence was presented over defendant's objection to its relevancy and because it tended to unduly prejudice the jury against the defendant. The trial court overruled the objection observing that by mentioning the assault during his opening statement, defendant had waived any complaint he had regarding evidence of the unrelated assault against Ms. Kinslow.
Following the overruling of defendant's objection, the state presented the testimony of Deputy Heiskell who in turn related what he had been told by Ms. Kinslow about the assault. According to Heiskell, a day or two prior to defendant's arrest, Ms. Kinslow had accompanied defendant to the Stone Steps Tavern in Noel, Missouri. Another individual by the name of Bob Evenson was there. Evenson engaged Ms. Kinslow in conversation and eventually put his arm around her. Defendant took offense at Evenson's advances. An altercation ensued during which Evenson was knocked to the floor at least once. Evenson had to be assisted out of the tavern, suffering from a broken leg. Defendant and Ms. Kinslow left the tavern and went to the home of some friends. Around 4:00 a.m. the couple returned to the trailer at Anderson where they were then residing. By that time defendant had consumed a substantial quantity of intoxicants. So fortified, defendant berated Ms. Kinslow by accusing her of encouraging Evenson's advances, and calling her abusive names. In his rage, defendant started beating her, striking her face, back, arms and legs. In the process, an ice chest was knocked over, spilling the contents. Defendant then ordered Ms. Kinslow to take off her clothes and get down on her hands and knees and clean it up. While she was doing so, defendant attacked her again. He put his knees on her arms, and, taking ice by the hand full, he pushed the ice into her mouth and throat, making it impossible for her to breathe. He then proceeded to strike her several more times in the face and hit her with a belt.
It was following this incident that Ms. Kinslow made her complaint to Deputy Heiskell. The tape-recorded statement taken by Heiskell was offered in evidence during the state's case, although it was not actually played to the jury until after the defense had rested. The photographs of Ms. Kinslow's injuries were also offered as part of the state's case.
Defendant did not testify. However, he called Ms. Kinslow as a witness in his behalf at the trial. The only testimony relating to the assault elicited from Ms. Kinslow by defense counsel was as follows:
Q. After that was over and you went home, did he beat you up?
A. Yes, sir.
Q. He was drunk?
A. Yes, sir.
Q. During that time period was he drinking quite a bit?
A. Yes, sir.
Q. He got mean that night?
A. Yes, sir.
Q. You made a complaint against him?
A. Yes, sir.
Q. And you did go back to the trailer for awhile, right?
A. Right.
Q. Now eventually you made a complaint against him for assault. Right?
A. Yes, I did.
As previously noted, defense counsel objected to the testimony of Heiskell, to the introduction of the photographs, and to the introduction of the tape-recorded statement of Ms. Kinslow. The state made no less than eight references to the assault during closing argument. However, no objection was made during closing argument by defense counsel.
Generally, evidence of an unrelated crime for which the defendant is not charged is inadmissible unless the related crime has a legitimate tendency to establish the defendant's guilt. Such evidence must tend to establish (1) motive, (2) intent, (3) absence of mistake, (4) common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or (5) identity. State v. Kenley, 693 S.W.2d 79, 81 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900. A criminal defendant has the right to be tried only for the crime or crimes with which he is charged. State v. Pittman, 731 S.W.2d 43, 47 (Mo.App.1987). Evidence of other crimes is only admitted when one of the exceptions exists, and only when the prejudicial effect of the evidence is outweighed by its probative value. State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc 1987)....
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