State v. Martin

• Decision Date: 09 April 2012
• Docket Number: No. SD 30957.,SD 30957.
• Citation: 388 S.W.3d 528
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Katherine C. MARTIN, Defendant–Appellant.
• Court: Missouri Court of Appeals

388 S.W.3d 528

STATE of Missouri, Plaintiff–Respondent,

v.Katherine C. MARTIN, Defendant–Appellant.

No. SD 30957.

Missouri Court of Appeals,

Southern District,

Division One.

March 13, 2012.

Motion for Rehearing or Transfer Denied

April 9, 2012.

Richard H. Sindel, Clayton, MO, for Appellant.

Chris Koster, Attorney General, Timothy A. Blackwell, Jefferson City, MO, for Respondent.

NANCY STEFFEN RAHMEYER, Judge.

Katherine C. Martin (“Appellant”) appeals her conviction for driving while intoxicated. She brings four points on appeal: the first two points claim a judgment of acquittal should have been granted; the third that the court failed to take judicial notice of a previous civil case; and, finally, a complaint about the State's closing argument. We find no error and affirm the judgment.

In February of 2009, Crystal Cox, a dispatcher with Crawford County 911, was driving on I–44 towards Cuba, Missouri; Crystal Rodriquez, a deputy with the Crawford County Sheriff's Department, was a passenger in Cox's vehicle. They observed an SUV swerving and weaving between lanes. Rodriquez called dispatch and gave the license plate number and a description of the vehicle. The Cox vehicle and the SUV both exited at the 208 mile marker at Cuba, Missouri.

Officer Benjamin Scharfenberg, with the Cuba Police Department, then received the dispatch regarding a possible drunken driver in a white Range or Land Rover.¹ He was given the license plate number of the vehicle. Soon after, central dispatch informed Scharfenberg that the law offices of Lange and Lange ² had reported a female who appeared to be intoxicated inside the building. When he traveled to the law offices, he observed Appellant's vehicle, which had the same license plate number as that earlier reported. Appellant's vehicle was parked so that the front tires went over the parking stop and at least one tire was on the sidewalk. No one from Lange and Lange testified that Appellant had been observed driving her vehicle to the offices.

Scharfenberg entered the building and found Appellant on the telephone. The officer noticed that Appellant was swaying back and forth while standing and smelled of alcohol. When asked by Scharfenberg for her identification and if she had been driving her vehicle, Appellant stated that her friend Katie had been driving. The officer inquired to Katie's whereabouts, and Appellant responded that Katie worked at H & R Block and pointed to an H & R Block building which was visible about half a block away. Scharfenberg asked if Katie was at the H & R Block building, but Appellant responded “no, she just works there.” Appellant could not or would not provide Katie's last name or her current whereabouts. Scharfenberg also testified that while he was with Appellant at the law offices he spoke with Rodriquez on the phone and obtained her description of the driver she saw on the interstate, which was someone with short, blondish-brown hair who was wearing a dark shirt and big, black sunglasses. Appellant matched that description.

Scharfenberg asked Appellant to recount the past three hours and she responded, “I had lunch at the Locker Room and had two drinks, then I drove to Cuba to pick up my files at Lange and Lange and that's when you guys showed up.” Based on his training, experience, and observation of Appellant's behavior and statements, Scharfenberg believed that Appellant was very intoxicated. Lieutenant Paul Crow also arrived on the scene and had Appellant attempt a field sobriety test. He too believed her to be intoxicated.

Thereafter, Scharfenberg transported Appellant to the police station. At the station, Scharfenberg asked Appellant to perform the one-leg stand and the nine-step walk and turn field sobriety tests. Appellant stated during the tests, “I can't do these tests[.] I'm too drunk but it should not make any difference because I was not driving.” Scharfenberg agreed that her lack of balance could cause her injury if she were to continue attempting the tests. Lieutenant Crow administered a breath alcohol test and Appellant's blood alcohol content registered at .348 percent. At that point, Scharfenberg placed Appellant under arrest and planned to take her to jail; however, due to Appellant's high blood alcohol content, Scharfenberg transported her to Missouri Baptist Hospital to have her examined by medical professionals and obtain a statement from them indicating that she did not have alcohol poisoning and was fit for confinement in the jail. On the way to the hospital Appellant continually asked to be released, attempted to bribe Scharfenberg with money, and offered to go home with him for the night if he would release her. The medical professionals determined that Appellant was fit for confinement and Scharfenberg transported her to jail.

At the request of the Cuba Police Department, Cox and Rodriquez traveled to the police headquarters the same day they had seen the erratic driving on the interstate. While at the police station, Cox was asked if she could identify Appellant as the intoxicated driver. Cox testified that when she identified Appellant as the intoxicated driver, Appellant was in the middle of taking a field sobriety test. Cox testified that she identified Appellant at the police station when her memory of the driver was better but, on cross-examination, stated that she did not know for certain that Appellant was the driver, only that Appellant looked like the driver. Similarly, Cox was unable to make a positive court room identification of Appellant as the driver. Cox did, however, testify that she drove past a white SUV on I–44 and, while looking in her rear view mirror, saw a woman with blondish-brown hair wearing a black blouse. Cox did not remember the driver wearing black sunglasses.

Rodriquez provided a written statement concerning the vehicle and the driver that she had seen earlier that day. In her statement, which was given nearly sixteen months before trial, Rodriquez declared that she observed “a white vehicle swerving and weaving” and described the driver as “a white female with blondish-brown hair, short in length.” At trial, Rodriquez testified that she had the opportunity to observe the person driving the vehicle. She testified that the driver had short, blondish-brown hair, was wearing a black shirt, and was wearing sunglasses. She testified that they drove alongside the vehicle, she could clearly see the driver, and that they never passed the car. Rodriquez also stated that she could only “vaguely remember” but she believed the vehicle was a black SUV. Rodriquez identified Appellant at trial as the driver she witnessed swerving on the interstate.

Officer Scharfenberg testified that no one from the police department went to H & R Block on the day Appellant was arrested and no one interviewed witnesses from H & R Block until May of 2010. Rhonda Birkner, an employee of the H & R Block in Cuba, testified that no one by the name of Katie worked in her office, that there was a Katie in the Rolla office, and that neither that Katie nor the police were in the office on the day Appellant was arrested.

Appellant requested that the trial court take judicial notice of its own findings as to the credibility of the prior testimony of the State's eyewitnesses in the previous civil case between Appellant and the Director of Revenue (“the Civil Case”). The court denied the request because the State was not a party to the previous proceeding and because the two cases involved different standards of proof.

The trial court found Appellant guilty of driving while intoxicated and sentenced her to four years imprisonment but suspended execution of that sentence. This appeal followed.

Appellant's points are as follows:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE AND IN SUBSEQUENTLY FINDING THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT OF DRIVING WHILE INTOXICATED, BECAUSE—AFTER APPLYING THE PRESUMPTION THAT THE COURT COULD ONLY CONSIDER ADMISSIBLE EVIDENCE, AND THEREFORE NOT CONSIDERING ALL THE EVIDENCE PRESENTED TO THE COURT THAT WAS INADMISSIBLE DUE TO: (1) THE COURT'S PREVIOUS FINDING IN THE TRIAL DE NOVO AGAINST THE DEPARTMENT OF REVENUE THAT THERE WAS NO PROBABLE CAUSE TO ARREST THE DEFENDANT AND THE APPLICATION OF COLLATERAL ESTOPPEL, AND (2) THE FACT THAT IDENTIFICATION EVIDENCE WAS BASED ON PROCEDURES THAT WERE IMPERMISSIBLY SUGGESTIVE RENDERING THE IDENTIFICATIONS OF APPELLANT UNRELIABLE—THERE WAS INSUFFICIENT REMAINING CREDIBLE AND RELIABLE EVIDENCE TO FIND THAT THE DEFENDANT “OPERATED A MOTOR VEHICLE WHILE INTOXICATED” AS REQUIRED FOR A CONVICTION IN THAT TESTIMONY OF THE STATE'S EYEWITNESSES AND SUBSEQUENT IDENTIFICATION OF THE DEFENDANT WAS SO INCONSISTENT AND CONTRADICTORY THAT THEY COMPLETELY LACKED ANY PROBATIVE VALUE.

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE AND IN SUBSEQUENTLY FINDING THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT OF DRIVING WHILE INTOXICATED, BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT “OPERATED A MOTOR VEHICLE” AS REQUIRED FOR A CONVICTION, IN THAT THE IN–COURT TESTIMONY OF CRYSTAL RODRIGUEZ, THE ONLY WITNESS WHO IDENTIFIED APPELLANT AS THE DRIVER, WAS SO INCONSISTENT AND CONTRADICTORY THAT IT LACKED ANY PROBATIVE VALUE.

III. THE TRIAL COURT ERRED IN FAILING TO TAKE JUDICIAL NOTICE OF THE COURT'S OWN FILE IN THE CASE OF KATHERINE MARTIN V. DIRECTOR OF REVENUE, CAUSE NO. 09CF–CC00033, BECAUSE THE FILE WAS PHYSICALLY BEFORE THE COURT AND BECAUSE THE RECORD IN THAT CASE FORMED AN ESSENTIAL ELEMENT OF APPELLANT'S DEFENSE, IN THAT THE COURT HAD PREVIOUSLY FOUND THAT THE STATE'S EYEWITNESSES WERE NOT CREDIBLE BECAUSE THEIR TESTIMONY WAS SO CONFLICTING AND INCONSISTENT ACCOMPANIED BY THEIR INABILITY TO IDENTIFY THE DEFENDANT AS BEING THE OPERATOR OF THE MOTOR VEHICLE BY A PREPONDERANCE OF THE EVIDENCE IN THE...