State v. Anders
| Decision Date | 23 June 1998 |
| Docket Number | No. WD,WD |
| Citation | 975 S.W.2d 462 |
| Parties | STATE of Missouri, Respondent, v. Donald E. ANDERS, Appellant. 54327. |
| Court | Missouri Court of Appeals |
Seth Shumaker, Kirksville, for Appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for Respondent.
Following a jury-waived trial, the defendant, Donald E. Anders, was found guilty of bribery of a public servant, § 576.010, 1 and driving while intoxicated, § 577.010.0, in the circuit court of Schuyler County. On May 2, 1996, the court sentenced the defendant, as an intoxication-related persistent offender, § 577.023.1(2), to concurrent five-year sentences. The defendant claims that the trial court erred in admitting his driving record and the results of his breathalyzer test, and that the state failed to make an opening statement and failed to prove the defendant's prior alcohol-related convictions.
Viewed in the light most favorable to the verdict, the facts indicate that, on September 10, 1996, John Gottman, a Schuyler County sheriff's deputy, was patrolling in Downing, when he observed a maroon pickup truck headed east on Highway 136, traveling well in excess of the 35 m.p.h. speed limit and driving recklessly. Gottman recognized the pickup as one that the defendant usually drove. He observed the truck swerve off the road and hit some mailboxes. As the truck turned corners, its wheels were spinning gravel and, at one point crossed the center line while rounding a corner. After driving through several side streets, the truck was proceeding on Route A when it made a U-turn onto Highway 136, and headed west. Gottman activated his patrol lights and followed the truck back into Downing. The driver pulled into a grocery store parking lot and stopped. Gottman asked the defendant for his driving license, and then directed him to the back seat of his patrol car.
When Gottman called his dispatcher to check the defendant's license number, the dispatcher could not hear him because the defendant was yelling in the background. Gottman indicated that the defendant was being "loud and obnoxious." He made several threats, including that he would "have [Gottman's] badge." Gottman requested assistance, and the Schuyler County game warden, Kevin Patterson, responded. The defendant was also verbally abusive to Patterson.
The presence of a crowd in front of the grocery store made the defendant "more obnoxious." The defendant yelled profanities, staggered, "smelled like alcohol" and his speech was slurred. The defendant's son arrived and scuffled with his father, resulting in their both falling to the pavement. A friend of the defendant stepped in and physically restrained the defendant.
At this point, another sheriff's deputy, Charles Tallman, arrived at the scene. The defendant became "verbally disagreeable" with Tallman who, in response, handcuffed him. Tallman placed the defendant in the front seat of his patrol car. The defendant continued to berate Tallman. The defendant's wife then arrived and placed a tape recorder inside the patrol car to record the defendant's statements. The defendant continued with several additional threats and obscene comments.
Tallman detected a "very strong" odor of intoxicants on the defendant, and noted that the defendant required help walking, was talking in a loud voice and his speech was very slurred. Subsequently, Missouri State Highway Patrolman, Corey Craig, arrived. He also smelled the odor of alcohol on the defendant's breath. Craig asked the defendant whether he had been drinking, but he did not reply.
Craig asked the defendant to perform a series of field sobriety tests. He first administered the "gaze nystagmus" test which the defendant was unable to pass. The defendant was then asked to recite the alphabet from A to Z. The defendant recited some of the first letters of the alphabet, but then "exchanged and confused the letters very badly." After his initial attempt, the defendant could remember only "10 more letters of the alphabet."
Next, the defendant was asked to count backwards from 97 to 84. The defendant asked if he could start at 100 and count backwards or if he could start at one and count forward. After being told no, the defendant cursed and told Craig, "I'm not doing that." Craig asked the defendant to perform a "walk and turn" test and a "one leg stand" test to assess his balance and stability. The defendant refused to perform these tests. Craig noted, however, that the defendant had difficulty standing, and attempted to lean against a pole to help keep his balance.
Based on their observances, Deputies Gottman and Tallman concluded that the defendant was intoxicated. Based on the defendant's appearance and the results of the field sobriety tests, Trooper Craig also formed the opinion that the defendant was intoxicated. Craig placed the defendant under arrest for driving while intoxicated.
Craig searched the defendant's truck and found several empty beer bottles and an empty bottle of schnapps. In the meantime, the defendant was kicking the interior of Craig's patrol car, and was informed by the officer that if anything inside was damaged, he would be charged with the destruction of state property. The threat did not dissuade the defendant, as he continued kicking the windshield. In response, Craig obtained a pair of leg cuffs and the defendant's ankles were shackled. The defendant managed, however, to continue to kick the car's windshield.
After Craig finished searching the truck, he returned to his car and read the defendant his Miranda rights. 2 Because the defendant was uncooperative, Craig recorded their conversation with a cassette recorder. The tape recording demonstrated that the defendant continued to make threats, including physical threats directed at the officers, and the use of profane language.
The defendant was transported to the Schuyler County courthouse. He was belligerent when answering questions. The defendant was read his rights with regard to the implied consent law, and he agreed to take a breathalyzer test. Craig testified that the defendant refused to provide a complete breath sample because he would prematurely stop blowing into the breathalyzer. The override function had to be used in order to analyze the incomplete breath sample. The incomplete sample the defendant provided indicated that his blood-alcohol content was .18 percent. As Craig was administering the breathalyzer test, the defendant kept asking him if he wanted money. He got his billfold out a couple of times and pulled out his checkbook two or three times. The defendant asked Craig, "Do you want a couple, three or four hundred, do you want a check, do you want cash, do you want paid now?" The defendant also asked how much it was going to cost him to keep his driving license, and offered Craig various amounts of money ranging from $300 to $600.
In his first point, the defendant claims that the trial court erred in admitting his driving record, because the state failed to serve the defendant with copies of the record at least seven days prior to trial. 3 The defendant does not dispute that the exhibit admitted was a record of the department of revenue or that it was properly certified.
The defendant points to § 302.312 of the Missouri statutes which, he argues, governs the admissibility of state driving records. The 1994 statute read as follows:
Copies of all papers and documents lawfully deposited or filed in the offices of the department of revenue ... properly certified by the appropriate custodian or the director, shall be admissible as evidence in all courts of this state in the same manner and with like effect as the originals.
§ 302.312 (emphasis added). The case law interpreting the statute, and the italicized language, held that when attempting to admit such records, the records were subject to the same foundational requirements as the originals. See Hadlock v. Director of Revenue, 860 S.W.2d 335, 337-38 (Mo. banc 1993); State v. Mack, 903 S.W.2d 623, 630-31 (Mo.App.1995). As such, the records offered pursuant to § 302.312 could not be admitted into evidence, unless the other party "has been served with copies of such records and such affidavit at least seven days prior to ... trial." § 490.692.2; Mack, 903 S.W.2d at 630-31.
However, § 302.312 was amended in 1996. The new statute, which was in effect at the time of the defendant's trial, does not contain the requirement that the records be admissible "in the same manner ... as the originals." Section 302.312.1, RSMo Supp 1997, states:
Copies of all papers, documents, and records lawfully deposited or filed in the offices of the department of revenue ... and copies of any records, properly certified by the appropriate custodian or the director, shall be admissible as evidence in all courts of this state and in all administrative hearings.
The deletion from the prior statute's language that--the evidence is admissible "in the same manner and with like effect as the originals"--must be given meaning. When enacting changes to statutes, the legislature is presumed to be aware of the state of the law at the time of the enactment. In re the Matter of Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996). The legislature acts with a purpose, and we presume that it intended to change the law. Kilbane v. Director of Dept. of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976).
The amended statute eliminates the necessity to additionally qualify such records. Mills v. Director of Revenue, 964 S.W.2d 873 (Mo.App.1998). The revenue department's records in this matter were relevant and were properly certified. Hence, the records were admissible without the requirement that they be served "at least seven days prior to ... trial." Point denied.
The defendant next argues that the trial court erred in admitting the results of his breathalyzer test because the state did not...
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