State v. Dagley

• Decision Date: 05 June 1990
• Docket Number: No. WD,WD
• Citation: 793 S.W.2d 420
• Parties: STATE of Missouri, Respondent, v. Lester Wayne DAGLEY, Appellant. 41959.
• Court: Missouri Court of Appeals

Page 420

793 S.W.2d 420

STATE of Missouri, Respondent, v. Lester Wayne DAGLEY, Appellant.

No. WD 41959.

Missouri Court of Appeals Western District.

June 5, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 31, 1990.

Application to Transfer Denied Sept. 11, 1990.

David S. Durbin, Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, C.J., and SHANGLER and FENNER, JJ.

NUGENT, Chief Judge.

Defendant Lester Wayne Dagley appeals from his conviction on two counts of involuntary manslaughter and leaving the scene of a motor vehicle accident. He received concurrent sentences of six years on each manslaughter conviction and three years on the conviction of leaving the scene of a motor vehicle accident. ¹

We affirm the judgment of the trial court.

Early in evening of December 7, 1985, Darrell Scott and Randy Simpson drove a 1955 Ford Thunderbird west on Highway 92 toward Kearney. Just after they had crossed the Clear Creek Bridge, the young men pulled onto the two-lane highway's right shoulder to replace the left rear wheel, which had fallen off. Because of the shoulder's narrowness, when they parked, only a car length or two from the edge of the bridge, the driver's side of the T-Bird extended at least a foot into the highway's westbound lane. Thus, while working on the tire, one of the young men squatted several feet into that lane. The other young man held a flashlight and stood near the rear of the car, at times warning oncoming motorists.

The record includes differing testimony of the evening's conditions. Some witnesses testified that night had already fallen, but others testified that they had not yet needed to turn on their headlights. The record does show that the T-Bird had an illuminated left headlight, although it does not conclusively show that the car had a lighted taillight. In addition, although some witnesses testified that they found the road and air generally dry that evening, police witnesses described the evening as damp, the road as "wet" and "gritty."

A little before six-thirty, Curtis and JoAnn Hamilton and their son, heading east in their car, approached the disabled T-Bird. Immediately behind them drove Otis and Laverne Peek in a pickup truck. Both couples testified that as they approached the disabled car, westbound motorists passing them flashed their headlights. Upon seeing the T-Bird and the young men, the Hamiltons slowed, passed the scene, and crossed the narrow bridge. According to trial testimony, at that time from one to three westbound cars crossed the bridge and passed the Hamiltons.

The Peeks meanwhile pulled over onto the south shoulder of the road to allow those cars to drive around the disabled car and the two young men by pulling into the eastbound lane. The Peeks testified that they, the Hamiltons and the drivers of the westbound cars all slowed to a low speed in passing the T-Bird.

After the last car had passed, the Peeks crossed the bridge. As they left the bridge, a Westbound black pickup truck passed them travelling at about fifty-five to sixty miles per hour. Ms. Peek exclaimed her fear that the truck would hit the disabled car. Ms. Hamilton testified that when the black truck passed her she too feared a collision.

Moments after the black pickup passed the Peeks, they and the Hamiltons heard a crash. Ms. Peek testified that she looked over her shoulder and saw through her truck's rear window, sparks flying. The Peeks turned around and returned to the disabled T-Bird. They drove along slowly past the car and stopped when they saw Messrs. Scott and Simpson lying on the grass just beyond the gravel shoulder, over one hundred feet from the T-Bird. Ms. Peek got out to stay with them while her husband and son went for help. She found Mr. Scott unconscious but gasping for air; she took Mr. Simpson's pulse, but found none. While Ms. Peek waited, Laveta Smith and her daughter arrived, and the three covered the young men with their coats.

Meanwhile, Mr. Peek had reached a fire station and reported the accident. The Hamiltons soon returned to the scene, after trying unsuccessfully to telephone the authorities from a house where they could find no one at home. Soon, both fire fighters and police arrived at the scene, as did an ambulence and an emergency medical helicopter. One of the young men died at the scene of the accident, the other at a hospital not long after.

An officer responded to a dispatcher's call to go to a liquor store to take a report on a stolen vehicle. There the officer met and questioned defendant Dagley, who explained that at nine o'clock that morning he awoke to find his truck missing. He then went back to sleep, he explained, and upon getting up that afternoon, reported his truck stolen. He told the officers that he hoped the person who had stolen his truck had not hurt or killed somebody with it.

After receiving reports about the accident, the police read Mr. Dagley a Miranda warning, and he waived his right to remain silent, declaring that he had nothing to hide. During the questioning that followed, he admitted that he had had an accident early that evening at the bridge and signed a statement inculpating himself. He admitted that he indeed had driven the black pickup truck, striking the two young men. He further admitted that initially, he drove back to Kearney, his home, where he parked his truck and telephoned the police from a nearby liquor store to report that someone had stolen his truck that morning. He explained that he had fled the accident scene because he feared that, having already temporarily lost his license due to drunk driving, he would lose it again if caught driving drunk.

One of the interrogating police officers testified that he noticed a strong alcoholic odor on Mr. Dagley's breath. The officer also testified that Mr. Dagley appeared intoxicated and that a breathalizer test given to Mr. Dagley shortly after the accident revealed his blood alcohol level at .16 per cent. ²

The grand jury indicted Mr. Dagley on one count of leaving the scene of an accident and on two counts of involuntary manslaughter. The latter counts charged that while drunk Mr. Dagley had failed to maintain a proper lookout, failed to yield to a pedestrian, and failed to maintain proper control of his vehicle, thus striking and killing the two victims. Later, the prosecuting attorney filed a superseding information that charged the defendant with two counts of involuntary manslaughter and one count of leaving the scene. A petit jury convicted the defendant on all three counts.

An appellate court reviewing a criminal conviction must accept as true all evidence, whether direct or circumstantial, tending to prove the defendant's guilt. It must also accept all reasonable inferences supporting the verdict. State v. Williams, 652 S.W.2d 102, 111 (Mo.1983) (en banc). At the same time, the court must disregard all parts of the record contrary the verdict. State v. Brooks, 618 S.W.2d 22, 23 (Mo.1981) (en banc).

We first address Mr. Dagley's second and third points on appeal. In his second point, he contends that the trial court erred in sustaining the state's objection to testimony by a Missouri State Highway Patrol trooper on Mr. Dagley's driving and the location of the disabled T-Bird. Mr. Dagley argues that the questions to Sgt. Larry Williams elicited information relevant to his defense.

At trial, defense counsel asked Sgt. Williams whether the victims had parked the T-Bird illegally on the shoulder of the highway and whether Mr. Dagley had driven improperly. The state objected to each question, arguing that the questions required the trooper to draw legal conclusions. The trial court sustained the objections and denied defense counsel's motion to voir dire the witness outside the hearing of the jury.

Defense counsel failed to preserve the error for appellate review by making the required offer of proof. State v. Schneider, 736 S.W.2d 392, 401 (Mo.1987) (en banc), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988). "An offer of proof must demonstrate the relevancy of the testimony offered, must be specific, and must be definite." Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo.1983) (en banc). Usually, a proper offer of proof entails questions to a witness on the stand. School Dist. of Independence v. U.S. Gypsum Co., 750 S.W.2d 442, 453 (Mo.App.1988). Defense counsel did not specifically offer to demonstrate the relevance of the elicited testimony after the trial court sustained the state's objection. Nor did counsel offer to show for what definite purpose he elicited the testimony.

If at trial complete understanding exists regarding the elicited testimony, the objection refers to a category of testimony rather than to specific testimony, and the evidence will help its proponent, counsel need not make an offer of proof to preserve the trial court's error in refusing to admit the evidence. Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 883 (Mo.1985) (en banc). Here, however, the record does not show what Sgt. Williams would have said in response to the questions and consequently it does not show that the testimony would have helped Mr. Dagley.

Even if he had made a proper offer of proof, we can find no relevance in the conclusions defense counsel elicited from the...