State v. Clark

• Decision Date: 03 June 2003
• Docket Number: No. WD 61434.,WD 61434.
• Parties: STATE of Missouri, Respondent, v. Richard Lee CLARK, Appellant.
• Court: Missouri Court of Appeals

Page 396

110 S.W.3d 396

STATE of Missouri, Respondent, v. Richard Lee CLARK, Appellant.

No. WD 61434.

Missouri Court of Appeals, Western District.

June 3, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, 2003.

James F. Crews, Tipton, MO, for Appellant.

John M. Morris, III, Jeremiah W. (Jay) Nixon, Atty. Gen., and Stephanie Morrell, Jefferson City, MO, for Respondent.

Before ROBERT G. ULRICH, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.

ROBERT G. ULRICH, Judge.

Richard Lee Clark ("Mr.Clark") appeals his conviction following jury trial for the Class C felony of assault in the second degree, section 565.060, RSMo 2000, and sentence to five years imprisonment in the Missouri Department of Corrections. Mr. Clark raises two points on appeal. He claims that the trial court erred in: (1) giving the verdict directing instruction No. 5 because the evidence was insufficient to find him guilty of assault in the second degree in that reasonable jurors could not have found that he was driving on the wrong side of the road when he collided with the victim's vehicle; and (2) failing to grant his motion to strike Venireman Wilhoit for cause because Venireman Wilhoit knew Trooper Troy Murdock, one of the State's witnesses, and the court's failure to strike him as requested resulted in an unqualified jury panel, to which Mr. Clark was entitled before exercising his peremptory strikes, thereby forcing him to exercise a peremptory challenge to remove Venireman Wilhoit from the jury panel. The judgment of conviction is affirmed.

Factual and Procedural History

Trooper Troy Murdock ("Trooper Murdock"), of the Missouri Highway Patrol was dispatched to a traffic accident on Missouri Highway 17, in Miller County, on November 6, 1999, at approximately 2:00 a.m. When he arrived at the accident scene, Trooper Murdock observed two vehicles — a small, red compact car located upside down in a ditch to the left side of the road and a brown full size pickup truck located in the front yard of a residence to the right side of the road.

Upon approaching the red car, Trooper Murdock observed a white male, Tracy Good ("Mr.Good"), with his seat belt on sitting in the driver's seat. Medical personnel were attending to Mr. Good, and Trooper Murdock was unable to speak with him. Trooper Murdock then approached the pickup truck and spoke to the driver, Mr. Clark. Except for Mr. Clark's swollen lower lip, he exhibited no other visible facial injuries. While speaking with Mr. Clark, Trooper Murdock observed that Mr. Clark's breath had a strong odor of intoxicants and that his eyes were bloodshot. When Trooper Murdock began talking to Mr. Clark, he was antagonistic. As the conversation continued, Mr. Clark's demeanor changed, and Trooper Murdock observed Mr. Clark laugh inappropriately at everything that Trooper Murdock said.

Trooper Murdock conducted an investigation at the scene. He determined that the red car was traveling south on Missouri Highway 17 and that Mr. Clark was driving the pickup truck northbound on the same highway. The vehicles collided as they both entered a curve of the highway. Trooper Murdock observed a gouge mark in the pavement of the southbound lane of the highway that began approximately four feet inside the centerline, the lane in which Mr. Good was traveling. Trooper Murdock testified that the gouge mark was consistent with the line of travel of the red car in the southbound lane of the highway and with being made by the bare rim of the red car's missing front left tire. He observed impact damage to the driver's side of Mr. Good's red car. Trooper Murdock did not observe any marks on the highway attributable to Mr. Clark's truck. He did observe damage to the left front side and substantial damage to the undercarriage of the truck, apparently, he testified, resulting from the vehicle being driven off the embankment.

Trooper Murdock testified that, based upon his experience and training and the evidence that he observed at the accident scene, he determined that the area of impact was in the southbound lane of Highway 17, the lane in which Mr. Good's vehicle was traveling. He also testified that the area of impact occurred approximately fifty-five feet from where Mr. Good's vehicle had exited the highway on the east side of the roadway.

Mr. Clark was arrested and taken to the Eldon Police Department where he failed the horizontal gaze nystagmus test. His speech was slurred, too. Mr. Clark's blood-alcohol content was tested and registered at .19.

At the time of the accident, Jay Abbott ("Mr.Abbott") was riding as a passenger in Mr. Clark's truck. Trooper Murdock spoke to Mr. Abbott the evening following the accident. He observed that the left side of Mr. Abbott's face was swollen and that the area around Mr. Abbott's left eye was bruised. Trooper Murdock concluded that Mr. Abbott's injuries were consistent with his head having struck the truck's windshield during the accident.

Mr. Good, the driver of the red car, has no memory from the week prior to the accident to a week following the accident, apparently resulting from his injuries sustained in the accident. Mr. Good's injuries included a cracked spleen, scars around his eyes, a mild head injury, and injury to his abdomen requiring that his stomach be stapled. Mr. Good had to remain in the hospital approximately a week, including a stay in the intensive care unit. He then spent three weeks in a rehabilitation hospital relearning to walk.

Mr. Clark was charged by information with the Class C felony of assault in the second degree. During voir dire, Venireperson Wilhoit was identified as a Missouri Highway Patrolman. He stated that he knew Trooper Murdock. When questioned whether his knowing Trooper Murdock would affect his ability to hear the case, Mr. Wilhoit stated, "it very well might." Following further questioning, however, Mr. Wilhoit stated that even though he was a fellow Highway Patrol officer and that Trooper Murdock would testify, he believed that he could be an impartial juror. He further stated that he had no knowledge of the case, that his experience in numerous occasions like this and his understanding of probable cause might provide him "extra knowledge" that other jurors did not possess, and that he would not find Trooper Murdock's testimony more credible merely because he was a member of the Missouri Highway Patrol. He stated that he would base his decision on the evidence presented and that he would be able to render a fair and independent decision based on the evidence. Mr. Clark, through his counsel, moved that Venireman Wilhoit be stricken for cause. The trial court denied the motion. Mr. Clark used one of his peremptory strikes to remove Venireman Wilhoit from the jury panel.

At trial, Mr. Clark testified in his own behalf. He presented no other witnesses. He testified that he was not the driver of the pickup truck but that an individual named "Mike" was driving the vehicle when the accident occurred. Mr. Clark claimed that he did not know Mike's last name. He also testified that Mike left the scene before Trooper Murdock arrived. A jury found Mr. Clark guilty of assault in the second degree. He was sentenced to five years imprisonment. This appeal followed.

Point I

In Mr. Clark's first claim of error, he contends that the trial court erred in giving the verdict directing instruction, Instruction No. 5, because no competent evidence was presented to show that Mr. Clark was driving on the wrong side of Missouri Highway 17 when the accident occurred. Although Mr. Clark's first point on appeal is phrased as an instructional error, his claim is actually challenging the sufficiency of the evidence.

In reviewing the sufficiency of evidence supporting a criminal conviction, an appellate court gives great deference to the trier of fact. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). The appellate court's function does not include acting as a "super juror" with veto powers. State v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993). Appellate review is limited to determining whether sufficient evidence was presented at trial from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Hendrix, 81 S.W.3d 79, 83 (Mo. App. W.D.2002) (citing State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998)). The evidence and all inferences reasonably drawn therefrom are viewed in a light most favorable to the verdict, disregarding evidence and inferences that are contrary to a finding of guilt. State v. William, 100 S.W.3d 828, 832 (Mo.App. W.D.2003) (citation omitted).

This standard "echoes the due process standard announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." State v. Chaney, 967 S.W.2d at 52. Great deference is given to the trier of fact.

[T]his inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilty beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citation omitted) (quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)). The inquiry is whether applying these criteria to this case, a rational fact finder could have found Mr. Clark guilty beyond a reasonable doubt of assault in the second degree.

The jury was instructed with the verdict directing instruction, Instruction No. 5, to find Mr. Clark guilty of assault in the second degree if they found that:

First, that on or about Nov. 6, 1998, on Missouri Highway 17 in the County of Miller, State of Missouri, the defendant operated a motor vehicle, and

Second, that he did so while in an intoxicated condition, and

Third, that defendant...