State v. Kaiser

• Decision Date: 09 February 1976
• Docket Number: No. 59100,59100
• Citation: 534 S.W.2d 19
• Parties: STATE of Missouri, Respondent, v. Charles David KAISER, Appellant.
• Court: Missouri Supreme Court

Page 19

534 S.W.2d 19

STATE of Missouri, Respondent, v. Charles David KAISER, Appellant.

No. 59100.

Supreme Court of Missouri, En Banc.

Feb. 9, 1976.

James F. Crews (Kibbe, Crews & Gaw), Tipton, for appellant.

John C. Danforth, Atty. Gen. (Robert L. Presson), Jefferson City, for respondent.

PER CURIAM:

Upon application of plaintiff-respondent, this cause was transferred to this court from the Court of Appeals, Kansas City District, after the filing of an opinion therein. The same has been re-argued and submitted in this court, and we approve and adopt as our own the opinion heretofore written by Higgins, S.J., without the use of quotation marks, as follows:

Charles David Kaiser was convicted by a jury of a third offense of driving a motor vehicle while intoxicated, a felony. His punishment was assessed at 90 days' confinement in the county jail, and sentence and judgment were rendered accordingly. Section 564.440, RSMo 1969.

The information charged: that Charles David Kaiser was, on September 11, 1968, convicted in the Magistrate Court of Cooper County, Missouri, of driving while intoxicated, a misdemeanor, ordered to pay a fine of $100, and did pay such fine; and was, on August 22, 1969, convicted in the Magistrate Court of Boone County, Missouri, of driving while intoxicated, a misdemeanor, sentenced to 15 days' confinement in the county jail; and thereafter on December 31, 1971, in Moniteau County, did wilfully, unlawfully and feloniously drive a motor vehicle while in an intoxicated condition.

Although questioning the admissibility of a Breathalyzer test, appellant does not otherwise question the sufficiency of evidence to show that he drove a motor vehicle while intoxicated; and a jury reasonably could find that on December 31, 1971, at about 2:30 a.m., defendant was observed driving his automobile in California, Moniteau County, Missouri; that the automobile was weaving; that defendant signaled for a turn which he did not make, and drove through two stop signs without stopping; that defendant's face was flushed, his eyes were bloodshot, his clothing was somewhat disarranged, he was sleepy, and the odor of alcohol was on his breath; that the reading on the Breathalyzer test showed defendant to be intoxicated at the time it was administered shortly after his arrest; that arresting officers were of the opinion defendant was intoxicated.

Appellant contends the court erred in requiring defendant, over his objection and claim of immunity from self-incrimination, to testify against himself and to supply evidence to convict himself with respect to the two former convictions necessary to make the instant charge a felony.

Under Section 564.440, supra, one who operates a motor vehicle while in an intoxicated condition is deemed guilty of a misdemeanor on conviction for the first two violations, and a felony on conviction for the third and subsequent violations. 'Evidence of prior convictions shall be heard and determined by the trial court, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon.'

The trial court, pursuant to the statute, conducted a hearing in chambers prior to impaneling the jury and the following transpired:

'The information here alleges that this is the third offense * * * Mr. Crews, does the defendant admit those two convictions? MR. CREWS (for defendant): No, Your Honor. MR. HAWK (prosecuting attorney): Your Honor, at this time I would ask that the defendant be sworn. THE COURT: All, right.

'CHARLES DAVID KAISER, being duly sworn, testified as follows:

'DIRECT EXAMINATION BY MR. HAWK:

'Q Would you state your full name for the record, please. A Charles David Kaiser. Q Mr. Kaiser, is it true that on September 11 of 1968 that you were convicted of driving while intoxicated in the Magistrate Court of Cooper County, Missouri?

'MR. CREWS: I will enter my objection to that question upon the basis it is requiring him to testify against himself in this case. There is a method of proof by which the Prosecutor can prove up the two prior convictions and this questioning is improper.

'THE COURT: The objection is overruled. He will be required to answer.

'A Yes, sir.

'Q (By Mr. Hawk) You were convicted upon September 11, 1968 in the Magistrate Court of Cooper County, Missouri, of driving while intoxicated? A Yes, sir.

'Q And in compliance with your conviction you were assessed a fine of $100.00, a week end in the county jail and the costs of $11.00, and the jail sentence was suspended, is that correct? A Yes, sir.

'Q Also, Mr. Kaiser, is it true that upon the 22nd day of August, 1969, in the Magistrate Court of Boone County, Missouri, that you were convicted of driving while intoxicated, as a second offense?

'MR. CREWS: I will enter my objection to that question, too, Your Honor, same ground. THE COURT: Objection overruled.

'Q (By Mr. Hawk) You may answer. A Yes, sir. Q The answer was yes? A Yes, sir.

'Q Is it also true that upon your conviction of that offense that the Court did pronounce a sentence upon you that you were sentenced to 15 days in the Boone County jail and the costs, which was $11.00 and your license was revoked for one year thereafter? A Yes, sir.'

In addition, the State offered and the court received two transcripts of proceedings purporting to show the foregoing previous convictions. One such transcript showed that Charles David Kaiser was, on September 11, 1968, convicted in the Magistrate Court of Cooper County, Missouri, of driving a motor vehicle while intoxicated, ordered to pay a fine of $100, and did pay such fine. The second such transcript showed that Charles David Kaiser was, on August 22, 1969, convicted in the Magistrate Court of Boone County, Missouri, of driving a motor vehicle while his operator's license was revoked, and sentenced to three days' confinement in the county jail.

It is obvious from the foregoing that, aside from the admissions forced from defendant over his objection, the State failed to show two prior misdemeanor convictions of defendant for driving while intoxicated in order to make and try the current charge as a felony.

The question is whether the procedure employed by the court violated the defendant's constitutional immunity from self-incrimination.

In this case the proof of defendant's prior misdemeanor convictions for driving while intoxicated was an integral part of the trial affecting his substantive rights. The hearing for that purpose was necessary to determine whether defendant was properly and correctly charged with a first or second offense misdemeanor or with a felony and how to instruct the jury on punishment limits if found guilty. State v. Myers, 470 S.W.2d 803, 805(4) (Mo.App.1971).

Article I, Section 19, Constitution of Missouri, provides: 'That no person shall be compelled to testify against himself in a criminal cause * * *.' The courts in Missouri have consistently held thereunder that a defendant cannot be compelled to incriminate himself with respect to any of his substantive rights during a criminal trial, e.g., State ex rel. Attorney General v. Simmons Hardware Co., 109 Mo. 118, 18 S.W. 1125, 1127 (1892), "* * * a witness cannot be compelled to give a link to a chain of evidence by which his conviction of a criminal offense can be insured * * *." See also State v. Topel, 322 S.W.2d 160 (Mo.App.1959); State ex rel. Howard v. Allison, 431 S.W.2d 233 (Mo.App.1968). The respect accorded the constitutional immunity from self-incrimination is well stated in State v. Faulkner, 175 Mo. 546, 75 S.W. 116, 135 (Mo.1903): 'In Missouri it forms one of the sections of our Bill of Rights and organic law. 'No person can be compelled to testify against himself in a criminal cause.' In every state of the Union a similar provision is found in its Constitution. It is also firmly embodied in the Constitution of the United States. The courts have jealously enforced it in all cases in which it was properly invoked. * * * Boyd v. United States, 116 U.S. 616, loc. cit. 631, 6 S.Ct. 524, 29 L.Ed. 746, voiced the sentiment of all American courts * * *: 'Any compulsory discovery by extorting the party's oath or compelling the production of his private books and papers to convict him of crime or to forfeit his property is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman. It is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.' In our own jurisprudence, from the first volume of our Reports down to the last, the same principle has been fearlessly announced and adhered to.'

Only by proof of two prior misdemeanor convictions for driving a motor vehicle while intoxicated could this defendant be tried, convicted and punished as a felon. Such proof was lacking other than that required from the accused himself in violation of his constitutional immunity from self-incrimination.

Respondent argues that the transcript exhibits were sufficient in themselves to prove the prior misdemeanor convictions, and thus the error in requiring testimony to the same effect from defendant was harmless error. This may be true with respect to the Cooper County conviction because the transcript did establish that conviction, and error in requiring the same evidence from defendant was thus rendered harmless. State v. McCollum, 377 S.W.2d 379 (Mo.1964). The same is not true, however, with respect to the alleged conviction for driving while intoxicated in Boone County because there was no proof of such other than the admission forced from defendant; and the trial for a third offense as a felony still fails.

Accordingly, the judgment is reversed and the cause is remanded.

SEILER, C.J., and MORGAN, BARDGETT, HENLEY and DONNELLY, JJ., concur.

FINCH, J., dissents in separate dissenting opinion filed.

HOLMAN, J., dissents and...