State v. Tatum, 16889

• Decision Date: 01 March 1991
• Docket Number: No. 16889,16889
• Citation: 807 S.W.2d 126
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald M. TATUM, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 126

807 S.W.2d 126

STATE of Missouri, Plaintiff-Respondent, v. Donald M. TATUM, Defendant-Appellant.

No. 16889.

Missouri Court of Appeals,

Southern District, Division One.

March 1, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 22, 1991.

William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

William J. Lasley, Flanigan, McCanse & Lasley, Carthage, for defendant-appellant.

PER CURIAM.

Appellant was charged with driving while intoxicated, having been convicted of two prior acts of driving while intoxicated. Following jury trial he was convicted and sentenced to one year imprisonment in the county jail.

Appellant appeals, briefing six points of alleged error. Appellant presents three points contending that improper and prejudicial evidence was allowed over his objection. The transcript of the trial court proceedings filed here contain the hearing on appellant's pretrial motion to suppress the evidence now challenged, but none of the evidence at trial.

The burden of presenting a proper record of the proceedings under Rule 30.04 is on the appealing party. State v. Silinzy, 621 S.W.2d 114, 116 (Mo.App.1981). A transcript on appeal must contain all of the proceedings necessary to a determination of the questions presented or there is nothing for an appellate court to decide. State v. McClain, 602 S.W.2d 458, 459 (Mo.App.1980).

Respondent contends that there is an insufficient record to decide these questions as none of the trial evidence is in the transcript. Appellant counters by citing State v. Hummel, 652 S.W.2d 749, 750 (Mo.App.1983), for the proposition that when an objection to the admission of evidence is the same at pretrial and trial, the record reviewed is the pretrial hearing transcript. Even if so, there is no showing in the record that there was the same objection. See also State v. Brueckner, 617 S.W.2d 405, 409 (Mo.App.1981); McClain, 602 S.W.2d at 459.

Following oral argument, counsel for appellant wrote the clerk of this court asking if the judges "who sat on the panel ... wish me to supplement the record." The court declined to request such a supplement as, except perhaps in extraordinary circumstances, it is not for this court to decide what should be in the record, but this is the decision of the parties, primarily the appellant's.

The record does not establish the evidence questioned was introduced or if any objection was made to it. A trial court's ruling upon a motion at a pretrial hearing is interlocutory and the trial court can alter its pretrial ruling. State v. Evans, 639 S.W.2d 820, 822 (Mo.1982). An objection must be made at trial when evidence is offered in order to preserve it for appellate review, even when there is a ruling on a pretrial motion. Id. This court cannot find error which is prejudicial when the record does not show that the evidence was offered and what, if any, objection was made to it.

Appellant also contends that the trial court erred in refusing to allow his counsel to argue in closing that because respondent did not call a police lieutenant his testimony would have been unfavorable to the respondent. As the record does not establish the circumstances of the lieutenant's connection with defendant's arrest, and the admission of a field sobriety test, which appellant urges in his brief, the record is not sufficient to decide the question. This point must likewise be denied.

For his fifth point, appellant contends the trial court erred in overruling his counsel's request that defendant's...