State v. Tyler

Decision Date04 September 1979
Docket NumberNo. KCD,KCD
Citation587 S.W.2d 918
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Melvin Leroy TYLER, Defendant-Appellant. 29846.
CourtMissouri Court of Appeals

Gary M. Oxenhandler, Columbia, for defendant-appellant.

John Aschroft, Atty. Gen., Jefferson City, Hope E. Thurrott, Sp. Asst. Atty. Gen., Koppe, Kansas City, for plaintiff-respondent.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

KENNEDY, Judge.

The defendant Melvin Leroy Tyler was convicted after jury trial in the Circuit Court of Platte County of robbery in the first degree, of rape, of kidnapping, and of armed criminal action. As a second offender, he was sentenced by the court to the following terms in the Department of Corrections, to be served consecutively: Robbery, 75 years; rape, 75 years; kidnapping, 10 years; and armed criminal action, 25 years.

From this judgment the defendant has appealed to this court.

Broadly stated the facts are as follows:

Defendant forced his way with a handgun into N. K.'s house in Columbia, Missouri, shortly after 3:00 o'clock on the afternoon of December 27, 1976. N. K. was in the house with her 13-year-old autistic daughter, Mary. Her 10-year-old son, Thomas, was playing outside the house. Defendant struck N. K. with the gun, opening a gash in her scalp, and with his fist. He also struck Mary, causing a gash in her forehead. Defendant robbed N. K. of her jewelry and $26 money, raped her, and abducted her in her own car.

Within a few minutes defendant released N. K. in Columbia, near, as it happened, the office of Dr. See, her gynecologist. She ran to Dr. See's office and reported the incident. She was treated for her wounds and examined. A vaginal examination at this time revealed live sperm in her vagina.

N. K. identified defendant from photographs shown her by the police two days later, and the following day identified him in a lineup in Kansas City.

Defendant put forward an alibi defense, claiming to have been in Kansas City when the offense occurred. He did not testify, but presented several witnesses in support of his defense.

Other details will be stated as required in the course of the opinion.

1. Appellant says the court erred "in not dismissing the charges against the appellant because of the omission of citations to sections of the Missouri Revised Statutes in the prosecutor's affidavit as required by Rule 24.01(a)."

Rule 24.01(a), however, relates only to informations and indictments, and the requirement that the section number of the statutes which proscribes the conduct and which fixes the penalty is not applicable to the original complaint or, as it is denominated in the transcript and in appellant's brief, the "affidavit".

The point is disallowed.

2. Defendant contends the court erred in permitting him to waive counsel without his having filed the written waiver called for by § 600.051, RSMo 1978. The use of this writing has been held to be mandatory. Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978).

The court, however, did not permit defendant to waive counsel nor did defendant actually waive counsel. In a pre-trial hearing in camera, held May 26, 1977, the court presided over a lengthy conference attended by the defendant, by prosecuting attorney Harper and by defendant's court-appointed attorneys, Gary Oxenhandler and Marvin Tofle, and by public defender William Mays and assistant public defender David Doak.

The court and the prosecuting attorney closely questioned the defendant who demonstrated an unusual knowledge of criminal law. The discussion centered upon whether he would be permitted to conduct his own defense, which is a different thing from waiving counsel. United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), Cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); State v. Burgin, 539 S.W.2d 652, 654 (Mo.App.1976). The court attempted to dissuade defendant from conducting his defense. Defendant at one point said, "I am confronted, like I told Mr. Harper and Gary, I am confronted with representing myself and my own subjective feelings, when you get an innocent person to stand up and say you're guilty, he gets emotionally involved and that is why it's a good thing to have counsel, because there will be times during this trial I can't do it alone."

The upshot of the conference was that the court announced: " . . . I am going to allow him to represent himself.

"However, gentlemen, Mr. Oxenhandler and Mr. Mays, you will be required by this court to stay through the course of this trial to advise and counsel Mr. Tyler and lend whatever assistance he deems you can to his advantage."

Defendant had the assistance of counsel throughout, including the aid of appointed local counsel, who assisted until the jury was selected. He conferred with them often throughout the trial, as shown by recesses for that purpose. They conducted the voir dire examination of the jury panel. They actively participated in pre-trial and post-trial proceedings and have filed a brief in this court.

The requirement of § 600.051 that a written waiver be signed by defendant has no application in this situation, and the court did not err in proceeding as he did without securing the same.

3. Defendant complains that the regular judge of the Circuit Court of Platte County, Judge Yeaman, signed the order to the sheriff to summon additional jurors from among the bystanders, a procedure prescribed by § 494.250, RSMo 1978. He says it should rather have been signed by Judge Kinder, who had been appointed by the Supreme Court to hear the case when Judge Conley had been disqualified.

Defendant makes no attempt to show any prejudice to his cause because of Judge Yeaman's signing the order and none is apparent. In the absence of some showing of prejudice stemming from failure of strict compliance with § 494.250, substantial compliance is sufficient. State v. Pettis, 522 S.W.2d 12, 15-16 (Mo.App.1975); State v. McGill, 510 S.W.2d 782, 783 (Mo.App.1974). We find no prejudicial error in the procedure.

4. In another rather ambiguous allegation of error, appellant says the trial court erred "in requiring the appellant to exercise his peremptory challenges because no proper determination had been made that there was a qualified jury panel."

Platte County Sheriff Tom Thomas testified that he had summoned an additional dozen jurors "from the street", referring to the "bystanders", § 494.250, RSMo 1978. He said he did not feel it was his responsibility to determine if they were qualified jurors.

The selection of the "bystander" jurors was actually done by a deputy sheriff. There were twelve jurors so selected, the sheriff said. However, the jury panel at the beginning of the trial numbered forty-one, including nine who were not on the original list of jurors and alternates selected by the jury commission. Only one of that nine was on the jury at the time it retired to deliberate. Another had been selected as an alternate juror, § 494.065 RSMo 1978, and had been excused before the jury retired to deliberate.

The defendant, it is true, was entitled to a qualified panel from which he could make his dozen strikes from amongst qualified jurymen, so as not to use any of his peremptory challenges to eliminate unqualified persons. The defendant has a right on voir dire to inquire about statutory qualifications and may challenge for cause upon that basis. State v. Brown, 547 S.W.2d 797, 799-800 (Mo. banc 1977); § 546.210 RSMo 1978.

In this case there is no evidence at all, and defendant does not contend, that any member of the jury panel was not fully qualified under § 494.010, RSMo 1978. The court will not presume irregularity in this matter, but rather will presume in the absence of evidence that the jury was legally and properly constituted of qualified persons. McCormack v. McNamee, 274 S.W.2d 272, 274-5 (Mo.1955).

Even should it have developed, at least after verdict, that a juror was not technically qualified say by reason of residence, or by reason of age, as in State v. Barr, 20 S.W.2d 599 (Mo.App.1929) the verdict will not be set aside unless the rights of the appellant were prejudiced and substantial injustice resulted. Eastman Kodak Stores, Inc. v. Summers, 377 S.W.2d 476, 482 (Mo.App.1964).

Defendant's point is rejected.

5. Defendant complains of the trial judge's suggestion to the prosecuting attorney as the prosecuting attorney was attempting to identify for admission into evidence the bloodstained blouse worn by N. K. at the time of the assault upon her. Witness Deputy Sheriff Chris Egbert had identified State's Exhibit No. 2 as "the blouse I took from (N. K.) on December 27." The prosecuting attorney then offered Exhibit No. 2 in evidence, and the defendant objected on the ground that "there is no chain of custody", which objection was sustained by the court. The court then asked if the witness could testify what he did with it from the time he got it. "What did you do with it?" the court asked, apparently addressing himself to the witness. Then turning to the prosecuting attorney the court said: "Establish this is the condition it was in, lay your foundation."

The foundation laid, Exhibit No. 2 was at length admitted into evidence.

Defendant treats this as "aiding the state to lay a foundation . . . thus indicating bias and prejudice on the part of the trial court."

The court's explaining what he required as a foundation for admitting the blouse into evidence was a permitted practice, and it did not indicate any partiality of the court to the state's side of the case. State v. Phelps, 478 S.W.2d 304, 310 (Mo.1972); State v. Farmer, 536 S.W.2d 748, 750 (Mo.App.1976). We do not find in the record another instance where the court intervened in this fashion to aid the prosecuting attorney. The single instance of giving some guidance or...

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    ...P. J.) (five years for armed criminal action to run consecutively to fifteen years for robbery first degree); State v. Tyler, 587 S.W.2d 918 (Mo.App.1979) (per Kennedy, J.) (twenty-five years for armed criminal action to run consecutively to seventy-five years for robbery first degree, seve......
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