State v. Stevens

• Decision Date: 12 July 1988
• Docket Number: No. 54173,54173
• Citation: 757 S.W.2d 229
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert Lee STEVENS, Jr. Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 229

757 S.W.2d 229

STATE of Missouri, Plaintiff-Respondent, v. Robert Lee STEVENS, Jr. Defendant-Appellant.

No. 54173.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 12, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 24, 1988.

Application to Transfer Denied Oct. 18, 1988.

Henry B. Robertson, St. Louis, for defendant-appellant.

George A. Peach, Circuit Atty., Hal Goldsmith, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

PUDLOWSKI, Judge.

Defendant appeals from his conviction for driving while intoxicated in violation of Section 577.010, RSMo 1986. We affirm.

Officer Charles Marvin of the St. Louis Police Department was on patrol at 3:00 a.m. on February 6, 1987. He saw a 1977 blue Malibu stop momentarily and then proceed through a red light in the 2900 block of South Jefferson. At the next intersection, the driver repeated the same traffic violation. The officer turned on his red lights and pulled the vehicle over to the side of the road. The defendant alighted as did a passenger. Concurrently, a second police officer arrived on the scene. Both officers testified that the defendant's eyes were red, watery and bloodshot; that his speech was slow and slurred; and that his breath had a strong alcohol odor. The defendant was arrested and given the appropriate Miranda warnings. He was advised that he had the right to submit to or refuse a breathalyzer test, but that if he refused, the Director of Revenue could revoke his driver's license for one year. Defendant refused to submit to the breathalyzer test but volunteered to take a field sobriety test. In this test, defendant managed to recite the alphabet; however, his speech was slow and slurred. He failed to walk a straight line, maintain his balance on either foot, or to touch his nose with either index finger when his eyes were closed. It was the opinion of both officers that the defendant was intoxicated.

On the rear seat of defendant's vehicle, the officers discovered a bag containing eight unopened cans of cold beer. No empty cans were found in the vehicle.

Defendant presented the testimony of the physician who had treated him since June, 1987. The physician testified that the defendant suffered from pragmatic chronic degenerative joint disease (a type of arthritis) of the knees which would have caused severe pain and difficulty in performing two of the field sobriety tests, standing on one leg and walking a straight line. The physician testified that he had not treated the defendant at the time of or before his arrest nor did he know if the defendant was being treated with prescription drugs at that time. In addition, he testified that defendant's arthritic condition would not have caused his eyes to appear red, watery and bloodshot, nor would it have caused him difficulty in performing the finger-to-nose test. Defendant's physician had never observed the defendant's speech to be slurred.

The jury convicted the defendant, and the court sentenced him as a prior offender to six months imprisonment.

Initially, we will address defendant's second point because much of our later analysis hinges on its resolution. The relevant statute in effect at the time of the defendant's arrest was Section 577.041.1, RSMo 1986, which begins:

If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given.

After the defendant's arrest but before the date of this trial, the statute was amended to read:

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. The request of the arresting officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of his refusal to take the test may be used against him and that his license may be revoked upon his refusal to take the test.

Section 577.041.1, RSMo Supp.1987 (effective Sept. 28, 1987).

Defendant asserts that the trial court erroneously applied the amended statute rather than the statute that was in effect at the time of the defendant's arrest, thereby, violating the prohibition against ex post facto laws.

It is appropriate to begin with a brief summary of the law with regard to the ex post facto impact of changes in evidentiary rules. Laws which change the elements or facts necessary to establish guilt are substantive in nature and as such are subject to ex post facto prohibition; whereas, mere procedural changes are not subject to such prohibition. Miller v. Florida, 482 U.S. ----, ---- - ----, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987) (emphasis added). Therefore, the question before this court is whether the statutory change, allowing the admission of the evidence of refusal to submit to breathalyzer testing to come in at trial as evidence of guilt, is a procedural or a substantive change in the law. It is not sufficient to say that the change concerns an evidentiary matter and is, therefore, procedural. "The general rule is that any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed may be obnoxious to the constitutional prohibition upon ex post facto laws." 16A Am.Jur.2d Constitutional Law Section 651 (1979). " It is the effect, not the form, of a statute that determines whether it is an ex post facto law, the critical question being whether the law changes the legal consequences of acts completed before its effective date." State v. Davis, 645 S.W.2d 160, 162 (Mo.App.1982) (citing Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 S.Ct. 17 (1981)).

The leading Supreme Court case is Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925). The Beazell Court advises, "[I]t is now well settled that statutory changes in the mode of trial or rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited [by the Constitution]." Id. at 170, 46 S.Ct. at 69. Among the supporting examples listed by the Court is Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898). The Thompson opinion held that a statute which changed a rule of evidence after an offense but before the time of trial and allowed the admission of evidence against the accused which was previously inadmissible did not violate the prohibition against ex post facto laws. As in Thompson, the statute involved in this case "did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused." Id. at 387, 18 S.Ct. at 924. "Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto." Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).

Later cases from our sister states shed more light on the application of the ex post facto prohibition. The distinction in all the cases seems to be whether the statute in question changed the quantum or amount of evidence required for conviction. Therefore, the repeal of a statute that precluded conviction of an accused solely on the uncorroborated testimony of an accomplice and the subsequent passage of a statute permitting the uncorroborated testimony of an accomplice to be sufficient evidence upon which to base a conviction violated the constitutional prohibition against ex post facto laws. State v. Schreuder, 726 P.2d 1215 (Utah 1986). The reason for this holding is that the change in the law reduced the amount of evidence that was required for conviction. In contrast, however, a change in a statute after the alleged crime which allowed the hearsay statements of a child victim of sexual abuse to be admitted against an accused at trial when previously such a statement was inadmissible was not a prohibited ex post facto law because it simply authorized the introduction of additional evidence of guilt. See, e.g., Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); Glendening v. State, 503 So.2d 335 (Fla.Dist.Ct.App.1987); People v. Koon, 724 P.2d 1367 (Colo.Ct.App.1986). See also, Smith v. State, 291 Ark. 163, 722 S.W.2d 853 (1987) (evidence of intercepted oral communication previously inadmissible did not violate the ex post facto prohibition); State v. Leonard, 151 Ariz. 1, 725 P.2d 493 (Ariz.Ct.App.1986) (statute changing foundational requirements for admission of the results of a breath test in a trial on DWI charges is procedural and not an ex post facto violation); Harper v. State, 686 S.W.2d 738 (Tex.Ct.App.1985) (statutory amendment creating an exception to confidentiality of patient records in prosecution of a criminal defendant which permitted admission of blood alcohol test results did not constitute ex post facto application of the amended statute); People v. Seldomridge, 154 Cal.App.3d 362, 201 Cal.Rptr. 377 (1984) (statute effective after the offense which excluded evidence of polygraph test results was merely change in the type of evidence admissible and would not implicate ex post facto considerations); Howard v. United States, 473 A.2d 835, 840 n. 2 (D.C.1984) (change in narcotics statute, incorporating business records exception to hearsay rule, did not lessen the degree of proof necessary for conviction but merely altered the method the government might use to meet its burden;...