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Brown v. State

Court of Appeals of Missouri, Western District, First Division

September 30, 2014

JAMES L. BROWN, Appellant,
v.
STATE OF MISSOURI, Respondent

Appeal from the Circuit Court of Harrison County, Missouri. The Honorable Jack N. Peace, Judge.

Mark A. Grothoff, Assistant Public Defender, Columbia, MO, for Appellant.

Chris Koster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Respondent.

Karen King Mitchell, Judge. Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick, Judge, concur.

OPINION

Karen King Mitchell, Judge

Page 451

James L. Brown appeals from the denial of his Rule 29.15 motion after an evidentiary hearing. In his sole point on appeal, Brown contends that the motion court clearly erred in denying his motion because he was denied effective assistance of counsel as a result of his trial counsel's failure to strike Venireperson #7 as a juror despite the venireperson's statement indicating that he believed Brown had done something to warrant being in court. We affirm.

Factual and Procedural Background[1]

Following a jury trial, Brown was convicted of driving while intoxicated, in violation

Page 452

of section 577.010.[2] Brown was sentenced, as a chronic offender, to nine years' imprisonment. The facts of the underlying criminal case were set forth by this court in its memorandum on direct appeal, as follows:

At approximately 9:10 p.m. on February 21, 2009, Missouri Highway Patrol Trooper Benjamin Hilliard was driving north on Highway 69 north of Eagleville when he saw a vehicle driven by Jimmie Brown traveling south at a speed of 41 miles per hour in a 60 miles-per-hour zone, very close to the center line of the two-lane highway. His suspicion aroused, Hilliard turned around and began following Brown. Hilliard observed Brown not only drive close to the center line, but cross it on three occasions. After Brown crossed the centerline for a third time, Hilliard activated his emergency lights and pulled Brown over.
Hilliard approached Brown's vehicle and asked for his driver's license. Brown responded that he had an identification card, but had difficulty removing the card from his wallet. While standing next to Brown, Hilliard noticed the smell of alcohol on Brown's breath, that Brown's speech was slurred, and that his eyes were bloodshot and glassy. Hilliard then took Brown's identification card from his wallet and asked him to sit in the trooper's car.
Once in the police vehicle, Hilliard asked appellant whether he had been drinking. Brown responded by claiming that " it had been awhile since he had a drink." Hilliard then asked Brown to take a preliminary breathalyzer test, and Brown agreed, though he placed a penny in his mouth in an apparent attempt to sabotage the test.
Hilliard also asked Brown to perform several field sobriety tests. Brown failed the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test. Brown could not recite the alphabet correctly, or speak generally without slurring. Furthermore, Trooper Hilliard saw empty beer cans in the back of Brown's car and several unopened beer cans in the front. Based on this accumulated evidence, Hilliard arrested Brown for driving while intoxicated and transported him to the Law Enforcement Center.
At the Center, Brown initially consented to a breathalyzer test; however, when the penny fell out of his mouth as he was removing his dentures, Brown changed his mind and declined to submit to the test. Hilliard obtained a search warrant for Brown's blood. An analysis of the blood drawn from Brown revealed a blood alcohol content (BAC) of .201 percent, exceeding the presumptive level of intoxication of .08 percent.

State v. Brown, WD73734, memo op. at 1-3 (Mo. App. W.D. June 12, 2012) .

On direct appeal, Brown argued that the results of his post-arrest testing of his blood should have been suppressed because the initial stop of his vehicle was unlawful. State v. Brown, 368 S.W.3d 318, 318 (Mo. App. W.D. 2012). This court affirmed Brown's conviction pursuant to Rule 30.25(b). Id.

On July 9, 2012, Brown timely filed a pro se motion for postconviction relief. On October 18, 2012, Brown filed an amended motion. In his amended motion, Brown alleged that his trial counsel was ...


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