State v. Garriott

• Decision Date: 21 December 2004
• Docket Number: No. WD 63714.,WD 63714.
• Citation: 151 S.W.3d 403
• Parties: STATE of Missouri, Respondent, v. David Wayne GARRIOTT, Appellant.
• Court: Missouri Court of Appeals

151 S.W.3d 403

STATE of Missouri, Respondent, v. David Wayne GARRIOTT, Appellant.

No. WD 63714.

Missouri Court of Appeals, Western District.

December 21, 2004.

F. Randall Waltz, III, Jefferson City, MO, for Appellant.

Carol A. England, Fulton, MO, for Respondent.

Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Mr. David Wayne Garriott was convicted of driving while intoxicated and failing to yield to an emergency vehicle. Mr. Garriott claims that the trial court erred in denying his motion to suppress all the evidence obtained after he was stopped by the police officer because the stop was an unreasonable search and seizure. He also claims that there was insufficient evidence to support the conviction for failure to yield. And he claims that his application for a change of judge should have been granted because the judge was biased and prejudiced against him. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 23, 2002, Missouri State Highway Patrol Trooper Scott Carey was traveling westbound on Route F. As he was making a left-hand turn onto Airway Drive, he observed one pick-up truck rear end another pick-up truck at a stop sign on the corner of Airway Drive and Route F. Mr. Garriott was the driver of the front truck.

Mr. Garriott was stopped at the stop sign when the other truck struck him. Trooper Carey described the impact as hard enough that it jolted Mr. Garriott's truck. Mr. Garriott described the impact as a minor bump that had no jarring effect. Trooper Carey activated his lights and turned around to investigate the accident. As he approached, Mr. Garriott had already turned right and driven westbound down Route F, without stopping to assess any damage or to speak to the driver who rear-ended him. Trooper Carey motioned to the driver of the rear truck to follow him and proceeded after Mr. Garriott's truck. The driver who struck Mr. Garriott did not actually follow Trooper Carey and drove off. At some point while following Mr. Garriott, Trooper Carey turned on his siren. Mr. Garriott then pulled over onto the shoulder before reaching Hawk Lake Road.

Trooper Carey testified that it took longer than a vehicle normally takes for Mr. Garriott to pull over. He also testified that Mr. Garriott probably traveled one-half to three-quarters of a mile between when Trooper Carey first activated his lights at the intersection of Airway Drive and Route F and when Mr. Garriott actually pulled over. Mr. Garriott claimed that after he was rear-ended he waited until he saw that Trooper Carey was driving off before he turned onto Route F. He testified that after he had driven about one-quarter of a mile he saw Trooper Carey's lights in his rearview mirror and immediately pulled over.

Trooper Carey testified that he followed and stopped Mr. Garriott's truck because he became concerned when the vehicle left the scene of the accident, particularly since Mr. Garriott was the victim. Trooper Carey wanted to make sure that Mr. Garriott was not hurt because he had seen other people injured in accidents with that magnitude of impact. Trooper Carey also testified at the motion to suppress hearing that he was concerned that this might be a road rage incident or that a fight could result. And he stated that he wondered why the victim would drive off from the scene of an accident, unless he had an outstanding warrant or was intoxicated.

Once Trooper Carey stopped Mr. Garriott and approached his car to speak with him, the trooper detected the odor of intoxicants coming from the truck. Trooper Carey asked Mr. Garriott to step out of the car. He noticed that Mr. Garriott's speech was slurred. He asked Mr. Garriott to perform five field sobriety tests. After they were completed, Trooper Carey determined that Mr. Garriott was intoxicated and placed him under arrest. Mr. Garriott refused to take a breathalyzer test, and the Director of Revenue revoked his driver's license¹ under section 577.041.²

When Trooper Carey asked Mr. Garriott why he drove off, Mr. Garriott said that his truck was old and he did not care even if there was any damage to it.

Mr. Garriott was charged with driving while intoxicated, in violation of section 577.010 (count 1), and with failing to yield to an emergency vehicle, in violation of section 304.022 (count 2). Four different judges were assigned to Mr. Garriott's case. The first judge recused himself; the State moved to recuse the second judge, who then recused himself because he had heard Mr. Garriott's civil appeal of his driver's license revocation; and Mr. Garriott moved to disqualify the third judge.

Mr. Garriott filed a motion to suppress all evidence obtained after Trooper Carey stopped him, claiming that the stop violated the Fourth Amendment of the United States Constitution because it was an illegal search and seizure and, therefore, all evidence collected after the stop could not be considered. This motion was denied.

A bench trial was scheduled but Mr. Garriott and his counsel arrived late because defense counsel had the wrong time written down. The trial was continued to another date because they were in the jury deliberation room and the recording equipment was not working properly. The judge made the following hand-written docket entry:

11-3-03 State by England. > [defendant] in person & by counsel Randall Waltz. Ct notes cause was set and notice given for trial at 1:00 pm this date. > and counsel fail to appear until 1:30 pm. > files Motion for Findings of Fact and Conclusions of Law. > given leave to amend by interlineation. Due to lack of courtroom space in courthouse, cause called in Jury Deliberation room. Recording equipment fails to operate properly. Cause con't & reset 1:00 pm 11-24-03. All costs incurred this date by witnesses for State to be taxed to >.

On November 14, 2003, Mr. Garriott filed an Application for Change of Judge. He alleged that the judge was biased and prejudiced against him and manifested irritation with him by ordering the continuance and costs be assessed against him when the continuance was not due to his late arrival but to the failure of the recording equipment to work properly. This motion was overruled.

At the bench trial, he objected to all evidence obtained after he was pulled over by Trooper Carey. The court watched a video of the pursuit and arrest of Mr. Garriott.³ The trial court found Mr. Garriott guilty on both counts. He was sentenced to thirty days in jail on count 1 and two days in jail on count 2, both sentences to run concurrently. Both sentences were suspended on the condition of completion of two years of unsupervised probation.

Mr. Garriott appeals both convictions and brings three points on appeal. First, he claims that the trial court erred in overruling his motion to suppress because all of the evidence obtained after he was pulled over was the result of an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution, and should, therefore, be excluded. Second, he claims that the trial court erred in finding that he was guilty of failing to yield to an emergency vehicle because there was insufficient evidence to support finding that he did not immediately stop. Finally, he alleges that the trial court erred in not sustaining his Application for Change of Judge because by ordering him to pay the costs of the continuance that was not his fault, the judge violated the code of judicial conduct.

II. LEGAL ANALYSIS

A. Motion to Suppress

In Mr. Garriott's first point relied on, he claims that the trial court erred in overruling his motion to suppress. When a defendant's pretrial motion to suppress evidence is overruled and the defendant objects to admission of the evidence at trial, we will review denial of the motion. State v. Rowe, 67 S.W.3d 649, 654 (Mo.App. W.D.2002). This review is limited to a determination of whether the denial is supported by substantial evidence. Id. We will reverse the trial court's ruling on a motion to suppress only if that ruling is clearly erroneous, which requires us to have a definite and firm belief that a mistake has been made. Id. We view the facts and all reasonable inferences therefrom in the light most favorable to the trial court's ruling. Id. We defer to the trial court's factual findings and credibility determinations, while we review questions of law de novo. Id. Whether or not the Fourth Amendment has been violated is a question of law. State v. David, 13 S.W.3d 308, 311 (Mo.App. W.D.2000). But the interpretation of the facts and circumstances related to the seizure is still "a matter of some discretion." Id.

When a motion to suppress is filed, the state bears the burden of producing evidence and the risk of non-persuasion to show by a preponderance of the evidence that the motion to suppress should be overruled. § 542.296.6; State v. Abeln, 136 S.W.3d 803, 807 (Mo.App. W.D.2004).

A police officer may make an investigatory stop, without probable cause, when the officer has a reasonable suspicion that the person is engaged in criminal activity. State v. West, 58 S.W.3d 563, 568 (Mo.App. W.D.2001). A traffic stop is justified if based on the violation of traffic laws. State v. Hoyt, 75 S.W.3d 879, 882-83 (Mo.App. W.D.2002). "A traffic stop may also be justified by observation of conduct which may not itself constitute a traffic violation but merely an unusual operation [of the vehicle]." State v. Mendoza, 75 S.W.3d 842, 845 (Mo.App. S.D.2002) (internal citations and quotation marks omitted). The stop must be justified from its inception, and must be based on specific and articulable facts known to the officer. West, 58 S.W.3d at 568. This is an objective standard, considering the totality of the circumstances, which do not have to exclude the possibility of innocent behavior. State v. Thompson, 826 S.W.2d 17, 19 (Mo.App. W.D.1992).

In this case, Trooper Carey observed what h...