State v. Lindsey

Decision Date04 May 1999
Docket NumberNo. WD,WD
Citation996 S.W.2d 577
PartiesSTATE of Missouri, Respondent, v. Merle C. LINDSEY, Appellant. 54049.
CourtMissouri Court of Appeals

John W. Simon, Jefferson City, for Appellant.

Mikeal R. Lorraine, Fulton, for Respondent.

Before BRECKENRIDGE, P.J.; LOWENSTEIN, ULRICH, HANNA, SPINDEN, SMART, ELLIS, LAURA DENVIR STITH, EDWIN H. SMITH, HOWARD, and RIEDERER, JJ.

SMART, Judge.

Merle C. Lindsey was convicted, after jury trial, of driving while intoxicated in violation of § 577.010, RSMo 1994. 1 He challenges the sentence of ninety days confinement imposed by the trial court. Lindsey contends that the trial court erred in sentencing him to ninety days of confinement because the sentence reflected retaliation against him for exercising his right to trial by jury. He also complains that the sentence constituted cruel and unusual punishment in view of his current health because of the risk that he will die while serving his sentence in a county jail. Lindsey also challenges the trial court's action in overruling his challenges for cause to two members of the venire panel. Finally, Lindsey complains of irregularities in the trial court's acceptance of the jury's verdict on the basis that one of the jurors was taken to the hospital after the verdict was reached and was never polled.

Because we conclude that discussion of Lindsey's last three points would have no precedential value, we will affirm as to those points by summary order pursuant to Rule 30.25(b), and are furnishing to the parties a memorandum of the reasons for our decision as to those issues. In this opinion, we will address only the issue of whether the sentence of the trial court constituted unlawful retaliation for exercising the right to plead not guilty.

Factual Background

On April 17, 1996, at 9:45 p.m., Missouri State Highway Patrolman Ken Robinson investigated a vehicle stopped in the eastbound passing lane of I-70 in Callaway County. Trooper Robinson discovered Lindsey in the car, lying on his back with his feet outside the car and the car door open. The headlights of the car were on, the key was in the ignition and the gear shift was in neutral. Trooper Robinson was concerned about removing Lindsey from the car and moving the vehicle because it was an obvious traffic hazard. Eventually, with the assistance of another highway patrolman, Corporal Charles Easely, Trooper Robinson removed Lindsey from the car. Trooper Robinson formed the opinion that Lindsey was intoxicated, noting:

Mr. Lindsey had glassy, bloodshot eyes. He reeked of alcoholic beverage, the odor of alcoholic beverages. His clothes were mussed. His zipper was open when I first encountered him. He was--His speech was slurred and incoherent. He seemed to not be real sure of where he was or what he was even about.

When Trooper Robinson asked Lindsey whether he had been drinking, Lindsey admitted that he had "consumed a few beers" and some vodka. Lindsey also told the trooper that he had arrhythmia and was taking medication for that condition.

Trooper Robinson arrested Lindsey for driving while intoxicated. Lindsey asked the trooper several times what state he was in. At this point, Trooper Robinson conducted an inventory search of Lindsey's car before a tow truck arrived to take it away. When the trooper returned to his car to transport Lindsey, he noticed that Lindsey had urinated upon himself. Lindsey was then administered field sobriety tests. When asked to recite the alphabet, Lindsey reached the letter "G" before remarking, "Oh, hell with this sh--."

Lindsey was taken to Callaway Community Hospital in Fulton, Missouri. After the implied consent warning was read to him, Lindsey consented to a blood test. Reynold Rose, a registered nurse, drew a blood sample from Lindsey's left arm. Lindsey was found to have a blood alcohol level of .25.

Prior to trial, Lindsey requested a change of venue. The case was tried to a jury in Boone County. Lindsey testified in his own defense. He testified that he was seventy-eight years old at the time of his arrest and was in the process of moving from Overland Park, Kansas to Muncie, Indiana. Lindsey stated that he had an arrhythmic heart, for which he was taking medication. Lindsey testified that during his journey he stopped in Kansas City, Missouri, and had two beers. He further testified that he had several drinks consisting of vodka and orange juice which he drank behind the wheel during the journey.

Lindsey claimed he got sleepy and attempted to exit at Columbia, Missouri, but was prevented from exiting the highway by a truck which was following too closely. Lindsey claims that because he was sleepy he decided to pull to the shoulder of the highway. Although Lindsey acknowledged he did not remember all of what occurred, he disputed the assertion that he had stopped in the passing lane of the highway. He also disputed the fact that blood had been drawn. He based this upon his observation the following day that there was no marks or band-aids on his arm.

Following the verdict in the case, at the time of sentencing, the State asked the court to sentence Lindsey to ten days in the county jail and to impose a fine of $500.00. Defense counsel requested that Lindsey not be sent to jail. The following exchange took place:

THE COURT: All right. I show the parties are heard on the disposition. Punishment is fixed at 90 days in the Boone County Jail and a fine of $500, plus court costs and the $10 Crime Victim Compensation Fund judgment. Do you wish an appeal bond set?

MR. DODSON: Yes, Judge. You're not suspending the jail sentence?

THE COURT: No. The set of facts in this case were as bad as they could have possibly been. And even more remarkable was the Defendant's contention that he--accepting absolutely no responsibility or even acknowledging any wrongdoing. So most of your arguments, you know, as far as not repeating the offense, if somebody doesn't acknowledge they even did anything wrong, it would be hard to take the position that it won't happen again.

And I would agree with you the circumstances were highly unusual. It's absolutely amazing that no one got killed out there during this particular incident.

The Defendant's version of what happened, while he was on the stand, was completely at odds with all the evidence. He did not believe or accept the testimony of any of the State's witnesses; from the highway patrolman, to the nurse that drew the blood, to the chemist that ran the test. And there's been no accepting any responsibility for this event.

So--And since it was so incredibly dangerous and that sort of thing, it would be--it would not be in any way advisable for his well-being, or society at large, to just--certainly not to just do a fine and a nominal, minimal amount of jail time. It absolutely would be not acceptable to suspend imposition of sentence.

Lindsey appeals.

Lindsey contends that the trial court erred in imposing upon him a sentence nine times longer than the sentence recommended by the State which consisted of "a fine of $500 plus ten days in the county jail." Lindsey argues that the record establishes that the trial court imposed this harsher sentence upon him in retaliation for exercising his right to trial by jury.

Section 557.036.1 provides that the sentencing court is to determine the sentence in view of "all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant...." The trial court has a duty to undertake a case by case, defendant by defendant, evaluation in determining an appropriate punishment fashioned to both the crime and the criminal. State v. Brewster, 836 S.W.2d 9, 15 (Mo.App.1992). We presume that the trial court's experience and expertise enable the judge to consider appropriate sentencing factors and to disregard improper matters. State v. Vaughn, 940 S.W.2d 26, 30 (Mo.App.1997). The court exercises very broad discretion in its sentencing function. State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 22 (1946). Review is for abuse of discretion shown by "a motive [ ] of partiality, prejudice or oppression or induced by corruption." Id.

"A court may not use the sentencing process to punish a defendant, notwithstanding his guilt, for exercising his right to receive a full and fair trial." Vaughn, 940 S.W.2d at 29 (quoting United States v. Sales, 725 F.2d 458, 460 (8th Cir.1984)). In Thurston v. State, 791 S.W.2d 893, 896 (Mo.App.1990), the court, citing United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir.1982), explained:

It is well settled that an accused may not be subjected to more severe punishment simply because he exercised his right to stand trial.... The "courts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice."

While it is fundamental that a court cannot be permitted to punish a defendant more harshly merely because the defendant exercised his right to plead not guilty, a court may certainly take into account the character of the defendant, including his attitude concerning the offense. Thurston, 791 S.W.2d at 897. A judge is charged with the responsibility of imposing a punishment that fits both the offense and the offender. State v. Jones, 806 S.W.2d 702, 706 (Mo.App.1991). In this case, the judge's statements reflect consideration of both Lindsey's crime and Lindsey himself. The first part of her remarks shows her primary concerns:

The set of facts in this case were as bad as they could have possibly been. And even more remarkable was the Defendant's contention that he--accepting absolutely no responsibility or even acknowledging any wrongdoing. So most of your arguments, you know, as far as not repeating the offense, if...

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16 cases
  • Martin v. State
    • United States
    • Missouri Court of Appeals
    • 9 May 2017
    ...holding that the comment did not mean trial court factored in a failure to incriminate in assessing punishment); State v. Lindsey , 996 S.W.2d 577, 579 (Mo. App. W.D. 1999) (affirming on direct appeal a sentence nine times longer than that recommended by State where trial court admonished t......
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    • 24 October 2017
    ...for a defendant, the sentencing court has a duty to undertake a "case by case, defendant by defendant" assessment. State v. Lindsey , 996 S.W.2d 577, 579 (Mo. App. W.D. 1999). The sentencing court determines the prison sentence of a defendant in view of "all the circumstances, having regard......
  • Sexton v. Kemna
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    • 29 January 2002
    ...and expertise enable the judge to consider appropriate sentencing factors and to disregard improper matters." State v. Lindsey, 996 S.W.2d 577, 579 (Mo.App.1999). In this case, a new presentence report was prepared following Sexton's second conviction. At the sentencing hearing, the prosecu......
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    ...for a defendant, the sentencing court has a duty to undertake a “case by case, defendant by defendant,” assessment. State v. Lindsey, 996 S.W.2d 577, 579 (Mo.App. W.D.1999). Pursuant to Section 557.036, the sentencing court determines the prison sentence of a defendant in view of “all the c......
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