State v. Rose

• Decision Date: 09 August 2005
• Docket Number: No. ED 85092.,ED 85092.
• Citation: 169 S.W.3d 132
• Court: Missouri Supreme Court
• Parties: STATE of Missouri, Respondent, v. Tommy Gene ROSE, Appellant.

169 S.W.3d 132

STATE of Missouri, Respondent, v. Tommy Gene ROSE, Appellant.

No. ED 85092.

Missouri Court of Appeals, Eastern District, Division Two.

August 9, 2005.

Lawrence O. Willbrand, St. Louis, MO, for appellant.

Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Presiding Judge.

Introduction

Defendant Tommy G. Rose ("Defendant") appeals his conviction of driving while intoxicated, in violation of Section 577.010,¹ and sentence as a persistent offender, pursuant to Section 577.023, to four years imprisonment. We affirm in part and reverse and remand in part.

Background

On January 18, 2003, between 9:30 and 9:45 p.m., Normandy police officer Brian Bardle responded to a radio dispatch, which reported a red pickup truck weaving in and out of traffic on Highway 70. Officer Bardle spotted the truck, observed it nearly collide with another vehicle, noticed that it had a broken taillight, and pulled it over. Normandy police officer Madigan, who was also in the area, assisted Officer Bardle as back-up.

Defendant was driving the pickup truck. After being pulled over, Defendant exited the truck and walked toward Officer Bardle's vehicle. Officer Bardle testified at trial that Defendant leaned against the truck as he moved toward the police vehicle in order to keep his balance and nearly fell when he reached the end of the truck. Officer Bardle further testified that he had to hold Defendant while he talked with him and noted a "very strong" odor of alcohol on Defendant's breath, glassy and red eyes, and slurred speech. Officer Bardle asked Defendant to perform three field sobriety tests: a horizontal gaze nystagmus test, a one-leg-stand, and a walk and turn test. Defendant failed the horizontal gaze nystagmus and refused to complete the other tests.

Officer Bardle arrested Defendant for driving while intoxicated and placed him in Officer Madigan's patrol car for transportation to the St. John Police Department where a BAC test could be administered.

St. John officer Kenneth Martin met Officers Bardle and Madison and Defendant at the St. John Police Department. Both Officers Bardle and Martin testified that Defendant was unsteady on his feet and required assistance getting out of the vehicle and walking to where the BAC machine was located. According to Officer Martin, Defendant was "definitely intoxicated."

Officer Bardle advised Defendant of his Miranda rights and the Missouri Implied Consent Law, and requested Defendant to take a breathalyzer test. Defendant refused. Thereafter, Officer Madigan transported Defendant to Normandy for booking.

The State charged Defendant with driving while intoxicated ("DWI"), in violation of Section 577.010, and as a persistent offender, pursuant to Section 577.023.1(2). As to Defendant's alleged persistent offender status, the State averred that Defendant pleaded guilty to two previous intoxication-related offenses, one occurring on August 27, 2000, in St. Louis County, and the other occurring on September 28, 1996, in St. Charles County.

The parties tried the case before a jury in March 2004. The jury convicted Defendant of driving while intoxicated. The trial court sentenced Defendant, as a persistent offender, to four years' imprisonment in the Missouri Department of Corrections. This appeal followed.

Standard of Review

We will not disturb a trial court's ruling regarding the substitution of an alternate juror for a regular juror during trial absent an abuse of discretion. State v. Naucke, 829 S.W.2d 445, 461 (Mo. banc 1992). We review a trial court's rulings of law de novo. State v. Griffin, 28 S.W.3d 480, 481 (Mo.App. E.D.2000).

Discussion

A. Juror Bias

In his first point on appeal, Defendant asserts that the trial court erred in not replacing one of the jurors, Juror No. 11, with an alternate juror because, during trial, Juror No. 11 disclosed that she taught Officer Bardle, a witness in the case, approximately seventeen years prior to trial. The State counters that the trial court properly retained Juror No. 11 because she was able to state that her teaching relationship with Officer Bardle would not affect her ability to be fair and impartial. We agree with the State.

The substitution of a regular juror during trial is a matter entrusted to the trial court's discretion. Naucke, 829 S.W.2d at 461. The trial court is in the best position to determine a juror's ability to effectively discharge his or her duties. Lester v. Sayles, 850 S.W.2d 858, 870 (Mo. banc 1993).

Here, the record discloses the following colloquy between the trial court, Juror No. 11, counsel for Defendant, and the prosecutor:

The Court: We are out of hearing of the jury. Mrs. Sneed, you indicated that you didn't realize that you knew Officer Bardle. How do you know Officer Bardle?

[Juror No. 11]: Student of mine probably seventeen years ago.

The Court: Seventeen years ago.

[Juror No. 11]: Probably haven't seen him in the past ten [years], but I taught him at Maplewood High School and I live in Brentwood. I've probably seen him around, not lately.

The Court: You don't have any social relationship with him?

[Juror No. 11]: Not at all.

The Court: Or any other relationship, other than you taught him?

[Juror No. 11]: Right.

[Prosecutor]: Would that affect your ability to be fair and impartial as to evidence ...?

[Juror No. 11]: No, ma'am.

[Defense Counsel]: You knew him because he was a student.

[Juror No. 11]: I thought I needed to tell somebody.

The Court: You did the right thing.

[Juror No. 11]: I didn't recognize him for a few minutes.

The Court: Mrs. Sneed, you may go to the jury room to join your fellow jurors.

Any motions to make [Prosecutor], any motions to make with respect to Mrs. Sneed?

[Prosecutor]: Your Honor, she stated she feels she could be fair and impartial as a juror.

[Defense Counsel]: I would object to her remaining as a juror in terms of the relationship of teacher and student. She now recognizes him and she was asked about the name on voir dire. She did not respond. We have an alternate. This is a one day case.

* * *

The Court: I heard nothing to indicate she would be biased or prejudiced by the fact. She didn't really know him until she saw and heard him. I don't think it's anything intentional on her part otherwise she wouldn't call our attention to it. The motion will be denied.

Juror No. 11 stated that she taught Officer Bardle approximately seventeen years before the trial and had not been in contact with him recently. She had no social or other relationship with him. Additionally, she unequivocally stated that the fact that she had once taught Officer Bardle would not affect her ability to be fair and impartial. Under these facts, the trial court did not abuse its discretion in denying Defendant's request to replace Juror No. 11.

Point denied.

B. Sentencing as a Persistent Offender

In his second point, Defendant argues that the trial court erred in sentencing him as a persistent DWI offender, pursuant to Section 577.023, because: (1) the State failed to prove that he pleaded guilty to or was found guilty of two or more intoxication-related traffic offenses within ten years of the offense for which he was charged, pursuant to Section 577.023.1(2); and (2) the trial court failed to specifically find that he was an intoxication-related persistent offender pursuant to Section 577.023.5(3). The State counters that the trial court did not err in sentencing Defendant as a persistent offender because Defendant admitted at trial that he committed two prior intoxication-related traffic offenses and the trial court was not statutorily required to make express findings that Defendant was a persistent offender.

The State's Information alleged Defendant to be a persistent DWI offender, as follows:

Count I: Driving w/ Intoxicated — Persistent Offender — Felony

That Tommy G. Rose, in violation of Section 577.010, RSMo, committed the class D felony of driving while intoxicated, punishable upon conviction under Sections 558.011, 560.011 and 577.023, RSMo, in that on or about January 18, 2003, at approximately 10:00 P.M., eastbound I-70 at Bermuda, in the County of St. Louis, State of Missouri, the defendant operated a motor vehicle while under the influence of alcohol, and on November 30, 2000, defendant had pleaded guilty to driving with excessive blood alcohol content, for events occurring on August 27, 2000, in St. Louis County Municipal Court cause # 00WM-048779, and the judge was an attorney and the defendant was represented by an attorney or waived counsel in writing, and on April 29, 1997, defendant had pleaded guilty to driving while intoxicated, for events occurring on September 28, 1996, in St. Charles Associate Court, cause # CR696-8536M.

(Emphasis added).

To prove Defendant's persistent offender status, as charged in the Information, the State "had the burden of introducing evidence that established, beyond a reasonable doubt, sufficient facts of those pleaded in the information to warrant a finding that [Defendant] was a persistent offender." State v. Gibson, 122 S.W.3d 121, 127 (Mo.App. W.D.2003) (citing Section 577.023.5(2)). Where sufficient evidence is adduced to support the finding that a defendant is a persistent offender, the lack of a specific finding to that effect by the trial court is "only a procedural deficiency." State v. Sparks, 916 S.W.2d 234, 238 (Mo.App. E.D.1995); State v. Boyd, 927 S.W.2d 385, 390 (Mo.App. W.D.1996).

Section 577.023.1(2)(a) provides that a persistent offender "has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged." An "intoxication-related traffic offense," is defined as:

driving while intoxicated, driving with excessive blood alcohol content,...