State v. Lawrence

• Decision Date: 17 January 2002
• Docket Number: No. 23517.,23517.
• Citation: 64 S.W.3d 346
• Parties: STATE of Missouri, Respondent, v. Richard D. LAWRENCE, Appellant.
• Court: Missouri Court of Appeals

64 S.W.3d 346

STATE of Missouri, Respondent, v. Richard D. LAWRENCE, Appellant.

No. 23517.

Missouri Court of Appeals, Southern District, Division One.

January 17, 2002.

Eric Hutson, Lebanon, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for Respondent.

Before SHRUM, P.J., MONTGOMERY, J., and BARNEY, C.J.

PER CURIAM.

Richard D. Lawrence ("Defendant") appeals from a judgment of the Circuit Court of Laclede County following a jury conviction of felony driving while intoxicated, § 577.010 and § 577.023.3, and driving while suspended, § 302.321, RSMo 1995.¹ Defendant was sentenced as a prior and persistent offender, § 558.016, to concurrent terms of ten years in the Missouri Department of Corrections for driving while intoxicated and one year in the Laclede County Jail for driving while suspended.

Defendant raises four points of error on appeal. First, Defendant asserts the trial court erred in overruling Defendant's challenge for cause of two prospective jurors following voir dire. Second, Defendant posits trial court error in failing to sustain Defendant's request for mistrial and denying his request for a new trial after it was ascertained that one of the seated jurors was related to Defendant and was aware of his prior criminal history. Third, Defendant asseverates the trial court erred in refusing to allow a witness for Defendant to testify at the hearing on Defendant's motion for new trial. Fourth, Defendant submits the trial court erred in allowing, over Defendant's objection and motion to suppress, the "out-of-court and in-court identifications of the Defendant" by a witness who was unable to identify Defendant at his preliminary hearing. We affirm.

Defendant does not challenge the sufficiency of the evidence. "All evidence and inferences will be viewed in the light most favorable to the ruling of the trial court and we will disregard all contrary evidence and inferences." State v. Evenson, 35 S.W.3d 486, 488 (Mo.App.2000).

FACTS.

On the afternoon of September 25, 1998, Deputy Greg Weddle ("Dep. Weddle") of the Laclede County Sheriff's Department was directing traffic at the intersection of Highway 5 and Route C in Laclede County. At approximately 3:15 p.m., as Dep. Weddle was directing traffic, he observed a black car that he identified as a Pontiac Firebird traveling north on Highway 5 approaching at a high rate of speed. Dep. Weddle observed the car swerve out of its lane several times before passing by his location, narrowly missing Dep. Weddle and his patrol vehicle. While Dep. Weddle did not get a good look at the driver, he observed that the driver had long, shoulder-length hair and was wearing a black t-shirt. He also noticed that the front windshield of the car was "cracked pretty good, shattered like, still intact but shattered." Although Dep. Weddle did not personally pursue the black car, he did radio dispatch and request assistance from the highway patrol in apprehending the driver of the black vehicle.

On that same day, shortly after the incident with Dep. Weddle, David Hudson, a resident of Laclede County, was traveling south on Highway 5. As he approached an area roughly 1.5 miles north of the intersection of Highway 5 and Route C he observed a late model black car that he described as either a "Trans Am, Z 28 [or] Firebird" traveling in a northerly direction, run another car off of the road. Mr. Hudson was forced to drive his vehicle off of the road into a driveway to avoid the black car as it approached him. The car came within roughly three feet of Mr. Hudson's vehicle as it passed him, causing Mr. Hudson to bring his vehicle to a stop. Mr. Hudson observed that the driver had long hair, and was not wearing a shirt. He also noticed that the black car "had a busted out windshield on the driver's side. Wasn't plum gone but it was shattered." After passing Mr. Hudson, the black car pulled into a nearby driveway.

When the black car stopped, Mr. Hudson pulled out an unloaded rifle with a scope and looked through the scope so that he could get a better look at the vehicle.² Mr. Hudson observed the driver exit the vehicle. The driver was the only person Mr. Hudson could see in the vehicle. While looking through the scope, Mr. Hudson watched the individual walk north for approximately thirty seconds until the person "went into the brush, trees." Mr. Hudson was able to get a good look at the driver and later identified the man as Defendant. After watching Defendant walk into the woods, Mr. Hudson continued down the road until he reached the intersection where Dep. Weddle was located. Mr. Hudson relayed the events he had observed to Dep. Weddle and then proceeded to his farm.

Several minutes later, while driving north on Highway 5, Mr. Hudson observed Defendant standing at the corner of Highway 5 and Route HH, approximately two miles north of Highway 5 and Route C. He decided to inform Dep. Weddle that he had seen Defendant so he turned around and proceeded back to Highway 5 and Route C. Dep. Weddle informed Mr. Hudson that a highway patrolman had detained Defendant.

Trooper Jason Riggs ("Trooper Riggs") of the Missouri Highway Patrol, was working on the afternoon of September 25, 1998, when he overheard radio traffic concerning the incident with Dep. Weddle. He also received a communication "that the vehicle that nearly struck [Dep. Weddle] had pulled into a private drive then the driver of the vehicle exited and started walking north on Highway 5." Trooper Riggs heard the driver described as a male subject with long hair, no shirt, wearing black sweat pants. At approximately 3:40 p.m., Trooper Riggs observed Defendant standing at the corner of Highway 5 and Route HH. Trooper Riggs stopped his vehicle and asked Defendant to come over next to him as Defendant was "standing fairly close to Highway 5." Trooper Riggs observed that Defendant was unsteady on his feet, his eyes were blood shot and watery, and his speech was slurred as he talked. The trooper observed that Defendant had a set of car keys in his hands, which he gave to Trooper Riggs upon request.³ After asking Defendant to submit to some field sobriety tests, Trooper Riggs administered the horizontal gaze nystagmus test and determined that Defendant had failed the test. Defendant refused to perform any other field sobriety tests, and when asked if he'd been drinking, Defendant replied, "a lot." At that point, Trooper Riggs placed Defendant under arrest for driving while intoxicated and read him his Miranda rights.⁴

Trooper Riggs received an additional communication that informed him a witness was with Dep. Weddle, so he proceeded to the intersection of Highway 5 and Route C. Upon arriving at this location Mr. Hudson identified Defendant as the driver he had observed in the black car. Defendant was subsequently transported to the Laclede County Jail and charged with felony driving while intoxicated and driving while revoked.

At trial, Dep. Weddle, Mr. Hudson, and Trooper Riggs testified to the events as set out above. The jury returned a guilty verdict on both counts.

DISCUSSION AND DECISION.

I.

In his first point, Defendant alleges that the trial court erred in denying Defendant's challenge for cause as to two venire persons, Nancy Twenter ("Twenter") and Katherine Lyon ("Lyon"), because the "two potential jurors equivocated on voir dire as to whether they would be fair and impartial...." As such, Defendant was forced to use his peremptory challenges on the two venire persons and was not afforded "a full panel of qualified jurors."

In support of his contention, Defendant cites to State v. Wilson, 998 S.W.2d 202, (Mo.App.1999), which stands for the proposition that "[a]n individual accused of a crime is entitled to a full panel of qualified jurors before he is required to expend his peremptory challenges. For a trial court to deny a legitimate challenge for cause constitutes an abuse of discretion and reversible error." Id. at 205 (quoting State v. Walker, 795 S.W.2d 522, 525 (Mo.App.1990) (citations omitted)). However, a closer reading of Wilson reveals that the challenged jurors actually served as members of the jury in the trial. The two jurors challenged in the present case, Twenter and Lyon, were struck from the panel via use of peremptory strikes by Defendant. Because Defendant used his peremptory strikes to remove Twenter and Lyon, he is precluded by the provisions of section 494.480.4, RSMo 1997, from arguing that the failure of the trial court to strike them for cause was reversible error. State v. Deck, 994 S.W.2d 527, 538 (Mo. banc 1999); State v. Brown, 998 S.W.2d 531, 540 (Mo. banc 1999); State v. Bishop, 942 S.W.2d 945, 947 (Mo.App.1997).⁵ Point denied.

II.

In his second point, Defendant maintains the trial court erred in denying his request for a mistrial and a new trial because one of the jurors, Mandy Gormley, failed to disclose that she was related to Defendant and had knowledge of his prior criminal history, thus depriving Defendant of a fair trial by an impartial jury panel.

During voir dire, the State asked the prospective jurors if "anyone know[s] the Defendant, Richard Lawrence?" No one responded affirmatively to this question, including Mrs. Gormley. Defendant's trial counsel did not address this subject during voir dire. Mrs. Gormley was seated as a member of the jury.

On the second day of trial, just after the close of the State's evidence, Defendant asserts that he advised his trial counsel that he became aware that Mrs. Gormley was his niece, through marriage.⁶ Defendant's trial counsel, in turn, informed the trial court of this revelation. Defense counsel explained to the trial court that Defendant had informed him during voir dire that the name Gormley sounded familiar to him and that he might have "a relative by that name." Defense counsel also reported to the trial court that, "[w]e went ahead and listened to some of the...