State v. Meanor

ROBERTSON, Judge,

concurring in part and dissenting in part.

At some moment early on the morning of September 23, 1989, Robert Meanor decided that speed limits, good judgment and concern for others in the operation of a motor vehicle played an inconsequential role in his life. Through the darkness of that Franklin County night Meanor sped, his truck transformed into a hurtling metaphor for an evening in which he had made his lack of grace manifest to those with whom he had dealt.

Steven Eads and his wife, Angela, had left St. Louis after attending a baseball game. Their drive home took them along Highway 100 in Franklin County. Randy Beach had also chosen Highway 100 as his route home that night. Beach saw a vehicle approaching him in his rear view mirror. Noting his own *890speed and the speed with which the trailing vehicle cut the distance between them, Beach assumed a law enforcement officer had caught him exceeding the speed limit. The vehicle shot around Beach, slamming head-on into Steven and Angela Eads, snatching the breath of life from Steven Eads, injuring his wife, and leaving her a widow.

Meanor’s reckless and uncaring acts that night are beyond comprehension to persons of normal sensibilities. No one can explain or condone them. But that is not the question before this Court.

The record shows beyond a reasonable doubt that Meanor possessed drugs and drug paraphernalia at the time of his arrest. I fully concur with the majority’s affirmance of Meanor’s conviction on that count of the information. With respect, I dissent from the majority’s conclusion that the State made a submissible case against Meanor on the involuntary manslaughter count.1 The fact that Meanor committed a hideous act does not of itself render him guilty of involuntary manslaughter under the laws of Missouri.

When determining whether the evidence is sufficient to support a conviction, the evidence and all inferences reasonably drawn from it are considered in the light most favorable to the verdict, disregarding all contrary evidence and inferences. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). On appeal, the relevant inquiry is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 408, 407 (Mo. banc 1993).

As the majority concedes, this jury could not convict Meanor without drawing inferences from direct and circumstantial facts and believing that those inferences are true beyond a reasonable doubt. The ultimate factual decision left to the jury is whether Meanor was intoxicated at the time he passed Randy Beach on Highway 100 and killed Steven Eads.

A brief summary of the uncontroverted evidence, opinion testimony, and inferences the jury must have drawn to reach its conclusion follows.

Evidence
1. Meanor consumed alcoholic beverages on the evening of September 23.
2. Meanor was rude and abrasive at the Pizza Hut.
3. Meanor passed a field sobriety test administered by a law enforcement officer immediately prior to leaving the Pizza Hut.
4. Meanor drove his truck at a high rate of speed.
5. Meanor passed Randy Beach and, while passing Beach, collided with the Eads’ vehicle.
6. Meanor suffered a broken jaw, three broken ribs, a broken collar bone, two broken feet, a broken leg and crushed lungs.
7. There were several bottles of beer, one open and several broken, in Meanor’s truck after the accident.
8. Meanor was obnoxious and spoke with slurred speech after the accident. His breath bore an odor of alcohol.
9. Meanor’s truck smelled of beer and burnt marijuana after the accident; Mea-nor smelled of alcohol and burnt marijuana at the hospital.
10. Meanor smelled of alcohol and marijuana about an hour after the accident, when the trooper visited him in hospital.
11. Meanor’s blood alcohol measured 0.02% at the hospital, well below the statutory standard for alcohol intoxication.
12. No one tested Meanor’s blood for evidence of drug use.
Opinion Testimony
1. State Trooper Vayla Thomas-Nelson’s opinion, over objection as to lack of foundation, “I believe him [Meanor] to be intoxicated.”
Inferences
1. Meanor smoked marijuana while driving the truck. (Inferred from the *891presence of drug paraphernalia and burnt marijuana smell in the truck)
2. Meanor consumed alcohol after leaving the Pizza Hut and prior to the accident. (Inferred from the the presence of open and broken beer bottles in Meanor’s truck.)

Conclusionary Inference from the Inferences

1. Meanor operated the truck in an intoxicated condition with criminal negligence causing the death of Steven Eads.

As the majority says, a person is guilty of involuntary manslaughter if he (or she) “[wjhile in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person.” Section 565.024.1(2), RSMo 1986. This section must be read in pari materia with Section 577.-001.2, RSMo 1986, which states that “a person is in an ‘intoxicated condition’ when he is under the influence or [sic] [of] alcohol, a controlled substance, or drug, or any combination thereof.” [Emphasis in original.] Section 577.037.5, RSMo 1986, states:

Any charge alleging a violation of Section 577.010 ... shall be dismissed with prejudice if a chemical analysis ... demon-stratefs] that there was less than ten-hundredths of one percent of alcohol in the defendant’s blood unless_
(2) There is evidence that the defendant was under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or
(3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant.

After the collision in this case, Meanor consented to a blood test to determine the level of intoxicants in his system. The lab test showed that defendant had a blood alcohol content of 0.02 percent — twenty percent of the legal limit. Under Section 577.037.5, there is a rebuttable presumption that a person with a blood alcohol content of less than 0.10% is not intoxicated. The presumption may be rebutted if the State can show elements of Section 577.037.5(2) or (3).

The majority opinion concludes that Trooper Nelson-Thomas’ opinion testimony satisfies Section 577.037.5(3), and from this opinion a reasonable juror could find beyond a reasonable doubt that the evidence satisfies Section 577.037.5(2). Thus, the sine qiia non of the State’s case is the opinion testimony of Trooper Nelson-Thomas.

Meanor’s counsel objected to the admissibility of the trooper’s opinion testimony at trial. Quite correctly, the majority concludes that counsel failed to preserve the question of the admissibility of the trooper’s opinion for appellate review despite the presence of the proper and timely objection at trial on that very point. Once the majority determines that the question of admissibility is resolved, the question of submissibility is easily and correctly resolved by the majority. My disagreement with the majority hinges on its premise; I do not believe admissibility of the trooper’s opinion testimony is hidden from appellate review. Further, I believe the trial court erred in admitting her opinion on the question of intoxication.

Rule 30.20 permits an appellate court to consider plain error sua sponte. “Whether briefed or not, 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.” [Emphasis added.] Id.

First, the trial court committed error in overruling Meanor’s objection to the admission of Trooper Nelson-Thomas’ opinion as lacking foundation. There is nothing in this record to show that Trooper Nelson-Thomas had any prior experience or training in identifying characteristics of persons intoxicated by drugs. Her opinion concerning Meanor’s intoxication rested on her observations of a seriously injured man who had received a blow to his face sufficient to break his jaw and knock out several teeth — he behaved obnoxiously, he had bloodshot eyes and slurred speech, his breath carried the odor of intoxicants, he smelled of burnt marijuana and there were marijuana and one open and two broken beer bottles in the truck. His behavioral characteristics may have been consistent with alcohol consumption, but *892blood tests revealed that he was not intoxicated by alcohol.

For reasons that cannot be explained, no one tested Meanor’s blood for the presence of drugs, though such a test is available. The failure of anyone to order such a test is consistent with the trooper’s testimony. She described a person who appeared intoxicated by alcohol. Her opinion testimony merely extends that conclusion to a combination of alcohol and drugs, without any basis in experience or training for her conclusion as to the effect of drugs on an individual.

“[Djrugs can produce a confusing array of symptoms which cannot be sorted out without specialized training.” State v. Rifkin, 140 Vt. 472, 438 A.2d 1122, 1124 (1981). Without laying some foundation setting out her specialized training and experience, I do not believe Trooper Nelson-Thomas could properly offer her opinion on Meanor’s intoxication from a combination of drugs and alcohol when blood tests revealed that he was not intoxicated by alcohol alone.

Second, the error is outcome determinative and therefore highly prejudicial. The trooper’s opinion was the lynch pin of the State’s case. The admission of her opinion resulted in a manifest injustice.

I hasten to add that I do not read Rule 30.20 as an invitation for appellate courts to rummage through trial transcripts in search of unpreserved error. I am content to let Rule 29.15 serve to address trial counsel’s failure to object to the admission of inadmissible evidence. But within the limited context of this case, the presence of a proper and timely objection at trial and the clear and prejudicial error of the trial court’s ruling speak of such a manifest injustice that application of Rule 30.20 is appropriate.2

Such a conclusion is judicially economical as well. By hiding behind the slender reed of appellate counsel’s failure to argue or brief the point, the majority’s decision today merely invites the subsequent filing of a motion to recall the mandate in this case. Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978). There we will be asked to consider appellate counsel’s ineffectiveness. Without the protection of the procedural barrier, I predict the Court will be hard pressed to uphold Meanor’s conviction.

I believe it is more probable than not that Meanor was intoxicated when he killed Steven Eads. Had the State taken the simple expedient of testing Meanor’s blood for drugs, any doubt — either way — would be resolved. However, the Due Process Clause of the Fourteenth Amendment prohibits the conviction of any defendant except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt. The State failed to meet that standard here.

I respectfully dissent from Part I of the majority’s opinion.

. To the extent that Meanor’s conviction for second degree assault, Section 565.060.1(4), RSMo 1986, depends on a proof of his intoxication, the argument I make here applies with equal force.

. It does not appear that the State was prejudiced by this unlikely procedural situation. What foundational evidence existed regarding the basis for Trooper Nelson-Thomas' opinion was admitted. It was simply insufficient to support the conclusion stated.