State v. Mack, WD

Citation903 S.W.2d 623
Decision Date25 July 1995
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Kenneth Edward MACK, Appellant. 49736.
CourtCourt of Appeal of Missouri (US)

Richard D. Jacoby, Kansas City, for appellant.

Catherine S. Dorothy, Asst. Pros. Atty., Jackson County, Kansas City, for respondent.

Before FENNER, C.J., P.J., and BRECKENRIDGE and SMART, JJ.

FENNER, Chief Judge.

Kenneth Edward Mack appeals from his conviction of driving while intoxicated and driving while his license was revoked pursuant to sections 577.010 and 302.321, RSMo 1993, 1 respectively, after trial by jury. Appellant alleges the following points of error: (1) the state failed to establish venue and jurisdiction, therefore appellant's motion for judgment of acquittal at the close of the state's evidence should have been granted; (2) appellant's driving record was improperly admitted into evidence; (3) appellant's motion for mistrial should have been granted after allegedly improper references to appellant's efforts to invoke his Fifth Amendment right to remain silent were made on the witness stand by Officer Sauer; (4) appellant's Batson challenges to the strikes of two venirepersons should have been sustained; and (5) evidence of the results of appellant's breathalyzer test was improperly admitted into evidence.

Viewed in the light most favorable to the verdict, the facts indicate that Officer Anthony Mak of the Kansas City Missouri Police Department stopped appellant at 60th and Prospect for running a red light at 59th and Prospect. After pulling appellant over, Officer Mak noticed that appellant smelled of alcohol and that his eyes were watery and bloodshot. After administering the "one-leg stand" and "walk and turn" field sobriety tests, Officer Mak arrested appellant for driving under a suspended license and for driving under the influence of alcohol.

Officer Mak then took appellant to a mobile D.U.I. checkpoint operating at Independence Avenue and Monroe in Kansas City, Missouri. Appellant was turned over to Officer Alfred Sauer who was operating an Intoxilyzer-5000 breathalyzer within a Winnebago that was part of the checkpoint. Officer Rodney Phillips was also present in the Winnebago and in charge of the checkpoint. Officer Phillips performed the maintenance check on the Intoxilyzer-5000 and then Officer Sauer administered the breathalyzer test and prepared an accompanying report of the test results. The breathalyzer test indicated that appellant had a blood alcohol content of .201 percent, more than twice the level of legal intoxication in the state of Missouri. Officer Sauer also advised appellant of his Miranda rights while appellant was at the checkpoint to undergo the breathalyzer test.

The case was submitted to the jury, which convicted appellant of driving while under the influence of alcohol and driving while his license was revoked. Appellant was ultimately sentenced to 43 days in jail and a fine of $500.00 on the first count and 48 hours in jail on the second count to run consecutively with the first. This appeal ensued.

I. VENUE

Appellant contends the trial court committed error in not granting his motion for judgment of acquittal at the close of the state's evidence because the state failed to establish proper venue and jurisdiction. Appellant claims the state never elicited testimony establishing the city, county, or state in which the alleged violations occurred. This argument is without merit.

First, while venue must be proved, it is not an integral part of the offense and thus need not be proved beyond a reasonable doubt; it may be inferred from all the evidence. State v. Lingar, 726 S.W.2d 728, 732 (Mo. banc), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987); State v. Harper, 778 S.W.2d 836, 838 (Mo.App.1989). The standard by which venue must be established is whether it could reasonably be inferred by the facts and circumstances that the charged crime occurred within the trial court's jurisdiction. Lingar, 726 S.W.2d at 732. The facts and circumstances of this case clearly allow the inference that venue was proper in Jackson County, Missouri.

Further, even if the evidence is inadequate to allow venue to be inferred, venue is a personal prerogative which is waived by proceeding to trial without objection. State v. Wood, 596 S.W.2d 394, 401 (Mo. banc), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980); Harper, 778 S.W.2d at 838. An objection to venue made for the first time at the close of all the evidence is not timely. Harper, 778 S.W.2d at 838; State v. Vincent, 582 S.W.2d 723, 725 (Mo.App.1979). Similarly, a motion made at the close of the state's case comes too late. Harper, 778 S.W.2d at 838. Appellant made no objection or challenge to the venue of his trial until the sentencing hearing. If appellant was truly concerned about whether venue was proper, there was ample opportunity to raise such issue prior to trial. The brief and record are void of any reference at all by appellant to the issue of improper venue and contain no explanation or excuse for failure to raise the issue at an earlier occasion. Point denied.

II. REFERENCE TO APPELLANT'S RIGHT TO REMAIN SILENT

Appellant contends that the following trial discourse between the prosecutor and state's witness Officer Sauer constituted an impermissible reference to appellant's Fifth Amendment right to remain silent:

Q [prosecutor]: What about his speech?

A [Officer Sauer]: His speech was slurred?

Q: Did you ever have any difficulty understanding him?

A: No. He was pretty much--he was very articulated [sic] with his words. He pronounced his words very slowly and very clearly, but the speech was slurred in through his pronunciation of the words.

Q: And did you attempt to ask him any questions?

A: Yes, I did?

Q: And what did he say?

A: After I advised him of his right to remain silent under the Miranda warning, the party refused to answer any questions.

[Appellant counsel]: Your Honor, I'm going to object. I move for mistrial.

The fact that an accused exercised the constitutional right to remain silent and refused to respond to post-arrest interrogation may not be admitted into evidence against him. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976); State v. Smart, 756 S.W.2d 578 (Mo.App.1988). "It may not be shown that an accused failed to volunteer an exculpatory statement, nor may it be shown that, by his silence, he failed to deny or explain, while under arrest, an incriminating fact about which no question was asked." State v. Howell, 838 S.W.2d 158, 161 (Mo.App.1992) (citing State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970)). These principles are mandated where the record reveals that a defendant "stood mute" or claimed his privilege to remain silent in the face of accusation. Howell, 838 S.W.2d at 161; State v. Starks, 459 S.W.2d 249, 252 (Mo.1970). These principles do not apply, however, where a defendant did not stand mute in the face of an accusation because no accusation was made. Id.

In Howell, the prosecutor questioned a police officer at trial, and asked if the defendant made any statement after he was advised of his Miranda rights. "No, sir," was all the officer said. The prosecutor made no other reference to the defendant's post-arrest silence. Under those circumstances, the court concluded that no inference of guilt could reasonably have been drawn from the prosecutor's question and the officer's response. Howell, 838 S.W.2d at 163.

The facts and circumstances of the case at bar, like those in Howell, do not mandate application of the principles protecting against admission of a defendant's post-arrest interrogation silence. Officer Sauer's statements indicate that appellant was not being questioned directly about the crime of driving under the influence of alcohol. Nor is this a case where the appellant "clammed up" in the face of a charge of guilt made under circumstances calling for an admission or denial. All that the record indicates is that Officer Sauer stated that the defendant fell silent after the Miranda warning was issued. No further inference to appellant's post-arrest silence was made by the prosecutor. No reasonable inference of the appellant's guilt could arise from the challenged discourse between the prosecutor and Officer Sauer regarding appellant's refusal to answer questions after he was Mirandized. Point denied.

III. BATSON CHALLENGES

Appellant claims the trial court erred in allowing the state to peremptorily strike two venirepersons over his Batson objections. Appellant, an African-American, claims the two venire members were struck because of their African-American race.

In Missouri courts, once a defendant raises a Batson challenge with regard to one or more specific venirepersons struck by the state and identifies the cognizable racial group to which the venireperson or persons belong, the state is required to offer an explanation for the strike. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). The explanation must be race-neutral, related to the case to be tried, clear and reasonably specific, and legitimate. State v. Rios, 840 S.W.2d 284, 286 (Mo.App.1992).

Our recent decision in State v. Davis, 894 S.W.2d 703 (Mo.App.1995), attempted to clarify what was meant by the term "legitimate" as it applied to the prosecutor's race-neutral explanation for a peremptory strike. We reasoned that a prosecutor's race-neutral justification must be more than merely facially legitimate; otherwise, it would take little effort for a prosecutor of such a mind to adopt rote "neutral explanations" which bear facial legitimacy but conceal a discriminatory motive. Id. at 706.

A subsequent decision of the United States Supreme Court in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam), provides further instruction on the timing of the inquiry into...

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