State v. Lopez, s. WD

• Citation: 898 S.W.2d 563
• Decision Date: 14 February 1995
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. Rafael LOPEZ, Appellant. Rafael LOPEZ, Appellant, v. STATE of Missouri, Respondent. 46435, WD 49566.
• Court: Court of Appeal of Missouri (US)

Page 563

898 S.W.2d 563

STATE of Missouri, Respondent, v. Rafael LOPEZ, Appellant.

Rafael LOPEZ, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 46435, WD 49566.

Missouri Court of Appeals Western District.

Feb. 14, 1995.

As Modified May 2, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 2, 1995.

Application to Transfer Denied June 20, 1995.

Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before ULRICH, P.J., and KENNEDY and BERREY, JJ.

BERREY, Judge.

Appellant appeals his conviction by a jury of tampering in the first degree and the 15 year sentence imposed. He was sentenced as a "persistent offender." He also appeals the denial of his Rule 29.15 motion. ¹

Appellant alleges five points of trial court error: 1) in denying appellant's motion to recuse himself, 2) by overruling appellant's motion for judgment of acquittal, 3) by sustaining the state's Batson objection to appellant's preemptive strike of venireperson Danny Smith, 4) by overruling appellant's objection to state's peremptory strike of venireman Willard Olinger, and 5) by overruling appellant's objection to portions of the state's closing argument.

On April 18, 1991, Daniel Bieker, Jr., notified the Kansas City Police Department that his 1982 gray over silver Pontiac Grand Prix had been stolen. Bieker had parked his car in a lot behind the Westport flea market and it was gone when he returned. He supplied the police with the license and VIN numbers.

Richard Stanley was outside his apartment at 4505 Jarboe about 5:30 a.m. on May 12, 1991 watching his dog. The sun was up and the street lights had been turned off. Stanley observed a gray Pontiac Grand Prix park in front of his building. The driver exited the car and walked away and out of sight. Several minutes later the driver reappeared walking in the street and "he was looking and trying door handles of all of the cars on the west side of the street." Stanley then observed the person approach a Buick Riviera. The window was low and he put his "hands on the passenger side glass." Stanley stated that he knew the owner of the Buick and this person with his hands on the glass was not the owner. The Grand Prix and the Buick were across the street from each other. Stanley asked appellant "what in the Hell he was doing." He received no response and Stanley then:

challenged him the second time and asked him what was he doing--I said, 'That's not your car. I know who owns that car. What are you doing messing with it?' And he kind of turned around and kind of looked at me and kind of waved me off as if to--just kind of waved his arms like that. And I challenged him again.

Appellant was about four or five feet away. Stanley kept appellant in sight, continued to "challenge him," and kept walking toward him. Appellant backed away and eventually left the area. Stanley then called the police. Stanley also approached the gray Grand Prix and saw keys in the ignition. Stanley reached through an open window and removed the keys. When the police arrived he gave them a description of the individual and the keys to the Grand Prix. Subsequently, Stanley stated to the police, "There he is" referring to the party he had been observing. The police apprehended the party and Stanley identified him. He also identified him at trial. The Grand Prix owner, Bieker, subsequently testified he and his mother jointly owned the car. Daniel Bieker was the "primary owner of the car" and he was the person who drove it and had sole possession of the vehicle. Bieker testified his mother was retired and lived in Hayes, Kansas.

I

Appellant's first point alleges the trial court erred in not recusing himself because he was biased and prejudiced against appellant and one of his attorneys, Ms. Tannenbaum. The alleged bias is attributable to the trial court's initial concern about appellant's request for an interpreter. Appellant alleged he did not have sufficient command of the English language to proceed without an interpreter. The trial court inquired as to his right to an interpreter and he was advised that the United States Supreme Court had held an interpreter was required for a defendant who claimed not to understand English. Upon being so advised the trial court stated it would allow a short delay in the proceeding for the interpreter to arrive.

The delay in the proceeding apparently did not please the trial court but he did not express any overt opinion on the appellant's inability to speak English. The record does not reflect a personal bias or enmity of the judge toward the appellant. The trial court's lack of knowledge regarding appellant's right to an interpreter is not sufficient grounds for his disqualification. Jetz Service Co. v. Chamberlain, 812 S.W.2d 946, 949 (Mo.App.1991).

Appellant in point one further complains that the trial court erred in citing Ms. Tannenbaum for criminal contempt, that this displayed bias and prejudice against the appellant. This exchange occurred when the trial court attempted to secure information from the jail guards about appellant's alleged spitting, kicking and cursing at them when he was told he had to wear county issued socks to court. According to jail personnel who were to transport appellant to court, appellant got out of control. He stated he wanted to go to court bare footed. Appellant alleges that the trial court displayed bias and prejudice by use of the expression "tough hombres" and "young woman." Appellant alleges the use of "hombres" was meant as a racial slur by the trial court. The specific language of the trial court is as follows:

Tell him that in my four years on this Bench I have never run into a situation of such misconduct and resistance, and I face some pretty tough hombres. He's absolutely far and away the most troublesome defendant we've had in this Court.

According to Webster's 5th Collegiate Dictionary, "hombre" is a variation of omber. Omber, is defined as a man. The comment equates to the trial court facing tough men, not an ethnic slur.

Whether a term can be characterized as derogatory depends on the context and manner of its use. The trial court used the complained of term, "young woman," as follows: "Young woman, I would suggest that you respond to my question." Although it would have been preferable to address Ms. Tannenbaum by name or as "counsel," the statement made by the trial court does not evidence bias or prejudice against the appellant.

The trial court expressed the thought that appellant owed an apology to the guards. Perhaps so! This does not rise to prejudice against the appellant.

Appellant alleges that the trial court lost his temper and therefore should have recused himself. City of Kansas City v. Wiley, 697 S.W.2d 240, 244 (Mo.App.1985). However, the transcript does not reveal the trial court losing his temper. It does reveal a trial court attempting to control the courtroom and promptly proceed with a trial. Likewise, appellant's counsel had a duty to object as incidents of legitimate advocacy, which she did. State ex rel. Tannenbaum v. Clark, 838 S.W.2d 26 (Mo.App.1992).

Although the trial court admonished counsel on several occasions, such action did not require him to recuse himself. State v. Moffitt, 754 S.W.2d 584, 589 (Mo.App.1988). The comments complained of were all during pre-trial and without the jury being present. An example of judicial intolerance is found in State v. Wren, 486 S.W.2d 447, 448 (Mo.1972). The trial court instructed counsel in the jury's presence to proceed "ad nauseam." It further degraded defense counsel and commented on the evidence. The court held this conduct violated Canons of Ethics Rules 1.05, 1.10 and 1.15. The court noted that such reprimands or admonishments may be called for, but should be handled so as not to prejudice appellant's case in the eyes of the jury. The instant case was without a jury present and does not rise to the level of intolerance displayed in Wren.

A judge is entitled to the presumption that he will not undertake to preside over a trial in which he cannot be impartial. Blando v. Reid, 886 S.W.2d 60, 65 (Mo.App.1994). Prejudice is the attitude of personal bias toward a party or obvious favor of an adverse party to the others detriment. State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 697 (Mo.App.1990).

In order for the bias and prejudice to be disqualifying, it must arise from an extra judicial source and result in an opinion on the merits on some basis other than what the judge has learned from participation in the case. State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992). In State v. Moffitt, 754 S.W.2d 584, 588-89 (Mo.App.1988), appellant complained that the trial court's comment was prejudicial to his defense. The trial court in response to an objection and colloquy between counsel stated: "The jury understands she doesn't know exactly which week-end it was. Let's move on we're quibbling over words that are plain to the jury." These statements were not comments on the evidence or the witnesses credibility. The admonition was not hostile and did not convey bias to the defendant. See State v. Koonce, 731 S.W.2d 431, 441 (Mo.App.1987).

The trial judge eventually held Ms. Tannenbaum in contempt and this was overturned in State ex rel. Tannenbaum v. Clark, 838 S.W.2d 26 (Mo.App.1992). The opinion does not reflect that the trial court exercised bad faith in the contempt proceedings or that the trial court was prejudiced against either appellant or Ms. Tannenbaum. As we have noted, this entire episode occurred out of the jury's presence. "A trial judge's remarks or suggestions outside the presence of the jury do not prevent the defendant from having a fair and impartial trial." State v. Owens, 759 S.W.2d 73, 77 (Mo.App.1988).

Appellant's Point I is denied.

II

Appellant next complains the...