State v. Todd

• Decision Date: 29 October 1996
• Docket Number: No. 69076,69076
• Citation: 935 S.W.2d 55
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Anthony TODD, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 55

935 S.W.2d 55

STATE of Missouri, Plaintiff/Respondent, v. Anthony TODD, Defendant/Appellant.

No. 69076.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 29, 1996.

Herbert T. Diekemper, Jr., St. Louis, for defendant/appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Fernando Bermudez, Assistant Attorney General, Jefferson City, for plaintiff/respondent.

REINHARD, Judge.

Defendant appeals after he was convicted of two counts of involuntary manslaughter, § 565.024, RSMo 1986, and one count of second degree assault, § 565.060.1(4), RSMo Supp.1993. The court sentenced him in accordance with the jury's assessment to three consecutive thirty day terms of imprisonment and a $5,000 fine for each conviction. The court suspended execution of the fines and ordered five years probation. We affirm.

The evidence reveals that at approximately 7:30 p.m., on August 13, 1993, defendant, Ron Edgar, Ron Byer, Rick Baum, and Christopher Anderson met at Edgar's home in High Ridge, Missouri. Because their float trip plans were cancelled, they decided to go to Russell Wall's house. Defendant, age 18 at the time, drove his white Chevrolet Blazer, and Edgar, Byer, and Anderson rode with him. Byer was dropped off at his home, and the other three stopped at a liquor store to buy beer and some Jack Daniel's coolers.

After arriving at Wall's house, defendant joined in a drinking game called "Cardinal." Anderson described the rules of the Cardinal game as "[s]omeone does a pattern or something and then the other person has to follow it. If they don't get it right they drink." Because defendant played badly, he had to drink a lot of beer and subsequently vomited.

At some time prior to midnight or 12:30 a.m., Matheson Friemon saw defendant stumble, stagger, and speak in a slurred manner as if he were drunk. Furthermore, at some point during the evening, defendant and Anderson left Wall's home and drove to a liquor store to buy a case of beer.

At approximately 1:00 or 1:30 a.m., on August 14, 1993, defendant, Anderson, Wall, and Edgar left Wall's house and went to the home of Kim Thayer. Defendant drove and the others were passengers in his vehicle. Thayer was not home when they arrived, so they went to a nearby party at Tim Gardner's house. After staying a short while, they returned to Thayer's home.

When they left Thayer's residence, defendant got in the driver's seat, and Edgar got in the passenger's seat. Anderson sat in the rear left seat, and Wall sat in the rear right seat. On their way to take Wall home, defendant drove to the drive-through window at Hardee's and ordered food. When defendant left Hardee's, he turned west on Highway 30. Anderson testified that defendant "accelerated pretty fast" when he left Hardee's parking lot and pulled onto Highway 30.

At approximately 4:45 a.m., defendant entered the intersection of Highway 30 and BB. His truck struck a lane directional sign located on a concrete island, which separated the "right turn only" lane from the through lanes of traffic. The truck then struck the concrete base of a traffic signal post. The force of the impact caused the hood, the front bumper, a tire, and an axle to fly off of the truck.

A witness to the accident, Michelle Bauer, heard a loud bang and saw "a white truck crossing Highway 30." She testified that the truck was traveling fast and that it "wasn't on the ground." Although there was testimony at trial about the presence of fog, Bauer did not remember any fog or wet pavement at the scene of the accident, and there was no evidence that anything obstructed the intersection.

After the accident, Edgar and Wall did not have any vital signs of life, and they both died at the scene from head injuries. Defendant and Anderson, however, exited the vehicle without assistance. Anderson was hospitalized for two days and treated for head, ankle, and wrist injuries. Defendant was also taken to the hospital following the accident. While defendant was being examined for injuries, his blood was drawn for testing. At trial, an affidavit from Barnes Hospital attached to a copy of defendant's laboratory report was offered and received into evidence. According to the laboratory test results, his blood alcohol content at 6:00 a.m. was one hundred and ten milligrams per deciliter or .11 grams per hundred milliliters of blood.

Dr. Mary Case, the medical examiner for Jefferson County, St. Louis County, St. Charles County, and Franklin County, testified for the state. She did a residency training in pathology and is one of approximately five doctors in the country to be board certified in anatomical pathology, neuropathology, and forensic pathology. Dr. Case was qualified as an expert witness. She explained that defendant's blood alcohol test revealed .11% blood-alcohol. She also testified that his alcohol content would have been higher when the accident occurred at 4:45 a.m. Dr. Case stated that she is vaguely familiar with the blood testing procedures of Barnes Hospital. She testified that Barnes uses clinical pathology methods and tests the plasma, rather than the whole blood. According to Dr. Case, a slightly different result may occur if the whole blood is tested. The variation may be between 10-20%.

Dr. Case also testified that anyone with a blood alcohol percentage above .08% is intoxicated and "no longer safely able to operate a motor vehicle." Dr. Case stated that alcohol primarily affects the central nervous system. It impairs one's attention, memory, comprehension, learning abilities, and the ability to make critical judgments. Alcohol also impedes a person's visual acuity, slows one's reaction time, affects balance and coordination, and causes drowsiness. Dr. Case testified that in her opinion defendant was "under the influence of alcohol, that he was intoxicated and that in terms of safely operating a motor vehicle he would be impaired."

Defendant called several witnesses. John Koenig, the technical supervisor in the clinical chemistry laboratory at Barnes Hospital, testified about the laboratory worksheet and test results that were prepared from defendant's blood test. Koenig described the method that Barnes laboratory uses to run ethyl alcohol assays. He stated that the records indicate the blood was taken from defendant and that his alcohol content was one hundred and ten milligrams per deciliter.

Defendant also called Thayer. She testified that the four men arrived at her house around 1:30 or 2:00 a.m. and stayed approximately two hours. During this time, she did not notice anyone drinking alcohol. She and Wall, however, were talking in the living room, and the others were in the kitchen.

Mary Johnson, a Hardee's employee, took defendant's food order, spoke with him, and served him food on August 14, 1996, at approximately 4:00 a.m. She testified that she did not smell alcohol on defendant or notice any other evidence of alcohol.

Troy Smith testified that he was at Wall's house and that defendant did not appear intoxicated. He stated that defendant only drank a small amount of beer before vomiting during the drinking game.

Defendant testified that he did not consume any alcohol before arriving at Wall's house. Defendant admitted, however, that from approximately 8:30 p.m. to 1:45 a.m., he drank about six or seven beers. He drank two beers at Wall's house before playing "Cardinal," two beers during the game, one beer after the game while he was still at Wall's home, one-half of a beer the first time they went to Thayer's home, and one-half of a beer at Gardner's party.

Defendant testified that they left Thayer's house around 4:00 a.m. He stopped at Hardee's on the way home and then drove westbound on Highway 30. Defendant testified that on other occasions he had driven westbound on Highway 30 through the intersection of Highway BB. He denied, however, that he had driven through the area during adverse weather conditions, such as fog.

Defendant testified that Highway 30 was covered with patches of heavy fog on August 14, 1996. Therefore, he drove using the white guide line located on the right side of the road. He saw an "orange haze," which turned out to be the intersection of Highway 30 and BB. When defendant noticed that he was in a "right turn only" lane, he tried to veer left to get in the through lane. Defendant stated that he did not notice that he was in the wrong lane until he was approximately five feet away from a sign located on a concrete island, which separated the "right turn only" lane from the through lane. He hit this traffic sign and then hit the concrete base of a light post.

Defendant's witness, Richard Brown, a design engineer for the Missouri Highway and Transportation Department, said that according to an accepted definition of "roadway," the concrete island is not located in or on the roadway. In addition, Brown testified that the intersection's design was within standard norms.

Defendant testified that after the accident, he relied on the trained doctors, lab technicians, and nurses at Barnes Hospital to test and diagnose what was wrong with him. He stated that they did a good job, he did not know of any mistakes they made, and to his knowledge, the test results were correct.

On appeal, defendant claims that the state failed to make a submissible case. He partially relies on the alleged erroneous admission of Exhibit 34, which was the laboratory report setting forth the results of defendant's blood alcohol test. Thus, before discussing the issue of submissibility, we address his evidentiary point. That point states:

The trial court erred in admitting into evidence the result of a blood alcohol test under the Uniform Business Records as Evidence Act, RSMo. § 490.692, without requiring the state to lay some statutory or common law foundation of validity or accuracy prior to the admission of such test result, for the reason that RSMo. § 577.020 through § 577.041 make mandatory the literal...