Opinion
No. WD 33318.
December 14, 1982.
APPEAL FROM THE CIRCUIT COURT, LINN COUNTY, GEORGE S. THOMPSON, J.
Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.
This is a direct appeal from a jury conviction for disturbing the peace in violation of § 574.010, RSMo 1978, and resisting arrest in violation of § 575.150, RSMo 1978. The judgment is affirmed.
This cause originated before the Honorable Walter E. Allen, and he disqualified himself and ordered the case to the presiding circuit judge for reassignment. Reassignment was made to the Honorable George S. Thompson, Associate Circuit Judge.
In this appeal, appellant charges that the trial court erred (1) in overruling appellant's objections to the jury panel because of the age, marital status and geographical location from which the jurors were drawn; and (2) in denying appellant's motion to disqualify the prosecutor for prejudice.
The sufficiency of the evidence is not challenged and a brief summary suffices.
Appellant entered a bar known as The Keg, located in the city of Brookfield, Missouri at about 6:00 or 6:30 p.m. the night of January 9, 1981. Appellant seated himself at the bar and commenced to drink. Around 10:30 or 11:00 p.m., he got up from the bar and walked across the room, and in the process, staggered into a table and chair. Employees of the bar decided that appellant should leave, asked him to leave, and helped him to the door.
Appellant was then observed back on the dance floor, dancing by himself and lying down on the dance floor. He was assisted to his feet. He ordered another drink, but his request was refused. Over his protest, appellant was assisted to the front door. At this point, he struck the "dee-jay" and knocked him through the front door. A female bar employee observed appellant using loud and obscene language and grabbing a patron by the door. When she tried to get appellant to free the patron, appellant struck her. At this point, appellant was pushed through the front door and the police were called.
The police arrived. Appellant cursed the police, removed his hat, coat, and one shoe, and commenced swinging at one of the officers. Appellant then ran down the street. The officers got into their patrol car, drove around the block, inquired of a pedestrian if appellant had been seen, entered another tavern from which appellant exited at the rear, and apprehended appellant at the rear of this second tavern.
Evidence for the defense consisted of two witnesses. These witnesses, in summary, testified that appellant was observed being escorted to the front door, and that appellant was using loud and obscene language, but that appellant was not observed striking the female bar employee. Another witness stated he observed only the activities outside The Keg, which included appellant's standing outside talking to another man, the arrival of the police officers and their grabbing of appellant, and the latter running down the street.
The evidence closed. The jury returned its verdict of guilty on both counts. Punishment upon Count I (disturbance of the peace) was a term not to exceed seven days. Punishment upon Count II (resisting arrest) was a term not to exceed 60 days. This appeal followed.
Point (1) is ruled against appellant. There is no showing upon the record, nor does appellant display upon this appeal, any constitutional violation relative to the jury array. Appellant's argument can be broken down to three areas. He first challenges the geographical location of the jurors, charging that six of the panel were from Purdin, four from Browning, three from Laclede and two from Meadville. Appellant concedes that there was no evidence presented concerning the population distribution of Linn County, but urges that the trial court could take judicial notice of the fact that the larger portion of the county population comes from remaining areas of the county. Appellant cites Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) for the mere proposition that an accused is entitled to an impartial jury drawn from a fair cross-section of the community.
Not only does appellant fail to show that the jury selected was not representative of a fair cross-section of the community, but as appellant concedes, our state Supreme Court has expanded the criteria necessary to prove a violation of the Sixth Amendment guarantee of a fair cross-section of the community in State v. Alexander, 620 S.W.2d 380 (Mo. banc 1981). Appellant's challenge to the panel array on the basis of geographical location fails and is ruled by Alexander. See also United States v. Young, 618 F.2d 1281, 1288 (8th Cir. 1980), cert. denied 449 U.S. 844, 101 S.Ct. 126, 66 L.Ed.2d 52 (1980).
A second challenge to the panel was on the basis of the age of the prospective jurors. Again, appellant fails to note (other than a vague suggestion that his Sixth Amendment rights were violated) any substantive denial of his constitutional right. Appellant concedes that he was not entitled to a jury of his own age group, but merely alleges that the "law-representative of persons under the age of 40 years and 30 years further violates the fair cross-section of the community." Alexander disposes of this contention because there is a total absence of any showing of systematic exclusion of any specific age group.
Under his last contention within point (1), that the marital status of the jury panel was violative of appellant's "fair cross-section of the community," this contention is likewise disposed of by Alexander.
Point one is meritless and is ruled against appellant.
Point two is ruled against appellant.
Appellant contends that the court erred by denying his motion to disqualify the prosecutor pursuant to § 56.110, RSMo 1978 and State v. Harris, 477 S.W.2d 42 (Mo. 1972). At the outset, it is to be noted that nothing in this record brings this case within either § 56.110 or Harris.
Appellant's argument under this final point is bifurcated as follows. The prosecutor should have been disqualified because of (1) prior prosecutions of this appellant and (2) this prosecutor had been disqualified in a prior prosecution of this appellant.
As to appellant's first argument, this matter is resolved by State v. Burton, 544 S.W.2d 60 (Mo.App. 1976) and State v. Holt, 603 S.W.2d 698 (Mo.App. 1980). See also State v. Newman, 605 S.W.2d 781 (Mo. 1980).
Concerning appellant's second contention that the prosecutor was disqualified in a prior proceeding against appellant, further discussion is necessary to explain fully the details and clarify the suggestion that prejudice followed what was done. Appellant had been charged previously with driving under the influence. The present prosecutor filed the charges against appellant and the case was tried with the result of a hung jury. During the pendency of the retrial, appellant moved to disqualify the prosecutor and this request was denied. The court then inquired of the prosecutor, and the prosecutor stated he didn't care and that since he had tried the case once, if it would make appellant feel better about the situation, he (the prosecutor) would not object to the (D.W.I.) case being transferred to Milan, Missouri and the state's case handled by another prosecutor. This is the factual background surrounding the "disqualification" of the prosecutor.
There is no showing of any bias against this appellant which justified the disqualification of the prosecutor. Burton, Holt, and § 56.110. The mere allegation of prosecutorial prejudice, even in the form of a motion, will not sustain the granting of such motion.
There is no merit to point (2) and it is ruled against appellant.
The judgment is affirmed.
All concur.