State v. Hibler

• Decision Date: 27 June 2000
• Parties: (Mo.App. W.D. 2000) State of Missouri, Respondent, v. Ricky J. Hibler, Appellant WD57280 0
• Court: Missouri Court of Appeals

21 S.W.3d 87 (Mo.App. W.D. 2000)

State of Missouri, Respondent, v. Ricky J. Hibler, Appellant

WD57280

Missouri Court of Appeals Western District

06/27/2000

Appeal From: Circuit Court of DeKalb County, Hon. Warren L. McElwain

Counsel for Appellant: Richard E. McFadin

Counsel for Respondent: Douglas Roberts

Opinion Summary: Ricky J. Hibler appeals the judgment of his jury conviction of driving while intoxicated. As a result of his conviction, he was sentenced to six months in the county jail and a fine of $500.

AFFIRMED.

Division Four holds:

(1) The trial court did not abuse its discretion in permitting late endorsements of the witnesses or denying a continuance. Although Hibler did object, he does not assert that the State intended to surprise the defense, or acted deceptively or in bad faith to disadvantage him. Furthermore, his counsel admits that he was provided with a copy of the witnesses' reports prior to trial. As such, he should have reasonably anticipated that they might be called as witnesses and should have planned accordingly, including taking their depositions.

(2) (A) The trial court did not err in denying Hibler's motion for a mistrial and sending the jury back for further deliberations after it returned a verdict of guilty. The record indicates that Hibler's motion for a mistrial was directed at the trial court's decision to return the jury for further deliberations after it returned a verdict that was inconsistent with the instructions given. A trial court has a duty to examine the verdict returned by the jury for inconsistencies. If an inconsistency is found, the court is required to reject it and return the jury for further deliberations to make every attempt to resolve the inconsistency.

(B) In instructing the jury in its further deliberations to resolve the inconsistency in its verdict, there was no MAI-CR 3d required to be given. The instruction given reiterated what the State's verdict director had already instructed with respect to punishment options, except to clarify the fact that it was required, in assessing and declaring punishment, to specify the exact term of imprisonment rather than a range. This Court cannot find that the non-MAI-CR explanatory instruction unduly highlighted the range of punishment, rendering it impartial, or in any way confused or misled the jury.

(3) The challenged comments of the prosecutor in closing argument were not evidence. As such, Hibler's claim with respect to the introduction of evidence has no merit. Furthermore, although he attempts to characterize the prosecutor's challenged comments in closing argument as comments on matters outside the record, the record indicates that the prosecutor was asking the jury to draw an adverse inference from the fact that Hibler's father did not testify, which is proper.

Edwin H. Smith, Judge

Ricky J. Hibler appeals the judgment of his jury conviction in the Circuit Court of DeKalb County, Missouri, of driving while intoxicated (DWI), in violation of section 577.010.¹ As a result of his conviction, he was sentenced to six months in the county jail and a fine of $500.

The appellant raises three points on appeal. In Point I, he claims that the trial court erred in allowing the endorsement of additional witnesses by the State on the day of trial and for not granting him a continuance after allowing the endorsement because in doing so, his trial counsel was denied an opportunity to adequately prepare for trial. In Point II, he claims that the trial court erred: (a) in denying his motion for a mistrial and sending the jury back for further deliberations after it had returned a verdict of guilty, which was rejected by the trial court as being inconsistent with the instructions of the court; and (b) in giving a non-MAI-CR explanatory instruction to address the inconsistency in the jury's verdict and to guide it in its further deliberations. In Point III, he claims that the trial court plainly erred in allowing, over his objection, the State to argue, during its closing argument, an adverse inference from the appellant's failure to call his father as a witness because it deprived him of his constitutional right to trial before a fair and impartial jury.

We affirm.

Facts

On October 4, 1998, at approximately one o'clock in the morning, Officer Russell Morris of the Chillicothe Police Department observed a black Jeep Cherokee proceeding through an intersection at a high rate of speed and gave chase. The vehicle was traveling northbound on Samuel Street when Officer Morris observed it cross over the center line and into the oncoming lane of traffic. He continued his pursuit as the vehicle turned off of Samuel onto Hickory Street. At some point, he observed the Jeep slow down, but run a stop sign. While in pursuit, he radioed for a license and registration check. Officer Morris then observed the Jeep, after entering an intersection and attempting to turn, veer off the right-hand side of the road; run up on the curb, narrowly missing a utility pole; and make a sharp recovery back to the left, crossing the center line. It was at this time that he activated the lights on his patrol car and proceeded to stop the Jeep.

He identified the driver as the appellant, and after requesting him to roll down the window, he noticed a moderate to strong odor of intoxicants. He then requested him to exit the vehicle and observed him to be unsteady on his feet, swaying and using the car door for balance. At that time, Officer Shannin Crawford of the Chillicothe Police Department arrived for backup. Upon questioning, the appellant admitted that he had been drinking beer and was intoxicated.

Based on his observations and the admissions of the appellant, Officer Morris believed the appellant to be intoxicated and requested him to perform several field sobriety tests, including the horizontal gaze nystagmus, which he failed, according to Officer Morris. The appellant was arrested for DWI and transported to the Chillicothe Police Department where he was asked to take a breathalyzer test. He attempted to perform the test approximately three times, but on each occasion did not completely seal his lips around the mouthpiece of the breathanalyzer as required to provide a sufficient breath sample for testing. Consequently, he was written up for a refusal. After being cited for DWI, the appellant wadded the ticket up and threw it on the floor and became insulting and belligerent towards the officers, including making obscene gestures. Officers Crawford and David Todd, also of the Chillicothe Police Department, were present at the time.

On April 13, 1999, the appellant's case was tried to a jury in the associate division of the Circuit Court of DeKalb County, Missouri, the Honorable Warren L. McElwain presiding. On the day of trial, the State moved to endorse two additional witnesses, Officers Crawford and Todd, to which the defense objected. The objection was overruled. Counsel then requested a continuance, which was also overruled.

At trial, Officer Crawford testified that he heard the appellant admit to Officer Morris that he had been drinking. He also testified, that based on his observations, he believed that the appellant was intoxicated. As to the behavior of the appellant at the police station, he testified that he observed him refuse to sign the ticket, as requested; grab the ticket out of the officer's hand; and then make an obscene gesture. Officer Todd testified that the appellant, while at the police station, was belligerent and made derogatory remarks about the officers and the police department.

During its closing argument, the prosecuting attorney commented,

We talked about five witnesses in this case. There is actually six. Remember. The Defendant's father picked him up. The Defendant's father saw him at the police station. Now, if those police officers were lying about the way he acted at the police station, don't you think his father would be in here telling you he lied? The fact that his father wasn't called as a witness, I think you can draw the conclusion that his father, if called, would have had to say, "My boy acted poorly at the police station."

The appellant's counsel objected to the prosecutor's comments as being "improper argument" because "[h]e's talking about what his father would testify to" and "[h]is father was not called as a witness." The trial court overruled the objection. The prosecutor continued,

That sixth witness, maybe the most important witness in the whole case, certainly the most interesting witness. If his daddy was to . . . if his daddy thought he wasn't behaving properly, that the officers were behaving poorly, that his boy wasn't drunk don't you think he would have been called, his daddy wasn't called. He didn't put his daddy on the stand and I think you can draw the conclusion from that if his father had taken the stand and raised his right hand to tell the truth, he would have had to told . . . tell you that his son was belligerent, aggressive, profane with the officers and I think his daddy would have to tell he told those officers what they . . . that he made that gesture to those officers. I think you'd have to tell . . . you can draw the conclusion that he would have to tell you that his son was drunk on that night when he came to pick him up at the police station.

After submission and deliberation, the jury returned a verdict finding the appellant guilty as charged and assessed punishment of "imprisonment in the county jail for a term not to exceed six months, and a fine, the amount to be determined by the Court." The trial court refused to accept the verdict because it was not in proper form. The court informed the jury that the verdict was unacceptable and that it would be required to deliberate further. The court then advised counsel, outside the hearing of the jury, that it was going to give Instruction No. 10, which read: "In the event you desire a jail sentence to...