author: MICHAEL A. WOLFF, Judge.

text:
    STATE of Missouri, Respondent, v. Leon TAYLOR, Appellant.
    No. SC 81748.
    Supreme Court of Missouri, En Banc.
    April 4, 2000.
    As Modified on Denial of Rehearing May 9, 2000.

      Melinda K. Pendergraph, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City, for Respondent.
   MICHAEL A. WOLFF, Judge.

Leon Taylor was convicted in his first trial of first degree murder, first degree robbery, first degree assault, and three counts of armed criminal action. After the jury deadlocked, the trial judge sentenced Taylor to death on the murder conviction. This Court affirmed the convictions but granted a new penalty phase trial on the murder conviction. State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997). In the second penalty phase trial, the jury recommended, and the court imposed, the death penalty for the first-degree murder conviction., We have jurisdiction. Mo. Const, art. V, sec. 3.

Taylor’s main contentions on appeal are that he was discriminated against on the basis of his race in two respects:

(1) That the prosecutor’s peremptory strikes, which resulted in an all white jury, violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986);
and
(2) That the' Jackson County prosecutor’s office discriminates against African-American defendants, and specifically Taylor, in the process that it uses to decide when to seek the death penalty.

Both of Taylor’s major contentions are based on statistical disparities. In racial discrimination cases, it has been commonplace for courts to observe that “statistics tell much, and courts listen.” However, statistical analysis is only the beginning, not the end of the inquiry. The ultimate issue is whether racial discrimination has occurred, and racial discrimination is an intentional act. Courts consider statistical evidence of racial disparities and in some cases shift the burden of producing evidence or explanation to the state, as in Batson.

In this case, the trial judge gave careful consideration to Taylor’s allegations and made appropriate findings based upon the evidence in accordance with the totality of circumstances. Although racial disparities exist, as Taylor points out, the burden of persuasion as to intentional racial discrimination remains with Taylor. The trial court found after careful review of the circumstances that Taylor failed to meet this burden. For reasons that follow, we affirm the trial court’s judgment.

I. Facts

On April 14,1994, Taylor, his half-brother, Willie Owens, and his half-sister, Tina Owens, were driving in Tina’s car, discussing various robbery possibilities. Taylor suggested a gas station in Independence where only one person would be working. The trio went to the station and purchased some gasoline. Taylor asked whether they were going to rob it. Tina Owens said “no” because a little girl was inside. Sarah Yates, an eight-year-old, was keeping company with Robert Newton, her stepfather and the gas station manager.

The three left the station, only to return a few moments later after the oil fight came on. Willie Owens went into the station and asked for some oil. Taylor next entered the store and stated they needed a different weight of oil. Taylor then drew a pistol and stated that he would shoot Newton unless he gave them money. Newton complied, handing Owens approximately $400 in a bank moneybag. Owens took the money and returned to the car.

Taylor directed Newton and the child to the station’s back room. Taylor shot Newton once in the head, killing him. Taylor then pointed the gun at the child. Taylor pulled the trigger, but the gun jammed and did not discharge. Frustrated, Taylor locked the child in the back room and returned to the car. Taylor told Willie and Tina Owens that he had shot the man and that he had to go back inside to get the little girl. However, because the Owens couple wanted to leave, they then drove away.

II. Did the Prosecutor’s Explanations for Striking Venirepersons Violate Batson?

Taylor claims the trial court erred in overruling his motion based on Batson to the prosecutor’s peremptory strikes of six African-American venirepersons. He contends that the trial court judge did not look at the “totality of the circumstances” in denying his Batson challenges as required in Batson and our cases. We disagree.

After Taylor’s case was remanded to the trial court for a new trial as to the penalty, the new jury was all white. The trial court conducted the jury selection in three phases. In the first phase approximately 145 venirepersons were summoned for jury service in the Jackson County courthouse. Each venireperson filled out a questionnaire, which was drafted by the trial court with suggestions from counsel. The second phase included two panels, one in the morning and one in the afternoon, consisting of examination by counsel. The examination covered topics that were either not the subject of the questionnaire or had nothing to do with the issues of publicity or death qualification. The trial court ruled on strikes for cause in this second phase. In the third phase of jury selection, members of the venire were questioned individually, out of the presence of all other members, regarding their views touching upon the death penalty, whether they had read or heard anything about the case, and other related sensitive issues. In this third phase, both the trial court judge arid counsel questioned the venire-persons. The trial court judge allowed each side eleven peremptory strikes, including two peremptory strikes for alternate venirepersons. See sections 494.480 and 494.485.

To establish a claim under Bat-son, the defendant must object to the prosecutor’s use of peremptory challenges as violating Batson and identify the cognizable racial group to which the stricken veniremember belongs. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). The state then must provide race-neutral explanations for the peremptory challenges. Id. This step of the process does not demand an explanation that is persuasive. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). If the prosecutor articulates a reason, the defendant must prove that the state’s proffered reason was merely pre-textual and that the strike was in fact racially motivated. Id. An appellate court will not overturn such a finding unless clearly erroneous. Parker, 836 S.W.2d at 939, n. 7, citing Hernandez v. New York, 500 U.S. 352, 368-69, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Griffin, 756 S.W.2d 475, 482 (Mo. banc 1988); and State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

Taylor objected that striking all six African-American venirepersons violated his and the prospective jurors’ rights to due process and equal protection under the United States Constitution and the Missouri Constitution. The record reflects that the trial court judge allowed both sides to make a detailed Batson record. The trial court judge found that the prosecutor gave clear and reasonably specific explanations of his legitimate reasons for exercising the peremptory challenges for all of the stricken venirepersons. As to the six African-American prospective jurors that were struck, the prosecutor gave the following explanations:

Venireperson O.S.: “It goes back to several. One is hardship for money .... He’s wanted off because of his commitments as a coach. Also, his answer during the individual questioning was the ‘place myself in his shoes.’ We took that to mean he identified with him on this.”
Venireperson E.K.: “During the death penalty qualification, your initial question is what are the views on the death penalty. She, without hesitation, said, ‘Personally, I’m opposed to the death penalty.’ Also, it’s a belief she has held for some time.”
Venireperson T.J.: “[T.J.] marked F on the questionnaire which flagged her for the prosecution. She stated that she could not impose the death penalty. She works for Ad Hoc .... She has two brothers who were convicted themselves of robbery in the first degree. She was questioned herself about a murder that her nephew was involved in. She is a friend of Doc Holliday.”
Venireperson B.B.: “[B.B.], during individual voir dire, stated that, ‘My first choice is life without parole. Very very extreme to give the death penalty.’ On her questionnaire ... she has seen the results of someone being abused. From all the discovery I’ve got, the Defendant’s mitigation is abuse as a child.”
Alternate Venirepersons L.W. and C.S.: “We struck the two who marked lowest down towards leaning towards life without parole. Venireperson 64 also knows Charles Brown. Charles Brown tried the Calvert Antwine case back when I was a public defender and the effect of that case. Mr. Hunt’s notes show that she was very hesitant and that she stated, paraphrasing, she would lean towards life without parole.”
Venireperson L.W.: “(Venireperson L.W.] marked F on her questionnaire. Also, her answers, religiously she said she would be very hesitant [to impose the death penalty].”

The trial court judge is obligated to apply a three-pronged analysis in assessing the explanations provided by the prosecutor. State v. Antwine, 743 S.W.2d 51, 64-65 (Mo. banc 1987). Trial judges must evaluate the susceptibility of the particular case to racial discrimination, the prosecutor’s demeanor and, finally, the judge must evaluate the explanation itself. Id. at 65. Crucial to the analysis is whether similarly situated white venirepersons escaped the state’s challenge. Id. See also State v. Weaver, 912 S.W.2d at 509. Here, after the prosecutor gave these race-neutral reasons, the trial judge made a preliminary ruling regarding Batson challenges and gave defense counsel time to examine the questionnaires and determine if the record needed to be supplemented as to the Batson challenges. When a prosecutor articulates a race-neutral reason for a strike, the burden shifts to the defendant to show that the state’s explanation was merely pretextual and that the strike was racially motivated. State v. Elder, 901 S.W.2d 87, 90 (Mo.App.1995). Taylor did not assert that there were white venirepersons on the panel who were similarly situated to O.S. and L.W. Defendant failed to establish that the State’s justification for striking these venirepersons was mere pretext. See also State v. White, 941 S.W.2d 575, 582 (Mo.App.1997).

As to the other four prospective jurors, Taylor asserted similarly situated white venirepersons on the panel who were not struck. As to Venireperson E.K., defense counsel asserted that; Venireperson D.R., a white male, also marked E on his questionnaire. However, the prosecutor noted that the two were different in that Venireperson D.R. hesitated in his answer about the death penalty and gave pros and cons regarding when it was appropriate, whereas, Venireperson E.K. did not have any hesitation in answering questions regarding her view on the death penalty.

Defense counsel asserted that Venireperson T.J. marked F on her questionnaire and referred to a multiple homicide case, had two brothers who were, convicted, and had a cousin on trial. A similarly situated white male, Venireperson C.K., was not struck even though he made reference to famous murderers Ted Bundy and John Gacy and had a brother in prison. Venireperson C.K. marked D on the questionnaire.

Counsel next asserted that Venireperson C.S., who marked a D and an E on the questionnaire and knew two attorneys, was similarly situated to Venireperson J.T., a white female, who marked E on the questionnaire and whose husband was a friend of an attorney.

The next prospective juror that defense counsel compared was B.B., who said she had seen the results of someone being abused and the case would have to be extreme for the death penalty to be imposed. B.B. was compared to Venireper-son C.K., supra, who stated that he had witnessed fights between his parents.

Up to this point it is clear that the prosecutor gave race-neutral reasons with distinctions regarding the white venireper-sons and the black venirepersons struck. See State v. Weaver, 912 S.W.2d 499 (Mo. banc 1995) (hesitancy in answering questions is a race-neutral reason); State v. Brown, 998 S.W.2d 531 (Mo. banc 1999)(striking venireperson convicted of a felony is race-neutral reason); State v. Smulls, 935 S.W.2d 9, 18 (employed by or related to attorneys survives a Batson challenge); State v. Turner, 921 S.W.2d 658 (Mo.App.1996) (venireperson struck because a family member was in prison is a race-neutral reason); State v. Dunn, 906 S.W.2d 388 (Mo.App.1995). However as to Venireperson B.B., there was extensive discussion by the trial court judge and the attorneys regarding whether witnessing abuse was race-neutral when there were several white venirepersons who had witnessed some form of abuse. Ultimately, after looking at all the factors the trial court judge denied the challenge.

Counsel compared Venireperson B.B. to Venireperson P.A., who stated she knew many women who had been sexually assaulted, to Venireperson J.D., who stated that one time she saw her brother-in-law grab her sister, and to Venireperson R.H., who stated she had an abusive husband and she had sought an order of protection. The trial court judge recognized that the white venirepersons all witnessed abuse and were not struck by the state. The trial court judge reviewed Venireperson B.B.’s transcript and noted “she definitely made some pretty pointed statements that show hesitation....” Defense counsel agreed with the trial court judge’s assertion that hesitancy towards the death penalty is on its face a race-neutral reason. This Court has held that a venireperson’s hesitation in answering questions regarding the death penalty will survive a Batson challenge. See State v. Weaver, 912 S.W.2d, 499 (Mo. banc 1995), and State v. Morrow, 968 S.W.2d 100 (Mo. banc 1998). The trial court judge further stated, “I find it personally troublesome, the prospect of having in a death penalty case with a black defendant having an all white jury ... I think that a race-neutral reason has been established.”

Batson requires evaluating each stricken African-American venireperson on an individual basis as to whether the stated reason was race-neutral and not a pretext for discrimination. Taylor argues this process prohibited the judge from looking at the totality of the circumstances as this Court has prescribed in Antwine, 743 S.W.2d 51, and State v. Parker, 836 S.W.2d at 939. We disagree.

At the outset, it is important to note, the trial court judge continually asked the attorneys how each side wanted to proceed in regard to Batson. Defense counsel made no objection to the proceedings as long as he could “supplement the record,” as he was allowed to do. Taylor is correct that trial court judges should take into account a variety of factors. As we stated in Parker and Antwine, “the chief consideration should be the plausibility of the prosecutor’s explanations in light of the totality of the facts and circumstances surrounding the case.” Parker, 836 S.W.2d at 939; Antwine, 743 S.W.2d at 65.

Taylor directs this Court to a federal court of appeals case where the trial court judge, according to Taylor, used a similar procedure during voir dire. There the appeals court found a piima facie case of discrimination. Coulter v. Gilmore, 155 F.3d 912(7th Cir.1998) In Coulter the trial judge looked “only in an isolated way at individual venirepersons and individual reasons.” Although not controlling or binding on this Court, Coulter is distinguishable based upon the procedure used by the trial court.

A comparison of Coulter to the present case is helpful in demonstrating how the trial judge here did follow the law in Bat-son and our cases, Parker and Antwine. In Coulter, the government used nine peremptory challenges to strike African-Americans from the jury venire; it also struck one non-African-American venire-person and left its four remaining challenges unexercised. For each peremptory challenge, and before a Batson challenge was raised by defense counsel, the state court instructed the government to state its reasons for the strike. These strikes prompted Coulter’s attorney to move three times for a mistrial on the ground that Batson had been violated. These were denied.

The Illinois state appellate court initially remanded the case “for clarification of the record concerning the jury selection procedure ...” because the record was unclear regarding the judge’s rulings, other comments or considerations, and his role during voir dire.

On remand, the trial judge conceded that there was nothing in the previous record that explained what the judge himself was doing at the time. The judge not only refused to allow Coulter’s lawyer to conduct further discovery or otherwise supplement the record, but he also denied an express request from the lawyer to make an offer of proof. The Illinois appellate court criticized the trial court’s decision to require the state to give its reasons for challenging each venireperson before the defendant raised a Batson issue, recognizing that this procedure impeded clear analysis of the issues.

The seventh circuit court of appeals in Coulter stated, “The state judge made those findings without ever taking into account the totality of the circumstances on the record; instead, he looked only in an isolated way at individual venirepersons and individual reasons, and even in that setting he overlooked remarkable similarities between the excluded African-Americans and the non-excludable Caucasians.” Additionally, the seventh circuit criticized the “juror-by-juror” inquiry that the trial judge conducted, unsupplemented by any final look at the record as a whole, despite counsel’s efforts to present this evidence. The court noted this procedure “practically guaranteed the conclusion that the prosecution was acting race neutrally.”

The procedure used by the trial court judge in this case is clearly distinguishable from the procedure in Coulter. The trial court judge here did a commendable job in making the record clear and understandable. Both parties agreed to the procedure. Further, the trial court judge did not allow the state to give its reasons for striking a prospective juror before a challenge was made. After the state gave its peremptory strikes, the trial court judge allowed defense counsel “as much time as needed” to look through the questionnaires in order to supplement the record regarding similarly situated white venirepersons. Defense counsel was then able to make a complete record of prospective jurors who were similarly situated before the trial judge gave a final ruling on the Batson issue.

The trial judge here also took a very active role. He took several notes for each venireperson and reread transcript answers to supplement his notes. His comments throughout the jury selection demonstrate that he was looking at relevant factors, the evidence, and the totality of the circumstances:

Court: “I’d like to do [the challenges] one at a time. I wanted to see the whole picture, but I think we ought to take them up one at a time, unless you have an objection otherwise.”
Court: “The Defendant cannot really fully consider the information in response to Batson records because they didn’t know who the strikes were until the state announces their strikes ... you’ll know what their reasons are and then you can make a rebuttal in one shot with the ability to carefully review those documents.”
Court: “Don’t you think ... when you’re making strikes for the state and someone shows a pronounced hesitation regarding the death penalty ... and I think Ms. B.B. fits this category — I even reviewed her transcript, she made pointed statements that show hesitation. Isn’t that in and of itself a race-neutral reason? I feel for your situation ... we have expanded voir dire and it creates a lot of information ... probably makes it easier for the state to find a race-neutral reason.”
Court: “I find it personally troublesome, the prospect of having in a death penalty case with a black defendant having an all white jury ... I’m not sure intellectually I’m comfortable with the situation, but I think it’s pretty clear it’s [race neutral reason] met.”

Additionally, in the court’s order denying defendant’s motion for acquittal or new trial, the trial court stated:

“In complete candor, this Court finds it ... morally and intellectually troublesome the concept that a black defendant in Jackson County, Missouri, could be sentenced to death based upon the recommendation of an all white jury.”

These statements demonstrate the trial judge was sensitive to the Batson issues and was aware of the surrounding circumstances. The trial court judge does not ultimately have to use the words “totality of the circumstances” to comply with Bat-son. If the record is clear that the trial judge looked at the totality of the circumstances, then this Court will not disturb the trial court’s decision. Here the trial judge looked at the “whole picture,” was aware that defendant was black and the jury members were white, and gave defense counsel ample time and discretion to supplement the record.

Finally, the trial judge was presented with evidence of similarly situated white venirepersons. The crucial and determinative inquiry in a Batson claim is whether the state has treated similarly situated venirepersons differently based on race. See State v. Roberts, 948 S.W.2d 577, 602 (Mo. banc 1997).

a. Pattern of Strikes As Indicative of Pretext.

Taylor suggests that the trial court judge in failing to look at the totality of circumstances did not consider the pattern of strikes in determining whether there was a discriminatory motive. The record does not support Taylor’s contention.

While evidence of a pattern of strikes against African-Americans can be indicative of racially motivated peremptory challenges, that is not the case here. See Batson, 476 U.S. at 97, 106 S.Ct. 1712. The prosecutor in this case used six of eleven peremptory challenges to strike all of the African-Americans sitting on the panel. As this Court stated in State v. Griffin, the state is not required to adhere to a specific mathematical formula in the exercise of its peremptory challenges. 756 S.W.2d 475, 482 (Mo. banc 1988). In Griffin, the defendant pointed to no particular conduct on the part of the prosecutor that indicated racial motivation for his peremptory challenges except that the prosecutor used half of his strikes against African-Americans. Taylor fails to demonstrate a pretextual motive for the peremptory strikes by the prosecutor. Even if the reasons given by the prosecutor result in the use of strikes against African-Americans more often than against white venirepersons, the strikes will not violate Batson without some showing that the prosecutor removed the potential venireperson “because of’ their race. Devoil-El v. Groose, 160 F.3d 1184 (8 th Cir.1998) (In Devoil-El, the defendant argued that the trial judge did not look at the totality of the circumstances and, thus, erred because he evaluated each strike individually instead of looking at the pattern of strikes.)

In the present case we recognize the superior vantage point occupied by the trial judge. He was able to view the panel members; listen to their responses; analyze and supervise the statements and questions made by the prosecutor during voir dire; and evaluate the reasons the prosecutor offered for exercising his peremptory challenges as he did. The trial judge found no discriminatory exclusion. Upon review of the record, we find no statements or questions by the prosecutor or any other relevant circumstances to support an inference of discrimination. The defendant has failed to show purposeful discrimination.

b. McCleskey v. Kemp Does Not Apply to Batson Challenges.

Taylor asserts that the trial judge erred in applying McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), to his Batson challenges. McCleskey is significant in regard to Taylor’s second issue discussed infra, regarding the prosecutor’s discretion in choosing to pursue the death penalty for this crime committed by Taylor.

Taylor argues that because the trial court judge’s order “Denying Defendant’s Motion for Acquittal and New Trial” discusses McCleskey under the heading “Bat-son Issues,” the correct Batson standard was not applied. The record in both the trial transcript and the order refutes this assertion. After the defendant made his objections under Batson, the trial judge stated:

“[it] has been called to my attention, number 1, I definitely need the race-neutral reasons. I believe I think the case should stand for the proposition that I should make findings and, further, stand for the proposition that the defendant should have a right to make a rebuttal argument before the ruling is made permanent ... I’m in compliance with that case [Batson].”

The court’s order does address McCleskey, but only after the court completed its discussion on its reasons for denying the Bat-son challenges.

The judge discussed McCleskey in the context of the jury selection procedure as a whole, the death qualifying process, and his moral beliefs as to disparate treatment of black defendants. His discussion did not misdirect his decisions on Batson challenges. The judge cited McCleskey for its statistical studies and other data suggesting the death penalty creates a disparate impact on people of color, especially in circumstances where there is a black defendant and a white victim. See McCleskey at 285-292, 107 S.Ct. 1756. In McCleskey, the Supreme Court stated the statistics were not clear and sufficient proof for an equal protection violation. But this, again, demonstrates the judge was aware of surrounding circumstances and sensitive to defendant’s claims. The judge in this case did not use the wrong standard in denying the Batson challenges.

III. Prosecutorial Discretion in Seeking the Death Penalty

Taylor’s next point raises two issues. First, he alleges an equal protection violation and an eighth amendment violation by asserting that the decision to seek the death penalty was the product of racial discrimination by the prosecutor’s office in that black defendants charged with murder are more likely than white defendants to face the possibility of the death penalty. Second, he challenges the prosecutor’s broad discretion and claims the prosecutor discriminated against him specifically when seeking the death penalty.

To establish an equal protection violation, Taylor directs this Court to statistics demonstrating a disparity between black and white defendants and other defendants with similar crimes who were offered life without parole.

These assertions have been rejected by this Court in State v. Mallett 732 S.W.2d 527 (Mo. banc 1987), and State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996). Mallett specifically relied on McCleskey v. Kemp to determine that statistics alone would not be enough to prove an equal protection violation. In McCleskey, the United States Supreme Court held that “statistics indicating a disparate impact seldom suffice to establish an equal protection claim.” State v. Mallett, 732 S.W.2d 527, citing McCleskey v. Kemp, 481 U.S. 279, 290, 107 S.Ct. 1756, 95 L.Ed.2d 262.

To establish an equal protection violation, a defendant must show an intent to discriminate. Mallett, 732 S.W.2d at 538. Here, in addition to statistics, Taylor presents evidence that in other murder cases the prosecutor did not seek the death penalty but either allowed the defendant to plead guilty and receive life in prison or that life imprisonment was the punishment that the prosecutor sought at trial. This is insufficient evidence for an equal protection violation.

Prosecutors are given broad discretion in seeking the death penalty. See section 535.030. A prosecutor’s broad discretion does not extend to decisions deliberately based on unjustifiable standards such as race or some other entirely arbitrary factor. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Taylor must prove both the prosecutor’s decision had a discriminatory effect on him and it was motivated by a discriminatory purpose. As the Supreme Court stated in MeCleskey, “because discretion is essential to the criminal justice process,” the Court demands “exceptionally clear proof’ before it will infer that the discretion has been abused. 481 U.S. at 297,107 S.Ct. 1756 and Mallett, 732 S.W.2d at 539. Prosecutors must look at a variety of factors including statutory aggravating circumstances, the type of crime, the strength of the evidence and the defendant’s involvement in the crime in deciding whether to seek the death penalty. Taylor does not present “exceptionally clear proof’ the prosecutor’s office arbitrarily seeks the death penalty for black defendants or for him in particular.

IV. Victim Impact Evidence is Admissible

Taylor alleges that the trial court erred in overruling his objections to the testimony of Sarah Yates as improper victim impact evidence. This Court has consistently held that victim impact evidence is proper and admissible as long as it is not “so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); State v. Roberts, 948 S.W.2d 577 (Mo. banc 1997); State v. Gray, 887 S.W.2d 369 (Mo. banc 1994). Victim impact evidence is another form or method of informing the court about the specific harm caused by the crime in question. State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999).

Here, the only victim impact evidence presented during the penalty phase came from Astrid Newton, the victim’s wife, and Sarah Yates, the victim’s stepdaughter. Ms. Yates testified that she considered Robert Newton her father and called him “daddy.” She testified about her relationship with Robert Newton. Ms. Yates also described the attack against her father and her actions thereafter including saying a long prayer over his body. The victim impact evidence here was relevant and admissible to inform the court of the impact Mr. Newton’s death had on his family. See section 565.030.4 and cases cited supra.

V. Trial Judge can Find Prior Convictions to be “Serious” and “Assaultive.”

Taylor objected to Instruction Number 6 because it listed Taylor’s prior convictions and did not require the jury to find whether Taylor had one or more serious assaultive convictions. The trial court overruled the objection, finding that the submission of individual convictions was consistent with MAI-Cr3d 313.40 and the Notes on Use. MAI-CR3d 313.40 is the penalty phase instruction submitting statutory aggravating circumstances. The trial court found the convictions of second degree murder, attempted robbery in the first degree, and robbery in the first degree to be serious assaultive convictions. The procedure employed here, in conformance vñth the MAI and accompanying notes, detracts in no way from the function of the trier of fact. The court must determine as a matter of law whether the prior convictions are “serious assaultive criminal convictions,” and then the jury is allowed to determine as a matter of fact whether defendant indeed had prior convictions of second degree murder, attempted robbery, and robbery. In State v. Parkus, 753 S.W.2d 881 (Mo. banc 1988), the trial judge did not make the findings on the record, but there was other evidence presented regarding the conviction. In this case we do not reach the merits of whether other evidence of the convictions is required to comply with the statute because the jury found “at least one” other aggravating circumstance. See State v. Ramsey, 864 S.W.2d 320 (Mo.1993). The jury found as an aggravating circumstance, in addition to his prior convictions, that Taylor murdered Newton for the purpose of receiving money or any other thing of monetary value from Robert Newton or another. The aggravating circumstances found by the jury were valid, however; even if the first three aggravating circumstances were invalid, the proceedings were not tainted so as to invalidate the other aggravating circumstance found and the death sentence imposed. See State v. Sidebottom, 781 S.W.2d 791, 799 (Mo. bane 1989). A death sentence will be affirmed if even one valid statutory aggravating circumstance is found. State v. Sloan, 756 S.W.2d 503, 509 (Mo. banc 1988). The trial court did not err.

VI. No Double Jeopardy Violation for Submitting Aggravating Circumstance

Taylor also objected to Instruction 6 because it submitted aggravating circumstances that the previous trier, Judge Mauer, had found not to exist. He asserts that the state should have been collaterally estopped from submitting this aggravating circumstance since the first trier of fact did not find it. He also alleges that the submission constituted double jeopardy. In the first proceeding Judge Mauer did not recite that the aggravating circumstance “defendant murdered Newton for the purpose of receiving money or taking other thing of monetary value from Robert Newton or another” was not proven beyond a reasonable doubt as he did for the fifth aggravating circumstance “avoiding a lawful arrest.” Instead, Judge Mauer asserted that it was not applicable to the case because a different MAI paragraph should have been used. This same argument was rejected in State v. Simmons, 955 S.W.2d 752 (Mo. banc 1997). See also Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986).

Taylor asserts that the death penalty statute is unconstitutional. This argument has been rejected. Our death penalty statute is constitutional. See State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999); State v. Mercer, 618 S.W.2d 1 (Mo. banc 1981); State ex rel. Davis v. Shinn, 874 S.W.2d 403 (Mo.App.1994).

VII. Proportionality Review

Section 565.035.3 requires this Court to conduct an independent review of a defendant’s death sentence. The Court must decide whether the death sentence is excessive and disproportionate to other similar cases, whether the evidence supports the jury’s findings of an aggravating circumstance, and whether the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

After careful review of the record and transcript, this Court finds that the sentence of death imposed on Mr. Taylor was not imposed under the influence of passion, prejudice or any other arbitrary factor. In this case, the jury found two aggravating circumstances, which consisted of murder for monetary gain and the offense was committed by a person who has one or more serious assaultive criminal convictions. See section 565.032.

The evidence supports the findings. Considering the crime, the strength of the evidence, and the defendant, this Court finds the facts of this case are consistent with death sentences affirmed wherein victims were murdered in course

of a robbery. See e.g., State v. Jones, 979 S.W.2d 171 (Mo. banc 1998); State v. Barnett, 980 S.W.2d 297 (Mo. banc 1998); State v. Simmons, 955 S.W.2d 752 (Mo. banc 1997); State v. Laws, 661 S.W.2d 526 (Mo. banc 1983); State v. Gilmore, 697 S.W.2d 172 (Mo. banc 1985); State v. Kreutzer, 928 S.W.2d 854 (Mo. banc 1996); State v. Tokar, 918 S.W.2d 753 (Mo. banc 1996); State v. Ramsey, 864 S.W.2d 320 (Mo. banc 1993).

VIII. Conclusion

For the foregoing reasons, the judgment is affirmed.

All concur.

      .This quote appears to have originated in the 1962 decision of the United States Court of Appeals for the 5 th Circuit in State of Alabama v. United States, 304 F.2d 583 (5th Cir.1962).

      . Summarized from Taylor’s original appeal, State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997).

      . In Taylor’s first trial, four African-Americans served on the jury. The jury deliberated over a two-day period and could not agree on punishment.

      . All three phases were held on different days within a few weeks of each other.

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . The trial judge did not accept all of the prosecutor's explanations. For instance, the court did not find that working for Ad Hoc, an organization that supports law enforcement and victim groups, as a race-neutral reason. Further, the court did not find knowing two criminal defense attorneys was a race-neutral reason. See Footnote 8. However, the prosecutor was able to articulate other race-neutral reasons for striking the venire-person.

      . The jury questionnaire included questions about the venirepersons’ views on the death penalty. The answer marked F stated: “Although I’m philosophically, morally, or religiously against the death penalty, I do believe I can follow the law that requires me to fully consider the death penalty as one of the two possible options that I may vote for in this case.’’

      . Charles Brown and Doc Holliday are attorneys involved in criminal defense prosecution. Mr. Brown was involved in a highly publicized criminal trial in Kansas City. Mr. Holli-day is also an attorney active in Freedom, Inc., an African-American political organization. Both are African-American. The court found that knowing Mr. Holliday was not a race-neutral reason. The prosecutor presented to the court that Mr. Holliday had been prosecuted by the Jackson County prosecutor's office, which was a race-neutral reason.

      .Defense counsel did not object to this procedure of supplementing the record regarding Batson challenges after the prosecutor was able to state its reasons after each venireper-son. At this time, the judge asked the defense counsel how much time would be needed, and he responded that two hours would sufficient.

      . The answer marked E stated, "I am generally against the death penalty, but I believe I can put aside my feelings ...”

      . The answer marked D stated, "I can vote for the death penalty if it is appropriately based on the facts and the law ...”

      . This was in response to the trial court’s having heard that six of the African-Americans were struck by the state.

      . The Court does not mean to discredit statistical studies, and in some cases statistical support will be persuasive and useful, especially where the prosecutor has articulated very weak race-neutral reasons or from other surrounding circumstances, such as the prosecutor’s prior conduct at death penalty trials.

      . Taylor's brief addressed an eighth amendment violation in passing, noting that in Fur-man v. Georgia, the Supreme Court held that it was cruel and unusual punishment to sentence someone to death if the punishment is meted out arbitrarily and capriciously. 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Under section 565.035.3, this Court reviews each death penalty case to ensure that the sentence was not given arbitrarily. See section VII., infra.

      . Taylor also contends that in closing argument the prosecutor made comments directed at his right not to testify. Trial counsel is entitled to wide latitude in making a summation. State v. Mahurin, 799 S.W.2d 840 (Mo. banc 1990). This claim was not properly preserved and no plain error exists. The prosecutor’s statements at best, raise a weak inference on Taylor's right to not testify.

      . Taylor had nine mitigation witnesses to testify to his background and childhood. There were more than 150 pages of transcript from these witnesses compared to thirteen pages from Ms. Yates.

      . Instruction No. 6 read, in pertinent part, as follows:
      In determining the punishment to be assessed against the defendant for the murder of Robert Newton, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exists:
      1. Whether the defendant was convicted of Murder in the Second Degree on July 31, 1979....
      2. Whether the defendant was convicted of Attempted Robbery in the First Degree on June 1, 1982....
      3. Whether the defendant was convicted of Robbery in the First Degree on July 30, 1985....
      4. Whether the defendant murdered Robert Newton for the purpose of the defendant receiving money or any other thing of monetary value from Robert Newton or another.
      5. Whether the murder of Robert Newton was committed for the purpose of avoiding a lawful arrest of defendant.
      You are further instructed that the burden rests upon the State to prove at least one of the foregoing circumstances beyond a reasonable doubt.... Therefore if you do not unanimously find from the evidence beyond a reasonable doubt at least one of the foregoing statutory aggravating circumstances exist, you must return a verdict fixing the punishment of the defendant at imprisonment for life by the Department of Corrections without eligibility for probation or parole.

      .The structure of our death penalty statute implicitly requires each statutory aggravating circumstance be submitted separately because once a jury finds one aggravating circumstance, it may impose the death penalty. Separation of such prior convictions permits the jury to consider the death sentence if any one of several convictions is found to exist. State v. Shaw, 636 S.W.2d 667 (Mo. banc 1982). By separating the prior convictions, any potential jury confusion is eliminated. State v. Ramsey, 864 S.W.2d 320 (Mo.1993).

      . Taylor asserted that the trial court erred in not submitting non-statutory mitigating factors. Taylor submitted a non-MAI instruction proposing to include non-statutoiy mitigating circumstances. The trial court rejected the proposed instruction for MAI-CR 3d 313.44A. This court has held that non-statutory mitigating circumstances do not have to be listed and are not required. State v. Deck, 994 S.W.2d 527, 539 (Mo. banc 1999) and State v. Parker, 886 S.W.2d 908, 928-929 (Mo. banc 1994).

      . During Taylor’s first trial, the jury could not agree on punishment, thus Judge Mauer became the trier of fact.


source: Caselaw Access Project

author: LOWENSTEIN, Judge.

license: Public Domain

text:
    Robert LEGG, Respondent, v. CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON, Appellant.
    Nos. WD 56067, WD 56283.
    Missouri Court of Appeals, Western District.
    Dec. 14, 1999.
    Motion for Transfer to Supreme Court Denied Feb. 1, 2000.

      Daniel F. Church, Lenexa, KS, for appellant.
    Richard C. Miller, Kansas City, for respondent.
    Before: Presiding Judge LAURA DENVIR STITH, Judge LOWENSTEIN and Judge EDWIN H. SMITH.
   LOWENSTEIN, Judge.

Robert Legg (Legg) filed a petition for damages for breach of an insurance contract and for vexatious refusal to pay, against Certain Underwriters at Lloyd’s of London (Lloyd’s). Lloyd’s had issued a “Contractor Protection Plan” (the “Plan”) to the trucking company for which Legg was a contract driver. The policy provided total disability coverage to Legg as an insured if he became disabled as the result of an occupational accident. The Plan provided up to $300,000 in benefits for an occupational accident and a maximum of $15,000 in benefits for non-occupational accidents. Legg, after leaving Liberty, Mo., was in Georgia, en route to making a delivery in Florida, when he was injured. After parking his truck for the night, Legg, who became intoxicated, was in a car with another man, also intoxicated, when the car overturned leaving Legg with severe and paralyzing spinal cord injuries. The crucial questions involving the policy provisions concerned whether:

1) The injuries were sustained while Legg was “under dispatch”, making the accident an occupational accident as defined by the Lloyd’s policy. By way of summary judgment, the trial court ruled in Legg’s favor on this point.
2) An exclusion provision would disqualify the claim if Legg was intoxicated, making dispositive the answer to the question whether he was a passenger, rather than the driver of the car. After a bench trial on this provision, the court found Legg was not driving the car and the exclusion did not thwart the claim.

The trial court then found Lloyd’s refusal to pay vexatious and awarded fees and expenses. Lloyd’s has appealed.

In April 1992, respondent Legg was an independent contractor/truck driver for In-way and had picked up a load from the Kansas City area for delivery to Maxville, Florida. En route, he was advised that since he would be unable to arrive at his destination before the close of business on Friday, April 24, he would have to wait until Monday morning to make the delivery and unload the truck. Accordingly, he arrived at a truck stop in Valdosta, Georgia, between 5:00 and 7:00 p.m. on Friday, April 24. He then secured the truck for the weekend, intending to continue the trip to Florida on Monday morning, and testified to such.

Later on Friday evening, Legg walked to a nearby Best Western motel and entered the King of the Road Lounge, a bar that served alcoholic beverages. He stayed at the lounge until closing time early Saturday morning. He was intoxicated when he left the lounge; it was stipulated that laboratory blood results taken more than an hour after the accident showed Legg’s blood alcohol level to be .135.

While drinking, Legg became acquainted with another patron, James Hudson, who also became intoxicated during the evening. The bartender, Cathy Mixer, recalls that Legg and Hudson met each other at the bar and talked and purchased drinks for each other. She further testified that Hudson became so intoxicated that she took his keys and said she would drive him home. Hudson testified that when the bar closed, he was so intoxicated that he was in no condition to drive, and therefore, gave his keys to Mixer intending that he not drive himself home.

Legg and Hudson left the lounge together. Subsequently, after 2:00 a.m. on Saturday, April 25, 1992, Legg and Hudson were involved in a one-car accident, approximately ½ to ⅜ miles from the bar. Hudson’s vehicle overturned, rolled down an embankment, and landed on its top. The investigating police officer estimated Hudson’s car was traveling at least 75 miles per hour at the time of the accident.

There was dispute as to whether Hudson or Legg was driving the car at the time of the accident. Legg testified that Hudson offered to drive respondent back to his truck, and he was a passenger. Legg testified he crawled into the back seat on the driver’s side after the accident, and told an investigating police officer he had been a passenger. However, the car was traveling away from the truckstop at the time of the accident.

Contrarily, Hudson testified he was not driving the car at the time of the accident and that he had given his car keys to the bartender, who must have given them to Legg. Hudson further testified that he remembers leaving the bar with Legg and getting into the passenger side of his car. He had no recollection of why the car was headed northbound, as Hudson’s home was located to the south of the lounge. The bartender confirmed several facts related by Hudson, ultimately that she gave Legg the keys and saw the two leave together, but did not see them physically get in to the car.

As a result of the April 25, 1992, car accident, Legg sustained a fractured dislocation of his thoracic spine resulting in paraplegia from the waist down, chest trauma, and pulmonary contusions. Lloyd’s first received report of his claim for benefits on April 27, 1992. Claims manager Brenda J. Cullinan was assigned to the supervision of the claim by Claims Management Corporation (hereinafter “CMC”), which is the third-party administrator for Lloyd’s on claims under the Plan. Over the next two months, CMC’s investigation included interviewing witnesses, securing medical and law enforcement records, and obtaining an initial statement from respondent.

On June 26,1992, Cullinan advised Legg by letter that the claim for occupational accident benefits was denied because it was not determined to be an occupational accident. Further the claim was excluded, as the loss was the result of voluntary intoxication. However, the Plan did offer respondent the full amount of the nonoccupational accident coverage of $15,000, due to the tragedy and substantial loss to his family, with the express language that they were not making any admission of liability.

Legg made no response to the denial letter, nor any communication relating to his claim for almost the next two years. Then on September 12, 1994, this action for damages and vexatious refusal to pay, § 375.296 and 375.420 RSMo 1994, was filed. Lloyd’s raised the occupational accident policy definition and the intoxication exclusion as affirmative defenses. The trial court granted respondent’s motion for summary judgment holding that as a matter of law, Legg sustained an occupational accident because he was “under dispatch” at the time of the accident as he had not completed his trip to Florida and unloaded his truck. After trial on the intoxication issue, the court found that both Legg and Hudson were intoxicated, Hudson was the driver and Legg the passenger at the time of the accident, and that Lloyd’s failed to present sufficient evidence that respondent got into the vehicle knowing Hudson was intoxicated and unfit to drive. Therefore, the court concluded that respondent’s loss was not “caused by or resulting from his intoxication” and found the denial of respondent’s claim was vexatious, willful, and without reasonable cause.

The trial court further approved Legg’s fifty-percent contingent attorney’s fee as reasonable and entered a final judgment awarding the claimant the total sum of $608,806.57. This sum was for benefits owed under the Plan, prejudgment interest, statutory penalties under Missouri vexatious refusal to pay statute (§ 375.296) attorney’s fees of $184,289.67 (§ 375.420) and litigation expense reimbursement of $14,984.28.

Lloyd’s points on appeal are straightforward and direct: 1) Under the Plan, since Legg was not performing any occupational functions at the time of the accident, he was not “under dispatch” and was ineligible for occupational benefits; 2) Even if this event was covered, Legg’s intoxication excluded him from benefits; 3) Lloyd’s was prejudiced by the court’s exclusion of expert testimony which would have shown Legg to be the driver; 4) Damages for vexatious refusal to pay, § 375.296, should not have been assessed; and, 5) The trial court erred in awarding litigation and attorney fees under § 375.420.

POINTS RELIED ON

I. Was this an occupational accident and was Legg “Under Dispatch”

The standard of review for this grant of summary judgment is under ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is a matter of law, and will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 377.

Lloyd’s first point is indeed a question contract interpretation, and therefore, a question of law. Millers Mut. Ins. Ass’n of Illinois v. Shell Oil Co., 959 S.W.2d 864, 866 (Mo.App.1997) citing Moore v. Commercial Union Ins. Co., 754 S.W.2d 16, 18 (Mo.App.1988). “No deference is due the trial court’s judgment where resolution of the controversy is a question of law.” Id. citing MFA Mut. Ins. Co. v. Home Mut. Ins. Co., 629 S.W.2d 447, 450 (Mo.App.1981). When construing an insurance contract under our state’s law, the contract should be construed against the preparer. The question here is whether the insurance policy is ambiguous. If so, the policy must be construed against the insurer. Peters v. Employers Mutual Cas. Co., 853 S.W.2d 300, 302 (Mo. Banc 1993), citing Robin v. Blue Cross Hosp. Serv. Inc. 637 S.W.2d 695, 698 (Mo banc 192), citing Rodriguez v. Gen. Accident Ins. Co., 808 S.W.2d 379, 382 (Mo. banc 1991).

This first point argues the trial court erred in holding that claimant sustained an occupational accident as defined by the Plan’s policy because he was not engaging in any occupational-related activity at the time of the accident, but rather was in another’s personal automobile. At first blush, this argument sounds convincing. However, the issue must be decided based on the language of Lloyd’s policy, and precisely on whether or not the employee being “under dispatch” includes the facts here.

An occupational accident is defined in the Plan’s policy as “an accident occurring during the usual and customary performance of duties required by the Insured Person’s normal work, which shall include travel between assigned destinations and/or under dispatch.” (emphasis added). What is not defined by the Plan and what causes the controversy in this suit is the meaning of the phrase “under dispatch.” Pursuant to the testimony of Lloyd’s own witness, among other evidence, the trial court found that a truck driver is “under dispatch” if he has picked up a load and is on the way to make delivery.

This is a logical definition and is consistent with easelaw definitions of “under dispatch.” The fact that a driver has stopped doesn’t mean he is not under dispatch for it is common place and necessary for a truck driver to make several stops to sleep, eat or deal with weather problems when en route to destinations. The U.S. Department of Transportation also has regulations forbidding truck drivers to travel cross-country nonstop as it would be unsafe.

In Great West Casualty Co. v. Wenger, 748 S.W.2d 926, 927 (Mo.App.1988), this court stated “[I]t is understood in the trucking industry that a truck is under dispatch from the time the load is picked up for transport until the driver returns the empty trailer.” See e.g,,Gulf Ins. v. Kingman, 61 F.3d 905 (7th Cir.1995) citing Liberty Mutual Ins. Co. v. Connecticut Indemnity Co., 55 F.3d 1333 (7 th Cir.1995). The trial court’s findings and conclusions included “at the time of the accident, Plaintiff was ‘under dispatch’ as that term is defined in the policy and sustained an ‘occupational accident’ under the terms of the policy.”

With no specific definition of “under dispatch,” the term which is included in the policy’s own language, the policy is subject to a reasonable interpretation that the driver was “under dispatch” until he could deliver the load to Florida. This may not have been Lloyd’s intent in drafting the language, but it leaves this term to interpretation. At best, the policy is ambiguous, and again under Missouri law, any ambiguity under an insurance policy must be construed against the insurer. Peters v. Employers Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. banc 1993), citing Robin v. Blue Cross Hosp. Serv. Inc., 637 S.W.2d 695, 698 (Mo. banc 1982), citing Rodriguez v. Gen. Accident Ins. Co., 808 S.W.2d 379, 382 (Mo. banc 1991).

Lloyd’s drafted its own policy, and chose to use the “under dispatch” language, which explicitly broadened coverage to protect insured truckers while away from home. Although the parties make technical arguments about word modification and agreement, ultimately the policy is ambiguous, and therefore, must be construed in favor of the insured.

Legg was en route with an unfinished delivery from Missouri to Florida when he was involved in the accident in Georgia. According to the policy language as written, the delivery was not complete, so he was under dispatch at the time of the accident. Point denied.

II. Applicability of the Intoxication Exclusion

Lloyd’s next argues that the trial court erred in holding the loss was not caused by or resulting from intoxication. This again deals with the interpretation of an insurance policy, and accordingly is a question of law that grants no deference to the trial court’s conclusions and adheres to the same standard of review as point one. An insurance policy interpretation is a question of law and is to be construed strictly against the insurer. See Millers Mut., supra., 959 S.W.2d at 866.

The trial court found that both Hudson and respondent were intoxicated at the time of the accident and that Hudson was the driver at the time of the accident. Although appellant argues in Part III infra. that those findings of fact were erroneous in that Respondent rather than Hudson was the driver of the car, for the purposes of this point, Lloyd’s assumes the findings of fact as found by the trial court, and this court will do likewise.

Appellant points out that the policy does not limit recovery to losses caused by or resulting from the Insured’s intoxication. Again, the policy reads:

The insurance under the Master Policy does not cover loss caused by or resulting from any one or more of the following. ..
1. Loss caused by or resulting from:
e. Intoxication or being under the influence of a controlled substance unless prescribed by and taken under the supervision of doctor.

Lloyd’s argues that but for the intoxication of the driver, Hudson, a one-car collision in which a vehicle overturned, rolled down an embankment, and landed on its top would not have happened. It further contends that even though the driver was found to be Hudson, the intoxication exclusion still bars recovery because respondent’s intoxication impaired his judgment, resulting in his failure to observe that Hudson was not fit to drive. Basically, it argues that but for Legg’s intoxicated state, he would have realized Hudson was too intoxicated to drive and would not have placed himself in the car. Lloyd’s makes the ultimate argument that intoxication was the proximate cause for Legg being in the car, whether or not it was the proximate cause of the wreck, resulting in the intoxication exclusion in the policy being applicable and a basis for denying recovery.

The insurer bears the burden of proof to establish the application of an exclusion. Crollard v. N. Life Ins. Co., 240 Mo.App. 355, 200 S.W.2d 375, 381 (1947). An insurance company seeking to escape coverage based upon a policy exclusion has the burden of proof to establish the applicability of such exclusion. Am. Family v. Copeland-Williams, 941 S.W.2d 625, 627 (Mo.App.1997); Northland Ins. Cos. v. Russo, 929 S.W.2d 930, 935 (Mo.App.1996) citing First Assembly Church v. Ticor Title Ins., 872 S.W.2d 577, 582 (Mo.App.1994). Additionally, exclusionary language should be strictly construed against the insurer. Killian v. State Farm Fire & Cas. Co., 903 S.W.2d 215, 217 (Mo.App.1995) citing Walters v. State Farm Mut. Auto. Ins. Co., 793 S.W.2d 217, 219 (Mo.App.1990).

In Missouri, a circumstance must be the proximate cause of injury or death in order to be validly excluded from coverage under an insurance policy, not merely a contributing cause. Harris v. New York Life Ins. Co., 516 S.W.2d 303, 307 (Mo.App.1974) citing Gennari v. Prudential Ins. Co. of Am., 324 S.W.2d 355, 357 (Mo.App.1959). “A cause is proximate if is it the efficient cause which sets in motion the chain of circumstances leading up to the damage and which in a natural, continuous sequence, unbroken by a new and independent cause, produced the damage.” John Drennon & Sons Co. v. New Hampshire Ins. Co., 637 S.W.2d 339, 341 (Mo.App.1982) citing Boecker v. Aetna Cas. & Surety Co., 281 S.W.2d 561, 565 (Mo.App.1955).

Lloyd’s employee, Ms. Cullman, in denying the claim, stated that alcohol at best played only an indirect role in this accident. Similar to the policy’s language in point one, the alcohol exclusion is unclear and ambiguous as written. Although it does not explicitly limit the intoxication to that of the insured, the phrase is at best ambiguous in that a number of situations could arise that would bar recovery when it was clearly warranted. For example, if the insured’s interpretation of the intoxication exception is accepted, then, if an insured was asleep in his truck and was hit by a drunk driver, as the policy is written, he could be barred from recovery because intoxication was involved, obviously through no fault of his own. The language of the policy is simply ambiguous and as such, must be strictly construed against the insurer. See Peters, supra.

The trial court found that Legg was not driving the car at the time of the accident. This court does not find it plausible to make the leap to conclude that his decision to get in the car with the intoxicated Hudson was the cause or result of his loss. Further, appellant clearly has the burden of showing respondent’s intoxication was the proximate cause of the accident, which was not proven.

Therefore, this court affirms the trial court’s finding that Lloyd’s failed to present sufficient evidence that respondent entered Hudson’s car knowing that Hudson was intoxicated and unfit to drive. The policy must be construed in favor of the insured. As written, the intoxication exclusion included in the policy can not be applied to the situation at hand. Point denied.

III. Exclusion of Experts

Appellant next contends that the trial court erred when it excluded appellant’s expert witnesses who would have testified as to their opinion that respondent was the driver of the car. This point is reviewed for an abuse of discretion.

The admissibility of evidence is within the discretion of the trial judge, (citations omitted) The trial court’s ruling is upheld when there exists any recognizable ground on which the trial judge could have rejected the evidence, (citations omitted) When the trial court’s ruling is clearly against the logic of the circumstances then before the court, and when the court’s ruling is so arbitrary and unreasonable that one’s sense of justice is shocked and a lack of careful consideration is manifest, the trial court has abused its discretion, (citations omitted) ‘Errors regarding the admission or exclusion of evidence will result in reversal only if there is substantial and glaring injustice.’

State ex rel. Missouri Highway and Transp. Comm’n v. Buys, 909 S.W.2d 735 (Mo.App.1995).

Missouri caselaw has consistently held that courts have broad discretion to strike expert witnesses who are not timely filed. State ex rel. Missouri Highways and Transp. Comm’n v. Legere, 706 S.W.2d 560 (Mo.App.1986). Further, the Buys case holds that exclusion of evidence does not result in reversible error unless it would have changed the outcome. Buys, 909 S.W.2d at 739 citing Lewis v. Wahl, 842 S.W.2d 82, 85 (Mo. banc 1992).

The record indicates that Lloyd’s offered the expert witnesses it intended to call at trial only nineteen days before trial, while the trial date had been set for over nine months, with the original suit being filed approximately three years earlier. The company was fully aware that it bore the burden of proving the applicability of the exclusion, yet still did not identify its experts until nineteen days before trial. Legg filed a motion to strike the expert witnesses as the late identification prejudiced them in that it would be difficult, if even possible, to depose the witnesses and prepare for respondent’s expert testimony before trial the next week.

Lloyd’s put forth no legitimate excuse for the delay, nor was its later suggestion of bifurcating the trial a feasible solution. Further, the trial court found that the stricken testimony was cumulative evidence of what was already being produced at trial. The Buys case supports this finding in holding that the exclusion of testimony did not create a substantial and glaring miscarriage of justice since the point at issue had been established by other evidence. Buys, 909 S.W.2d at 739. Hudson’s own testimony, as well as inferential testimony by the bartender, was offered to show that respondent was the driver. However, since the trial court properly sustained respondent’s motion to strike expert witnesses on the basis that they were not timely filed, this court need not determine whether the expert witness testimony would be so cumulative as to disallow it on that basis alone. Point denied.

IV. Vexatious and Willful Penalties

The fourth argument is that the trial court erred in holding that the insurer vexatiously and willfully denied Legg’s claim for benefits. The appropriate standard of review is set forth in State ex rel. Webb v. Hartford Casualty Ins. Co., 956 S.W.2d 272 (Mo.App.1997), holding that statutes providing for damages for insurer’s vexatious refusal to pay are penal in nature and are to be strictly construed.

Sections 375.296 and 375.420 allow penalties to be assessed against an insurer when it refuses to make payment, upon demand and in accordance with the policy, vexatiously, willfully and without reasonable cause. However, “[a]n insurer is permitted to question or contest its liability if it has reasonable cause to believe, and does believe, that it has no liability under the policy and that it has a meritorious defense.” Webb, 956 S.W.2d at 276 (Mo.App.1997) citing Groves v. State Farm Mut. Auto. Ins. Co., 540 S.W.2d 39, 42 (Mo. banc 1976). “Only when the insurer continues to refuse to pay after it has become aware that it lacks a meritorious defense does it become liable for vexatious delay.” Id. citing Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 76 (Mo.App.1995). “However, ‘[t]he existence of a liti-gable issue does not preclude a vexatious penalty where there is evidence that the insurer’s attitude was vexatious and recalcitrant in refusing the claims.’ ” Id. Pemiscot County v. Western Surety Co., 51 F.3d 170 (8th Cir.1955).

Further, where there is an open question of law or fact relating to a claim under an insurance policy, the insurer may insist upon a judicial determination of those questions without being penalized for vexatious refusal to pay. Mears v. Columbia Mutual Ins. Co., 855 S.W.2d 389, 394 (Mo.App.1993). “The test for a vexatious refusal claim is not the final resolution of the coverage issues but how willful and unreasonable the insurer’s refusal was as the facts appeared to a reasonable and prudent person at the time the insurer was asked for coverage...” Wood v. Safeco Ins. Co. of Am., 980 S.W.2d 43, 55 (Mo.App.1998) (citations omitted).

It is clear to this court, by the very fact the trial court decided it necessary to try the issues of who was the driver and the application of the intoxication exclusion, that issues were presented that were unclear’. The facts and issues of this case were of first impression to Missouri courts, and under these facts, the court cannot say Lloyd’s refusal subjected it to the penalty provisions of the statutes. The first two points of this opinion address the questions of law concerning the interpretation of the insurance policy’s language, distinctly addressing the valid and reasonable disputes of whether or not respondent was “under dispatch” at the time of the accident as well as the applicability of the intoxication exclusion. Accordingly, the trial court erred in granting statutory penalties and attorney’s fees in favor of respondent, and that part of the judgment is hereby reversed.

V. Litigation Expenses

Appellant’s final argument contends that the attorney’s fees awarded to respondent are unreasonable and that the respondent’s litigation expenses should not have been awarded under the vexatious and willful statutes. There is no need for this court to address the reasonableness of attorney’s fees since that part of the judgment has been reversed.

The trial court awarded the respondent litigation expenses as well as the penalties and attorney’s fees that are afforded under RSMo § 375.420. The statute, being penal in nature, is to be strictly construed. Housing Auth. of City of Clinton, Evans Elec. Const. Co. v. Baumann, 512 S.W.2d 436, 440 (Mo.App.1974) citing Duckworth v. United States Fidelity and Guaranty Co., 452 S.W.2d 280, 287 (Mo.App.1970). The only authority respondent cites inferentially supporting any awards rather than attorney’s fees or the statutory penalty under RSMo § 375.420 is Housing Authority supra, which states “the claim for such penalties may also include the amount of suit expenses involved in collecting the insurance” (Willis v. American National Life Insurance Company, 287 S.W.2d 98 (Mo.App.1956)). However, when read closely, this statement is pulled out of context as the case goes on to declare that “when vexatious delay occurred and plaintiff was necessarily required to go to expense of obtaining counsel to collect what was rightfully due her, she then and there became entitled to an additional sum for attorney’s fees and tender by insurance company of face amount of policy did not extinguish her right to attorney’s fees.” Id. at 98.

No authority has been cited, nor could this court find any, specifically stating that litigation expenses other than attorney’s fees are allowed pursuant to the penalty statutes. As such, the penalty statute must be strictly construed, which results in the reversal of the litigation expenses awarded to respondent.

CONCLUSION

The court’s ruling in favor of Legg as to the accident being occupational because he was under dispatch, as to the intoxication exclusion being inapplicable, and as to the exclusion of appellant’s expert evidence is affirmed. The judgment finding the insurer liable under § 375.296 and 375.420 for attorney’s fees, statutory penalties, and litigation expenses is reversed.

All concur.

§ 375.296. Additional damages for vexatious refusal to pay

In any action, suit or other proceeding instituted against any insurance company, association or other insurer upon any contact of insurance issued or delivered in this state to a resident of this state, or to a corporation incorporated in or authorized to do business in this state, if the insurer has failed or refused for a period of thirty days after due demand therefor prior to the institution of the action, suit or proceeding, to make payment under and in accordance with the terms and provisions of the contract of insurance, and it shall appear from the evidence that the refusal was vexatious and without reasonable cause, the court or jury may, in addition to the amount due under the provisions of the contract of insurance and interest thereon, allow the plaintiff damages for vexatious refusal to pay and attorney’s fees as provided in section 375.420. Failure of an insurer to appear and defend any action, suit or other proceeding shall be deemed prima facia evidence that its failure to make payment was vexatious without reasonable cause.

§ 375.420. Vexatious refusal, to pay claim damages for, exception

In any action against any insurance company to recover the amount of any loss under a policy of automobile, fire, cyclone, lightning, life, health, accident, employers’ liability, burglary, theft, embezzlement, fidelity, indemnity, marine or other insurance except automobile liability insurance, if it appears from the evidence that such company has refused to pay such loss without reasonable cause or excuse, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not to exceed twenty percent of the loss in excess of fifteen hundred dollars and a reasonable attorney’s fee; and the court shall enter judgment for the aggregate sum found in the verdict.

      . In paragraph (7) of the policy, the Plan distinguishes between and defines "occupational” and "non-occupational” accidents. The first is "an accident occurring during the usual and customary performance of duties required by the Insured Person’s normal work, which shall include travel between assigned destinations and/or under dispatch,” while the latter is “an accident occurring while an Insured Person is not performing the duties of his occupation as defined in definition (7) [above].”

      . "The insurance under the Master Policy does not cover loss caused by or resulting from any one or more of the following...
      1. Loss caused by or resulting from:
      e. Intoxication or being under the influence of a controlled substance unless prescribed by and taken under the supervision of doctor.”

      . All further references to Missouri statutory law will be to the Revised Statutes of Missouri of 1994.

      . These statutes are set out in the Appendix to this opinion.

      . The fact that Legg was intoxicated is not relevant to whether he was under dispatch. It is relevant to the intoxication exception, discussed infra.


author: ROBERT E. CRIST, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Richard WEDDLE, Appellant.
    No. ED 76146.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 14, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied June 27, 2000.

      Arthur G. Muegler, Jr., St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, for respondent.
   ROBERT E. CRIST, Senior Judge.

Richard Weddle (Defendant) appeals his convictions for carrying a concealed weapon, possession of methamphetamine with intent to distribute, and misdemean- or possession of marijuana, in violation of section 571.031, RSMo 1994, section 195.211, RSMo Cum.Supp.1999, and section 195.202, RSMo 1994, respectively. On his appeal, Defendant contends: (1) he was unreasonably seized without reasonable suspicion in violation of Ten-y v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); (2) the search of his automobile was conducted without probable cause; and (3) there was insufficient evidence to support his convictions for carrying a concealed weapon, possession of methamphetamine with intent to distribute, and possession of marijuana. We reverse and order the Defendant discharged.

We find Defendant’s first point disposi-tive. In Point I, Defendant contends the trial court erred in denying his motion to suppress and allowing the admission of exhibits 1 through 25 because the exhibits were the illegal fruits of an unreasonable search and seizure of Defendant in violation of his Fourth Amendment rights.

At a suppression hearing, the State bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled. Section 542.296.6, RSMo 1994; State v. Milliorn, 794 S.W.2d 181,184 (Mo. banc 1990). When reviewing a motion to suppress, we examine the record made at the motion to suppress hearing as well as the trial record. State v. Collins, 816 S.W.2d 257, 258 (Mo.App. E.D.1991). In so reviewing, we view the facts in the light most favorable to the order challenged on appeal. State v. Riddle, 843 S.W.2d 385, 386 (Mo.App. E.D.1992). An appellate court gives deference to the trial court’s factual findings and credibility determinations reviewing only to determine if they are clearly erroneous, but reviews questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). However, the question of whether the historical facts as found by the trial court add up to reasonable suspicion requires de novo review. See, Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996); State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000).

Applying this standard of review, the following facts were presented at the motion to suppress and the trial: On February 13, 1998, at about 9:20 a.m., Officer Michael L. Wirt was on duty for the City of St. Clair Police Department in Franklin County when he received a dispatch for a possible intoxicated driver on the Hardee’s lot. An anonymous call had been placed about the driver who was occupying a blue-gray van on the north end of the Hardee’s lot. Wirt admitted that the anonymous call provided information that was not reliable. Wirt arrived at the Har-dee’s about 9:25 a.m. and saw a blue-gray Ford Econoline parked on the north end of the lot. He saw a lone white male, who was Defendant, seated in the driver’s seat. Defendant was “kind of slumped over the wheel like he was resting his head on the wheel.” At this time, Wirt did not suspect Defendant was committing a crime and Defendant was not doing anything wrong. Still, Wirt approached the van and tapped on the window. Defendant did not respond, so Wirt tapped slightly harder on the window. At this time, Defendant woke up. He was startled and his eyes were wide. He had a surprised look on his face. Wirt testified that he did not regard Defendant’s reaction as unusual, but rather it was a normal reaction. At this time, Wirt had no articulable facts that led "him to believe Defendant was intoxicated or had committed a crime. Yet, to ensure Defendant was not intoxicated, Wirt motioned him out of the van.

When Defendant exited the van, Wirt smelled no alcohol and realized Defendant was not intoxicated. Wirt explained why he was questioning Defendant, who said he did not drink and was fine. Wirt did notice that Defendant seemed extremely nervous and was rubbing his head and body and bouncing around. At this time, Wirt did not think this was unusual. Defendant was polite to Wirt and non-threatening. Wirt did not pat Defendant down for any weapons and testified that he was not in fear for his personal safety. After talking with Defendant, Wirt concluded he was not intoxicated. Wirt testified that at this time he finished his investigation about a possible intoxicated driver. At this point, Wirt’s reasons for approaching and detaining Defendant were complete.

Even so, Wirt continued to detain Defendant and asked him for his driver’s license. Defendant became increasingly nervous. Wirt testified that Defendant asked “numerous” times to get a cigarette from the van, and each time Wirt denied his request. Wirt ran a warrant check on Defendant. While Wirt was running the warrant check, he observed Defendant was acting extremely nervous and upset, rubbing his head and fidgeting. Defendant asked if he could get a coat because he was cold, but Wirt refused his request. However, Wirt admitted that it was cold and Defendant had reason to ask for a coat. The temperature was between 28 and 30 degrees.

The warrant check came back negative. At this time, acting on a “hunch” that something was wrong, Wirt asked Defendant if he had anything illegal in his van and Defendant replied in the negative. Wirt then asked him if he had any weapons and Defendant replied in the negative. Wirt asked him if he could search the interior of the van and its contents. According to Wirt, Defendant said, “sure, sure, sure, search anything in there. Go ahead. Go ahead.” At this time, Wirt patted Defendant down and found nothing. He then handcuffed Defendant and secured him in his patrol car.

Wirt then searched the van. He began his search of the van on the driver’s side. He noticed that in between the driver’s seat and passenger seat there was a brown bathroom-size wastebasket. Sticking out of the wastebasket was a 7-inch hunting knife in its sheath. The knife was standing on end, leaning against the side of the wastebasket. The wastebasket also contained a cigar box that contained 72 empty-clear plastic baggies. He also found a briefcase on the floorboard behind the passenger seat. The briefcase was unlocked and slightly open. Inside, he found a box of CCI .25 automatic pistol ammunition, a gray metal box, an adult magazine, a nylon pouch with assorted folding pocketknives, and a small caliber pistol. He used a key found inside the briefcase to open the gray metal box. Inside the gray metal box, he found a small baggie of marijuana, two cellophane bags with a white powdery residue, a plastic scale with white powder residue, three glass vials with white powder residue, a black vinyl pouch with 16 empty glass vials in it, a gold tear-drop container with white powder residue and assorted knives and razor blades. Wirt seized all of the evidence and arrested Defendant. Laboratory tests showed the white powder residue amounted to .12 grams of methamphetamine, less than one hit and not marketable on the street.

Prior to trial, Defendant moved for suppression of the evidence seized from his van. The trial court held a hearing on the motion and denied it without issuing findings of fact. Defendant preserved his objections to the evidence by objecting at trial and including his objection in his motion for judgment of acquittal or new trial.

The Fourth Amendment to the United States Constitution preserves the right of citizens to be free from unreasonable searches and seizures. U.S. Const. Amend. IV. The State does not dispute that Defendant was “seized” for purposes of the Fourth Amendment when Wirt ordered him out of the van, but instead argues the seizure was reasonable.

Generally, a search or seizure is only permissible if there is probable cause to believe a person has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). However, the United States Supreme Court has held that the Fourth Amendment allows a brief investigative detention if the officer has a reasonable suspicion, based on specific and articulable facts, that the person is involved in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1880; State v. Franklin, 841 S.W.2d 639, 641 (Mo. banc 1992). In determining whether the seizure and search were unreasonable, the court must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances' which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879.

Here, Defendant had not committed any crime when approached by Officer Wirt and Wirt admitted that he did not suspect Defendant of committing any crime at that time. He was merely checking out an anonymous tip the police received. An anonymous tip by itself seldom, if ever, provides reasonable suspicion that a person has committed a crime warranting a Terry-stop. See, Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415-16, 110 L.Ed.2d 301 (1990). Officer Wirt admitted the anonymous tip in question did not provide reliable information. Therefore, Wirt could only detain Defendant to investigate the anonymous tip if he acquired information providing reasonable suspicion that Defendant had committed or was committing a crime. When he approached Defendant to detain him, Wirt admittedly had no suspicion, let alone reasonable suspicion, Defendant had committed or was committing a crime.

The State argues Wirt did have reasonable suspicion because Defendant was “slumped” over the wheel of the van. Even assuming those facts would have warranted an investigation and a brief detention of Defendant, Wirt’s con-tinned detention of Defendant after determining he was not intoxicated was illegal. If a detention continues “beyond the time reasonably necessary to effect its initial purpose, the seizure may lose its lawful character unless a new factual predicate for reasonable suspicion is found during the period of lawful seizure.” State v. Stevens, 845 S.W.2d 124, 128 (Mo.App. E.D.1993); See also, State v. Pfleiderer, 8 S.W.3d 249, 256-57 (Mo.App. W.D. 1999); State v. Woolfolk, 3 S.W.3d 823, 829 (Mo.App. W.D.1999); State v. Slavin, 944 S.W.2d 314, 317-18 (Mo.App. W.D.1997). An investigative detention may not last any longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). “The scope of the detention must be carefully tailored to its underlying justification.” Id.

Here, any further detention of Defendant was not justified by the circumstances and exceeded the limits of a Terry investigative stop. The purpose of the stop, to investigate a possible intoxicated driver, was satisfied as soon as Defendant stepped from the van, and Wirt smelled no alcohol and realized Defendant was not intoxicated. Wirt acknowledged that his purpose was accomplished at the time he finished his investigation about a possible intoxicated driver. At this point, Wirt’s reasons for approaching and detaining Defendant were complete. Thus, any reasonable suspicion necessary to detain Defendant had disappeared.

In response, the State argues that reasonable suspicion to continue detaining Defendant did arise, pointing to Defendant’s excessive nervousness and fidgeting. Yet, when Wirt initially approached Defendant, ordered him out of the van and questioned him, Wirt did not think Defendant’s behavior or nervousness was abnormal. Only after continuing to detain him, checking his driver’s license and questioning him, did Wirt conclude his actions were unusual. Therefore, any possible reasonable suspicion for continuing to detain Defendant did not arise during Wirt’s lawful seizure of Defendant.

We agree with the State’s contention that nervousness can be considered in determining whether reasonable suspicion exists under the totality of the circumstances. See, Stevens, 845 S.W.2d at 128. Yet, nervousness alone, even if excessive, cannot provide reasonable suspicion necessary to detain Defendant further. Woolfolk, 3 S.W.3d at 829; Slavin, 944 S.W.2d at 320; See also, State v. Rodriguez, 904 S.W.2d 531, 536-37 (Mo.App. S.D.1995). It is common knowledge that most citizens, whether innocent or guilty, when confronted by a police officer are likely to exhibit some signs of nervousness or fidgeting. Here, Wirt could not point to anything more than Defendant’s excessive nervousness and that he “stared” at the van door. These factors alone cannot support reasonable suspicion. Even Wirt acknowledged in his testimony that he simply acted on a “hunch” that something was wrong. Hunches and suspicions, even if acted on in good faith, are not enough to warrant a search or seizure. State v. Hensley, 770 S.W.2d 730, 734 (MoApp. S.D.1989).

The State relies on State v. Hernandez, 954 S.W.2d 639 (MoApp. W.D.1997) and State v. Adell, 716 S.W.2d 469 (Mo.App. E.D.1986) to support its position. However, in Hernandez, there was something more than just nervousness to support reasonable suspicion. In that case, officers received a radio dispatch reporting that Hispanics were throwing rocks at a specific building. Hernandez, 954 S.W.2d at 641. When they arrived, they saw a group of men and got out to investigate. Id. Defendant Hernandez placed his hands in his coat pocket, turned and ran away from the police. Id. An officer ordered him to stop and then gave chase. Id. While running, the officer observed Hernandez was carrying a black object in his right hand. Id. An officer tackled Hernandez, who then tried to stab him. Id. This case involved something more than simple nervousness, but instead a full flight from police while carrying a suspicious object.

Adell is also distinguishable. In Adell, an officer received a report of shots being fired and several men chasing another man. Adell, 716 S.W.2d at 470. The officer stopped Adell for questioning because she noticed him with another man near the location. Id. at 471. Further, when the men saw her marked patrol car, they slowed down, kept looking back at the vehicle, and looked nervous. Id. The court concluded that given the time, 3:30 a.m., the proximity to the reported incident, and the behavior, the officer was justified in her initial stop of Adell. Id. In addition, we note there was no question of a continued detention beyond that necessary to investigate the dispatch.

In its brief, the State contends Wirt was concerned Defendant was under the influence of some other drug. Yet, we find no evidence in the record to support this assertion. The State cites to a portion of the motion to suppress hearing in making its assertion, but those pages do not contain any mention of drugs. Our review of the record reveals only one instance in which Wirt directly addressed this issue. When asked if he had formed any opinion about Defendant’s potential use of a controlled substance, Wirt simply testified, “May have.” No attempt was ever made to have Wirt elaborate on this cryptic statement. This testimony is not sufficient for the State to satisfy its burden in a motion to suppress hearing.

Moreover, we note that if Wirt were really concerned about the possibility that Defendant would drive while intoxicated or under the influence of drugs, the reasonable response would be to perform field sobriety tests. Yet, Wirt performed none. Instead, he asked if there were weapons or drugs in the car and requested consent to search the car, actions which would not assist Wirt in an investigation of the offenses of driving while intoxicated or driving under the influence of drugs.

The State also contends the detention turned into a consensual encounter and that Defendant consented to remaining at the scene and answering Wirt’s questions, as well as consenting to being handcuffed and “secured” in the patrol car while Wirt searched the van. Further questioning following the conclusion of an investigative stop is allowed if the encounter has turned into a consensual one. State v. Scott, 926 S.W.2d 864, 869 (Mo.App. S.D.1996). This change occurs when a reasonable person in the defendant’s position would feel free to leave. Id.

Here, the evidence showed a reasonable person in Defendant’s position would not have felt free to leave. Wirt ordered Defendant from the van, exercising his authority as an officer. When Defendant asked him “numerous” times to get a cigarette from his van, Wirt denied him each time. Wirt also denied Defendant’s request to get his coat out of the van, even though Defendant had reason to be cold because it was about 28 degrees outside. Although he concluded that Defendant was not intoxicated, Wirt obtained Defendant’s driver’s license and proceeded to run a warrant check while Defendant continued to remain outside his van in the cold. After obtaining Defendant’s consent, Wirt then handcuffed him and placed him in the patrol car. These circumstances amount to a show of official authority such that a reasonable person would not have felt free to leave. In addition, Wirt testified that Defendant was not free to leave the scene.

Finally, the State contends that even if Defendant was unreasonably seized, the search of the van was warranted by Defendant’s voluntary consent to the search. The trial court also appeared to rely on this contention in denying the motion to suppress. The trial court made no findings of fact. However, in its statement at the motion to suppress hearing, the trial court did not address whether Defendant was unreasonably seized, but instead relied on Defendant’s consent to the search. The court further stated that no search would have been. permissible up and until the time Defendant consented to the search. In finding the consent voluntary, the court explicitly stated that Defendant offered no evidence to show any coercion or involuntary consent. However, the trial court’s conclusion was in error. Defendant does not have the burden of proof at trial. Rather, the State has the burden of proving Defendant’s consent was voluntary. Section 542.296. This burden is placed on the State because warrantless searches are presumptively unreasonable. Milliorn, 794 S.W.2d at 184. In addition, the court’s finding is insufficient because the court never addressed whether Defendant’s consent could have been tainted by his illegal detention.

In determining whether the evidence should be excluded as fruit of the poisonous tree or if Defendant’s consent validates the search, the government has the dual requirement of showing (1) the consent was voluntary and (2) whether it has “sufficient independence from the pri- or illegality to purge the taint of that illegality.” State v. Miller, 894 S.W.2d 649, 655 (Mo. banc 1995). Consent is invalid if it is the product of duress or coercion, either express or implied. Woolfolk, 3 S.W.3d at 831. Voluntariness of consent is determined by looking at the totality of the circumstances and assessing whether an objective observer would conclude the person made a free and unconstrained choice to consent. State v. Leavitt, 993 S.W.2d 557, 563 (Mo.App. W.D.1999). Again, the focus here is on whether the defendant would feel free to leave. Woolfolk, 3 S.W.3d at 831.

Here, the evidence presented by the State showed Defendant’s consent was not voluntary. As discussed above, a reasonable person in Defendant’s position would not have felt free to leave. Instead, Defendant was merely submitting to a claim of lawful authority, which does not satisfy the State’s burden of proving Defendant’s consent was voluntary. Royer, 460 U.S. at 497, 103 S.Ct. at 1324; Leavitt, 993 S.W.2d at 563.

In addition, any consent was tainted by Defendant’s illegal detention. In determining whether to suppress evidence obtained through a voluntary consent to search given after an illegal seizure, we address three factors: (1) the temporal proximity of the illegality and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Miller, 894 S.W.2d at 655; See also, Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975).

Here, the factors weigh against a finding of attenuation. Wirt obtained Defendant’s consent within 2-3 minutes of illegally detaining him. He did not advise Defendant that he had the right to refuse to consent. No intervening circumstances existed. Moreover, the actions taken by the police in this case border on flagrant. Under the circumstances presented, we find Defendant’s consent tainted by the illegal seizure.. See, Id. at 656.

Therefore, we grant Defendant’s first point. The trial court erred in denying Defendant’s motion to suppress and should have excluded' State’s exhibits 1 through 25. As a consequence of our finding, we do not consider' his remaining points on appeal. Without the evidence located in the van, there is insufficient evidence to convict Defendant of any of the charges. By reason of the overwhelming evidence in favor of Defendant, this Court will not remand for another suppression’ hearing and/or new trial. See, State v. Davis, 985 S.W.2d 876 (Mo.App. E.D:1998). We reverse Defendant’s convictions and order him discharged. See, Id. at 657; Woolfolk, 3 S.W.3d at 832-33; Slavin, 944 S.W.2d at 321; Rodriguez, 904 S.W.2d at 538.

Reversed.

MARY RHODES RUSSELL, C.J., and LAWRENCE G. CRAHAN, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Samuel MARTIN, Appellant.
    No. ED 75277.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied June 27, 2000.
    David C. Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Anne E. Hawley, Asst. Atty. Gen., Kansas City, for respondent.
    Before MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and ROBERT E. CRIST, Sr.J.
   ORDER

PER CURIAM.

Samuel Martin (“Defendant”) appeals the judgment and sentence entered following his conviction by a jury of one count of murder in the first degree, section 565.020 RSMo 1994, for which he was sentenced to life imprisonment without the possibility of parole. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A detailed opinion would be of no precedential value. We have, however, provided the parties with a brief memorandum opinion, for their information only, explaining the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).