State v. Trice, WD
| Decision Date | 26 January 1988 |
| Docket Number | No. WD,WD |
| Citation | 747 S.W.2d 243 |
| Parties | STATE of Missouri, Respondent, v. Mark Anthony TRICE, Appellant. 39060. |
| Court | Missouri Court of Appeals |
Stormy B. White, Asst. Public Defender, Clayton, for appellant.
William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondent.
Before PRITCHARD, P.J., and GAITAN and COVINGTON, JJ.
Mark Anthony Trice was convicted by a jury of two counts of involuntary manslaughter § 565.024.1(2), RSMo 1986, 1 and one count of second degree assault, § 565.060.1(4). On appeal, Trice asserts three points of error regarding admission of evidence of his blood alcohol content and alleges error in admitting into evidence testimony of the existence of PCP in his urine. Judgment affirmed.
Trice drove school bus number A-522 for Parkway North High School. On November 11, 1985, between 1:30 and 1:45 p.m., individuals observed bus number A-522 travelling westbound on Interstate 70 in St. Louis County at a speed of approximately 70 to 75 miles per hour. The bus moved in an erratic manner, frequently changing lanes. At approximately 2:10 p.m., Trice entered the Parkway North High School. A student, Regina Grover, observed that defendant's eyes were red and noted that he emitted a strong odor of alcohol. At approximately 2:15 p.m., two buses, one of which was A-522, left the Parkway North High School grounds in front of oncoming traffic forcing one automobile to brake suddenly. Trice pulled out at a fast rate of speed, accelerated, and cut in front of the other bus.
Students who were passengers on the bus driven by Trice smelled alcohol on defendant's breath as they entered the bus and stated that Trice drove the bus erratically at a high rate of speed. Trice asked the students whether they wanted him to hit a green Volkswagen in the lane left of the bus. He swerved left toward the Volkswagen, swerved hard back to the right, left the roadway, and collided with a highway sign pole. The bus broke into three pieces; seats were thrown from the bus and scattered across the side of a hill. Scuff marks of 180 feet and skid marks of 19 feet were found at the scene. The accident occurred at approximately 2:45 p.m.
Kim Bogan died of a head injury sustained in the crash. Cynthia Alexander remained in a coma for a week, then died of pneumonia related to brain damage. Demetrius Johnson suffered a broken leg. All three were students and passengers on the bus.
Robert Hickman, a paramedic from Normandy Osteopathic Hospital, responded to the accident at the scene. He noticed a "very obvious" odor of alcohol on Trice's breath.
Trice was taken to Normandy Osteopathic Hospital for treatment. Four blood samples were drawn from him while in the emergency room, one taken specifically for the purpose of conducting a blood-alcohol test. The results of the test were presented through testimony of Carol Bogen, a laboratory technologist. The tests revealed that Trice's blood-alcohol level was 0.189 milligrams per deciliter. The test was performed between 3:30 and 3:35 p.m., approximately one hour after the accident.
Tim Nisbet, a St. Louis County police officer, was sent to Normandy Hospital to investigate the accident. When he communicated with Trice, he noticed a strong smell of alcohol in Trice's breath. He requested of Trice that Trice provide blood and urine samples to be analyzed for alcohol and drugs. Trice refused. After interviewing several students who had been passengers on the bus, Officer Nisbet contacted Detective Docter to request a search warrant. The warrant was served on Trice at 6:43 p.m. Dr. Jack Simons took the blood and urine samples. The blood sample was provided to the police. Officer Nisbet personally delivered the sample to the St. Louis police laboratory, marked it for identification and placed it in a locked refrigerator. The sample was tested on November 12, 1985, by Victor Granat, the crime laboratory supervisor of the St. Louis County Police Department, who held a Type I permit issued by the State of Missouri to analyze blood, saliva and/or urine for alcohol. He determined the alcohol content of Trice's blood to have been 0.09 milligrams per deciliter when the sample was taken and .15 to .17 at the time of the accident, depending upon Trice's rate of alcohol elimination.
Alfonse Poklis, Ph.D., a forensic toxicologist, testified that Trice's blood alcohol content would have been between .13 and .221 at the time of the accident; Poklis' testimony was based on Mr. Granat's tests and the known range of possible elimination rates. Mr. Poklis further testified regarding the significance of the existence of a small amount of PCP in Trice's urine, indicating that the presence of PCP in the urine and the absence of PCP in the blood indicated that Trice was a casual user of PCP.
In defense, Trice elicited testimony from those who denied Trice's having an odor of alcohol about him shortly before or after the accident.
In his first point, Trice contends the trial court erred in admitting evidence of results of blood alcohol content tests because there was no proper foundation evidence that the tests were administered pursuant to requirements of § 577.037.4. The failure to comply with § 577.037.4 is mentioned by defendant for the first time on appeal and was not properly preserved for appellate review.
In his argument on his motion to suppress the results of the blood tests, Trice argued only that the state did not lay a proper foundation, specifically, in that it did not demonstrate that the blood tests conformed to the statutory requirements that
[o]nly previously unused sterile needle and sterile vessel shall be used and withdrawal shall otherwise be in strict accord with accepted medical practices. A nonalcoholic antiseptic shall be used for cleaning the skin prior to vein puncture.
Defendant made a continuing objection during trial based upon his motion to suppress. His objection was based on § 577.029, which specifies the procedures to be followed when blood samples are taken at the request and direction of the law enforcement officer pursuant to Missouri's "Implied Consent" law, § 577.020. Neither of the two blood samples was drawn pursuant to § 577.020. The first was drawn by the hospital for medical purposes and the second pursuant to a search warrant. Where the trial objection to the admission of evidence is based upon a specific ground, and a different reason for the objection is asserted on appeal, nothing is preserved for review. State v. Shepard, 681 S.W.2d 473, 475 (Mo.App.1984). To preserve a claim of error for appellate review, an objection must be made with sufficient specificity to advise the trial court of the ground or reason for the objection. State v. Cannady, 660 S.W.2d 33, 36 (Mo.App.1983).
Subsequently, in his motion for new trial, Trice alleged that "[t]his evidence, allegedly showing the alcohol level of .189, was improperly received, there was improper foundation, and to admit such evidence violated defendant's physician-patient privilege." The general allegation of improper foundation was not based upon a specific appropriate objection made at trial, nor was it specific enough to advise the trial court of the reason the foundation was improper. It therefore preserved nothing for appellate review. State v. Reed, 640 S.W.2d 188, 193 (Mo.App.1982).
Trice next alleges error in admitting into evidence the blood alcohol content obtained from the sample of blood seized pursuant to a search warrant, contending that the search warrant was issued in violation of the statutory laws of Missouri and was invalid on its face. Trice first relies on § 577.041, which provides sanctions for refusal to submit to analysis of blood or urine to determine drug or alcohol content. Trice's reliance on the statute is misplaced. Section 577.041 applies to persons under arrest who refuse to submit to a chemical test. Trice...
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State v. Dowdy, SD 30381.
...are admissible in evidence.” State v. Ikerman, 698 S.W.2d 902, 904–05 (Mo.App.1985). To like effect are these cases: • State v. Trice, 747 S.W.2d 243, 246 (Mo.App.1988)—“Further, even had Trice been under arrest at the time the sample was taken and refused to submit to a test, he would have......
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State Of Mo. v. Dowdy
...are admissible in evidence." State v. Ikerman, 698 S.W.2d 902, 904-05 (Mo.App. 1985). To like effect are these cases: • State v. Trice, 747 S.W.2d 243, 246 (Mo.App. 1988) "Further, even had Trice been under arrest at the time the sample was taken and refused to submit to a test, he would ha......
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State v. Price, WD
...660 S.W.2d 360, 361 (Mo.App.1983). Our review is limited to determining if the trial court abused its discretion. State v. Trice, 747 S.W.2d 243, 247 (Mo.App.1988). We find no abuse of discretion. In both instances, the remarks were vague, indefinite, and did not make reference to a specifi......
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