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State v. Hibler6/27/2000
Appeal From: Circuit Court of DeKalb County, Hon. Warren L. McElwain
Opinion Vote: AFFIRMED. Breckenridge, C.J., and Smart, J., concur.
Opinion:
Ricky J. Hibler appeals the judgment of his jury conviction in the Circuit Court of DeKalb County, Missouri, of driving while intoxicated (DWI), in violation of section 577.010. As a result of his conviction, he was sentenced to six months in the county jail and a fine of $500.
The appellant raises three points on appeal. In Point I, he claims that the trial court erred in allowing the endorsement of additional witnesses by the State on the day of trial and for not granting him a continuance after allowing the endorsement because in doing so, his trial counsel was denied an opportunity to adequately prepare for trial. In Point II, he claims that the trial court erred: (a) in denying his motion for a mistrial and sending the jury back for further deliberations after it had returned a verdict of guilty, which was rejected by the trial court as being inconsistent with the instructions of the court; and (b) in giving a non-MAI-CR explanatory instruction to address the inconsistency in the jury's verdict and to guide it in its further deliberations. In Point III, he claims that the trial court plainly erred in allowing, over his objection, the State to argue, during its closing argument, an adverse inference from the appellant's failure to call his father as a witness because it deprived him of his constitutional right to trial before a fair and impartial jury.
We affirm.
Facts
On October 4, 1998, at approximately one o'clock in the morning, Officer Russell Morris of the Chillicothe Police Department observed a black Jeep Cherokee proceeding through an intersection at a high rate of speed and gave chase. The vehicle was traveling northbound on Samuel Street when Officer Morris observed it cross over the center line and into the oncoming lane of traffic. He continued his pursuit as the vehicle turned off of Samuel onto Hickory Street. At some point, he observed the Jeep slow down, but run a stop sign. While in pursuit, he radioed for a license and registration check. Officer Morris then observed the Jeep, after entering an intersection and attempting to turn, veer off the right-hand side of the road; run up on the curb, narrowly missing a utility pole; and make a sharp recovery back to the left, crossing the center line. It was at this time that he activated the lights on his patrol car and proceeded to stop the Jeep.
He identified the driver as the appellant, and after requesting him to roll down the window, he noticed a moderate to strong odor of intoxicants. He then requested him to exit the vehicle and observed him to be unsteady on his feet, swaying and using the car door for balance. At that time, Officer Shannin Crawford of the Chillicothe Police Department arrived for backup. Upon questioning, the appellant admitted that he had been drinking beer and was intoxicated.
Based on his observations and the admissions of the appellant, Officer Morris believed the appellant to be intoxicated and requested him to perform several field sobriety tests, including the horizontal gaze nystagmus, which he failed, according to Officer Morris. The appellant was arrested for DWI and transported to the Chillicothe Police Department where he was asked to take a breathalyzer test. He attempted to perform the test approximately three times, but on each occasion did not completely seal his lips around the mouthpiece of the breathanalyzer as required to provide a sufficient breath sample for testing. Consequently, he was written up for a refusal. After being cited for DWI,
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