Jarrell v. Director of Revenue

• Court: Missouri Court of Appeals
• Writing for the Court: Parrish, P.J., concurs in separate opinion. Montgomery; Kenneth W. Shrum
• Citation: Jarrell v. Director of Revenue, 41 S.W.3d 42 (Mo. App. 2001)
• Decision Date: 29 March 2001
• Docket Number: No. 23803,23803
• Parties: (Mo.App. S.D. 2001) Mike D. Jarrell, Petitioner-Respondent, v. Director of Revenue, Respondent-Appellant. 0

41 S.W.3d 42 (Mo.App. S.D. 2001)

Mike D. Jarrell, Petitioner-Respondent, v. Director of Revenue, Respondent-Appellant.

No. 23803

Missouri Court of Appeals Southern District

03/29/2001

Appeal From: Circuit Court of Lawrence County, Hon. Larry W. Meyer

Counsel for Appellant: Amy L. Patton

Counsel for Respondent: Scott R. Pettit

Opinion Summary: None

Parrish, P.J., concurs in separate opinion. Montgomery, J., concurs.

Kenneth W. Shrum, Judge

Citing part of Missouri's Implied Consent Law, specifically section 577.041.3, RSMo Cum.Supp. 1999, Missouri's Director of Revenue ("Director") revoked the license of Mike D. Jarrell ("Jarrell") to operate a motor vehicle.¹ Director based the revocation on Jarrell's refusal to submit to a chemical test of his breath pursuant to section 577.020.1.

Jarrell petitioned the circuit court for review of Director's decision, per section 577.041.4. After an evidentiary hearing, the court entered a judgment that set aside the revocation and ordered Jarrell's license reinstated. Director appeals. We affirm.

Three prerequisites must be found before a trial court can uphold Director's decision to revoke a person's driving privileges for failure to submit to a chemical test pursuant to section 577.041: (1) the driver was arrested; (2) the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and (3) the driver refused to submit to a chemical test. Sutton v. Director of Revenue, 20 S.W.3d 918, 921[1] (Mo.App. 2000); section 577.041.4. If the trial court finds that one of the three requirements has not been met, then the court must reinstate a driver's privileges. Id.; section 577.041.5.²

Among its findings, the trial court here concluded, "[t]hat [Jarrell] did not refuse to submit to a chemical test." On appeal, Director maintains the judgment setting aside the administrative revocation of Jarrell's license is against the weight of the evidence in that Director proved, inter alia, "an uncontroverted prima facie case . . . [that] Jarrell refused to submit to a chemical test."³ However, the premise of this argument, i.e., there was "uncontroverted" evidence regarding Jarrell's refusal, is not supported by the record. As we explain in more detail below, Jarrell put in evidence his sworn affidavit that directly contradicted Director's evidence about his alleged refusal to take the test.

As stated in n.3, Director's evidence at trial consisted of the Alcohol Influence Report ("AIR") and the arresting officer's narrative report. Director called no witnesses, nor did Jarrell. In the arresting officer's narrative, he wrote that after Jarrell's unsuccessful attempts to contact an attorney, he asked Jarrell to take the breath test. He stated Jarrell refused which he then wrote down on the AIR. However, for the reasons given in n.3, the officer's AIR report was arguably ambiguous and could be read as contradictory to what he wrote in the narrative. On the other hand, Jarrell placed in evidence his sworn affidavit that stated: "I advised the officer that I would take the chemical test. The officer wrote down on the report that I refused. Affiant states that he did not refuse the chemical test."

Faced with such a record, the question is whether the trial court committed reversible error when it implicitly accepted Jarrell's affidavit and rejected the arresting officer's reports to reach its conclusion that Jarrell did not refuse to take the test. Director's argument that this was reversible error includes the following:

"The only 'proof' that Jarrell provided to show he did not refuse to take the BAC test was two conclusory affidavits. In his first affidavit, Jarrell alleges that '[he] did not "refuse" to submit to the chemical test, as such term is defined by statute and case law in the State of Missouri.' Jarrell provides no facts to supports his allegation in his self-serving affidavit. Over a month later, Jarrell files a second affidavit in which he avers, 'I advised the officer that I would take the chemical test. The officer wrote down on the report that I refused.'

. . . .

"Because the evidence consists of [the arresting officer's] Alcohol Influence Report, including the officer's narrative, versus Jarrell's affidavit, the issue becomes one of credibility. In a case submitted upon the written record, such as this case, deference to the trial court regarding credibility of witnesses is not warranted. Riggin v. Director of Revenue, 25 S.W.3d 695 (Mo.App.S.D. 2000). Jarrell's two self-serving, and at least partially conclusory and inconsistent affidavits, made after his license was revoked, lacks [sic] credibility and should be given no weight by this court. Overcoming a revocation for refusal should not be as simple as the driver providing an affidavit essentially claiming, in conclusory fashion, 'No, I did not refuse, it doesn't matter what the officer said.' Such a result would undermine the purpose of section 577.0941."

Preliminarily, we note Director is not consistent in part of his argument. Thus, he characterizes Jarrell's affidavits as "conclusory," "self-serving," "inconsistent," and without factual detail, yet would apparently have this court ignore the fact that the arresting officer's AIR is equally "conclusory" and "self-serving," but even more, is ambiguous. See n.3. As to the officer's narrative report, it has essentially the same amount of detail as does Jarrell's affidavit, although it was factually contradictory thereto. Specifically, the narrative report recites: "I read Jarrell the implied consent section again and then setup [sic] the machine. At the proper time I asked Jarrell to take the test and he stated he would not." We reject Director's suggestion we should treat Jarrell's affidavit as fatally defective because it lacked detail or was conclusory but view the officer's narrative as sufficient.⁴ They are essentially equivalent in giving details.

With these observations made, Director is correct when he claims appellate courts do not give any deference to a trial judge's determination regarding the credibility of witnesses in cases submitted solely upon a written record. See e.g. Riggens, 25 S.W.3d at 698[5]; Prozorowski v. Director of Revenue, 12 S.W.3d 405, 408[5] (Mo.App. 2000). This rule has evolved for the obvious reason that if witnesses do not appear before a judge, he or she has no opportunity to observe their demeanor nor are they subjected to cross-examination. Isom v. Director of Revenue, 705 S.W.2d 116, 117 (Mo.App. 1986). On the other hand, the rule of "no deference" regarding "witness credibility" in cases where there are no live witnesses does not mean appellate courts are to review such cases de novo or ignore evidence and inferences favorable to the judgment. See Aviation Supply v. R.S.B.I. Aerospace, 868 S.W.2d 118, 120[3] (Mo.App. 1993). The landmark case of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976) teaches otherwise. There, the Supreme Court of Missouri held:

"[A]ppellate 'review . . . as in suits of an equitable nature,' as found in Rule [84.13(d)(1)] is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule [84.13(d)]."

Id. at 32[1-3].

Appellate review of judgments relating to revocation of driving privileges for failure to take a chemical test is governed by Murphy v. Carron. See e.g. Berry v. Director of Revenue, 885 S.W.2d 326, 328 (Mo.banc 1994); Calicotte v. Director of Revenue, 20 S.W.3d 588, 591 (Mo.App. 2000). Consequently, our review is not de novo as Director seems to suggest; rather, we review to determine, inter alia, if there was substantial evidence to support the trial court's judgment and whether the judgment was against the weight of the evidence. Calicotte, 20 S.W.3d at 591. When determining sufficiency of evidence pursuant to the Murphy v. Carron standard, appellate courts accept as true the evidence and inferences favorable to the trial court's judgment, disregarding all contrary evidence. Aviation Supply, 868 S.W.2d at 120[4]. A trial court's judgment in a section 577.041 revocation case is to be affirmed under any reasonable theory supported by the evidence. Berry, 885 S.W.2d at 328[3].

The Murphy v. Carron standard of review and these principles attend even when the facts are derived from pleadings, stipulations, exhibits, depositions, affidavits, or other written materials, i.e., when there are no live witnesses. Aviation Supply, 868 S.W.2d at 120. In such instances, ...