Opinion
No. 25651
April 27, 2004
Appeal from the Circuit Court of Jasper County, Missouri, Honorable David C. Dally, Judge.
Kent Denzel, Appellant's attorney.
Jeremiah W. (Jay) Nixon Stephanie Morrell, Respondent's attorneys.
Chad D. Madorie ("Appellant") appeals the judgment of the Circuit Court of Jasper County convicting him of driving while intoxicated, § 577.010, RSMo 2000, and sentencing him to three years' imprisonment. He raises two points of trial court error. As explained below, Appellant's first point of trial court error is dispositive.
In Point One, Appellant maintains the trial court erred in overruling his objection to the admission of his extrajudicial statements into evidence because the State failed to provide independent proof of the corpus delicti of the offense of driving while intoxicated.
Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. Around 1:00 a.m. on September 8, 2000, Officer James Kelly of the Joplin Police Department was dispatched to an accident scene in Joplin. Officer Kelly arrived at the scene at approximately 1:15 a.m. and observed a vehicle in the ditch. The 1994 Mazda Protegé was facing the road, and the nose of the vehicle was "kind of pointing straight up." Another officer had already arrived on the scene and was speaking to a young man, later identified as Kevin Dunn ("Dunn"), while Appellant was standing near the vehicle, which belonged to Appellant.
Appellant approached Officer Kelly, and Officer Kelly noticed that Appellant was unsteady on his feet, swayed while he walked, and stumbled from time to time. Officer Kelly asked Appellant what happened. Appellant stated that he had been driving north on Main Street when he saw a friend walking by. Appellant related to Officer Kelly that he attempted to stop to give his friend a ride, but he ran off into the ditch. During this conversation, Officer Kelly noticed that Appellant's breath had a strong odor of intoxicants. Officer Kelly further noted that Appellant's eyes were watery and bloodshot. When asked if he had consumed any alcohol that evening, Appellant initially stated that he had not; however, when Officer Kelly asked again, Appellant admitted that he had been drinking "a little bit" earlier in the evening.
Officer Kelly administered three field sobriety tests, all of which, in Officer Kelly's opinion, Appellant failed. Based on Officer Kelly's observations of Appellant and Appellant's performance on the field sobriety tests, Officer Kelly arrested Appellant for driving while intoxicated and transported Appellant to the police station.
Once at the police station, Officer Kelly read Appellant his Miranda rights, and Appellant indicated that he understood them. Officer Kelly also read Appellant the Implied Consent law, and Appellant indicated he was willing to take a breathalyzer test.
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The results of the breathalyzer test were deemed hearsay and were not admitted into evidence because the State failed to endorse the person who performed the monthly maintenance on the machine and that person was not able to testify as to the accuracy of the machine.
Following the breathalyzer test, Appellant told Officer Kelly that "he knew he was intoxicated, knew he was driving but that [Officer Kelly] hadn't seen the keys in the ignition, so that he knew that he would get out of it — get out of the trouble with his lawyer."
After a jury trial, Appellant was found guilty of the class D felony of driving while intoxicated and was sentenced to three years' imprisonment. This appeal followed.
In Appellant's sole point under review, Appellant essentially claims that any extrajudicial statements he made to Officer Kelly relating to operating the motor vehicle in an intoxicated condition were inadmissible absent separate, independent proof of the corpus delicti. Accordingly, he maintains there was insufficient evidence to find him guilty beyond a reasonable doubt of driving while intoxicated. We agree.
Appellant's second point on appeal alleges the trial court erred in failing to hold a pretrial hearing on a motion to suppress Appellant's statements made at the police station. Because of our disposition of Appellant's first point on appeal, we need not address this point because the manner in which it arose at trial makes it unlikely that it will recur on retrial. See Smith v. Kansas City Southern Ry. Co. , 87 S.W.3d 266, 279 (Mo.App. 2002).
"The trial court is afforded broad discretion in assessing the admissibility of evidence, and its ruling on the admissibility of the evidence will not be interfered with on appeal absent a clear abuse of discretion." State v. Mozee , 112 S.W.3d 102, 105 (Mo.App. 2003).
"The corpus delicti of driving while intoxicated consists of evidence that someone operated a motor vehicle while intoxicated." State v. Girdley , 957 S.W.2d 520, 522 (Mo.App. 1997). "[U]nless there is independent proof, either circumstantial or direct, of the essential elements of the corpus delicti, extrajudicial admissions, statements or confessions of the accused are not admissible in evidence." State v. Johnston , 670 S.W.2d 552, 554 (Mo.App. 1984).
"The corpus delicti consists of two elements: (1) proof, direct or circumstantial, that the specific loss or injury occurred, and (2) someone's criminality as the cause of the loss or injury." State v. Friesen , 725 S.W.2d 638, 639 (Mo.App. 1987). "Evidence of the particular defendant's criminal agency is not required as part of the corpus delicti." State v. Stimmel , 800 S.W.2d 156, 158 (Mo.App. 1990).
"`In order for defendant's statement to be admissible, absolute proof that a crime was committed independent of his statement is not required.'" Girdley , 957 S.W.2d at 523 (quoting State v. Hahn , 640 S.W.2d 509, 510 (Mo.App. 1982)). "Independent evidence of circumstances which `correspond and interrelate' with the circumstances described in the statement or confession are sufficient to prove corpus delicti." Stimmel , 800 S.W.2d at 158 (quoting State v. Litterell , 800 S.W.2d 7, 10 (Mo.App. 1990)).
The instant case is, in many respects, similar to that in Friesen , 725 S.W.2d 638. In Friesen , the defendant and his roommate were travelling from Jefferson City to Sedalia when a wheel of the truck became stuck in a culvert. Id. at 639. While the two were examining the situation, a car passed them. Id. After the defendant waved his hand for assistance, the car — a Missouri Highway Patrol vehicle — returned to offer help. Id. The Highway Patrol trooper testified that as the defendant approached him, the defendant said, "I overshot the driveway." Id. However, the trooper never saw either the defendant or his roommate driving or sitting in the vehicle and did not investigate the vehicle to determine if the keys were in the ignition. Id. The defendant acknowledged the vehicle was his and was so registered. Id. When asked, the defendant also responded that he had been drinking earlier in the day. Id. However, the trooper did not ask the defendant or his roommate if the defendant had been driving the vehicle. Id. Furthermore, the trooper did not ask the defendant's roommate if he had been drinking or whether he had driven the vehicle. Id.
The Western District of this Court concluded that the record established the defendant was intoxicated, but did not show, "either by direct or circumstantial evidence, that he or anyone else operated the truck while under the influence." Id. at 640. As the court noted, the only evidence of the corpus delicti was the defendant's statement to the trooper that he overshot the driveway. Id. Saliently, the court pointed to the presence of the defendant's roommate and observed that the questioning at the scene did not eliminate the possibility that the roommate was the driver. Id.
Similarly, in the instant case, Officer Kelly's questioning on the scene and testimony at trial failed to eliminate the possibility that Dunn was the driver. Officer Kelly testified that he did not see either Appellant or Dunn driving or sitting in the vehicle. Officer Kelly also stated he did not investigate the vehicle to determine if any keys were in the ignition, the engine was running, or the hood was warm. Furthermore, there was no evidence that Officer Kelly asked Dunn if he was intoxicated or whether he had been driving the vehicle.
"The corpus delicti cannot be presumed. The state has the burden to prove the corpus delicti by legal evidence sufficient to show that the crime charged has been committed by someone." Id. Here, while the record indicates Appellant was intoxicated, the record fails to reveal any evidence, aside from Appellant's own statements, that he or anyone else operated the vehicle while intoxicated. Under these circumstances Appellant's statements should not have been admitted into evidence. See id.
This error, however, does not mandate discharge of Appellant. "The State is entitled to rely on the trial court's erroneous ruling in determining what evidence to produce." State v. Kinkead , 983 S.W.2d 518, 519 (Mo. banc 1998). "Erroneous admission of evidence does not preclude retrial `even though when such evidence is discounted there may be evidentiary insufficiency.'" Id. (quoting State v. Wood , 596 S.W.2d 394, 398 (Mo. banc 1980)).
Had the trial court properly ruled that Appellant's statements were inadmissible given the lack of independent evidence of the corpus delicti, the State might have elected to present additional testimony from Dunn or the other officer who responded to the scene to provide additional evidence of the corpus delicti. Thus, based on the record before us, we cannot say that the State would be unable to make a submissible case. See id. Accordingly, we reverse the trial court's conviction of Appellant and remand the matter for a new trial.
PREWITT, J. and GARRISON, J.
CONCURRING OPINION
I concur in the principal opinion and write separately only to distinguish it from prior cases such as State v. Johnston , 670 S.W.2d 552 (Mo.App.S.D. 1984), and State v. Stimmel , 800 S.W.2d 156 (Mo.App.E.D. 1990). In Johnston , the trooper found a vehicle in the ditch with its front end near or against a chain link fence and its rear end near or on the road. In addition, he noticed ten to fifteen feet of damage on the fence, and there were over sixty feet of skid marks and tire marks on the road leading to the car. This established that the "driver lost control, applied the brakes, and skidded off the pavement at the point shown by the tire marks," thereby providing independent evidence that someone was driving the vehicle in an intoxicated condition. 670 S.W.2d at 555.
In Stimmel , the trooper found a vehicle at the edge of the westbound lane facing eastbound with its rear end in the median and with tire marks leading from the eastbound lane. The trooper determined that the driver of the vehicle was heading eastbound when the car left that lane, traveled into the median, and came to a stop on the edge of the westbound lane. 800 S.W.2d at 157. The Stimmel court, found that Johnston was persuasive and concluded that the evidence was sufficient to support a finding that someone was operating a motor vehicle within the ambit of Section 577.010. Id. at 159.
Both Johnston and Stimmel found that the facts of the accidents were sufficient to support a finding that "someone" was operating a motor vehicle in an intoxicated condition, thereby providing a basis for introduction of the extra judicial admissions of the defendant. In the instant case, the only evidence from which to deduce how the accident happened was that the officer "observed the vehicle that was just off the roadway, facing toward the roadway but slightly in a ditch to where the nose of it was kind of pointing straight up." The evidence here concerning where and under what circumstances the vehicle was found did not necessarily lead to the conclusion that "someone" had been operating it in an intoxicated condition when the accident occurred. For these reasons, I concur in the principal opinion.