State v. Harris

• Decision Date: 27 March 1984
• Docket Number: No. WD,WD
• Citation: 670 S.W.2d 73
• Parties: STATE of Missouri, Respondent, v. Ronald P. HARRIS, Appellant. 34051.
• Court: Missouri Court of Appeals

Page 73

670 S.W.2d 73

STATE of Missouri, Respondent, v. Ronald P. HARRIS, Appellant.

No. WD 34051.

Missouri Court of Appeals Western District.

March 27, 1984.

Bob J. Hiler, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Dan Crawford, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P.J., and NUGENT and LOWENSTEIN, JJ.

SOMERVILLE, Presiding Justice.

This appeal was spawned when a jury found defendant guilty of manslaughter by culpable negligence in the operation of a motor vehicle (§ 565.005, RSMo 1978) and assessed his punishment at five years confinement in the Missouri Department of Corrections. Judgment was entered and sentence was pronounced accordingly.

Seven diverse points are raised by defendant on appeal: (1) the trial court erred in denying defendant's motion for change of judge and change of venue; (2) by incorporation of nine subpoints, the trial court erred in denying defendant's motion to suppress the results of a breathalyzer test; (3) the trial court erred in denying defendant's motion to strike the jury panel on grounds that it did not represent a fair cross section of the community; (4) the trial court erred in not instructing the jury on "careless driving" and in failing to define "culpable negligence" and "reckless"; (5) the guilty verdict was not supported by competent, substantial evidence; (6) the trial court erred in permitting the state to file an amended information; and (7) the trial court erred in admitting "nude, bloody photographs" of the victim over defendant's objection.

A Spartan statement of facts discloses the following events which culminated in the fatal accident for which defendant stood trial. About "dusk" on November 11, 1981, the victim, a twenty-eight year old female, was driving a Chevrolet Malibu sedan in a westerly direction on Route 210, a two-lane highway, in Clay County, Missouri. The headlights of her automobile were on, and she was driving in her right-hand lane. Defendant was driving a 1969 Cadillac Sedan DeVille in an easterly direction on Route 210 at a speed of approximately 60-70 miles per hour. The posted speed limit in the area was 55 miles per hour. Defendant turned his vehicle to his left and went into the westbound lane to pass a vehicle that was traveling in an easterly direction ahead of him. When defendant crossed over into the westbound lane he struck the victim's vehicle head-on. Defendant was on the wrong side of the road when the collision occurred. Neither the lateral nor vertical contour of the highway posed any obstruction to visibility. The victim was pronounced dead at the scene as a result of injuries sustained in the head-on collision. Defendant was removed from the scene by ambulance. He had a "few drinks" during the afternoon preceding the accident and the odor of an "alcoholic beverage" was detected on his person following the accident. Moreover, approximately three hours after the fatal accident, defendant voluntarily submitted to a "breathalyzer test" administered by a Kansas City police officer which disclosed six hundredths of one percent by weight of alcohol in his blood.

Defendant's first point, error in denying his application for change of venue and change of judge, requires a chronological review of certain pre-trial events. Defendant was arraigned on March 4, 1982, and the case was set for trial on April 26, 1982. On April 20, 1982, defendant filed an application for continuance and the case was reset for trial on June 7, 1982. On May 17, 1982, seventy-four (74) days after his arraignment, defendant filed a joint application for change of judge and change of venue. Rule 32.04 (effective January 1, 1982), applicable to change of venue, requires that an application for change of venue in a felony case "must be filed not later than thirty days after arraignment." (emphasis added) Rule 32.07 (effective January 1, 1982), applicable to change of judge, requires that an application for change of judge in a felony case "must be filed not later than thirty days after arraignment if the trial judge is designated at arraignment." (emphasis added) Defendant does not contend that the trial judge was not designated at arraignment, and if such a contention were made it would be unsupported by the record.

Clearly, defendant's joint application for change of venue and change of judge was not timely filed and on that basis alone was properly denied by the trial court. Defendant alleged in his joint application for change of venue and change of judge, without benefit of supporting oath or affidavits, that the grounds of prejudice set forth therein, both on the part of the inhabitants of Clay County and the judge who was to try the case, first became known a day or two prior to filing said application. He conveniently argues that his joint application, although admittedly untimely under Rules 32.04 and 32.07, should have been sustained under § 545.660, RSMo 1978 (disqualification of judges in criminal cases) and § 545.490, RSMo 1978 (change of venue in criminal cases). This argument is totally misplaced as it ignores the fact that Rules 32.04 and 32.07 control as they were promulgated after the enactment of §§ 545.660 and 545.490, supra, and no subsequent statutes have been enacted annulling or amending them. Art. V, § 5, Constitution of Missouri, 1945 (as amended August 3, 1976); State v. Sullivan, 486 S.W.2d 474, 477 (Mo.1972).

The trial court on May 19, 1982, apparently under the authority of Rule 20.01(b) ^{1 1}, afforded defendant a hearing on his untimely filed joint application for change of venue and change of judge. At the hearing, counsel for defendant made some abstract statements about threatening and disruptive anonymous phone calls purportedly received at defendant's home which he tried to convert into indicias of prejudice on the part of the inhabitants of Clay County. None of the aforementioned was supported by affidavit or sworn testimony, and counsel for defendant admitted that his abstract statements were based on hearsay. As a matter of fact, counsel for defendant further admitted that the locale from which the purported anonymous phone calls emanated was unknown and could have come from any one of several counties in the metropolitan area. Trial counsel candidly professed that it was a "guess" on his part, at best, whether any prejudice existed on the part of the inhabitants of Clay County, and, as well, whether removal of the case to some other county would alleviate any purported prejudice ostensibly relied upon. As to prejudice on the part of the judge designated to try the case, counsel for defendant made no effort whatsoever to support the charge, even by means of nebulous, abstract or conclusionary statements. When the foregoing circumstances are collectively assessed, this court is constrained to hold that the trial court neither abused its discretion in refusing to enlarge the time fixed by Rules 32.04 and 32.07 within which defendant could file an application for change of venue or change of judge, nor erred in denying defendant's application on grounds that it was untimely filed.

Defendant's second point, error on the part of the trial court in refusing to suppress the results of the breathalyzer test, marshals nine grounds for its support by way of nine (9) subpoints. Five of the nine subpoints rely upon grounds never raised, directly or by innuendo, in defendant's motion for new trial. Hence, they were not preserved for appellate review and will not be considered. Rule 29.11(d); State v. Harris, 620 S.W.2d 349, 354 (Mo. banc 1981). This court observes, ex gratia, that the five subpoints which were not preserved for appellate review are devoid of merit, present no substantive basis for relief, and necessarily fail to scale the heights of "plain error".

Before addressing the various facets of defendant's second point, error in not suppressing the results of the breathalyzer test, it is appropriate to emphasize that the state laid a proper testimonial foundation for its admission. See generally: State v. Bush, 595 S.W.2d 386, 388 (Mo.App.1980); State v. Hanrahan, 523 S.W.2d 619, 621 (Mo.App.1975); and State v. Milligan, 516 S.W.2d 795, 797-98 (Mo.App.1974).

The first of the four subpoints under point two preserved for appellate review charges that the results of the breathalyzer test should have been suppressed because the test was administered some three and one-half (3 1/2) hours after the fatal accident. Defendant's attendant argument is highly convoluted and the only authority cited for its support is § 577.040, RSMo 1978 (in effect both at the time of the offense and at the time of trial). ² Seizing upon the language in § 577.040, supra, that "[A]n arrest without a warrant [for the offense of 'driving while intoxicated', § 577.010, RSMo 1978] must be made within one and one-half hours after such claimed violation occurred", defendant summarily contends that a breathalyzer test administered more than one and one-half hours after the fatal accident was inadmissible. Defendant's argument is untenable for several reasons. First, defendant was arrested for manslaughter rather than driving while intoxicated. Second, defendant, by extrapolation, has sought to extend the meaning of the referred to statutory language far beyond the explicit intent and purpose of the statute. Third, evidence adduced by the state showing that defendant had not ingested any other liquids during the interim between the accident and administration of the breathalyzer test, that the test was voluntarily submitted to by defendant, and that the human body "metabolizes" alcohol at the "rate of .017 percent per hour", apart from any consideration of § 577.040, supra, strips defendant's first subpoint of any efficacy. In reality, defendant advocates a gross misapplication of § 577.040, supra, far beyond its clearly avowed intent and purpose.

The next subpoint, that the results of the breathalyzer...