State v. Robbins

• Decision Date: 15 May 1970
• Docket Number: No. 8923,8923
• Citation: 455 S.W.2d 24
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Weldon A. ROBBINS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 24

455 S.W.2d 24

STATE of Missouri, Plaintiff-Respondent, v. Weldon A. ROBBINS, Defendant-Appellant.

No. 8923.

Springfield Court of Appeals, Missouri.

May 15, 1970.

John W. Reid, II, Fredericktown, for plaintiff-respondent.

Charles M. Shaw, Shaw, Hanks & Bornschein, Clayton, for defendant-appellant.

TITUS, Presiding Judge.

A jury found defendant guilty of the misdemeanor of driving a motor vehicle in an intoxicated condition and assessed his punishment at a fine of $100. V.A.M.S. § 564.440, as amended Laws 1963, p. 686, § 1; Laws 1967, p. 410, § 1. He appeals from the judgment and sentence entered in accordance with the verdict.

The initial two points in defendant's brief present nothing for appellate review. They are: 'I. The court committed prejudicial error in admitting into evidence, over the objection of defendant, the testimony of witness Hensley E. DeSpain that defendant was intoxicated. II. The court errored (sic) in admitting the testimony of witnesses Richard Wilcox and Charles Whitehead concerning their opinions that the defendant was intoxicated.' These points violate Civil Rules 83.05(a)(3) and (e), V.A.M.R. (made applicable in criminal cases by Rule 28.18, Rules of Criminal Procedure, V.A.M.R.; State v. Conner, Mo., 391 S.W.2d 335, 337--338), because they do not state 'why it is contended' the court erred in admitting the testimony of the designated witnesses or 'why' such testimony was erroneous. State v. Dennison, Mo., 428 S.W.2d 573, 579(8); State v. Rapp, Mo., 412 S.W.2d 120, 122(3). Moreover, as regards the first point, by referring to the record and the argument portion of the brief (an exercise strictly ex gratia) we discover that defendant objects here to the testimony of DeSpain on the ground it 'constituted a conclusion and invaded the province of the jury by expressing an opinion,' whereas defendant's only objection to this testimony at trial was that 'I don't believe this witness is qualified to testify to that' or 'to answer that.' In order to be considered on appeal, a point in a brief complaining of the testimony of a witness must be based upon the same objection made and the same reason assigned at trial when the alleged error occurred. State v. Weindorf, Mo., 361 S.W.2d 806, 810(12); State v. Brookshire, Mo., 353 S.W.2d 681, 688(17), cert. denied, 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119; State v. Slaten, Mo., 252 S.W.2d 330, 333(3). Also apropos point II, the transcript reveals that defendant voiced no objections to the testimony of witnesses Wilcox and Whitehead at the trial when they opined the defendant was intoxicated. Defendant's objections to this testimony first appear as an assignment of error in the motion for a new trial which is too late to preserve the point for appellate review. State v. Thomas, Mo., 438 S.W.2d 174, 176(2); State v. Deutschmann, Mo., 392 S.W.2d 279, 282(4); State v. Anderson, Mo., 375 S.W.2d 116, 120(8). But be all that as it may, it is not error to permit a witness, who relates the facts upon which he bases his opinion (as was done by each witness in this case), to express an opinion that the defendant was intoxicated. State v. Mayabb, Mo., 316 S.W.2d 609, 612(5); State v. Powell, Mo., 306 S.W.2d 531, 532--533(1), 66 A.L.R.2d 1141, 1144(2); State v. Revard, 341 Mo. 170, 175(3), 106 S.W.2d 906, 909(7); 32 C.J.S. Evidence § 546(27), pp. 175--177.

Defendant's third and final point is that 'The court committed prejudicial error in failing to declare a mistrial, or in the alternative, to grant a new trial when it was learned that juror Walter Graham failed to disclose that he knew the defendant.' (Our emphasis). An alternative furnishes a choice between two or more things which, of necessity, must coexist. A mistrial is declared ere a trial is completed to prevent rendition of an improper verdict; a new trial is granted subsequent to consummation of the proceeding usually upon sustainment of a motion therefor due 'within ten days after the return of the verdict.' V.A.M.R. Criminal Rule 27.20; 58 C.J.S. Mistrial, pp. 833--834; 66 C.J.S. New Trial § 1 c., p. 65. Ergo, a trial court is not contemporaneously endowed with the alternative authority of choosing between the declaration of a mistrial or the granting of a new trial. Defendant did not before verdict request a mistrial, and it flails patency to observe that a claim for a mistrial is inordinately tardy when first made in a motion for new trial or in the brief on appeal. State v. Durham, Mo., 367 S.W.2d 619, 624(8), cert. denied, 375 U.S. 861, 84 S.Ct. 130, 11 L.Ed.2d 89. In any event, defendant's suggestion that the trial court erred in failing to declare a mistrial cannot be sustained.

The transcript on appeal reaches us sans any account of the voir dire examination of the jury panel. There was, however, no objection made to Mr. Graham serving on the jury until defendant filed his motion for a new trial. It is alleged in the motion that juror Graham testified on vior dire that 'he did not know and was not in any way familiar with the Defendant, but in truth and fact did know the Defendant and had known him for some period of time, which knowledge would affect his ability as a juror to * * * arrive at a fair and impartial verdict.' Upon the apparent understanding that statements contained in a motion for a new trial do not prove thesmselves (State v. Taylor, Mo., 327 S.W.2d 880, 884(4)), defendant produced juror Graham's testimony as the only evidence in aid of the motion. Mr. Graham testified he had known the defendant 'Over a period of several years,' and in response to the inquiry concerning 'the time the jury was being empaneled (and) was asked whether any member' knew the defendant, Graham stated: 'I didn't say either way, I don't believe * * * I just held up my hand that I knowed him * * * and I don't think anybody said anything * * * I just held up my finger, like that. I don't know whether anybody noticed it or not.' The witness further related that the fact...