State v. Reichert
| Decision Date | 05 May 1993 |
| Docket Number | No. 17671,17671 |
| Citation | 854 S.W.2d 584 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Ginger REICHERT, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John E. Curran, Gary Clifford, Osage Beach, for defendant-appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for plaintiff-respondent.
Following a jury trial, Ginger Reichert (defendant) was found guilty of involuntary manslaughter under § 565.024 1 and assault in the second degree under § 565.060. As a result, she was sentenced to two consecutive one-year terms in the county jail.
The case arose from an automobile accident which occurred on December 10, 1988 at approximately 1:20 a.m. on Highway 54 in Osage Beach, Missouri; the accident resulted in the death of Kyle Wallace and injuries to Jamie Frerking. Highway 54 is a three-lane east-west roadway consisting of two driving lanes and one center lane for turning vehicles. A 1979 Dodge Charger automobile (hereafter called the Wallace vehicle) operated by Kyle Wallace (the deceased) and occupied by Ms. Frerking was attempting to enter Highway 54 from a The accident was witnessed by Osage Beach Police Officer Lyn Powers, who was in a patrol car on a parking lot adjacent to the intersection. Ms. Powers testified that the Wallace vehicle first entered Highway 54 but the engine stalled when it was "just a little bit into the roadway." Two cars approached from the east (the same direction defendant later approached from), slowed and passed safely, as the engine of the Wallace vehicle was restarted and it backed onto Mariner's Cove Road. When the two cars passed, the Wallace vehicle again entered Highway 54 but the engine stalled a second time just as the front wheels reached the center turn lane. It rolled back slightly before the brake lights came on and it stopped. Apparently another attempt was then made to start the car. The Wallace car was angled slightly to the east (the direction from which defendant would approach) and the headlights were operating.
road which intersected it on the north called Mariner's Cove Road. Wallace and Frerking had just left a party at an apartment on Mariner's Cove Road and were intending to go east; this required a left turn onto Highway 54.
At that time, the pickup truck operated and solely occupied by defendant appeared from the east over a hillcrest on Highway 54. The evidence was that when the headlights of defendant's truck became visible to Officer Powers, it was then 390 feet east of the intersection. Evidence indicated that portions of the Wallace vehicle would have been visible to defendant at a greater distance than the 390 feet. Officer Powers considered activating the red lights on the patrol car to warn of the situation but was fearful of distracting defendant. At that time, no vehicles were approaching from the west and no other vehicles occupied any of the center left-turn lane. Defendant's headlights illuminated the Wallace vehicle, but there was no indication from the movement of defendant's truck that she saw the Wallace vehicle because, as she approached the point of impact, she stayed in her lane and did not swerve, apply her brakes or slow her speed. It appeared that defendant continued to accelerate until she collided with the left side of the Wallace vehicle. Officer Powers estimated defendant's speed, at the time of impact, at approximately forty miles per hour, while the defendant's own estimate was forty-five miles per hour. The speed limit at that location on Highway 54 was forty-five. Following the accident, defendant admitted having seen the Wallace vehicle, but when asked why she did not stop "she said she had to shift into third gear." Following the accident, defendant was taken to the Osage Beach Police Department where a breathalyzer test resulted in a reading of .16. Several officers testified that, in their opinion, defendant was intoxicated.
In her first point, defendant claims the trial court erred in introducing the breathalyzer test results because (A) she "had properly refused to take the test initially and such refusal should have remained viable," and (B) "the State failed to present a sufficient foundation ... for the introduction of the breath test results to the trier of fact, the jury." We will discuss these two combined points separately.
(A) of the first point is based on the contention that once a person under arrest has refused a breath test, the administration of a test is thereafter prohibited by statute and thus is inadmissible. In support of this argument, defendant quotes the language of § 577.041, which states, in pertinent part:
If a person under arrest refuses upon the request of the arresting officer to submit to any test allowed under section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding under section 577.010 or 577.012.
Defendant also relies on the case of State v. Ikerman, 698 S.W.2d 902 (Mo.App.1985). In that case, defendant had declined a blood test, the consequences of that refusal were explained, and later two additional officers arrived and after lengthy discussion the defendant eventually agreed to give the blood sample. The court held that In this case, the breathalyzer test results were received in evidence over the objections of defendant. The objections made, however, were not on the basis now argued by defendant, i.e., that the test had been refused by her and any subsequent consent was involuntary. The point raised on appeal must be based upon the theory of the objection made to the trial court, and failure to do so preserves nothing for appellate review. State v. Franco, 544 S.W.2d 533, 537 (Mo.banc 1976); State v. Lang, 515 S.W.2d 507, 511 (Mo.1974).
the consent to take the test was involuntary and the results were not admissible.
Defendant had filed a motion to suppress which contained a paragraph seeking to exclude the breathalyzer test on the basis now argued by defendant. That motion, however, was overruled. Even though a motion to suppress is filed and overruled, a specific objection to the evidence must still be made at trial in order to preserve the issue. State v. Yowell, 513 S.W.2d 397, 402 (Mo.banc 1974); State v. Matney, 721 S.W.2d 189, 191 (Mo.App.1986).
We are, therefore, restricted to a review of this contention under the limited scope of plain error. Such review is limited to a determination of whether manifest injustice or a miscarriage of justice has occurred. State v. McCrary, 621 S.W.2d 266, 272 (Mo.banc 1981). The plain error rule is not to be routinely invoked and is limited to circumstances in which there is a strong, clear showing of manifest injustice, an issue upon which defendant carries the burden. State v. Matney, 721 S.W.2d at 191. Here, defendant has made no showing that manifest injustice resulted and our review of the record does not lead to that conclusion. In this regard, it should be noted that the breathalyzer test results were cumulative of other evidence of defendant's intoxication. Accordingly, this point is denied.
(B) of defendant's first point alleges error in the admission of the breathalyzer test results because "the State failed to present a sufficient foundation ... for the introduction of the breath test results to the trier of fact." It is not possible to determine defendant's exact complaint by reference to her point relied on. Rule 30.06(d) 2 requires that a point relied on "shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...." It also provides that "[s]etting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule." Defendant's point fails to explain "wherein and why" the foundation for the introduction of the breathalyzer test was insufficient and therefore fails to preserve it for our review. See Thummel v. King, 570 S.W.2d 679, 685 (Mo.banc 1978); State v. Gordon, 842 S.W.2d 577, 578 (Mo.App.1992). In this instance, although not compelled to do so, we will attempt to decipher the point by reference to the argument portion of the briefs. See Watkins v. State, 785 S.W.2d 767, 778 (Mo.App.1990).
We glean, from the argument portion of defendant's brief, that this complaint is twofold. One is that the State failed to prove that the breathalyzer machine used to test defendant was approved by the Division of Health. However, no objection was made on that basis when the breathalyzer test results were offered in evidence. Consequently, this contention was not preserved. State v. Franco, 544 S.W.2d at 537.
Defendant's other argument under this portion of the point is based on the admission of the breathalyzer test results without first presenting evidence to the jury concerning the required maintenance check on that particular breathalyzer machine. The sole authority cited by defendant is Sellenriek v. Director of Revenue, 826 S.W.2d 338 (Mo.banc 1992).
The Sellenriek case, supra, established that there must be proof of a maintenance check on the machine within thirty-five days prior to a breath test, as required by If the proponent of the test offers proof that a maintenance check has been performed on the machine within 35 days prior to the test in question, then the proponent has demonstrated compliance with the maintenance check aspect of the regulation since evidence has been produced that the test was performed according to approved techniques and methods on a reliable machine. Id.
19 C.S.R. 20-30.031(3), 3 if there is an objection on that basis when the breath test results are offered. Sellenriek, 826 S.W.2d at 340. Here, defendant made that objection when the test results were offered at trial. 4 Because of that objection, it was incumbent upon the State to show that...To continue reading
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