Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J.
W. SHEFFIELD, C.J. - OPINION AUTHOR
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 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.
and Procedural Background
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.
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
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."
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.
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.
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.
jail, Trooper Waters explained the implied consent law to
Defendant. Defendant refused to provide a breath sample
without an attorney present.
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.
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
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.
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 ...