State v. Brown, WD

• Decision Date: 25 May 1999
• Docket Number: No. WD,WD
• Citation: 996 S.W.2d 719
• Parties: STATE of Missouri, Respondent, v. Richard F. BROWN, Appellant. 55422.
• Court: Missouri Court of Appeals

Page 719

996 S.W.2d 719

STATE of Missouri, Respondent, v. Richard F. BROWN, Appellant.

No. WD 55422.

Missouri Court of Appeals Western District.

Submitted Feb. 16, 1999.

Decided May 25, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 1999.

Application for Transfer Denied

Aug. 24, 1999.

Elizabeth U. Carlyle, Lee's Summit, for appellant.

John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before SMART, P.J.; HANNA and LAURA DENVIR STITH, JJ.

JAMES M. SMART, Jr., Judge.

Richard Brown was convicted after a jury trial of one count of second degree murder, § 565.021.1(2), RSMo 1994, ¹ and one count of second degree assault, § 565.060.1(4), arising out of Brown's actions while operating a vehicle on Missouri Highway 63. Pursuant to § 558.016, Brown was found to be a prior offender. ² He was sentenced to consecutive terms of twenty-five years' imprisonment and five years' imprisonment, respectively. Brown raises six points of error, challenging his murder and assault convictions.

The judgment of the trial court is affirmed.

Factual Background

On the evening of December 13, 1996, Derek Perry and his fiancee, Erica Scott, were driving south on Highway 63 to Jefferson City, Missouri. Mr. Perry, a first year law student at the University of Missouri-Columbia, had finished his last final exam of the semester that morning. After completing his exam, Mr. Perry and Ms. Scott went Christmas shopping in Columbia, Missouri, before heading home to Jefferson City. In Jefferson City, at approximately 5:30 p.m. that same evening, Richard Brown realized he had lost his checkbook. Brown set out for his bank in Columbia, driving a white four-door Mitsubishi Diamante.

Also that evening, Ken Weider and his family were driving south on Highway 63 from Columbia to Jefferson City. Mr. Weider came upon a white, four-door car traveling between 40 and 45 miles per hour, weaving in and out of the left and right lanes. He opted to slow down and stay behind the white car rather than immediately pass it. Eventually, Mr. Weider successfully passed the white car, and reset his cruise control at 68 miles per hour.

About a mile and a half from where he had originally passed the white car, Mr. Weider noticed the white car quickly approaching from behind. Mr. Weider testified that he was traveling "right at 70 [miles per hour]," when the white car passed him in the left lane. As the car passed him, Mr. Weider noted that the first three numbers of the license plate were 8P4. Mr. Weider saw the white car cross the center median, turn north, and begin to travel up the northbound exit for Ashland, Missouri. The white car then stopped, backed out across the northbound lanes of Highway 63 and proceeded north. At this point, Mr. Weider, alarmed by the actions of the white car, exited the highway and called 911 to report what he had seen.

Also around 8:00 p.m. that same evening, Michael Jordan was traveling on northbound Highway 63 toward Columbia. While driving northbound, Mr. Jordan "[saw] some headlights swerve ... some sparks ... and then [he saw] some smoke." Mr. Jordan testified: "I [saw] a white four-door car, it was in the air. It flipped in the air, landed on its wheels, into the rock embankment." Mr. Jordan stopped his car and ran across the southbound lanes toward the white car to see if he could help. As he approached the car, he saw a man "put his airbag back in." He then saw the driver "put his car in reverse and back up and [take] off back down the road."

Mr. Jordan watched the white car travel down southbound Highway 63. He testified that the white car "swerved back off the road, and then came back on [and] almost hit another car." Mr. Jordan ran back to his car and drove to the first turn-around, intending to follow the white car. By the time he had made his way back to where he had originally seen the car, he discovered that the white car had run up a guardrail. When Mr. Jordan approached the car to make sure the driver was all right, he smelled an odor of alcohol "so strong that it reeked."

Peggy Henore was traveling southbound on Highway 63 at approximately 8:00 p.m. Ms. Henore testified that as she was traveling, she noticed a lot of debris in the road. After she passed through the debris, she saw a white car driving on the guardrail, "with two wheels on the road and two wheels up on the guardrail." Ms. Henore called 911 from her cellular phone to report the incident.

Danny Sattler, a Missouri State Highway Patrolman, responded to a Columbia Police Department dispatch regarding a vehicle that was driving "careless and imprudent" on Highway 63. Trooper Sattler testified that upon arriving at the accident scene, he observed Derek Perry's vehicle in a ditch, facing east. Mr. Perry was on the ground. Ms. Scott was near him, sitting upright. Both were being attended to by medical personnel. The trooper also observed a white bumper with a Missouri license plate, a white mirror, and other items in the debris.

Derek Perry was pronounced dead at the scene of the accident. Dr. Jay Dix, the Boone County Medical Examiner, testified that Mr. Perry had died "as a result of blunt impact injuries, with multiple injuries, internal injuries specifically of the heart and lungs." A drug screen of Mr. Perry's urine and blood was negative. Erica Scott was also thrown from the car and suffered multiple injuries. Ms. Scott remained in the hospital for several days. As a result of the accident, she broke both of her wrists; had scars on her face, neck, stomach, back and legs; had staples put in the back of her head; and her teeth were pushed so far back into her head that she was unable to eat.

At the accident site, Mr. Jordan approached Trooper Sattler and pointed out the white car straddling a guardrail some distance ahead. Trooper Sattler advised Trooper Ralph Lemongelli about the white car and asked him "to go to that location to find out what was going on down there." After the original accident scene had been secured, Trooper Sattler approached the white car to find out what was happening. He testified that the white "vehicle looked like it had been overturned. There was damage to almost every part of the vehicle's body." Trooper Sattler noticed that the front bumper of the car was missing and that there was red "transfer paint" on the vehicle's hood and the driver's side rear quarter panel. After removing some of the red transfer paint from the car, Trooper Sattler returned to the scene of the original accident where he seized a white outside mirror that appeared to be from the white Diamante and a vodka bottle that had been found at the scene. Additionally, Trooper Candy Cornman found a green day planner and three pill bottles, labeled Alprazolam, Zoloft and Acetaminophen, identified as belonging to Defendant Brown, on the shoulder of the road, near the red vehicle.

As Trooper Lemongelli approached the white Diamante, he saw a man trying to retrieve a leather case from the right rear floorboard. Trooper Lemongelli asked the man for his driver's license or his name. When the man did not respond, the trooper ran the vehicle's license plate number and learned that the vehicle was registered to Richard Brown. Trooper Lemongelli asked the man if he was Richard Brown, to which Brown replied affirmatively.

While Trooper Lemongelli was checking the license plate number, Brown was looking for something in a brown briefcase and asked the trooper if he could smoke. Brown told the trooper that he had hit a slick spot on the road, throwing his car to the left, then the right and finally to the guardrail. When speaking with Brown, Trooper Lemongelli detected "a strong cologne type odor ... and then a strong odor of intoxicants." Trooper Lemongelli noticed that Brown had scrapes on the left side of his face, but did not see any other apparent injuries to Brown's head. Brown's pupils were of equal size, and his eyes were "glassy and staring."

Trooper Lemongelli administered several field sobriety tests to Brown. Brown performed poorly on each of these tests, according to the trooper. After administering the field sobriety tests, Trooper Lemongelli concluded that Brown was too impaired to be operating a motor vehicle and placed him under arrest for driving while intoxicated. Brown was transported to the hospital in an ambulance. Trooper Lemongelli followed Brown to the hospital, where Brown consented to a blood test. Brown's blood test revealed a blood alcohol content of .12 percent by weight. Brown's blood sample also revealed the presence of Alprazolam, commonly referred to as Xanax, a depressant used for sedation and the treatment of high anxiety. The evidence indicated that when Alprazolam and alcohol, also a depressant, are taken in conjunction, one enhances the depressive effects of the other.

While filling out an Alcohol Influence Report Form, Trooper Lemongelli asked Brown whether he had any physical defects, whether he was ill, or whether he had epilepsy or diabetes. Brown answered all of those questions negatively. Brown stated he had been to the dentist recently for gum surgery and was taking antibiotics, an antidepressant and some type of antihistamine. When asked whether he had been involved in an accident that evening, Brown replied, "Well, obviously."

Dr. Matthew Hart, the emergency room physician who treated Brown, testified that Brown "smelled of [an] intoxicating substance, suspiciously of alcohol" and spoke with slurred speech. Although Dr. Hart asked Brown a series of routine questions about Brown's medical and health history, Brown mentioned no neurological afflictions. While he could not recall directly examining Brown's tongue the evening of the accident, Dr. Hart identified a photograph of Brown's tongue, which showed swelling and trauma to its left lateral side. Dr. Hart admitted that such trauma could have caused Brown to slur his speech. Dr. Hart testified that Brown had ...