State v. Waring, s. 15506

• Decision Date: 09 November 1989
• Docket Number: 16095,Nos. 15506,s. 15506
• Citation: 779 S.W.2d 736
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Walter Dean WARING, Defendant-Appellant. Walter Dean WARING, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 736

779 S.W.2d 736

STATE of Missouri, Plaintiff-Respondent, v. Walter Dean WARING, Defendant-Appellant.

Walter Dean WARING, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.

Nos. 15506, 16095.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 9, 1989.

Dee Wampler, Wampler, Wampler & Catt, Springfield (atty. on direct appeal), Nancy A. McKerrow, Columbia (atty. on post-conviction motion), for defendant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

JOHN C. HOLSTEIN, Special Judge.

A jury found defendant guilty of the class C felony of involuntary manslaughter. § 565.024. ¹ On November 2, 1987, he was sentenced, as a prior and persistent offender, to ten years' imprisonment. § 558.016.

On June 20, 1988, defendant filed a motion for relief under Rule 29.15. ² Counsel was appointed and an amended motion was filed. Subsequently, a second amendment was made to paragraph nine of the motion. An evidentiary hearing was conducted. The court hearing the Rule 29.15 motion (hereafter referred to as the motion court) denied relief. The appeals from the judgments of the trial court and the motion court were consolidated. Rule 29.15(l ).

Three points are raised on appeal. The first point complains that because a blood test drawn from defendant was for "medical purposes only, not at the direction of law enforcement officials after arrest," the blood sample was privileged and inadmissible. The other two points relate to the post-conviction motion. Point two claims defendant's attorney before the trial court (hereafter referred to as trial counsel) was ineffective by failing to discover evidence which would have impeached a state's witness, failing to seek a change of judge following the judge's refusal to accept a plea agreement, and failing to object to the state's use of municipal court convictions to impeach defendant. The third point asserts that the motion court failed to enter findings of fact and conclusions of law on all issues presented in the post-conviction motion. A statement of facts is necessary preliminary to addressing the issues raised.

On November 26, 1986, defendant and Richard Taylor met at Onstott's tavern in Lamar, Missouri. The two separated briefly but met again at about 7:30 p.m., went to a nearby lounge, and bought a six-pack of beer. At that time defendant was driving a 1984 Kenworth semi-trailer truck with no trailer attached. With defendant driving, the men proceeded north on Highway 71, a four-lane divided highway, toward Nevada, Missouri. Their final destination was an establishment in or near Nevada known as Lloyd's Pub. Betweeen 5:30 p.m. and their arrival at Lloyd's, the evidence showed defendant had consumed approximately four twelve-ounce containers of beer.

While in Lloyd's, defendant drank an estimated additional five beers. He and Taylor shared a table with a group of customers who arrived sometime later. One of those at the table was Elizabeth Carter. Shortly after 1:00 a.m. on November 27, defendant, Taylor, and Ms. Carter left Nevada headed south again on Highway 71 for Lamar. At the time they left, defendant was driving the semi-truck.

Taylor was a witness for the state. He testified that he had consumed enough beer that his recollection of events after leaving Lloyd's was vague. However, he clearly recalled that defendant was the driver when the truck was involved in a collision which killed Ms. Carter. Defendant testified that about three miles south of Nevada, he stopped to relieve himself. He remembered returning to the truck, but has no recollection of events following that until the accident. Defendant's only recall of the accident was that he yelled, "Watch out," and the truck hit an embankment.

The first persons to arrive at the accident scene were passers-by who stopped to give aid. The truck was resting on its top just to the south of a dirt embankment. The embankment is located south of the dead end of an outer service road which parallels Highway 71 on the east in Barton County. The truck had apparently knocked down several posts and reflectors fixed in the ground where the road dead ends and struck the embankment before coming to rest on its top. One of the passers-by broke the window on the driver's side. A male emerged through the opening, ran around the side of the truck, and continued to run to the north along the service road. Sometime later defendant was found lying in the grass next to the road about 100 yards north of the wrecked truck.

Taylor was found inside the truck, pinned on the passenger side in the floorboard. Ms. Carter was also in the floorboard near the center. Taylor and defendant were taken to a Lamar hospital. Ms. Carter was pronounced dead at the scene. Her cause of death was determined to be a skull fracture sustained in the accident. Both full and empty cans of beer were found in the cab of the truck.

Defendant was examined in the emergency room by Dr. Russell Kemm. Noticing that defendant was stuporous and had alcohol on his breath, Dr. Kemm ordered that among other blood samples taken, one should be analyzed for alcohol. The blood was examined later at Roche Laboratories in Wichita, Kansas. The technologist found it to contain .202% alcohol by weight. Trial counsel objected to the testimony of the blood test results. The results of the test had been obtained by a search warrant. The basis of the objection relevant to this appeal was that because defendant's blood was taken for medical reasons and not at the direction of a law enforcement officer, defendant "possessed a privacy interest" in the blood. That privacy interest is expressed in the brief on appeal as the physician-patient privilege.

Defendant denied he had told anyone he was the driver of the truck at the time of the collision. However, Dr. Kemm and the owner of the truck both testified that shortly after the accident, but at separate times, defendant admitted to each of them that he was the driver of the truck when the accident occurred.

On the above evidence, defendant was convicted by the trial court. The motion court denied relief from the conviction. The appeals followed.

Defendant's first point claims the trial court erroneously admitted the results of the blood test because it was not taken at the direction of a law enforcement officer and was privileged. The claim is somewhat different than that contained in the motion to suppress evidence and the objection at trial. The claim made there was that the results of the blood test were not subject to seizure under a search warrant because defendant "possessed a privacy interest" in the blood drawn for medical purposes while he was not under arrest. The physician-patient privilege was not specifically alluded to at or before trial. Nevertheless, we address the point as argued.

Two statutes are relevant to the first point. Section 491.060(5) provides that among those incompetent to testify is:

A physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.

Section 577.037.1 provides that upon the trial of any criminal action arising out of acts allegedly committed by an intoxicated person while driving a motor vehicle, "the amount of alcohol in the person's ... blood, breath, saliva or urine is admissible in evidence and the provisions of subdivision (5) of section 491.060, RSMo, shall not prevent the admissibility or introduction of such evidence if otherwise admissible." Defendant's entire argument is founded on his claim that the blood test results were protected by the physician-patient privilege granted by § 491.060(5). He relies on State ex rel. Mehle v. Harper, 643 S.W.2d 643 (Mo.App.1982) and Gozenbach v. Lasky, 641 S.W.2d 430 (Mo.App.1982). Both cases were apparently decided under law in effect prior to the enactment of § 577.037. ³

Lasky involved an interrogatory requesting the defendant in a civil action arising out of an automobile accident to disclose the defendant's medical records for the one-week period following the accident. The court noted the physician-patient privilege did not exist at common law and was created by statute, now codified at § 491.060(5). Id. at 432. Absent a waiver of the statutory privilege, medical records were held not to be discoverable. Id.

In Gonzenbach v. Ruddy, 645 S.W.2d 27 (Mo.App.1982), the trial court issued a grand jury subpoena duces tecum for blood alcohol analysis to a hospital where Gonzenbach was treated following a vehicle accident. The subpoena was issued on March 17, 1982. Id. at 28. The subpoena was part of a grand jury investigation of the vehicle accident in which Gonzenbach was injured and another individual was killed. Id. at 27. The appellate court granted prohibition holding that the statutory physician-patient privilege applied to both civil and criminal cases. Id. at 28.

In Harper the defendant was taken to a hospital following an injury in a vehicular accident. 643 S.W.2d at 644. A blood sample was drawn and tested for alcohol content by the emergency room physician. Later police learned of the test. Defendant was subsequently charged with driving while intoxicated. A motion for disclosure of blood test results under Rule 25.06 was sustained by the associate circuit judge. Id. The associate circuit judge was prohibited by a circuit judge from enforcing the order requiring disclosure of the blood test results. On appeal from the prohibition proceeding, the appellate court affirmed the writ of prohibition relying on Ruddy. Id.

In State v. Trice, 747 S.W.2d 243 (Mo.App.1988), the defendant, a school bus driver, was injured while driving a school bus which was involved in an automobile accident. Two children on the bus were killed in the...