State v. Willis

• Decision Date: 18 February 2003
• Docket Number: No. WD 60463.,WD 60463.
• Citation: 97 S.W.3d 548
• Parties: STATE of Missouri, Respondent, v. David WILLIS, Appellant.
• Court: Missouri Court of Appeals

Page 548

97 S.W.3d 548

STATE of Missouri, Respondent, v. David WILLIS, Appellant.

No. WD 60463.

Missouri Court of Appeals, Western District.

February 18, 2003.

COPYRIGHT MATERIAL OMITTED

Andrew A. Schroeder, Assistant State Public Defender, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Philip M. Koppe, Assistant Attorney General, Kansas City, MO, for Respondent.

Before THOMAS H. NEWTON, P.J., ROBERT G. ULRICH and EDWIN H. SMITH, JJ.

ROBERT ULRICH, Judge.

David E. Willis ("Mr. Willis") appeals his convictions following a bench trial for involuntary manslaughter, section 565.024, RSMo 1994, and assault in the second degree, section 565.060.1(4), RSMo 1994, and consecutive seven- and four-year sentences respectively; and his conviction for driving with a suspended license, section 302.321, RSMo Cum.Supp.1999, and corresponding concurrent one-year sentence. Mr. Willis raises two points on appeal. His first claim is that the trial court erred in overruling his motion to suppress evidence and corresponding objections at trial because evidence seized during the testing of his blood and urine was a violation of his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 15 of the Missouri Constitution. He claims that the affidavit used to support the search warrant did not establish that a fair probability existed that his blood and urine would disclose the presence of contraband constituting evidence of a crime, and the evidence of contraband found in his blood and urine should be suppressed as fruit of the poisonous tree. In his second point on appeal, Mr. Willis claims that the trial court plainly erred in entering a guilty verdict and sentencing him for driving with a suspended license, section 302.321, RSMo Cum.Supp.1999, because the State violated his due process rights and right to a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution in that the State failed to prove beyond a reasonable doubt that he was guilty of the offense because the State presented no evidence at trial that he was in fact operating a motor vehicle on April 13, 2000, the date of the charged offense. The judgment of the trial court is affirmed in part and reversed in part.

Factual and Procedural History

On April 13, 2000, at approximately 6:00 p.m., Mr. Willis was driving southbound in a white Ford Bronco (the "Bronco") on Highway 71 in Jackson County, Missouri. The Bronco contained four passengers including two adults, Tela Griddine and Donna Sanders, and two children, nine-year old Phillip Herndon ("Phillip") and two-year old Brandon Sanders ("Brandon"). Other drivers observed Mr. Willis' Bronco approaching their vehicles from behind and described him as "driving aggressively," and "jockey[ing] for position, trying to get to the front of the pack" [of cars] by changing lanes and driving faster. The posted speed limit on Highway 71 was 55 miles per hour. The Bronco appeared to exceed the speed limit by 20-25 miles per hour.

While driving on the highway, Mr. Willis attempted to pass a white car by moving into the right lane of traffic. About the same time, the white car merged into the right lane in an attempt to get out of Mr. Willis' way. When the white car merged into the right lane, Mr. Willis drove onto the shoulder of the highway. A disabled trailer was parked on the shoulder of the highway, causing Mr. Willis to swerve back into the right lane of traffic. As he swerved back into the right lane of traffic, Mr. Willis lost control of the Bronco. The Bronco crossed the highway into the median and flipped one and a half times before coming to rest in the northbound lane of the highway.

As the Bronco rolled over, one of the female passengers was thrown from the vehicle. Brandon, the two-year old child, sustained an injury to one of his ears that caused substantial bleeding. One of the witnesses to the accident approached the Bronco and observed a lady holding Brandon inside the Bronco. She took Brandon from the female passenger and carried him to the shoulder of the road. She then handed Brandon to Mr. Willis. As she was handing Brandon to Mr. Willis, she noticed a faint smell of alcohol on his breath. Phillip, the nine-year old child, suffered two impacts to his head resulting in a large skull fracture, hemorrhaging around the brain, bruising, extensive internal bleeding, and other various injuries. He died in the crash as a result of accidental "blunt head trauma."

Kansas City Police Officer, James Fuller ("Officer Fuller"), was dispatched to investigate the accident. When he arrived, several police officers were already on the scene. They informed Officer Fuller that Mr. Willis, who was being transported to a hospital for treatment of a head injury and broken collarbone, emitted an "aroma of alcohol" and may be "impaired." Officer Fuller directed Officers Eric Braden ("Officer Braden") and Eric Helrich ("Officer Helrich") to follow Mr. Willis to the hospital and observe his behavior.

Upon arriving at the hospital, Officer Braden asked Mr. Willis to provide the police with a urine and blood sample. Mr. Willis refused. Officer Fuller subsequently drafted an application for a search warrant with a supporting affidavit that read as follows:

On 4-13-2000 at about 1800 hours at or near 75th and N. 71 Hwy, Mr. David E. Willis, B/M, 8-18-67, was the driver of a southbound vehicle that lost control, entered the grassy median, and overturned. The stated driver, David E. Willis, was driving at an excessive speed, attempting to pass slower southbound traffic by passing on the right (west) shoulder, when he lost control, skidded into the grassy median, and the vehicle overturned, causing the death of an unrestrained passenger a Mr. Phillip Herndon, B/M, 12-21-90. Responding officers detected an aroma of alcohol on his [David] breath. Suspect refused a consent to search.

After a Jackson County circuit court judge signed the search warrant, Officer Fuller drove to the hospital to execute it. Mr. Willis initially refused to submit to any testing. His behavior was erratic, vacillating from calmness to belligerency. Officer Fuller concluded that Mr. Willis was under the influence of some type of narcotic or alcohol. Mr. Willis eventually agreed to provide a blood and urine sample.

The lab results of Mr. Willis' blood sample established the presence of cocaine. The results of his urine sample showed traces of alcohol, marijuana, and cocaine. At trial, a toxicologist analyzed the lab results and concluded that Mr. Willis was not under the influence of alcohol or marijuana at the time of the offense. The trace amounts of alcohol and marijuana could not establish that Mr. Willis had ingested marijuana or alcohol on the day of the accident. The toxicologist also concluded, however, that Mr. Willis was under the influence of cocaine at the time of the accident because the amount of cocaine in his system was "within the range [of] people ... who have cocaine intoxication."

Mr. Willis was charged by indictment on July 12, 2000, with one count of murder in the second degree, section 565.021.1(2), RSMo 1994, an alternate count of involuntary manslaughter, section 565.024, RSMo 1994, two counts of endangering the welfare of a child in the first degree, section 568.045, RSMo 1994, one count of assault in the second degree, section 565.060.1(4), RSMo 1994, and one count of driving with a suspended license, section 302.321.1, RSMo Cum.Supp.1999. The driving with a suspended license charge, section 302.321.1, was severed from the other counts at Mr. Willis' request and tried on April 9, 2001, without a jury, before the trial court judge. The other four charges were tried before a jury on April 9, 2001. The jury was unable to reach a verdict and the trial ended in a mistrial on April 12, 2001. On May 25, 2001, the trial court judge entered judgments of acquittal on the murder in the second-degree count and the two counts of endangering a child in the first degree.

Defense counsel for Mr. Willis filed a motion to suppress evidence arguing that the results of the blood or urine tests should be suppressed as fruits of the poisonous tree because: (1) the affidavit supporting the search warrant failed to establish probable cause; and (2) the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The trial court overruled Mr. Willis' motion to suppress. At the bench trial, Mr. Willis was convicted of involuntary manslaughter, section 565.024, RSMo 1994, assault in the second degree, section 565.060.1(4), RSMo 1994, and driving with a suspended license, section 302.321, RSMo Cum.Supp.1999. On September 5, 2001, the court sentenced Mr. Willis to seven years imprisonment for the involuntary manslaughter charge, four years imprisonment on the assault in the second degree charge, and one year imprisonment on the driving with a suspended license charge. The first two sentences are to run consecutively with the third sentence to run concurrent to the first two. Following his convictions, Mr. Willis filed this appeal.

Standard of Review

"Whe[n] ... a criminal defendant's pretrial motion to suppress evidence is overruled, and the defendant objects to the admission of the evidence at trial, we will review the denial of the motion." State v. Rowe, 67 S.W.3d 649, 654 (Mo. App. W.D.2002) (citing State v. Williams, 9 S.W.3d 3, 11 (Mo.App. W.D.1999)). Appellate review of a motion to suppress evidence is limited to determining whether the trial court's decision was supported by substantial evidence. State v. Roman, 961 S.W.2d 831, 845 (Mo. banc 1998) (citing State v. Feltrop, 803 S.W.2d 1, 12 (Mo. banc 1991)). "While the meaning of probable cause is a...