State v. Galazin

• Decision Date: 23 October 2001
• Docket Number: SC83415
• Citation: 58 S.W.3d 500
• Parties: State of Missouri, Respondent v. Mark T. Galazin, Appellant. SC83415 Supreme Court of Missouri
• Court: Missouri Supreme Court

State of Missouri, Respondent v Mark T. Galazin, Appellant

SC83415

Supreme Court of Missouri

10/23/2001

Appeal From: Circuit Court of Miller County, Hon. Mary A. Dickerson

Counsel for Appellant: Timothy R. Cisar

Counsel for Respondent: Andrea Mazza Follett

Opinion Summary:

Mark Galazin was convicted of felony driving while intoxicated after he was stopped in Lakeview, Missouri, by a Lake Ozark police officer. At trial, Galazin objected that the Lake Ozark police officer was outside his jurisdiction when he stopped Galazin in Lakeview. Essentially, Galazin argued the arrest was illegal, but he never raised this objection in a motion to suppress evidence, either before the trial or during trial. The court overruled his objection, and Galazin appeals.

Court en banc holds: In a driving while intoxicated case, the state is not required to prove the lawfulness of a defendant's arrest. Any defendant who believes there has been an unlawful search or seizure must raise those claims in a pre-trial motion to suppress evidence. A court has the discretion to permit a motion to suppress during trial, where a defendant has no reason to anticipate the unlawfully seized evidence would be introduced. Here, Galazin never actually made a motion to suppress, and any claim that he was surprised by the officer's testimony is not supported by the record. He fails to prove either that his arrest was unlawful or that the trial court committed manifest injustice by permitting the officer's testimony.

Dissenting opinion by Judge White:

This writer would reverse and remand this case for a new trial. This writer sees no procedural bars to reaching the merits of Galazin's point on appeal. This writer contends that warrantless arrests made by municipal officers outside the boundaries of their municipalities are illegal in the absence of a statutory exception. Here, the court never received any evidence of such an exception, including evidence of a municipal aid contract between Lake Ozark and Lakeview.

Limbaugh, C.J., Wolff, Benton and Price, JJ., and Gaertner, Sp.J., concur; White, J., dissents in separate opinion filed. Stith, J., not participating.

John C. Holstein, Judge

Defendant Mark Galazin was found guilty of one count of felony driving while intoxicated and other charges after he was stopped and arrested in the town of Lakeview, Missouri. The arresting officer was a Lake Ozark, Missouri, police officer. Following opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. The judgment is affirmed.I.

Officer Patrick of the Lake Ozark police department, responding to a radio call, stopped Mark Galazin in Lakeview, Miller County, Missouri after observing his vehicle cross the center line of a road several times in a short distance. Galazin had no valid driver's license, and he failed three separate field sobriety tests. His speech was slurred, he smelled of intoxicants, and there were empty beer containers in his vehicle. The officer arrested Galazin, and at the station he refused to submit to a chemical or breath test. Galazin was charged with driving while intoxicated, sec. 577.010, RSMo 2000, failure to drive on the right side of the road, sec. 304.015, RSMo Supp. 1996, and driving while his license was suspended, sec. 302.321, RSMo Supp. 1997.

At trial, as the officer began to testify about his observations of Galazin's erratic driving, defense counsel objected and approached the bench:

Mr. Cisar: I have a foundation objection and I guess a relevancy question objection. He's testified he's a Lake Ozark police officer. He's testified he's essentially outside the city limits of Lake Ozark in the City of Lakeland at the corner of Business 54 and W at the Route C mart there. Lakeland may or may not have had a mutual aid compact or contract with Lake Ozark. They've now become a part of Lake Ozark this past election, but they weren't at the time. He's not inside the city limits of Lake Ozark. He's not indicated any necessity to come outside the city limits of Lake Ozark. He's about ready to testify about matters leading up to an arrest of Mr. Galazin outside the city limits of Lake Ozark, and I would object on the basis of foundation and relevancy.

The Court: Mr. Rives?

Mr. Rives: Well, Your Honor, this is a Miller County case, and the witness does operate in Lake Ozark which is within the confines of Miller County, and there is a mutual aid contract between the area where the defendant was arrested and Lake Ozark.

Mr. Cisar: There's been no evidence of that though.

Mr. Rives: If you want to voir dire the witness, voir dire the witness.

Mr. Cisar: It's not my burden.

The Court: He's making the objection, so you have to establish it.

[By the State]:

Q: Officer Patrick, you previously testified that you were an officer with the Lake Ozark Police Department; correct?

A. Yes, sir.

Q: And you were so on or about June 21, 1998?

A: Yes, sir.

Q: And you made contact with Mr. Galazin's vehicle in what area?

A: Lakeview.

Q: Lakeview, and that's Lakeview, Missouri?

A: Yes, sir.

Q: And did at or about June 21, 1998, to the best of your knowledge and belief, did Lake Ozark have a mutual aid contract with the City of Lakeview?

A: Yes.

Mr. Cisar: Your Honor, I'm going to object to that question on the basis of hearsay and best evidence. If there is such an agreement between the two city governments, it should be produced by that evidence and not by this gentleman's hearsay evidence, and he's not the contract--in other words, he doesn't have it on him, he's not the one that drafted it. If there's such a document in existence, that's the best evidence.The Court: As far as whether or not he can testify whether there was a mutual aid agreement, I agree with him. I think you can ask this officer what their duties were and what they were directed to supervise, and then if the objection is made that the mutual aid agreement has to be proved, the Court is going to overrule that. If you question him with regard to what was his territory, where he patrolled, then the Court's going to allow you to question him.* * *[By the State]:

Q: Officer Patrick, on or about June 21, 1998, you were employed by the City of Lake Ozark?

A: Yes.

Q: And in the capacity as a police officer?

A: Yes.

Q: And for lack of a better word, what was your area of operation?

Mr. Cisar: Your Honor, I am going to object to that on the basis again of hearsay and best evidence and foundation and ask permission to voir dire the witness.

* * *

[By the Defense]:

Q: Officer Patrick, the duties that you were-your area of operation that Mr. Rives was about ready to ask you about, you were told those by someone else?

A: Yes, sir, I was, by my training supervisor.

Q: And you've not read any specific contract that between Lakeview and the City of Lake Ozark regarding mutual aid; is that correct?

A: That would be correct.

Q: So everything you have knowledge of regarding your area of operation is someone else telling you that; is that correct?

A: That is correct.

Mr. Cisar: I would renew my objection, Your Honor.

The Court: If he is going to relate what someone told him, the objection is sustained. If he's going to testify based upon his carrying on of his duties, the objection is overruled.

Mr. Cisar: May I voir dire one more?

The Court: You may.

Q: Officer Patrick, your duties and your area of operation were how did you acquire this information? A: I was told this by my training officer at the time in which I was trained in the City of Lake Ozark.

[At the Bench]:

Mr. Cisar: Your Honor, everything he then is going to testify to is going to be something he was told by his training officer.

The Court: Where he works out of would not be hearsay.

Mr. Cisar: He was told he's allowed to work out of these areas, and that's how he got his information Your Honor. The Court: That's a different issue of what authority there is for him to do that. If the question is what area he worked out of, the objection is overruled. You may continue, Mr. Rives.

Due to two prior intoxication-related offenses within ten years, Mr. Galazin was found to be a persistent offender and sentenced to a term of four years imprisonment for driving while intoxicated. He was sentenced to two days in the county jail and a $500 fine for failure to drive on the right half of the highway. He appeals only the driving while intoxicated conviction.

II.

Rather than reasserting the evidentiary objections made at trial, the defendant makes the sole point on appeal¹ that the state presented "no evidence" that the officer had authority to arrest within the town of Lakeview, and that the trial court therefore should not have allowed the officer to testify about his stop, observations, and arrest of the defendant. Both his objections at trial and his point on appeal seem to be premised on a motion to suppress evidence. But, as the cited discussion in the trial court demonstrates, there was no motion to suppress made at any time before the trial court.

The defendant's point on appeal presupposes: (1) that the objections made at trial were understood by the trial court as a motion to suppress evidence, (2) that the trial court, in overruling the objections, was exercising its discretion to permit an untimely motion to suppress, and (3) that defendant was surprised that the arresting officer would testify about his observations during and after the arrest and where the arrest occurred. None of these assumptions are supported by the record. The point asserted on appeal is not preserved. The record also fails to establish plain error. A.

Unlawful search and seizure claims must be raised by a motion to suppress evidence before trial. Sec. 542.296.3; Rule 24.05.² In a driving while intoxicated case, the lawfulness of the defendant's arrest is not an element of the offense. The lawfulness of the arrest is instead a collateral issue, one that does not bear upon...