STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
vs. ) No. SD34082
)
DONALD CURTIS BILLINGS, ) Filed: November 28, 2016
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Laura J. Johnson
AFFIRMED
Donald Curtis Billings ("Defendant") appeals from his conviction for one
count of driving while intoxicated. He claims (1) the trial court plainly erred in
allowing the State to both adduce evidence and to argue about evidence that
Defendant refused to answer questions after having been advised of his
Miranda1 rights and (2) the trial court plainly erred in allowing the State to both
adduce evidence and to argue about evidence that Defendant requested an
attorney after having been advised of his Miranda rights. Defendant's claims
are without merit, and we affirm the trial court's judgment.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
Factual and Procedural Background
On Friday, May 3, 2013, Defendant and his longtime friend, Joann Stum,
("Ms. Stum") drove to John's Frosted Mug. They arrived at the restaurant at
approximately one p.m. and began drinking beer.
Mandi Rogers ("Ms. Rogers") got off work at approximately 11:30 p.m.
that night. On her way home, she "noticed a car in front of [her] that had crossed
the centerline a couple of times." When the car came to a sharp curve, the driver
did not apply the brakes. The car left the roadway, landing in a ditch. Ms. Rogers
stopped and positioned her truck so the headlights were shining on the car and
then approached the car to make sure everyone was okay. She reached the car
less than a minute after it crashed, and the car was not out of her sight as she
approached. She saw no one get out of the car as she approached.
When she reached the car, Ms. Rogers found Defendant "slumped over the
steering wheel." Ms. Stum was underneath the passenger-side dash board. Ms.
Rogers said she would call for help, but Defendant insisted "that he didn't need
help." Defendant tried to put the car in reverse while Ms. Rogers called for help.
Ms. Rogers later testified that as the first responders arrived, she saw Defendant
get out of the driver's seat and move to the back passenger-side seat. Defendant
was unsteady on his feet and had to hold on to the car the whole way. He smelled
of alcohol and repeatedly stated, "I wasn't the driver."
Shortly after midnight, Missouri Highway Patrol Trooper Kevin Waters
("Trooper Waters") arrived on the scene. He spoke with an EMT and Ms. Rogers
and then approached Defendant who was in the back seat. As soon as he put his
head in the car to speak with Defendant, Trooper Waters could smell alcohol.
2
Defendant had a glassy, staring look. Trooper Waters asked Defendant to come
to the patrol car to provide information.
The patrol car was approximately 50 yards away. Defendant moved slowly
and seemed unsure of his steps. When Trooper Waters asked what had
happened, Defendant responded he had not been driving. Trooper Waters asked
Defendant how much he had been drinking, and Defendant replied he did not
know. Defendant told Trooper Waters to call John's Frosted Mug and to ask for
the bar tab.
Trooper Waters next asked Defendant to complete field sobriety tests.
Trooper Waters started with the alphabet test which Defendant was unable to
complete successfully. Defendant also showed indicators of intoxication on the
counting test. Defendant then refused to participate in the horizontal gaze
nystagmus test or a preliminary breath test. Trooper Waters placed Defendant
under arrest, advised Defendant of his Miranda rights, and transported
Defendant to jail.
At the jail, Trooper Waters explained the implied consent law to
Defendant. Defendant refused to provide a breath sample without an attorney
present.
Defendant was charged with driving while intoxicated as a persistent
offender. Defendant was tried by a jury. The jury found Defendant guilty of
driving while intoxicated. The trial court sentenced Defendant to four years in
the Missouri Department of Corrections. This appeal followed.
3
Discussion
Both of Defendant's points are governed by the same standard of review
and the same legal principles. As Defendant neither objected to the evidence and
arguments he challenges nor raised the claims in his motion for new trial, his
claims are not preserved, and he requests plain error review. The following
standard of review and general principles apply to both points.
"Plain error review is a two-step process." State v. Fincher, 359 S.W.3d
549, 553 (Mo. App. W.D. 2012). In the first step, the appellate court examines
the record to "determine whether there is, indeed, plain error, which is error that
is 'evident, obvious, and clear.'" State v. Stites, 266 S.W.3d 261, 266 (Mo. App.
S.D. 2008) (quoting State v. Roper, 136 S.W.3d 891, 900 (Mo. App. W.D.
2004)). Only where such error appears will the appellate court continue to the
second step where it determines "whether a manifest injustice or a miscarriage of
justice will result if the error is left uncorrected." Fincher, 359 S.W.3d at 554.
"In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United States Supreme
Court held that the use for impeachment purposes of a defendant's silence, at the
time of arrest and after receiving Miranda warnings, is fundamentally unfair
and violates the due process clause of the Fourteenth Amendment." State v.
Dexter, 954 S.W.2d 332, 337 (Mo. banc 1997). Moreover, "[i]t is well
established that the State may not use a defendant's post-arrest silence, or
language representing silence, to incriminate the defendant." State v. Mason,
420 S.W.3d 632, 638 (Mo. App. S.D. 2013) (quoting State v. Whitmore, 948
S.W.2d 643, 647 (Mo. App. W.D. 1997)). Additionally, "'[s]ilence' extends to a
defendant's request for counsel." Id. Thus, references to a defendant's post-
4
Miranda silence or request for an attorney have become known as Doyle
violations. However, not all testimony which mentions a defendant's silence or
request for an attorney results in a Doyle violation. For example, where the
defendant initially waives his rights and speaks with the authorities, "the State is
free to show the circumstances under which the interrogation was terminated as
long as no inference of guilt can be reasonably drawn from the evidence." Id. at
639. With these principles in mind, each of Defendant's claims will be addressed
separately. However, for ease of analysis, we take Defendant's claims out of
order.
Point Two: Request for an Attorney
In his second point, Defendant raises two related claims: (1) that the trial
court plainly erred in allowing the prosecutor to elicit testimony that Defendant
requested an attorney after he had been advised of his Miranda rights and (2)
that the trial court plainly erred in permitting the prosecutor to refer to that
testimony during opening statement and closing argument.2 In this point,
Defendant primarily attacks the testimony about the events surrounding his
refusal to submit to a breath test. This argument is without merit because, when
viewed in context, Defendant's statements were a refusal to submit to the breath
test and were admissible under Section 577.041.3
2
A claim of error in the admission of evidence is a separate claim from a claim that the
prosecutor's argument based on that evidence was error, so a point relied on raising both claims is
multifarious. See State v. McDaniel, 236 S.W.3d 127, 133 (Mo. App. S.D. 2007). "Points relied
on containing multifarious claims violate Rule 84.04(d) and ordinarily are subject to dismissal."
Day v. State, 208 S.W.3d 294, 295 (Mo. App. S.D. 2006). Nevertheless, this Court prefers to
exercise its discretion to resolve appeals on their merits where, as here, the nature of the claim is
readily understandable despite briefing deficiencies. See State v. Leonard, 490 S.W.3d 730,
736-37 (Mo. App. W.D. 2016). All rule references are to Missouri Court Rules (2016).
3 All statutory references are to RSMo Cum. Supp. (2013).
5
Evidence of a refusal to submit to a chemical test for blood alcohol content
is admissible in a prosecution for driving while intoxicated under Section
577.010. § 577.041.1.4 "A refusal to take a breath test within the meaning of
§ 577.041.1 occurs when the person under arrest is requested to take the test but
declines to do so of his own volition." State v. Foster, 959 S.W.2d 143, 147
(Mo. App. S.D. 1998). "It is not necessary that the person use the words 'I refuse,'
or that he refuse to blow into the machine." Id. "A refusal can also occur by
remaining silent, or by making a qualified or conditional consent o[r] refusal."
Id.; Spradling v. Deimeke, 528 S.W.2d 759, 765-66 (Mo. 1975) (holding that
a driver had refused to take a breath test where the driver stated "he would not
take the test without an attorney present").
Here, when the transaction is viewed as a whole, a reasonable fact-finder
could have found that Defendant's request for an attorney was, in fact, merely a
delay tactic used to avoid the breath test. Besides the evidence summarized
above, the prosecution adduced evidence regarding Defendant's request for an
attorney through the testimony of Trooper Waters. Trooper Waters explained he
read Defendant the implied consent law off a form. Then the prosecutor asked
4
The complete text of that subsection is:
If a person under arrest, or who has been stopped pursuant to subdivision (2) or
(3) of subsection 1 of section 577.020, refuses upon the request of the officer to
submit to any test allowed pursuant to section 577.020, then evidence of the
refusal shall be admissible in a proceeding pursuant to section 565.024, 565.060,
or 565.082, or section 577.010 or 577.012. The request of the officer shall include
the reasons of the officer for requesting the person to submit to a test and also
shall inform the person that evidence of refusal to take the test may be used
against such person and that the person's license shall be immediately revoked
upon refusal to take the test. If a person when requested to submit to any test
allowed pursuant to section 577.020 requests to speak to an attorney, the person
shall be granted twenty minutes in which to attempt to contact an attorney. If
upon the completion of the twenty-minute period the person continues to refuse
to submit to any test, it shall be deemed a refusal.
§ 577.041.1
6
about Defendant's refusal: "Do you recall, um, if he just flat out refused or how
was it[?]" Trooper Waters replied, "No. He wanted to speak to his attorney. He
wanted to talk to his lawyer." Trooper Waters then explained he allowed
Defendant 20 minutes to contact an attorney as required by the implied consent
law. When the 20 minutes was over, Trooper Waters testified, Defendant stated
"he wanted an attorney there." Trooper Waters said he explained to Defendant
that he was allowed only 20 minutes to attempt to contact an attorney and that it
was probably not possible to get an attorney to the jail in 20 minutes. Trooper
Waters also testified he explained that at the end of 20 minutes, Defendant would
have to make a decision. Trooper Waters said that at the end of the 20 minutes,
Defendant "basically just continued to say, I want a lawyer here" and "[t]hat he
wouldn't do anything without a lawyer[.]" Trooper Waters testified he ultimately
just finished "processing" Defendant.
That is, Defendant did not refuse by saying "I refuse." Instead, he refused
by conditioning his refusal on the presence of an attorney. While Defendant had
a right to consult an attorney under the statute, that right was a qualified right,
and a suspect has no absolute right to have an attorney present when he or she
completes a breath test. See Staggs v. Director of Revenue, 223 S.W.3d 866,
873 (Mo. App. W.D. 2007) ("A driver has no constitutional right to speak with an
attorney prior to deciding whether to take the test or to have an attorney present
during the testing."). After being given an opportunity to contact a lawyer and
being told he would have to decide at the end of 20 minutes about whether to
submit to the test, Defendant continued to demand an attorney. Thus, in the
context of the specific facts of this case, Defendant's statements were not a
7
protected request for an attorney, but admissible evidence of Defendant's refusal
to submit to the breath test. See Spradling, 528 S.W.2d at 765-66.
The trial court did not err, plainly or otherwise, in admitting evidence or
permitting argument that Defendant refused to submit to a breath test by
conditioning his submission upon the presence of an attorney. Point Two is
denied.
Point One: Defendant's Refusal to Answer Questions
In his first point, Defendant claims the trial court plainly erred in allowing
the State to elicit testimony that Defendant refused to answer questions after
Trooper Waters advised him of his Miranda rights and in allowing the
prosecutor to refer to that testimony during opening statement and closing
argument.5 Defendant specifically targets Trooper Waters's testimony regarding
what happened after Defendant refused to submit to a breath test. Trooper
Waters stated, "I think I attempted to ask him some questions. He was not
willing to answer questions, so he did not answer any of the questions." Trooper
Waters also testified he did not "push" the questions once Defendant indicated
his unwillingness to cooperate. While it is true Defendant had been advised of
his Miranda rights and refused to answer questions, such testimony standing
alone does not require reversal. In that respect, this case is like State v.
Howell, 838 S.W.2d 158 (Mo. App. S.D. 1992).
In Howell, the officer testified he took the defendant into custody,
advised him of his rights, and the defendant made no statements. Id. at 160.
5This point is multifarious for the same reason Point Two is multifarious. See n.2, supra.
Nevertheless, we exercise our discretion to review the claims because the arguments are readily
understandable. See Leonard, 490 S.W.3d at 736-37.
8
This Court reasoned that the general rule did "not apply where a defendant did
not stand mute in the face of an accusation because no accusation was made."
Id. at 161. Here, similarly, Defendant was not asked any specific, incriminating
questions. While the form Trooper Waters was supposed to fill out required him
to ask "basic questions as far as the crash," Trooper Waters did not actually ask
those questions. Instead, because Defendant was combative, Trooper Waters
merely asked if Defendant "was willing to answer any questions." Defendant
refused. Thus, like Howell, "[t]his is not a case where an accused clams up in
the face of a charge of guilt, made under circumstances calling imperatively for an
admission or denial." Id. at 162 (quoting State v. Starks, 459 S.W.2d 249, 252
(Mo. 1970)). The trial court did not err in failing to intervene, sua sponte, when
the prosecutor questioned Trooper Waters about whether Defendant was willing
to answer any questions.
The analysis is different for the State's argument about this evidence,
however. The prosecutor mentioned the refusal to answer questions or to
cooperate in opening statement. Then, again, in closing argument the
prosecutor used the evidence of Defendant's refusal to answer questions to
support the prosecution's theory of the case that Defendant's lack of cooperation
showed Defendant was, in fact, guilty of the offense. At trial, the defense theory
was that Defendant had not been the driver of the vehicle. To counter this theory,
the prosecutor stated in opening statement that the evidence would show "the
defendant refused, refused to cooperate, refused to answer questions adequately,
and refused to give a sample." Then, during closing argument, the prosecutor
closed the State's argument with these assertions:
9
Trooper told him, you get this amount of time, and then we
have to make a decision about whether or not you're going to blow.
He still says, I'm not going to blow; not going to do it.
He had every opportunity to cooperate, and all he did was
continue to refuse. He didn't want to cooperate. He didn't want—at
the jail the trooper told you he had a whole list of questions as part
of his investigation, a part of his reports, that, you know, he asked
people, will you answer some more of my questions.
He asked him, um, you know, certain things like what—what
they had to eat that day. I mean, there's a varie—there's a whole
page of questions. "Nope. I'm not answering any more of your
questions."
Why not? Why not? I mean, I think that's one of the most
important questions you guys can ask yourselves when you're going
back there to deliberate. Why not? Why not cooperate? Why not
answer any of these questions? Why not blow?
If he was so convinced he wasn't driving, why not do any of
those things? I'll tell you why. Because he was driving and because
he was intoxicated. And he knew that.
That is, the prosecutor's argument urged the jury to use the fact that Defendant
invoked his right to remain silent to support an inference of guilt, which is a
Doyle violation. See State v. Wessel, 993 S.W.2d 573, 576 (Mo. App. E.D.
1999).
The next question is whether these two violations, the brief mention in
opening statement and the argument about lack of cooperation and refusal to
answer questions raised in closing argument, caused a manifest injustice or a
miscarriage of justice. See Dexter, 954 S.W.2d at 340. In the context of an
alleged Doyle violation, "the factors used in an analysis of a preserved error
violation pursuant to the harmless-beyond-a-reasonable[-]doubt standard are
the same as those used to determine whether a non-preserved violation is plain
error resulting in manifest injustice." State v. Jones, 7 S.W.3d 413, 418 (Mo.
10
App. E.D. 1999). The Court must consider: "(1) whether the state made repeated
Doyle violations, (2) whether the trial court made any curative effort, (3)
whether the defendant's exculpatory evidence is transparently frivolous, and (4)
whether the other evidence of the defendant's guilt is overwhelming." Id.
Here, although Defendant argues there were multiple Doyle violations, as
noted in our prior analysis regarding Point Two, there was no error in permitting
evidence that Defendant answered no questions after being advised of his
Miranda rights and there was no error in permitting evidence and argument
that Defendant requested an attorney after being advised of his Miranda rights.
The only Doyle violations, therefore, are in the prosecutor's opening statement
and a brief mention of refusing to answer questions in closing argument. This
factor weighs in favor of the State. See Jones, 7 S.W.3d at 418 (finding there
were no repeated Doyle violations where the Doyle violation involved only "a
few questions and answers").
Regarding the second factor, although the trial court undertook no
curative efforts, Defendant did not object at any point during trial. "A court
should rarely grant relief on an assertion of plain error as to matters contained
within closing argument." State v. Cornelious, 258 S.W.3d 461, 467 (Mo. App.
W.D. 2008). "In the absence of an objection and request for relief, the court's
options are narrowed to uninvited interference with summation and a
corresponding increase of error by such intervention." Id. Had Defendant
brought the issue to the trial court's attention, the trial court could well have
taken action. The trial court was given no opportunity to remedy the situation.
This factor weighs in favor of the State. See Jones, 7 S.W.3d at 418 (noting that
11
a trial court's failure to take curative action in response to a Doyle violation
"may have been due to [the] defendant's failure to object to the evidence on
specific grounds.").
The last two factors require examination of the evidence. First, this Court
must determine if the defense was transparently frivolous. It was. The trial
judge, who had the opportunity to view the evidence just as the jury did, said it
best at sentencing when she told Defendant, "I, frankly, just don't believe for a
moment that you weren't driving that car. . . . I found your defense to be
incredible and unbelievable. And you were willing to place the blame of the
incident on your friend to avoid taking the blame for yourself." The only evidence
Defendant relied on to demonstrate he was not driving was that he did not own
the car and that some witnesses saw him in the backseat of the car. This evidence
is frivolous when viewed in light of Ms. Rogers's testimony.
Ms. Rogers's testimony, when combined with the ample evidence of
Defendant's intoxication, also provides overwhelming evidence of Defendant's
guilt. See State v. Frazier, 927 S.W.2d 378, 382 (Mo. App. W.D. 1996) (finding
no manifest injustice arising from a Doyle violation were the defendant's guilt of
first degree tampering was otherwise clear because it was supported by evidence
that someone saw the defendant driving the car shortly after it was stolen). Ms.
Rogers witnessed the crash and found Defendant in the driver's seat of the
vehicle moments later. She saw Defendant get out of the driver's seat and move
to the back passenger seat. Defendant had apparently been drinking since early
afternoon at John's Frosted Mug. Defendant smelled of alcohol, had glassy eyes
and an unsteady gait, failed two field sobriety tests, and refused two others.
12
Finally, Defendant refused to submit to a chemical test for blood alcohol content.
Defendant's arguments that the evidence was not overwhelming because Trooper
Waters found Defendant in the backseat of the car, and Defendant did not own
the car, simply ignore common sense. The defense was transparently frivolous,
and there was overwhelming evidence to the contrary. There was no manifest
injustice.
The trial court did not err, plainly or otherwise, in admitting testimony
that Defendant refused to answer any questions after being advised of his
Miranda rights. Even though the prosecutor's use of that evidence during
opening statement and in closing argument violated Doyle, Defendant did not
suffer manifest injustice or a miscarriage of justice because of those violations.
Point Two is denied.
Decision
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, C.J. – OPINION AUTHOR
JEFFREY W. BATES, P.J. – CONCURS
DON E. BURRELL, J. – CONCURS IN SEPARATE OPINION
13
STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD34082
)
DONALD CURTIS BILLINGS, ) Filed: November 28, 2016
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Laura J. Johnson
OPINION CONCURRING IN RESULT
I agree that the judgment of the trial court should be affirmed, but I would affirm without
engaging in plain-error review.
Rule 30.20 is no panacea which a criminal defendant can use to obtain appellate
review of any alleged error that is unpreserved. “The plain error rule should be
used sparingly and does not justify a review of every alleged trial error that has
not been properly preserved for appellate review.” State v. White, 92 S.W.3d 183,
189 (Mo.App.2002). Rather, plain error is limited to “error that is evident,
obvious and clear.” Id. The proper parameters of plain error review are
established by the text of Rule 30.20 itself. It states, in pertinent part, that “plain
errors affecting substantial rights may be considered in the discretion of the court
when the court finds that manifest injustice or miscarriage of justice has resulted
therefrom.” Id. . . . [A]n appellate court is not required to engage in plain error
review; the decision whether to grant or deny such a request is left to the court's
1
discretion. State v. Thurston, 104 S.W.3d 839, 841 (Mo.App.2003); State v.
Smith, 33 S.W.3d 648, 652 (Mo.App.2000).
State v. Campbell, 122 S.W.3d 736, 739-40 (Mo. App. S.D. 2004)
Because no complaint whatsoever was voiced at trial about the peril now claimed so
egregious as to have required unasked intervention by the trial court to put a stop to it -- and no
resulting manifest injustice appears -- I would exercise our Rule 30.206 discretion to deny
Defendant's request for plain-error review.
DON E. BURRELL, J. – CONCURRING IN RESULT OPINION AUTHOR
6
Missouri Court Rules (2016).
2