904 S.W.2d 81 | Mo. Ct. App. | 1995
Derrick Caldwell appeals from his conviction, after a jury trial, of driving while intoxicated, section 577.010, RSMo 1994
On February 7, 1994, at approximately 1:00 a.m., Police Officer Phillip Hopper was refueling his police car outside the sector he normally patrols. On his way back to his sector he observed a car being driven without its headlights on. Officer Hopper pulled behind the car and gave the license number to his dispatcher. Officer Hopper then stopped the ear. After the car had come to a
At trial, Caldwell’s brother, Marty Young and his friend, Priscilla Rush, testified on Caldwell’s behalf. Caldwell also testified. Young testified that he woke his brother up earlier on the night in question to see if he could borrow Caldwell’s car in order to get something to eat. He testified that Caldwell gave him his keys and decided to go along. Priscilla Rush also went along. Young stated that the driver’s side door of Caldwell’s car did not work and that the three of them had to enter the car by way of the passenger side. Young also testified that he, not Caldwell, was the driver of the ear that evening. Both Caldwell and Rush testified to essentially the same set of facts. The defense also called an investigator from the Public Defender’s Office, Kenneth Dozier, to testify. However, the State objected to Dozier’s proposed testimony and the trial court sustained the State’s objection. Caldwell was found guilty and now appeals his convictions.
In Point I, Caldwell contends that the trial court erred in admitting his driving record into evidence over his timely hearsay objection. Caldwell claims that the State failed to comply with the necessary statutory requirements for admitting the driving record as a business record. Caldwell reasons that the State would not have been able to prove beyond a reasonable doubt that he had been driving while his license was revoked without the admission of his driving record. Under his first point, Caldwell challenges only his conviction and sentence on the charge of driving while revoked.
The State concedes that the record on appeal contains no indication that the State complied with the seven day notice requirement contained in section 490.692. The State further concedes that Caldwell’s objection to the admission of his driving record was sufficient to preserve the issue of admissibility under Goodloe v. Director of Revenue, 838 S.W.2d 506 (Mo.App.1992). However, the State argues that although the record might have been admitted erroneously, this does not mean that Caldwell should be discharged from his conviction for driving while revoked because (1) even without the record there was sufficient evidence upon which the trier of fact could have convicted Caldwell and (2) Caldwell cites no legal basis for the proposition that he is entitled to discharge.
The trial court did err in allowing the admission of Caldwell’s driving record into evidence. Section 490.692.2 provides:
No party shall be permitted to offer such business records into evidence pursuant to this section unless all other parties to the action have been served with copies of such records and such affidavit at least seven days prior to the day upon which trial of the cause commences.
The provisions of section 490.692.2 cannot be disregarded. Every word, clause, sentence, and section of a statute should be given meaning. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). The statute is clear; the State must provide copies of the records to be introduced along with a copy of the affidavit required by section 490.692.1 to a defendant at least seven days before trial in order to introduce business records under section 490.692. This the State did not do. It is therefore undeniable that the trial court erred in admitting Cald
Caldwell’s conviction for driving while revoked is not supported by the record without the admission of his driving record. Therefore, the admission of his driving record was prejudicial and his conviction for driving while revoked is reversed.
In Point II, in addition to challenging his conviction for driving while revoked, Caldwell also challenges his conviction for driving while intoxicated.
Judge, I would expect Mr. Dozier to testify that he’s an investigator for the Public Defender’s Office, and that he’s been employed for I don’t know how long. But he would testify how long he has been employed with the Public Defender’s Office.
He will testify as to his qualifications as an investigator and somebody who knows what to look for when investigating the ease. I do not know what the qualifications are, but they would be there and I would ask that that be part of the offer of proof.
At this time, Judge, I was going to ask Mr. Dozier, does he recognize the photo of the automobile. This would be Defendant’s Exhibit No. 4. I was going to ask Mr. Dozier if he recognized this, and he would say, “Yes, I do.”
And I would go, “Why?”
And he would go, “Because I took the picture.”
I’d go, “Is this a fair and accurate representation of the picture you took?”
And he would go, “Yes.”
I would just put this back here and show it to the jury. It’s already been admitted into evidence, Judge. He would testify that he took that picture.
Then I would ask Mr. Dozier if he recognizes this picture, what’s marked Defendant’s Exhibit 7. I imagine his response would be ‘Tes, I took the picture.”
I would ask him if this is a fair and accurate depiction of the picture. His response would be yes.
I would ask him if this door works.
His response would be, “I tried to open that door. There are no mechanical methods to open that door. That door does not open.”
After that I would — that would be my offer of proof, Judge.
The judgment of the trial court finding appellant guilty of driving while revoked is reversed and appellant is ordered discharged from said conviction. The judgment of the trial court finding appellant guilty of driving while intoxicated is affirmed.
All concur.
. All sectional references are to Missouri Revised Statutes 1994, unless otherwise indicated.
. Caldwell does not challenge his status as a prior offender as charged in the information against him and determined by the trial court.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Since Point I is dispositive as to Caldwell’s conviction for driving while revoked, we address this point only as it relates to the conviction for driving while intoxicated.