Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Billings

Court of Appeals of Missouri, Southern District, First Division

November 28, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
v.
DONALD CURTIS BILLINGS, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J. Johnson

         AFFIRMED

          MARY W. SHEFFIELD, C.J. - OPINION AUTHOR

         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 Miranda[1] 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.

         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. 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.

         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-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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.