State v. Neal

• Decision Date: 23 February 1972
• Docket Number: No. 57274,57274
• Citation: 476 S.W.2d 547
• Parties: STATE of Missouri, Respondent, v. Martin Van Buren NEAL, Appellant.
• Court: Missouri Supreme Court

Page 547

476 S.W.2d 547

STATE of Missouri, Respondent, v. Martin Van Buren NEAL, Appellant.

No. 57274.

Supreme Court of Missouri, En Banc.

Feb. 23, 1972.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, Zane White, Pros. Atty., Rolla, for respondent.

Jay White, Rolla, for appellant.

HOLMAN, Judge.

Defendant was convicted of operating a motor vehicle while in an intoxicated condition. See § 564.440. ¹ The jury fixed his punishment at a fine of $250. He appealed to the Springfield Court of Appeals (since January 1, 1972, Missouri Court of Appeals, Springfield District). That court, with one judge dissenting, reversed and remanded because of error in the admission of evidence holding that the Miranda rule is applicable to this misdemeanor offense. The court, however, recognizing that a question of general interest and importance is involved, transferred the case to this court for determination pursuant to Art. V, § 10, Mo.Const., V.A.M.S. It will be determined here 'the same as on original appeal.' Civil Rule 83.09, V.A.M.S.

We adopt a portion of the appeals court opinion of Judge Hogan, as follows:

'On August 22, 1969, during the evening hours, the Missouri State Highway Patrol was called to investigate an accident at the west overpass of Interstate Route 44 and 'City Route' in Rolla, Missouri. In the middle of the road, at the west end of the interchange, there is a concrete island between the lanes which lead to the north access road, and there is, or was, a signpost in the middle of the island, which is raised about six inches above grade. The investigating officer, Trooper Walter Aytes, found that the signpost was bent to the west, indicating it had been struck by a westbound vehicle which had jumped the curb and traveled across the island.

'Trooper Aytes found a 'trail of water and antifreeze, stuff of this type, on the highway leading away from the signpost, or the island, in a westerly direction along the access highway.' He followed this watery trail approximately two to two and one half miles and then turned north, where the trail of liquid 'ran out' on a gravel road. The trooper continued down the gravel road, and about a mile from where the trail of liquid ended he found the defendant, in an automobile, sitting in the middle of the road 'with the lights on.' There, in circumstances presently to be stated in detail, the trooper arrested the defendant, and this prosecution followed.

'One of the points raised by the defendant is that the trial court abused its discretion in refusing to segregate the witnesses. At the outset of the trial, the defendant moved for exclusion of the witnesses on the ground that '* * * we feel like it would be prejudicial to the defendant for the witnesses to just sit here and hear each other testify and conform to each other's testimony, so that they should be able to testify independently from what their own independent recollection as to what occurred, and for that reason we feel that to arbitrarily refuse * * * the rule on the witnesses would be prejudicial to this defendant * * *.' * * * The court refused to segregate the witnesses, and the defendant now complains that it abused its discretion in doing so, citing State v. Lord, Mo., 286 S.W.2d 737. In that case the court held, among other things, that the exclusion of witnesses from the courtroom during the progress of the trial was a matter addressed to the sound discretion of the court, and that a witness cannot, by discregarding the court's order, deprive a party of his testimony, in the absence of laches of connivance of the party entitled to the offending witness' testimony. In the Lord case, a witness arrived late and entered the courtroom momentarily to indicate his presence in the courthouse. It was held that there was no abuse of discretion in permitting the witness to testify.

'We cannot see that the Lord case is similar to the case at hand, or that the opinion of the court aids the defendant in any way. Here, the only two witnesses who testified were officers of the law. There is nothing in the record to indicate that either of them had any special interest in the case, or that either did anything more than he believed he was bound to do as a peace officer. There is nothing to indicate that either witness was prejudiced against the defendant. In these circumstances, we find no abuse of discretion in the trial court's refusal to segregate the witnesses during the progress of the trial. Huffman v. State, Mo., 451 S.W.2d 21, 23(1, 2); State v. Hamilton, 340 Mo. 768, 778(14), 102 S.W.2d 642, 648(20); State v. Tummons, Mo., 34 S.W.2d 122, 123, 124(3, 4).

'The defendant has briefed three other points concerning the conduct of the trial which may be discussed and considered together. They are: That the court improperly 'advised' the prosecuting attorney how to ask certain questions; that the trial court exhibited hostility toward defendant's counsel during the course of the trial, and that the court engaged in unwarranted controversy with counsel in the presence of the jury. The defendant has referred to approximately half a dozen episodes which occurred shortly before and during the trial, and concludes that the trial court demonstrated 'partiality to the State's side of the case.'

'The first of the episodes of which the defendant complains occurred before the trial began. It appears that counsel for the defendant had four cases set for trial on the day this case was tried. One of counsel's clients did not appear, and according to defendant's counsel, he was subjected to a vituperative rebuke by the court in connection with an application for continuance made on behalf of that client. According to defendant's counsel, the unjustified reprimand occurred within the hearing of the jury. Counsel has filed a number of supplemental papers here for our consideration, but they are not in proper form, because the supplemental material has not been settled as required by Rule 28.08, V.A.M.R. It is apparent from counsel's argument and his demeanor in this court that he considered the trial court's remarks offensive and the court's ruling unjust, but what the trial court said, if anything, and what prompted him to say it, is not shown. Counsel has it that the trial court threatened to report him to the Circuit Bar Committee (for what, we are not advised), and in papers laid before us here counsel stated that he was 'going to file a motion as soon as the Clerk gets here.' We note that no motion for disqualification was filed or orally requested, but it is pointless to pursue the complaint in detail. Allegations of error of this sort do not prove themselves, State v. Barnholtz, Mo., 287 S.W.2d 808, 812(4); State v. McKeever, 339 Mo. 1066, 1082, 101 S.W.2d 22, 30, and in the absence of a record showing what the trial judge said, and what provoked what he said, there is nothing before us for review. Our review is limited to the proceedings shown by a properly authenticated transcript. State v. Overby, Mo., 432 S.W.2d 277, 279(6); State v. Caffey, Mo., 365 S.W.2d 607, 609(1); State v. Deckard, Mo., 354 S.W.2d 886, 887(1).

'Another incident of which the defendant complains occurred while Trooper Aytes was testifying. The witness was asked whether from his practical experience during eight years as a trooper he was able to form an opinion whether an individual person was too intoxicated to operate a motor vehicle on the highway. The witness answered 'Yes,' and the questioning proceeded thus:

'Q. Now, what was your opinion, based on your experience and training, as to whether or not this defendant, Mr. Neal, was too intoxicated to drive a vehicle safely on the road?

'Mr. J. White: Well, now, I object to the question for several reasons, Your Honor, as follows: One is there was no probable cause. He didn't see him driving to arrest him for any driving while intoxicated. The question doesn't properly phrase it that he was--his opinion about whether or not he was driving while intoxicated. The question of the prosecutor is improper in that respect. And also, he hasn't properly qualified himself and given the basic factual background in his hypothetical question for this defendant (sic) to answer.

'The Court: Well, I think you should leave out the words 'too intoxicated to drive on the highway with safety.' The question is: Was he intoxicated? And frame a question that you want to develop some facts that you--

'Mr. Z. White: Yes, sir. I'll rephrase the question. * * *

'Mr. J. White: Well, at this time I request that the Court declare a mistrial and order the jury discharged for the reason that the Court has shown the position toward the prosecuting attorney, by assisting the prosecuting attorney to help phrase his questions and to--in order to make his questions admissible, so that this defendant can give an opinion here that this should not be admitted and should not be admissible.

'The Court: Overruled.

'Mr. J. White: The Court take that action, we respectfully request that as I have suggested.

'The Court: What was that now? I didn't understand the last part.

'Mr. J. White: Well, I'd requested the Court to declare a mistrial, Your Honor, because of the Court's actions.

'The Court: Overruled.'

'The prosecuting attorney was then permitted to ask the witness if it was his opinion that on the occasion is question, Mr. Neal was intoxicated. The witness' opinion was that Mr. Neal had been. The prosecutor then sought to ask Trooper Aytes if in his opinion the defendant was intoxicated to the extent that he would be a hazard on the road. Objection to this question was sustained; the witness was not permitted to answer.

'The defendant complains that the trial court's action in directing the prosecuting attorney to refrain from asking whether defendant was 'too drunk to drive,' and his suggestion that some facts be developed as a basis for the witness' opinion indicated his prejudice against the...