State v. Stewart

• Decision Date: 15 October 2009
• Docket Number: No. SD 29392.,SD 29392.
• Citation: 296 S.W.3d 5
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kendal Lane STEWART, a/k/a Kendall L. Stewart, Defendant-Appellant.
• Court: Missouri Court of Appeals

296 S.W.3d 5

STATE of Missouri, Plaintiff-Respondent, v. Kendal Lane STEWART, a/k/a Kendall L. Stewart, Defendant-Appellant.

No. SD 29392.

Missouri Court of Appeals, Southern District, Division Two.

October 15, 2009.

Stuart P. Huffman, Whiteaker & Wilson, P.C., Springfield, MO, for Appellant.

Chris Koster, Attorney General, and Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY W. LYNCH, Presiding Judge.

Kendal Lane Stewart ("Defendant") appeals his felony conviction for resisting arrest. See § 575.150.¹ Specifically, Defendant brings six points on appeal, alleging that the trial court erred: (1) in overruling Defendant's motion for judgment of acquittal at the close of the State's evidence because there was insufficient evidence presented showing Defendant knew he was being arrested; (2) in failing to quash the venire panel because one member of the panel was a uniformed police officer and said that she had previous knowledge of Defendant and could not be fair and impartial; (3) in submitting to the jury instruction number five, based upon MAI-CR3d 329.60, because the State failed to show a felony had been committed; (4) in not submitting to the jury the offense of third-degree assault of a law enforcement officer because it was a lesser-included offense; (5) in overruling Defendant's objection to testimony that Defendant was being arrested for aggravated stalking because such testimony amounted to impermissible prior bad acts evidence; and (6) in denying Defendant's motion for mistrial because testimony referencing "numerous calls" regarding Defendant "and a victim" violated Defendant's right of confrontation. Finding no merit in Defendant's points, we affirm.

Factual and Procedural Background

We view the evidence presented at trial, as well as all reasonable inferences that can be drawn therefrom, in the light most favorable to the verdict and reject all contrary evidence and inferences. State v. Newberry, 157 S.W.3d 387, 390 (Mo.App. 2005). Viewed in that light, the following was adduced at trial.

On October 19, 2006, the Springfield Police Department received information that Defendant was located inside a "fifth wheel" trailer at 2918 West Hovey, in Greene County, Missouri. The police had been looking for Defendant as a result of receiving several calls to the department regarding Defendant and a particular victim. Additionally, there were two outstanding warrants for Defendant's arrest, one of which was for aggravated stalking, a felony. Officer Michael Stroud was dispatched to the location on West Hovey and contacted three or four other officers to accompany him to that location. Officer Stroud gave each officer an assigned location on the property and then approached the trailer with Officer Curtis Ringgold. All of the officers were in uniform. Officers Stroud and Ringgold could hear voices through an open window, and Officer Ringgold spoke through that window to the individuals inside, announcing his presence as a police officer and asking those inside to exit the trailer. At that point, one of the individuals—not Defendant—came to the door and identified himself, and he was escorted by another officer to the opposite end of the trailer. Through the open door, Officer Stroud could see another individual curled up into a ball underneath a table, with his hands in front of his face. Officer Stroud repeatedly asked the individual to show his face and hands; at some point, the individual moved his hands enough so that Officer Stroud was able to identify the individual as Defendant.

When Defendant refused to comply with Officer Stroud's orders, Officer Stroud directed Officer Ringgold to lean into the trailer and grab Defendant's feet and pull him out from underneath the table. Officer Ringgold continued to order Defendant to show his hands while he moved toward Defendant, and when Officer Ringgold reached for Defendant's feet, Defendant began kicking and hid his hands underneath his body. Officer Stroud then approached the table and attempted to apply "distractionary techniques" to Defendant's legs in an effort to assist Officer Ringgold; this entailed Officer Stroud applying pressure with his foot to the major muscle groups in Defendant's legs. At some point during the altercation, Defendant kicked the table, and it fell on him. Although Defendant initially continued kicking, he eventually stopped after several minutes, and Officers Stroud and Ringgold were able to place Defendant in handcuffs. Throughout the entire ordeal, Officer Ringgold continued to order Defendant to show his hands and to stop resisting the officers, but it was only after Defendant was in handcuffs and the officers stood him up that he completely stopped pulling away from and fighting with them.

Once Defendant was restrained by the handcuffs, he asked Officer Stroud why he was being arrested; Officer Stroud replied that Defendant was wanted on multiple felony warrants, specifically referencing the aggravated stalking warrant, in addition to the new resisting-arrest charge.

Defendant was charged by felony information with felony resisting arrest, pursuant to § 575.150. He was further charged as, and found to be by the trial court prior to trial, a prior and persistent offender, pursuant to §§ 558.016 and 557.036.² After being found guilty as charged by a jury, Defendant argued his motion for new trial immediately prior to sentencing, and the motion was denied. The trial court then sentenced Defendant to seven years' incarceration, the maximum possible sentence. This appeal timely followed.

Additional facts necessary to the resolution of Defendant's individual points are set out infra.

Discussion

Defendant presents six points for our review. We address them in chronological order for ease of understanding.

I. Venire Panel

In his second point, Defendant contends that the trial court erred in denying his motion to quash the venire panel following venireperson number seventeen's statement that: "[A]s a police officer, previous knowledge of the Defendant, I don't think I could be fair and impartial." Defendant claims that these statements tainted the entire panel by implying prior run-ins with the law and, thus, prior bad acts on the part of Defendant, depriving Defendant of a fair trial. We disagree.

A. Standard of Review

"A trial court has broad discretion in deciding whether a jury panel should be dismissed and the court's ruling will not be disturbed unless there is a clear abuse of discretion." State v. Sprinkle, 122 S.W.3d 652, 658 (Mo.App.2003) (citing State v. Thompson, 985 S.W.2d 779, 789 (Mo. banc 1999)). This is because the trial court is in the best position to determine the effect of an allegedly improper statement on the members of the venire. State v. Scott, 359 Mo. 631, 223 S.W.2d 453, 455 (1949). "A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Johnson, 207 S.W.3d 24, 40 (Mo. banc 2006) (citing State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997)). We presume that the trial court's ruling was correct, and it is the defendant's burden to demonstrate otherwise. State v. Franklin, 144 S.W.3d 355, 361 (Mo.App.2004).

B. Analysis

During voir dire, the State asked the panel if any venireperson, member of their families, or close friend had ever "served as law enforcement." Several potential jurors responded to the question. One venireperson in particular, venireperson seventeen, was dressed in a police uniform and responded, "[A]s a police officer, previous knowledge of the Defendant, I don't think I could be fair and impartial." Defendant's attorney immediately moved to quash the entire venire panel, a request which was denied. The trial court instructed the State to continue its line of questioning but not to further question venireperson seventeen. When the panel had finished with that particular question, the trial court took a break and had the bailiff ask venireperson seventeen not to return. During the break, the trial court gave Defendant the option of the court saying nothing regarding venireperson seventeen's absence, or explaining that venireperson seventeen had been excused because she was a coworker of the State's two witnesses, Officers Stroud and Ringgold. Defendant chose the latter and, upon reconvening the venire panel, the trial court informed them accordingly. Defendant now claims that such action was not enough, and that the entire panel should have been discharged.

Initially, Defendant assumes that venireperson seventeen's statements conveyed a negative connotation toward Defendant, but he fails to point to any support for such assumption in the record. Venireperson seventeen's remark did not specify the nature of her previous contact with Defendant; she merely implied that the contact occurred through her position as a police officer. The comment insinuated nothing about the nature of the contact. See State v. Childs, 652 S.W.2d 161, 162 (Mo.App. 1983) ("In the course of performing his duties, a police officer encounters many people, including victims of crime, witnesses to crime, and residents or owners of businesses in an area he patrols, whom he has never arrested. Mere familiarity with a police officer does not constitute evidence that one has been arrested or convicted of another crime.").

Nevertheless, indulging the Defendant's assumption, not every venireperson response unfavorable to the defendant necessitates the discharge of the entire venire panel, even though heard by the panel at large. State v. Wise, 745 S.W.2d 776, 778 (Mo.App.1988). "Usually, disqualification of an individual juror for bias or expression of an opinion is insufficient for challenging the entire array." State v. Evans, 802 S.W.2d 507, 514 (Mo. banc 1991). Ordinarily, when a...