State v. White, 51065

• Decision Date: 02 December 1986
• Docket Number: No. 51065,51065
• Citation: 722 S.W.2d 92
• Parties: STATE of Missouri, Respondent, v. Delbert Edwin WHITE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 92

722 S.W.2d 92

STATE of Missouri, Respondent, v. Delbert Edwin WHITE, Defendant-Appellant.

No. 51065.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Dec. 2, 1986.

Motion for Rehearing and/or Transfer Denied Jan. 6, 1987.

Thomas Arthur Ludwig, Jackson, for defendant-appellant.

William L. Webster, Atty. Gen., Paul LaRose, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant, Delbert White, appeals from a judgment entered on a guilty verdict which found him guilty of two counts of involuntary manslaughter and assessed punishment at seven years on each count. Defendant was sentenced accordingly with sentences to be served consecutively. We affirm.

The jury could reasonably have found the following. Randy Bennett, 18, of Zalma, Missouri left his home in a 1959 Datsun on the evening of March 9, 1985 and went to pick up his girl friend, Kellie Talley, 15, of Gypsy, Missouri. The couple then drove to Advance, Missouri to rent a movie video. After renting the video, the couple headed west on Highway C in order to return to the Bennett home. Approximately six miles west of Advance, the Datsun collided head-on with a Ford pickup truck driven by defendant. Randy Bennett was killed instantly and Kellie Talley suffered severe head injuries. She was taken from the scene by ambulance and died the next day in a Memphis hospital.

Several officers from both the Advance Police Department and the Missouri State Highway Patrol investigated the accident. When the police arrived at the scene they found defendant sitting beside the pickup truck which was upside down in the westbound lane. They observed both empty and full beer cans scattered about the truck as well as a beer cooler in the cab of the truck. Several officers, the ambulance attendant, and a passerby who had stopped at the scene testified they smelled alcohol on defendant's breath. Defendant suffered injuries to his chest and wrist and was taken by ambulance to a regional hospital where he was then interviewed by a State Highway Patrol trooper. Defendant consented to the taking of a blood sample which was later processed by the Southeast Missouri Crime Lab. The sample was shown to contain .141 percent by weight ethyl alcohol. (Section 577.037, RSMo Cum.Supp.1984, ¹ allows a presumption of intoxication where there is .100 of one percent or more by weight of alcohol in the person's blood). Defendant was released from the hospital on March 14, 1985 and subsequently arrested for two counts of involuntary manslaughter, § 565.024 ² RSMo Cum.Supp.1984, ³ for the deaths of Randy Bennett and Kellie Talley.

Defendant makes the following contentions on appeal: 1) The trial court erred in unduly limiting voir dire examination on the issue of possible juror bias or prejudice if defendant chose not to testify; 2) The trial court erred in (A) denying defendant's motion for a directed verdict because no evidence was presented that defendant was driving on the wrong side of the road; and (B) allowing State Highway Patrol troopers to give "expert testimony;" 3) The trial court erred in failing to define "under the influence" when instructions were given to the jury; 4) the trial court erred in submitting Instruction No. 10 (verdict director for involuntary manslaughter) and overruling defendant's motions for acquittal because there was no evidence presented that defendant caused the death of Kellie Talley; and 5) The trial court erred in giving Instruction No. 5 (intoxication presumption) and allowing testimony regarding the intoxication presumption because § 577.037, which creates the presumption, does not apply to an involuntary manslaughter charge under § 565.024.

Defendant first contends the trial court improperly restricted his voir dire examination of the jury panel as to possible bias or prejudice against defendant should he choose not to testify.

During voir dire examination, counsel for the defense stated: "His Honor may instruct you that the defendant in a criminal case does not have to take the stand and testify." Counsel then asked: "If indeed [defendant] does not take the stand and testify would anyone be prejudiced by that or hold that against him?" The state made an objection which the trial court sustained. A bench conference followed and defense counsel was told he could ask the panel whether they would follow the law as given to them. The question was then asked as rephrased: "Does everyone here feel that they could follow His Honor's instructions, as His Honor may give them to you, on the subject of the defendant's testifying in this case?"

Defendant contends the latter question does no more than repeat the pattern instruction MAI-CR 2d 1.02 given to the panel by the court. The instruction asks: "Do you know of any reasons why you would be unable to follow the other instructions of the court?" Clearly, the question asked by defense counsel is not a repetition of the pattern instruction. The question asked by the court is nonspecific whereas the question asked by defense counsel put a specific issue, that of the defendant's testifying, before the jury panel for their consideration of possible bias.

Defendant further states in his brief: "[N]either during the reading of MAI-CR 1.02 nor at the time defendant's counsel was permitted to ask his limited question did the jury know what the instruction by the Court would be so that an intelligent response could be made." Defendant misconstrues the nature of voir dire examination. Although counsel is allowed a reasonable latitude in questioning the panel, there are limits to the scope of a proper examination. State v. Beatty, 617 S.W.2d 87, 92 (Mo.App.1981). Counsel may not tell prospective jurors what law will be applied in the case or what instructions will be given to them. Id. By stating what instructions the court may make, defense counsel attempted to inform the jury panel of the law applicable to the case and what instructions would be given and thus, the trial court properly sustained the state's objection.

Defendant's reliance on State v. Brown, 547 S.W.2d 797 (Mo. banc 1977) and State v. McCormack, 700 S.W.2d 520 (Mo.App.1985), is also in error. In both Brown and McCormack defense counsel's entire question was disallowed and the defendants were precluded from any inquiry into their respective issues of self defense and witness credibility. Defendant in this case was required only to narrow the question so as to be in accord with existing case law.

The nature and extent of voir dire examination is primarily a matter of trial court discretion and will not be disturbed on appeal absent a manifest abuse of discretion. State v. Holland, 653 S.W.2d 670, 678 (Mo. banc 1983). We find no such abuse of discretion here. The trial court allowed the issue to be placed before the jury panel and properly exercised its discretion as to the form of the question.

We also fail to perceive how the defendant was prejudiced by the actions of the trial court. "[T]he party asserting such a manifest abuse of discretion has the burden of demonstrating a real probability that he was thereby prejudiced." State v. Norton, 681 S.W.2d 497, 498 (Mo.App.1984). Defendant has failed to show any prejudice as a result of the narrowed question. Defendant was allowed to put the issue before the panel and we accordingly perceive no prejudice. Point denied.

Defendant next contends there was not sufficient evidence to support a finding that defendant drove on the wrong side of the road.

In determining the sufficiency of the evidence in a criminal case after the verdict of guilty, the Court accepts as true all evidence in the record tending to prove the defendant's guilt, whether such evidence is circumstantial in nature, together with favorable inferences that can be reasonably drawn therefrom and disregards all contrary evidence and inferences.

State v. Morgan, 592 S.W.2d 796, 805 (Mo. banc 1980).

Because there were no eyewitnesses, the primary testimony as to the cause of the accident came from the State Highway Patrol troopers. Accepting their testimony as true, it was established that after the accident, the Datsun was in a ditch north of the highway and defendant's truck was upside down in the westbound lane. There was extensive damage to the left front of both the Datsun and the truck. There was a gouge mark that began at the northern edge of the westbound lane and continued in a northwesterly direction. It was shown that the gouge mark was made by the left front wheel of the Datsun.

Given the location of the vehicles and the gouge mark, it is reasonable to infer that the collision occurred in the westbound lane and that the defendant was driving on the wrong side of the road. Point denied.

Defendant next contends the trial court erred in allowing State Highway Patrol Troopers Keathley and McElrath to testify as experts. Their testimony included: 1) location of the vehicles; 2) location and length of various gouge, scuff, and scrape marks; 3) opinion as to what caused the marks; 4) the condition of each vehicle; 5) opinion as to the direction of force exerted upon the Datsun; and 6) observation and opinion regarding the light assemblies. It was testified that if the bulb in the lighting assembly is illuminated at the time of impact, it can become distorted. From this, Trooper McElrath gave opinion testimony as to which of the bulbs in the Datsun were not lit when the collision occurred, most notably, the left turn signal.

It is within the trial court's discretion whether to accept or reject expert testimony. Ponciroli v. Wyrick, 573 S.W.2d 731, 735 (Mo.App.1978). Admission of expert testimony by the trial court will not be disturbed on appeal unless there is a clear abuse of discretion. Rose v. Fague-Prouhet, 701 S.W.2d 509, 511 (Mo.App.1985). An expert witness may express an opinion when qualified as such if the subject matter of the opinion is not of common knowledge such that an...