*1 liminary hearing and hence not to avail
himself opportunity. of that hold obligated
We that the state was not
to hold lineup prior preliminary
hearing that the trial properly
overruled suppress the motion to the in-
court identifications.
Judgment affirmed. Respondent, Missouri,
STATE of Appellant. NEAL,
Martin Van Burén
No. 57274.
Supreme Missouri, Court of En Banc.
Feb. *2 to the north access lead
the lanes which road, is, was, signpost and there island, about the middle of raised investigating grade. The six inches above officer, Aytes, found Walter west, signpost the indicat- was bent to ve- by a westbound ing it had been struck the curb and trav- jumped hicle which had the island. eled across ‘trail of “Trooper Aytes found a water type, on the antifreeze, and stuff of this signpost, highway leading away island, along westerly in a direction or the Danforth, Gen., Atty. Michael C. G. John wa- He followed this O’Neal, highway.’ the access City, Atty. Gen., Asst. Jefferson to two and tery approximately trail two White, Rolla, Atty., re- Zane Pros. north, and then turned one half miles spondent. ‘ran out’ on liquid the trail of where White, Jay Rolla, appellant. trooper continued down gravel road. The road, from gravel and about mile HOLMAN, liquid of ended he found Judge. where the trail automobile, defendant, sitting in operating Defendant was of convicted on.’ lights the road ‘with the the middle of con- motor vehicle while an intoxicated There, presently to be in circumstances fixed his jury dition. See 564.440.1 The § detail, trooper arrested stated in punishment appealed at a fine of He $250. defendant, followed. Springfield Appeals (since to the Court 1, 1972, Ap- January Missouri Court by the defend- points raised “One court, That peals, Springfield District). its abused discre- that the trial court ant is judge dissenting, and re- with one reversed refusing segregate the witnesses. tion the admission manded because of error in trial, defendant of the At the outset holding that the Miranda evidence of the witnesses moved for exclusion offense. applicable to this misdemeanor ‘ * * * we feel like ground court, however, that a recognizing to the defendant prejudicial be would importance general interest and each here and hear just sit witnesses involved, the case to this transferred each other’s testify other and conform Art. pursuant determination court for able they should be so that testimony, Mo.Const., V, It will V.A.M.S. § own from what their independently testify original as on determined here “the same oc- to what independent recollection appeal.” Rule V.A.M.S. Civil curred, we feel and for that reason * * * the rule on arbitrarily refuse portion appeals court adopt a of the We de- to this prejudicial would witnesses Hogan, Judge as follows: opinion of * * court *.’ witnesses, segregate evening refused during the August “On its that it abused complains now Highway Patrol hours, the Missouri State Lord, so, doing citing discretion in investigate an accident at the called to Mo., In overpass S.W.2d Interstate Route 44 west held, things, that among other Rolla, ‘City Missouri. In the mid- Route’ the courtroom from road, inter- exclusion witnesses end of the dle of the at the west was a mat- progress of the change, there is a concrete island between RSMo, Statutory V.A.M.S. I. references are appears that began. the trial of the before sound discretion ter addressed to the had four cases cannot, court, disre- that a witness tried. day case was on the order, set for trial deprive party garding court’s appear, clients did not counsel’s of laches One testimony, in absence of his counsel, he according to defendant’s party entitled or connivance *3 vituperative rebuke to a subjected testimony. Lord was In the offending witness’ application an in connection with the court case, and entered arrived late a witness that made on behalf for continuance indicate momentarily to courtroom counsel, According to defendant’s held client. It was presence in the courthouse. within reprimand occurred unjustified in the abuse of discretion that there was no filed has hearing jury. Counsel testify. permitting the witness papers here supplemental a number of see that the Lord case cannot consideration, prop- “We not they but are hand, or that is similar to form, material supplemental er because opinion of the court aids the defendant Rule required by settled as has not been Here, way. two witnesses 28.08, coun- apparent from V.A.M.R. law. officers of the testified were in this his demeanor argument sel’s nothing to indicate There is in the record the trial court’s court that he considered special them had interest either of ruling the court’s remarks offensive case, anything or that either did said, if the trial court unjust, but what do it, more than he was bound to he believed say prompted him anything, and what in peace nothing There is officer. that the trial has it is not shown. Counsel prejudiced dicate that either witness was report him to the Cir- court threatened against the defendant. In these circum what, (for cuit Bar we Committee stances, find no abuse of discretion us here papers laid before advised), and segregate the the trial court’s refusal to to file a ‘going that he was counsel stated during progress witnesses of the trial. here.’ gets as the motion as soon Clerk 21, State, Mo., Huffman v. 451 S.W.2d disqualifica- that no motion for We note 768, [1,2]; Hamilton, v. 340 Mo. State requested, but it orally filed or tion was 642, [14], [20]; State S.W.2d pursue complaint in detail. pointless to Tummons, 123, Mo., v. 34 S.W.2d of this sort do not Allegations of error [3,4]. Mo., Barnholtz, themselves, prove [4]; v. Mc State 287 S.W.2d “The defendant has briefed three other Keever, 1066, 1082,101 339 Mo. S.W.2d points concerning the conduct of the showing a record and in the absence of which to- be discussed and considered said, pro judge the trial and what what gether. They improp- are: That the court said, nothing before there is voked what erly prosecuting attorney ‘advised’the how is limited for review. review us Our questions; to ask the trial certain properly au shown proceedings hostility court exhibited toward defendant’s Overby, transcript. v. thenticated State trial, during the course of the Mo., [6]; State S.W.2d engaged in the court unwarranted Mo., Caffey, S.W.2d presence controversy with counsel Deckard, Mo., 354 S.W.2d the jury. The defendant referred to has [1](cid:127) approximately episodes a dozen which half during shortly occurred before and incident of the defend- “Another trial, and concludes that the trial Trooper occurred complains ant ‘partiality demonstrated side State’s testifying. The witness was Aytes was of the case.’ practical experi- from his asked whether trooper he eight years as a
ence opinion whether an episodes “The first able to was form too intoxicated to complains person which the defendant occurred individual operate Well, a motor highway. vehicle on the requested ‘Mr. I’d White: J. ques- mistrial, The witness Honor, answered Court to declare a Your ‘Yes/ tioning proceeded thus: because of the Court’s actions. Now, ‘Q. your opinion, what was based ‘The Court: Overruled.’ your experience training, as to attorney per- prosecuting was then Neal, defendant, whether or not this Mr. to ask the witness if it was mitted too intoxicated to drive a vehicle safe- question, opinion that on occasion in ly on the road? witness’ Mr. Neal was intoxicated. The Well, now, ‘Mr. object I White: J. had Neal been. Mr. reasons, for several Your sought then prosecutor ask Honor, as follows: is there was no One *4 Aytes his was opinion if in the defendant probable cause. He didn’t see him that he would intoxicated extent any driving to arrest him for while intoxi- Objection to this on the hazard road. question cated. properly The doesn’t sustained; question was the witness phrase opinion it that he was—his about not to answer. permitted whether or not he was while intox- question icated. prosecutor The of the complains that “The defendant also, improper in he respect. that And directing the the court’s action qualified properly hasn’t himself and from ask prosecuting attorney to refrain background hypo- the basic factual his to ing was ‘too drunk whether defendant question (sic) thetical for to this defendant drive,’ facts suggestion and his that some answer. for the witness’ developed a basis opinion prejudice the Well, against indicated his you ‘The think should Court: I defendant, attempt to an and constituted the words “too intoxicated leave out agree. cannot safety.” aid the State’s case. We The highway drive on with the duty to trial court’s Certainly ? it was the question intoxicated And is: Was he impartiality, but develop maintain an attitude of question that you frame want objected the specifically, and counsel had you— some that facts explain ruling on entitled to his court was Yes, rephrase I’ll ‘Mr. White: Z. sir. preju long so as it did not objection, question. Murphy, dice the State v. defendant. 1229, 1235-1236, 111 S.W.2d Mo. Well, re- ‘Mr. at this time I White: J. Law [5], [6,7]; Criminal § C.J.S. quest a mistrial and that the Court declare here pp. trial court did All the 1018-1019. jury discharged order the reason state, objec in response to counsel’s was to position has to- Court shown tion, prosecutor should not ask that prosecuting by assisting attorney, ward the obviously invading province question help phrase his prosecuting attorney agree counsel that the jury, and with questions to—in his and order make facts postulate the proper should admissible, questions so that opinion. upon based his which the witness give can that this should here ques The neither undertook trial court not be and should not be admissi- admitted himself, express nor tion witness ble. was, aft his The court views of own. ‘The Court: Overruled. all, charged duty to see er administered, and properly law was ‘Mr. take that ac- The White: Court J. remaining duty by discharge that could not tion, respectfully request that as I United wholly mute inert. States have suggested. has, Marzano, Cir., 149 F.2d indeed, ‘The I a trial court proper Court: What was now? been held part. questioning didn’t understand the line when suggest last necessary guidance jury, argued It is before us for deci- here. suggested questioning and the line of does sion. prejudice indicate toward the defend- noted, Trooper Aytes upon “As came Hellscher, City ant. Louis St. defendant’s automobile some three and one [4], Mo. S.W. damaged signpost half miles from sit- Wilson, Mo.App. [4], ting ‘in the middle of the road with nothing prej- S.W. 305. We find lights on.’ The defendant was ‘under
udicial to the defendant in the trial court’s
Troop-
trying
wheel’
get
car started.
regarding
‘hypothetical’ question
action
defendant,
Aytes pulled
er
up behind the
put
Trooper Aytes.
having
and asked defendant
if he
car
trouble.
defendant answered
necessity
“There
no
for further
quit
him’ and
‘just
running
car had
extended
episodes
discussion of the other
he did not know what was
matter with
says
prejudice
counsel
indicate
Trooper Aytes
got
it.
then
his car
out of
against the defendant and his
door
went to the
of defendant’s vehi-
favorable bias toward the
case.
State’s
open.
trooper
cle. The
window
carefully,
We have examined the record
very
observed that defendant’s vehicle was
and it does not
any display
indicate
of hos
hot, and that
it had sustained extensive
tility toward counsel for the defendant.
*5
damage to the front end. There was a
Certainly
vituperation
we find none of the
large ‘V-shaped’ indentation in
front
and sarcasm which
trial
characterized the
car,
‘you
end of the
could see marks
Hicks,
judge’s
Mo.,
conduct in State v.
approximately
of
“I”
the same width as the
215, upon
S.W.2d
which the defendant re
beam would have
on
signpost.’
lies; we are convinced that the trial court
‘Q.
The witness
he
was then asked:
And
acted at all times
purpose
with a
main
to
also made a
driving,
statement that he was
orderly procedure
tain
expedite
and to
too, till it quit him?’ Objection was made
hearing of the case
denying
without
to
this
objection
was
any right
defendant
to
enti
which he was
prosecutor
‘Q.
sustained. The
then asked:
tled under the law. See State v. Barn
Did he make a statement then
to
holtz,
as who
supra, 287 S.W.2d
at
drove the car
there?’
for de-
up
Counsel
Fletcher, Mo.,
S.W.
objected
to any statement defend-
[21].
ant made until a ‘foundation is laid to the
**
*
brings
“This
us to the principal
Miranda decision.’ The
at-
prosecuting
point presented
appeal.
on this
The de-
torney pursued
matter,
that whether
fendant claims that
in
court erred
defendant
concerning
made a statement
admitting inculpatory
statements made
any passengers
persons
or
might
other
who
the defendant
having
without
been warned
have been in the
Trooper Aytes
car.
tes-
of his
rights
required
constitutional
tified that he didn’t believe he had asked
Arizona,
Miranda v.
384 U.S.
86 S.Ct.
anyone
car,
about
else
in
being
that
but
1602,
“On
cross-examination
was at
As matter of
we note that it is
pains
some
determine when the defend-
stated in Miranda that “the
statements,
ant had
been ‘arrested’
the sense
exculpato-
that he
not use
whether
placed
According
ry
inculpatory, stemming
under restraint.
from custodial
cross-examination,
his testimony
Troop-
interrogation
of the defendant unless it
Aytes put
er
defendant
procedural
under arrest
demonstrates
the use
safe-
car,
got
patrol
guards
after he
out of the
privilege
walked
effective
secure the
against
the defendant’s vehicle and observed the
By
self-incrimination.
custodial
damage
interrogation,
questioning
the defend-
we mean
initiat-
Trooper Aytes
ant’s
ed by
vehicle.
then advised
law enforcement officers after a
‘* * *
person
any
custody
into
answers
has been taken
or oth-
gave
deprived
that he
against
me
him erwise
freedom
could
used
his
of action in
law’;
significant
a court
he did
way.
not advise the
He must be
silent,
right
prior
defendant of
warned
any questioning
remain
that he
silent,
told him nothing concerning
right
right
has the
any-
to remain
thing
says
against
counsel.
can
him in
be used
law,
right
that he has the
also had
evidence of an-
presence
attorney,
of an
and that
if he
Trooper Herndon,
officer,
par-
other
attorney
ap-
cannot afford an
one will be
ticipated
investigation. Trooper
pointed
prior
if
questioning
him
Herndon
that when he
testified
arrived
Arizona,
he so
desires.” Miranda
there,
Trooper Aytes
already
444, 479,
1. c.
1. c.
S.Ct.
U.S.
*6
car,
standing
defendant was
outside
Nothing
The fundamental
reason
the cases heretofore
In addition to
sup-
present
rule
not
simply
investiga-
expressed
is
the views heretofore
238
Nearly
tion of motor vehicle
all
A.2d
ported by
(Del.),
offenses.
v. Bliss
State
interrogation occurs,
N.C.App.
Beasley,
as in the case
v.
10
[1];
State
bar,
Desjardins,
at
at or near the
[5];
scene
the violation
State
ceed”, 1. c. 1600. FINCH, J., DONNELLY, C. MOR- Columbia, In the District of the Institute HENLEY, GAN and JJ., concur. of Criminal Law and Procedure of
Georgetown University Law Center under- empirical study attempt took SEILER, J., dissents in separate dissent- implement Miranda in the District. This ing opinion filed. reported is Michigan in 66 L.R. 1347-1422. Bar Association of the District Junior BARDGETT, J., dissents and concurs in Neighborhood Bar Legal and the Services separate SEILER, dissenting opinion of J. Project up program provide set a availability
around-the-clock of counsel for defendants, week, days seven peri- for a SEILER, Judge (dissenting). year. od of year, In this “an astonish- part far as the So Miranda ingly defendants”, only small number of concerned, only question before us all those arrested for felonies and 7% applies whether the Miranda misdemeanors, serious requested counsel under Sec. R.S.Mo. Project, c. 1352. In prohibits driving V.A.M.S. which Wound”, by Self-Inflicted Fred P. Gra- intoxicated, motor vehicle but the ham, a member of the bar and the Su- goes lays much further and down the preme correspondent Court for The New broad dictum that Miranda does not Times, up York the author sums the re- investigation of most motor vehicle of- search has been done on the effect doing accepts fenses. In so the court police of the Miranda rule in work and speculative postulate “it that otherwise says p. 280: “The verdict of the aca- utterly impossible provide would be suf- virtually demic researchers has unani- been lawyers ficient to consult the number impact mous—that the Miranda has of motor operators would great . . . that in event likely request legal advice.” suspects go most ahead and talk.” subject
What evidence
there is
mistake, my opinion,
It is a
to decide
contrary.
study
A
was made
question of
the Miranda rule
whether
*8
group from Yale Law
as to the
School
charge
applies
driving
on the
to a drunken
workings of the Miranda rule at the New
assumption
police would be
erroneous
Haven,
police
Connecticut
station for an
swamped
for
if the
requests
period
eleven
during
weeks
the summer of
apply
vehicle of-
rule is held to
to motor
population
1966. New Haven has a
is not
general,
fenses in
a
which
152,000 inhabitants. The results are re-
us, anyway.
before
ported in 76 Yale
1519-1648.
One
L.J.
addition,
laid
findings
In
the broad denial
down
only
was that
in-
few
by
police
be read
warnings
stances did the
cause
the decision will
as
counsel,
approval
vigilance in
suspects
though
to relax their
ask
even
as
suspects
their constitutional
warning
felonies and
serious misdemeanors were
investigate what
rights
police
“In primarily
analysis,
volved.
statistical
whenever the
Texas,
326,
only
supra,
v.
394 U.S. at
appears
first
a minor motor Orozco
at
be
1097,
investigation pro-
at
at
L.Ed.2d
314. More
vehicle offense. As the
S.Ct.
ceeds,
felony over,
major
it is
the Federal authori
police may
find a
clear from
committed,
although
do
whereupon their work
of Miranda
has been
ties
the words
which
of a Miranda
not constitute a ritualistic formula
spoiled
be
for want
verbatim,
repeated
is inevita-
States
warning at the outset. This risk
must
United
698-699,
Cir.,
determining
Vanterpool,
F.2d
ble where the criterion
v.
not,
warning,
warnings
applicability of
is
the whole
Miranda
substance
it,
custody
merely
in the
person
part
given,
has the
been taken into
of must
Miranda,
waiver,
police
sug
set forth in
but whether
is not even
absence of a
States,
person
gested
can divine at the time the
here. Green v. United
prosecuted
custody
Cir.,
taken
he is
into
if
to be
United
589(2, 3);
F.2d
Cir.,
Fox,
motor vehicle
misdemeanor
403 F.2d
v.
States
Cir.,
States,
something more serious.
(204);
Lathers
United
Anno.,
524, 533-534(10);
F.2d
see also
I
ourselves to
believe we should confine
565,574,
2(a) (1970).
31 A.L.R.3d
Sec.
issue
be-
the issue before us. On that
I
“
Judge Hogan,
in the
lieve
import
.
.
.
unmistakable
[T]he
Appeals, convincingly
Court of
sets forth Trooper
testimony is
Aytes’
de-
why
rule should
reasons
placed
sig-
‘under arrest’ and
driving.
to a
for drunken
nificantly deprived
freedom ac-
I, therefore,
adopt my
dissent and
dis-
Aytes
up
the de-
tion at
time
walked
where,
opinion,
following
sent the
from his
fendant’s
and observed the defend-
immediately
quoted
after
what
ant,
condition
his intoxicated
con-
opinion,
Hogan goes
majority
Judge
dition of the front end of his vehicle.
say:
Trooper Aytes
any-
advised defendant that
against
thing might say
he
could be used
and force of the defend-
substance
him,
warning
but his
no further.
went
point
immediately apparent.
ant’s
To
Trooper Herndon arrived
after
R.S.
make out a
under Sec.
arrest,
permitted
was under
and he was
V.A.M.S.,
prove
must
(1969)
Mo.
the State
recall,
testify
Aytes
‘if I
1)
operated
a motor ve-
if
asked Mr. Neal
he had been
hicle,
2)
that he was
an intoxicated
he
said
had.’ The State therefore made
doing
[Fjrom
condition
so .
case,
it,
part
its
or a
in our
substantial
outset,
to es-
here undertook
obtained
opinion, on custodial admissions
offense, op-
tablish the first element of the
warning,
without a Miranda
or at
least
eration, by
of the defendant.
admission
warning
.
.
proper
without
. Our
require the
cases
Miranda
Orozco
conclusion ...
that the defendant
point warning
four
at the time
individ
prejudiced
permitting Trooper
custody
or otherwise de
ual is taken
testify
that he
Herndon to
to his admission
sig
prived
freedom of action in
of his
that admission
had
because
Arizona, supra,
way.
nificant
Miranda
interrogation
made
custodial
1602 at
436 at
87 S.Ct.
U.S.
warning
proper Miranda
without
706;
Texas,
Orozco v.
L.Ed.2d after arrest obtained from the defendant *9 “ may the be true that Mi- . It warning having . . and without the Miranda applied to practicably is, rule cannot be in the randa language of Oroz ‘ offense, that Mi- may case, petty every . flat co . .a violation apply to misde- not meant to randa was the Fifth Clause of Self-Incrimination no such certainly find meanors, though in Miranda.’ Amendment as construed 302.304, (3). If the conviction language of the case. We Subd. limitation in the conviction, is a under 564.440 second upon such broad Sec. are not called to decide may granted the misdemeanant not be even here, questions but to decide whether 302.309, privileges. prosecu- driving limited Sec. applicable or not Miranda is .- in nature (5). Subd. Other disabilities tions under Sec. 564.441. upon are attendant disfranchisement difficulty here is that we have subsequent Sec. third and convictions. See are, in in distinctions drawn other states Moreover, driving the offense of 564.710. view, by which inadequate as criteria relatively easy intoxicated Perhaps appeal determine . . . prove; suspected of the of- the individual offenses mind those those courts had in practically obliged by provi- fense is commonly regarded as mere infractions sions of to submit to a chemi- Sec. 564.444 road’, exempt but to liter the ‘rules of the cal test to determine whether or not he is erally involving operation all offenses intoxicated, ‘operation’ and the element of application of a motor vehicle proved by almost may be inference from equate speeding ticket Miranda would indicating that the de- circumstance manslaughter by prosecution for with a attempting fendant had been or operation of a culpable negligence the automobile drive . 599.070, equa motor under Sec. “ Mi- . . conclude that . As . regard untenable . . tion we as [W]e applicable be and is against self-in randa should suming privilege charge violations of Sec. 564.440. right to counsel are di crimination and the simple prove; ordinarily, no relatively and not visible so in some cases extensively interrogation is neces- others, custodial consequences of conviction may sary. consequence of conviction for the in sum total be as serious mis- serious, do not believe extremely and we demeanant as for the felon. would be enforcement officers law compounded by difficulty is “Our application of by the heavily overburdened hybrid stat- fact that our 564.440 is a Sec. procedures violations prohibits motor ‘operating’ It vehi- ute. 564.440.” Sec. cle ‘while an intoxicated condition.’ provides the first violations are to two misdemeanors, and that
be considered subsequent are felo-
third and convictions offense, here, For
nies. $100, or
penalty is a fine of not less than county imprisonment jail in the for not of Missouri, Respondent, STATE months, both; or more than six offense, penalty second is confinement county jail in the for a term not less than EDWARDS, Appellant. Paul A. days year; and not more than one No. 56783. subsequent pen- offenses the
the third and Missouri, upon Supreme alty either conviction is confinement Court of Division No. 1. county jail ninety for not less than days by impris- year, nor more than one Feb. department onment of corrections (that term of penitentiary) for a years.
not less than two nor more than five addition, system’,
In ‘point under our
conviction under Sec. 564.440 results privi-
loss of the misdemeanant’s
leges pursuant (7) Secs. Subd.