Court of Appeals of Missouri, Western District, Second Division
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
King Mitchell, Judge
Watt appeals, following a jury trial, his conviction for
driving while intoxicated in violation of § 577.010,
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
counsel made no further effort to present the court with the