State v. Tyler, 40843

• Decision Date: 18 August 1981
• Docket Number: No. 40843,40843
• Parties: STATE of Missouri, Respondent, v. Melvin Leroy TYLER, Appellant.
• Court: Missouri Court of Appeals

Page 379

622 S.W.2d 379

STATE of Missouri, Respondent, v. Melvin Leroy TYLER, Appellant.

No. 40843.

Missouri Court of Appeals, Eastern District, Division One.

Aug. 18, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

Ralph A. Dobberstein, William R. Kirby, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

DOWD, Judge.

Defendant appeals from his conviction by a jury of two counts of robbery first degree by means of a dangerous and deadly weapon, § 560.120 RSMo 1969, § 560.135 RSMo 1975 Supp., two counts of assault with intent to commit rape without malice aforethought, § 559.190 RSMo 1969, and armed criminal action, § 559.225 RSMo 1976 Supp. Defendant was sentenced to fifty years imprisonment on each count of robbery first degree, to five years imprisonment on each count of assault with intent to rape without malice aforethought and fifty years imprisonment for armed criminal action, all terms of imprisonment to be served consecutively. We affirm in part and reverse in part.

Evidence supporting the verdicts showed that on the morning of December 27, 1976, defendant entered the home of Ralph and Mary Petersen and their daughter Christine. Prior to his entry he had approached Christine's friend, Laura Harmon, while she was sitting in the Petersen yard and had asked Laura if the neighbors were home. At this time Laura's sister, Angie Harmon, was tapping at Christine's bedroom window to get her attention. Laura and Angie Harmon entered the Petersen home and went to Christine's bedroom where they saw defendant walk by the window. A few minutes later as Mrs. Petersen was passing the bathroom door defendant put a gun to her side and ordered her into the bedroom where her husband was sleeping. Defendant stated "I want the two little girls that came into this house. They stole something out of my car." Mr. Petersen told defendant that the girls had spent the night there and could not have stolen anything. He struck Mr. Petersen, obtained a knife from the kitchen, cut the telephone line, and ordered Mr. and Mrs. Petersen into a closet. Defendant forced Christine and Laura into Christie's bedroom and ordered them to remove their clothes. Christine hesitated and defendant hit her on the head with the butt of the knife. When Laura began screaming he hit her on the head with the butt of the gun. Eventually both girls removed their clothes. Defendant advanced toward them unzipping his pants. Angie was hiding under the bed while defendant was in Christine's bedroom. Meanwhile, Mr. and Mrs. Petersen had pushed open the closed door. They saw Laura and Christine in the hallway naked, and Laura was covered with blood. Defendant left Christine and Laura in the bedroom and walked out to confront Mr. and Mrs. Petersen and asked for money. Mr. Petersen gave him $100. There was testimony that Mrs. Petersen's wallet containing her credit cards was missing from her purse in the living room after defendant left. Defendant was arrested the next day, December 28, in Kansas City, Missouri. He had in his possession a .25 caliber pistol and a wallet containing the Petersen's credit cards.

Defendant raises ten points on appeal, and we address them seriatim. He first contends the trial court erred in failing to obtain a written waiver of counsel contrary to Sec. 600.050 RSMo 1976 Supp. and the mandate of Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978).

Defendant did not raise this alleged error at any pre-trial proceedings, during trial or in his motion for new trial. Thus, he has not preserved it for review.

Furthermore, we decline to invoke the plain error rule. The general rule concerning the application of the plain error rule is that it is discretionary, State v. Ball, 591 S.W.2d 715, 716(3) (Mo.App.1979), should be used sparingly, and is limited to cases where there is a strong clear showing of manifest injustice. State v. Davis, 566 S.W.2d 437, 447(2-3) (Mo. banc 1978); State v. Lue, 598 S.W.2d 133, 137(2) (Mo. banc 1980). When guilt is established by overwhelming evidence, no injustice will result from refusal to invoke the plain error rule. State v. Ellis, 567 S.W.2d 454, 457(3) (Mo.App.1978); State v. Ball, supra. In addition, defendant has the burden of proving that the alleged error amounted to manifest injustice. State v. Johnson, 586 S.W.2d 437, 441(5) (Mo.App.1979). Here, overwhelming evidence established guilt and defendant failed to meet his burden in showing manifest injustice occurred.

Defendant was no stranger to the judicial system. In the years prior to these charges he had filed innumerable petitions for extraordinary relief writs on his own behalf and on behalf of many inmates in the Department of Corrections, had represented himself on other previous charges and had filed several civil lawsuits. After he was charged here and as early as February, 1977, defendant filed pro se his Motion for Discovery, Motion for Change of Venue and Application for Appointment of Special Investigator. These filings were only the first group of approximately 64 pre-trial applications and motions defendant eventually filed.

Defendant invited the alleged error by his equivocal conduct exhibited throughout the proceedings. Initially he asserted his right of self-representation and a hearing was held before the Honorable Clyde S. Cahill, Jr. to determine whether he knowingly and intelligently asserted that right. A public defender was present during the hearing and the court offered to appoint the public defender to represent or to assist defendant as co-counsel. Defendant declined the offer saying that it was "a good thing to have a lawyer sitting there" with him and one should have effective counsel, but he did not want the assistance of the public defender "at this time." The court noted it would be difficult for defendant to represent himself because he did not have trial experience but defendant replied he was a certified law librarian, was competent to do legal research and had conducted paralegal training. Defendant's statements belie his equivocal attitude toward representation.

The case was then reassigned to the Honorable Harold L. Satz for the disposition of pre-trial motions. Defendant filed several motions seeking access to a law library. The court offered defendant the assistance of counsel to do legal research as an alternative to access to a law library and defendant refused. At the hearing on defendant's motion for appointment of a special investigator defendant refused appointment of the public defender's office and his investigator to assist in investigation, although he requested and was given the assistance of the public defender to take depositions. After many days of hearing on the various motions, and after his repeated refusals of appointment of counsel, defendant remarked that he felt he was entitled to the assistance of counsel under the Sixth Amendment to the U. S. Constitution. Yet, he did not accept appointment of counsel.

The case was then assigned to the Honorable Thomas Challis. Defendant requested a process server and one was appointed for him. At a pre-trial conference the court again explained the disadvantages of self-representation to defendant and offered to appoint counsel. Defendant again declined stating that all the circuit judges and the prosecutor's office were prejudiced against him, that he had tried to disqualify them and that he did not trust any lawyers. Apparently defendant did not want the appointment of co-counsel either because presumably, he would not trust them. However, during one exchange between the court and defendant, defendant remarked that he had not had the benefit of co-counsel. The court inquired if he had requested co- counsel and he said no. It must be noted that the Honorable Judge Cahill had offered sua sponte the appointment of co-counsel. Eventually defendant requested "assistance of counsel," explaining that he needed "some type of assistance" but not co-counsel. The court agreed to consider defendant's request in limited areas and again offered to appoint counsel to represent defendant, which was refused. The court later asked defendant to define his motion of assistance of counsel. Defendant responded he was capable of handling the case himself but then retracted his response by commenting that "I couldn't give myself a fair trial...." This reply typifies defendant's equivocation.

Defendant became disenchanted with the Honorable Judge Challis and disqualified him. Trial was assigned to the Honorable Daniel T. Tillman and defendant immediately filed a motion to disqualify him. The Honorable Judge Tillman offered to appoint co-counsel to aid defendant in the proceedings. Defendant said he consistently asserted his right of self-representation but then contradicted himself by informing the court he needed co-counsel, and would benefit from counsel because a person who represents himself has a fool for a client. Yet defendant then stated only he could protect his rights. After a heated discussion regarding the prejudice of the entire circuit court defendant threatened to file 50,000 lawsuits and, indeed, defendant did file a complaint of oppression in office against the Honorable Judge Tillman.

Throughout the proceedings before four trial judges defendant twisted the facts, became belligerent, continued to file motions which lengthened the course of the case and added to its complexity, and equivocated in his position regarding representation. He stated at various times that he needed the assistance of counsel but could not accept appointment of counsel, that he wanted co-counsel but had been refused his request for same even though two trial judges offered to appoint co-counsel, and that he wanted counsel for limited purposes. The trial court granted defend...