State v. Taylor

770 S.W.2d 531, 1989 Mo. App. LEXIS 753, 1989 WL 53949
CourtMissouri Court of Appeals
DecidedMay 23, 1989
DocketNo. 55108
StatusPublished
Cited by6 cases

This text of 770 S.W.2d 531 (State v. Taylor) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Taylor, 770 S.W.2d 531, 1989 Mo. App. LEXIS 753, 1989 WL 53949 (Mo. Ct. App. 1989).

Opinion

SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury of assault in the second degree and his resultant sentence by the court to five years imprisonment. We affirm.

The events leading up to the charged crime arose from heavy drinking on New Year’s Eve by two different groups of people at different locations. The victim, Jeff Schulte, sixteen years old, was a football player six feet tall and weighing 200 pounds. He and his sister and three friends attended a dance in St. Anthony. All became intoxicated. The sister drove the car on its return trip to their home in Wardsville.

Defendant and six of his friends attended a party in Dixon where they also achieved varying levels of intoxication. Defendant and his group were returning to Jefferson City in two vehicles, a van and defendant’s Monte Carlo driven by defendant. One occupant of the van was Bill Hatfield. Both defendant and Hatfield were smaller than Schulte. Defendant was 26 years old.

The two groups came together near Meta. Considerable dispute existed in the evidence concerning which group began erratic driving actions harassing of the other. There was evidence from which a jury could have found defendant’s group drove in a fashion to harass Schulte’s group and that eventually the van, which was in front, pulled across the road blocking it and causing Schulte’s car to stop. There was contrary evidence that Ms. Schulte initiated a series of driving maneuvers in which she slowed down, attempted unsuccessfully to prevent defendant’s group from passing her by changing lanes, passed both vehicles of defendant’s group at high speed on a blind curve and then stopped suddenly on the highway forcing the van to pull around her at cross angles to the road. Hatfield immediately exited the van and Schulte disembarked from his vehicle. Hatfield testified Schulte struck him in the chest and he responded with four blows to Schulte’s face which had no apparent effect on Schulte. The two then began wrestling and Schulte was obviously prevailing.

A witness in defendant’s car testified that defendant immediately jumped out of the car and while half-way out of the vehicle “took a tire iron from underneath the seat and ran around the front of the car.” At that time the witness observed Hatfield and Schulte wrestling. She did not see Schulte strike Hatfield. When defendant left the vehicle the witness had heard nothing said from outside the automobile. Defendant ran to where the two men were struggling and struck Schulte from behind “around his head” with the tire iron. Schulte dropped his hold on Hatfield and turned around to face defendant. Defendant raised the tire iron and struck Schulte in the head with the tire iron. Schulte had his arms raised. He was struck by defendant in the head with the tire iron several more times. The witness testified that defendant did not move away from Schulte. There was evidence that defendant stated to Schulte during the blows, “You want some more?” Finally Schulte fell to the ground. Other fights had meanwhile broken out. Defendant then used the tire iron to break the headlights and all of the windows of the Schulte car. He and his [533]*533friends reentered their vehicles and left the scene.

Schulte was hospitalized for several days after the incident and his injuries were of a life-threatening nature. He sustained permanent amnesia concerning the incident. It was stipulated that Schulte sustained serious physical injury.

Defendant’s evidence was that when he arrived at the scene he saw Schulte strike Hatfield and then saw the two wrestling. Defendant remained in his vehicle until Hatfield called out, “Get him off of me, he’s getting my knife.” Hatfield always had with him a large folded up knife in a sheath which he carried on his belt. He testified that during the fight he felt tugging on the sheath but the knife was never removed from the sheath. Defendant testified he was aware that Hatfield carried the knife and that he exited the car with the tire iron because he feared that Schulte was going to use the knife on Hatfield. After the first blow, when Schulte turned to face defendant, the defendant stated he attempted to retreat because he feared for his life and thought Schulte might have a knife although he never saw one because of poor visibility at the scene. He struck Schulte several more times with the tire iron to protect himself. When he left the area, he did not realize Schulte was so seriously injured. Defendant broke the headlights and windshield of the Schulte vehicle so that that group could not follow his group and continue the driving harassment. He denied having broken the other car windows.

Defendant raises five points on appeal. The first is that the trial court erred in overruling defendant’s motion for judgment of acquittal because the evidence adduced was insufficient to support the conviction because that evidence established that defendant’s actions were in defense of another and in self-defense. See. 563.031 RSMo 1986, recognizes defense of another and self-defense as justification for the use of physical force. The defenses are available when and to the extent the actor reasonably believes such force is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by the other person. Self-defense is not available if the actor is the initial aggressor unless he has withdrawn from the encounter and effectively communicated that withdrawal to his adversary. Defense of another is not available if “under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would not be justified in using such protective force.” In State v. Taylor, 610 S.W.2d 1 (Mo. banc 1981) [1, 2] the court stated: “In other words, appellant was not entitled to a defense that Saunders was acting in his defense in killing Glover unless, had appellant himself done the killing, he would have been entitled to rely upon the defense of justifiable homicide.”

The language of the statute and the language of Taylor, supra, are not completely compatible in a fact situation where the actor reasonably, but erroneously, believes that the person he is defending was not the initial aggressor. We need not resolve that incompatibility here. Deadly force may be used in self-defense and in defense of another only when there is: “(1) an absence of aggression or provocation on the part of the defender [or the one being defended], (2) a real or apparently real necessity for the defender to kill in order to save himself [or the person defended] from an immediate danger of serious bodily injury or death, (3) a reasonable cause for the defender’s belief in such necessity, and (4) an attempt by the defender to do all within his power consistent with his personal safety to avoid the danger and need to take a life.” State v. Chambers, 671 S.W.2d 781 (Mo. banc 1984) [1-3].

Something more than fear of size is required to justify the use of deadly force. Some affirmative action, gesture or communication by the person feared indicating the immediacy of the danger, the ability to avoid it and the necessity of using deadly force must also be present. Id. [5, 6]. The reasonableness of a defendant’s belief in the necessity of using deadly force is generally a question for the jury. Id. [7, 8].

[534]

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Cite This Page — Counsel Stack

Bluebook (online)
770 S.W.2d 531, 1989 Mo. App. LEXIS 753, 1989 WL 53949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-taylor-moctapp-1989.