State v. Byers, ED 105196

• Decision Date: 10 July 2018
• Docket Number: No. ED 105196,ED 105196
• Parties: STATE of Missouri, Respondent, v. David K. BYERS, Appellant.
• Court: Missouri Court of Appeals

551 S.W.3d 661

STATE of Missouri, Respondent,

v.David K. BYERS, Appellant.

No. ED 105196

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: July 10, 2018

Christian Lehmberg, 1000 W. Nifong, Bldg 7, Ste 100, Saint Louis, MO. 65203, for appellant.

Garrick Aplin, P.O. Box 899, Jefferson City, MO. 65102, for respondent.

OPINION

Angela T. Quigless, J.David K. Byers ("Defendant") appeals from the judgment of the trial court following a jury trial in which he was convicted of driving while intoxicated. Defendant asserts three points on appeal, arguing: (1) the trial court abused its discretion in denying his motion for a mistrial; (2) the trial court erred or abused its discretion in denying his request to instruct the jury to disregard the State’s reference to his prior criminal case; and (3) the trial court erred in admitting evidence obtained in violation of his constitutional right to be free from unreasonable searches and seizures. We affirm the judgment.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support the judgment. Viewed in the light most favorable to the jury’s verdict, the following evidence was presented at the hearing on the motion to suppress evidence and during the jury trial.

On November 1, 2013, Defendant spent the evening with his girlfriend. First, they went to a friend’s birthday party at a restaurant. Around 10:00 p.m., they left the birthday party and went to a different restaurant, where they ate chicken wings and drank some beer. Defendant then left the second restaurant and drove himself and his girlfriend home.

Just before 1:00 a.m., Defendant drove past a police officer who was working on an impaired driving enforcement detail. The officer was aware that there were "at least two beer taverns in the vicinity" that closed around 1:30 a.m. Defendant’s vehicle caught the officer’s attention because it was "traveling pretty slow" at about thirty miles per hour, which was more than ten miles per hour below the posted speed limit. The officer followed Defendant’s vehicle down the two-lane road for about a half mile, during which time the officer observed that Defendant’s vehicle "was weaving from left to right, [and] touched the lines on both sides of his travel lane several times." After observing Defendant’s vehicle "drift[ing] back and forth several times," the officer decided to stop Defendant and "conduct an investigation to see if he was possibly driving while impaired."

After the officer pulled Defendant over, Defendant immediately got out of his vehicle. When the officer approached Defendant, he observed Defendant’s eyes were bloodshot. The officer requested Defendant’s driver’s license, which he was unable to produce. The officer also detected the odor of an intoxicating beverage on Defendant’s breath while speaking to him. When asked if he had been drinking, Defendant told the officer that he had "nothing" to drink. The Defendant agreed to perform the standard field sobriety tests. The officer first conducted the Horizontal Gaze Nystagmus Test.¹ During this test, the officer observed four out of the six possible "clues,"² indicating possible intoxication. The officer also conducted the Vertical Gaze Nystagmus Test. This test was also positive, indicating that "whatever depressant is causing [Defendant’s] nystagmus is at a high dose in his system." Next, the officer asked Defendant to perform the walk-and-turn test and the one-leg stand test. Defendant informed the officer he could not perform these tests because he had a bad leg. The officer then asked Defendant to recite a portion of the alphabet and count backwards, and Defendant declined. Finally, the officer read Defendant the Missouri’s Implied Consent Law, and asked Defendant to submit to chemical breath and urine tests to determine the blood alcohol content in Defendant’s system. Defendant declined again. Defendant was then arrested and charged with driving while intoxicated and driving with a revoked license.

Prior to trial, Defendant filed a motion to suppress all of the evidence obtained by the officer following the traffic stop, on the ground that the evidence was obtained in violation of Defendant’s constitutional right to be free from unreasonable searches and seizures because the traffic stop was not supported by reasonable suspicion. The trial court held a hearing on the motion to suppress, during which the officer testified to the aforementioned facts. The officer also testified that he had more than eight years of experience as a police officer, and received special training in DWI enforcement and visual detection of impaired driving. During the officer’s training, he learned that driving more than ten miles per hour under the posted speed limit, weaving within a lane, and driving late at night in the vicinity of taverns are all indicators of possible impaired driving.

The trial court denied the motion to suppress, finding the officer’s testimony was credible and concluding Defendant’s rights were not violated because the traffic stop was justified by reasonable suspicion. Defendant filed a motion to reconsider, which was taken with the case. Defendant renewed his objection when the State introduced the evidence at trial. The trial court denied the motion to reconsider and allowed the State to proceed with the evidence.

Also prior to trial, Defendant filed a motion in limine to exclude any reference to his prior criminal convictions, to which the State consented. At trial, Defendant called his girlfriend as a witness. During cross-examination, the State asked the girlfriend whether she recalled testifying as an alibi witness for Defendant in a different case in another division, to which the witness answered "I don't remember."³ Defendant objected and requested to approach the bench. The trial court held a sidebar outside of the hearing of the jury, during which the court said it would sustain the objection. Defendant moved for a mistrial, and the trial court denied the request. Defendant also requested that the trial court instruct the jury to disregard the State’s question, and the court denied that request as well. The proceedings then returned to open court. The court did not sustain Defendant’s objection in front of the jury. Neither the State nor Defendant asked the witness any further questions.

After the jury returned guilty verdicts, Defendant filed a motion for a new trial, arguing the trial court erred and abused its discretion in denying his motion to suppress evidence, in denying his motion for a mistrial, and in denying his request to instruct the jury to disregard the State’s reference to his girlfriend’s testimony as an alibi witness in a different criminal case. The trial court denied the motion. The court stated it denied the motion for a mistrial and the request for a curative instruction because the court believed Defendant had not suffered any prejudice at that point, and the court "did not want to call attention to the fact that [the court] already sustained [Defendant’s] objection by striking the question." The trial court sentenced Defendant to five years in prison. This appeal follows.

Discussion

Defendant asserts three points on appeal. In Point I, Defendant argues the trial court abused its discretion in denying his request for a mistrial after the prosecutor insinuated that the defense witness was an alibi witness for Defendant in another criminal case. In Point II, Defendant argues the trial court erred or abused its discretion in failing to instruct the jury to disregard the State’s question to Defendant’s girlfriend regarding a different court case. In Point III, Defendant argues the trial court erred in denying his motion to suppress, and subsequently admitting, evidence obtained by the arresting officer after the traffic stop, in violation of his constitutional right to be free from unreasonable searches and seizures because the traffic stop was not supported by reasonable suspicion, in that "touching the fog line of a driving lane several times does not alone give an officer reasonable suspicion that criminal activity is afoot."

I. Point One—Refusal to Grant a Mistrial

In Point I, Defendant argues the trial court abused its discretion in denying his request for a mistrial after the State insinuated that the defense witness was an alibi witness for Defendant in another criminal case. We disagree.

The decision to grant or deny a mistrial is within the sound discretion of the trial court. State v. Jones , 921 S.W.2d 28, 32 (Mo. App. W.D. 1996). Granting a mistrial is a drastic remedy that is only warranted in "extraordinary circumstances in which the prejudice to the defendant cannot otherwise be removed." Id. (quoting State v. Ward , 242 S.W.3d 698, 704 (Mo. banc 2008) ). "The trial court is in a better position to determine the prejudicial effect, if any, of improper evidence and to determine whether any prejudice that results can be ameliorated by less drastic means tha[n] declaring a mistrial." Croxton v. State , 293 S.W.3d 39, 42 (Mo. App. E.D. 2009). We review a trial court’s refusal to grant a mistrial only for an abuse of discretion. State v. Meyers , 333 S.W.3d 39, 43 (Mo. App. W.D. 2010). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before it and the ruling is so arbitrary and unreasonable as to shock the appellate court’s sense of justice and indicate a lack of careful consideration. Id. On appeal we will only reverse where the error was so prejudicial that it deprived the defendant of a fair trial. Id.

When analyzing the prejudicial effect of an uninvited reference to evidence of a defendant’s other crimes, this Court considers five factors:

(1) whether the statement was, in fact, voluntary and unresponsive [to the prosecutor’s questioning if the prosecutor asked the question] ... or whether the prosecution "deliberately attempted to elicit" the comments

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