Court of Appeals of Missouri, Western District, First Division
Appeal from the Circuit Court of Cass County, Missouri. Honorable William B. Collins, Judge.
Emmett Queener, Columbia, MO, Counsel for Appellant.
Mary Moore, Jefferson City, MO, Counsel for Respondent.
Before Division One: James Edward Welsh, P.J., Thomas H. Newton, and Karen King Mitchell, JJ. Welsh, P.J., and Mitchell, J. concur.
Thomas H. Newton, J.
Mr. Derron A. White appeals his convictions for first degree robbery, section 569.020, RSMo. 2000, and armed criminal action, section 571.015. We affirm.
Two armed men entered a Sonic Drive-in Restaurant in Raymore at closing--11 p.m.--on January 12, 2012. They forced employees to lie on the floor and then, while one remained with the employees, the other accompanied the manager to the safe to remove the day's cash receipts. The man described as tall and wearing a ski mask that covered his entire face could be seen on surveillance video wearing a tan
canvas belt that came off during the robbery and remained at the scene where it was recovered by police. Through DNA testing, the belt was later matched to Mr. White's DNA profile, and he was charged with first degree robbery and armed criminal action. A woman who was charged as an accomplice for helping the men prepare for the robbery and then driving them to the restaurant testified in some detail against Mr. White during his trial as part of a plea agreement. Other testimony showed that Mr. White, who is about 6 feet tall, owned a ski or face mask.
The jury returned a guilty verdict, and Mr. White was sentenced to twenty-five years of imprisonment on the robbery count and ten years on the armed-criminal-action count, to run concurrently. The court denied Mr. White's motion for judgment of acquittal or in the alternative for a new trial, and he appeals. Other factual and procedural details are discussed below as part of the legal analysis.
Mr. White raises three points on appeal. He claims that the " trial court"  abused its discretion in failing to grant his motion for a change of judge for cause, in granting the State's strike of venire member No. 32 over objection, and in overruling his objection that the State had misstated the law on alibi during closing.
Motion for Change of Judge
The appellate court reviews a trial court's denial of a motion for change of judge for an abuse of discretion and presumes that the " trial judge will not preside over a proceeding in which the judge cannot be impartial." Williams v. Reed, 6 S.W.3d 916, 920 (Mo. App. W.D. 1999). The test is not based on actual bias or prejudice. Id. at 922. Rather, it is based on whether, given the objective facts of record, a reasonable and disinterested bystander, unacquainted with the personality, integrity, and dedication of the judge, would find an appearance of impropriety. State ex rel. McCulloch v. Drumm, 984 S.W.2d 555, 557 (Mo. App. E.D. 1999); State v. Lovelady, 691 S.W.2d 364, 365 (Mo. App. W.D. 1985).
Under the Code of Judicial Conduct in effect in 2012,
A judge shall recuse himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party's lawyer or knowledge of facts that are in dispute ...