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State v. Watt

Court of Appeals of Missouri, Western District, Second Division

July 18, 2017


         Appeal from the Circuit Court of Boone County, Missouri The Honorable Jodie C. Asel, Judge

          Before: Thomas H. Newton, Presiding Judge, and James Edward Welsh and Karen King Mitchell, Judges

          Karen King Mitchell, Judge

         Pharis Watt appeals, following a jury trial, his conviction for driving while intoxicated in violation of § 577.010, [1] for which he was sentenced as a persistent offender under § 577.023 to a term of four years' imprisonment, with a recommendation for institutional treatment under § 559.115. Watt argues that the trial court erroneously excluded demonstrative evidence he proffered in the form of a voice exemplar in violation of his right to due process. Finding no error, we affirm.


         On July 27, 2014, around 1:00 a.m., Lori Mitchell was driving on Scott Boulevard in Columbia, Missouri, when she encountered a vehicle swerving on the roadway and driving in the wrong direction. Mitchell called 911 to report the erratic driving. At 1:23 a.m., Columbia Police Officers Regan Gustafson and Ryan Holtz responded to the call.

         Officers Gustafson and Holtz came upon a vehicle matching the description provided by Mitchell (a white sedan missing its rear bumper) stopped, but with the engine still running, partially on the shoulder and partially in the roadway a short distance from where Mitchell first reported seeing the car. The front passenger tire was directly against the curb and appeared damaged. The officers approached Watt, who was seated in the driver's seat of the vehicle, and asked him to turn the engine off.

         Upon approaching the vehicle, Officer Gustafson immediately smelled a very strong odor of intoxicants coming from the interior of the vehicle and noticed that Watt's eyes were bloodshot and watery. Before Officer Gustafson could say anything to Watt, he "handed [her] his Triple A card and . . . ask[ed her] to call Triple A for him, " an action he repeated "a couple of times." When Officer Gustafson asked Watt for his identification and insurance card, he continued trying to hand her his Triple A card. Officer Gustafson asked Watt where he was coming from, and he indicated "a friend's house, " but, when asked to clarify where that friend's house was located, Watt provided "a series of numbers that changed a couple of different times, [and] was not able to give . . . a street [name] at that point." When asked where he was going, Watt indicated that he was headed to a convenience store for cigarettes.

         Officer Gustafson asked Watt if he had been drinking that evening. He initially indicated that he had not. Officer Gustafson noticed that Watt's speech was slurred and "a little bit halting." She then asked Watt to exit the vehicle, and, when he did, "he was unsteady on his feet and swaying." Upon being asked to perform field sobriety tests, Watt immediately responded by stating that he had injuries to his back, shoulder, hip, and knees. The officers moved Watt across the street to a vacant parking lot for safety reasons; as he walked across the street, he appeared unsteady on his feet, swaying side to side and staggering slightly. Officer Gustafson again asked Watt if he'd had anything to drink, and, at that time, he said he had consumed one beer approximately three hours earlier.

         Once they reached the parking lot, Officer Gustafson had Watt perform two field sobriety tests: the Horizontal Gaze Nystagmus (HGN) test and the one-leg stand test. Watt scored four out of a possible six clues of intoxication on the HGN test and three out of a possible four clues of intoxication on the one-leg stand test. In Officer Gustafson's experience, a strong odor of intoxicants and bloodshot, watery eyes were also indicators of intoxication and ones that would not result from consumption of a single beer. Based upon all of her observations of Watt, Officer Gustafson determined that he was too impaired to safely operate a motor vehicle, so she placed him under arrest.

         Watt suggested to Officer Gustafson that he might be having trouble with his blood sugar, despite statements that he had taken all of his medication appropriately earlier that day. Consequently, Officer Gustafson called for medics. While awaiting the arrival of the medics, Officer Gustafson observed Watt to be unsteady on his feet and swaying slightly. Watt asked if he could sit down, and Officer Gustafson helped him do so. Despite suggestions to the contrary, Watt tried to lie down on his back, but complained of pain from his arms being handcuffed behind him, so Officer Gustafson attempted to help him roll onto his side, but he rolled himself face-first into the grass, causing Officer Gustafson to again assist him in rolling into a comfortable position, where he remained until the medics arrived. When the medics arrived, they tested Watt's blood sugar level and determined it to be within the normal range.

         After being medically cleared to be taken into custody, Watt was transported to the Columbia Police Department for booking. During the drive, Watt repeatedly asked the officers why they believed he was driving while intoxicated, which had been discussed with him both at the scene and multiple times in the car. Watt reiterated that he had consumed only one beer, but he kept changing the time at which he supposedly had it from three hours prior to his arrest all the way up to the morning before his arrest. Throughout the drive, Watt's speech was slurred and halting; Officer Gustafson indicated that it "took him a little while to get certain sentences out."

         When they arrived at the station, Officer Gustafson opened the car door and asked Watt to step out, but he advised her that he could not do so on his own. Officer Gustafson attempted to assist Watt by first moving his feet outside the car and then eventually lifting up on his arms. But Watt kept lifting his feet in the air, making it difficult to lift him from the car; he had to be asked to put his feet down to bear his own weight. Once inside the station, Watt again asked why the officers believed he was intoxicated. When asked to remove his belt, Watt declared that he was "incognito, " which he explained meant he was not wearing any underwear.

         Watt was charged, as a persistent offender, with the class D felony of driving while intoxicated in violation of § 577.010. At trial, during the cross-examination of Officer Gustafson, Watt's counsel questioned whether Officer Gustafson had ever heard Watt speak outside of their contact the night of his arrest. When Officer Gustafson indicated that she had not, Watt's counsel suggested that Officer Gustafson could not "know how [Watt's speech] that night compares to [Watt's] normal inflection." Officer Gustafson agreed. Then, after the close of the State's evidence but outside the presence of the jury, Watt's counsel sought to present demonstrative evidence in the form of a voice exemplar by having Watt read aloud to the jury one of his own statements from the videotape evidence, introduced during the State's case-in-chief, for the purpose of allowing the jury to assess whether Watt's speech pattern presented on the videotape should be considered as evidence of intoxication as opposed to simply his normal speaking style. Watt specifically sought a ruling that he be allowed to do so without cross-examination, claiming that the evidence would be demonstrative, rather than testimonial. The State objected, arguing that, if Watt were permitted to provide the evidence, he would be waiving his right to be free from self-incrimination and open himself up to cross-examination. The trial court sustained the objection, noting that

demonstrative evidence, normally, you know, it's here, you review it, you understand and agree to the accuracy. And this, I mean, how do we know he's going to read it in his true voice? I mean, he could make up any voice. He could do it in a Donald Duck voice, and we'd have no way of knowing whether - he hasn't said anything here today. He's chosen not to testify. We don't know what he talks like. And the purpose of it would be to impeach, I assume, the officer's earlier statements as to the speech slurred and how that influenced [her] opinion as to the intoxication and impairment. And so I think there's all kinds of issues with it.
If it had been done ahead of time and everybody agreed, you know, that this was a true sample of his true voice, then that's one thing. But to say, Here, read this - I mean, you have no idea what kind of voice he's going to use.

         After the jury was called back in, Watt's counsel requested a sidebar at which he stated:

Your Honor, at this time we're going to ask that the Court allow - we're going to ask the Court to allow Mr. Watt to make a statement for demonstrative evidence purposes only and have him read a sentence that was taken directly from the tape that the jury watched previously. And I think the State is going to have an objection to that.

         Watt's counsel made no further effort to present the court with the ...

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