State v. Rose

The claim. Id. at 470-1. land at issue wild, Missouri, Respondent, undeveloped

this neither STATE of case is nor covered in woods and hills. The trial court considered evidence about the condition ROSE, Douglas Appellant. D. Ortmanns’ about the land and use of it 59925. that as a No. WD determined matter of fact was sufficient then- use to establish Appeals, Missouri Court for the possession adverse entire tract of District. Western land. upset will not this unless finding We July trial court has abused its discretion. at 32. Murphy, 536 S.W.2d Point denied. final point

Dace’s is that the Ort- essentially raised “boundary

manns have

by acquiescence” claim and that

court by considering erred claim be their to plead

cause the Ortmanns failed

both parties agreed on common bound

ary. point This is without The merit. argue “boundary

Ortmanns did not ac

quiescence” they required nor were to. pleaded

This case tried under the

theory possession. of adverse Even were

there argument, merit to the some Dace

never this at trial raised issue and so we

will not review it. Thomas Lloyd, S.D.2000). Ac point denied.

cordingly, the judgment of the trial in all court is

respects affirmed. AHRENS, J., H.

CLIFFORD concurs. SULLIVAN, J.,

SHERRI B. concurs. NEWTON, Judge. H.

THOMAS Douglas points D. raises five Rose appeal driving from his conviction for (DWI). while Mr. Rose was intoxicated offense, traffic also convicted of another points but none to that relate convic- point alleges tion. first there evidence to sustain his insufficient Next, claims DWI conviction. he that the granted his motion court should in limine exclude evidence of refusal point to take a In his third he breath test. in allowing claims erred that the trial court police testify concerning officer nystagmus horizontal gaze Fourth, argues Mr. Rose administered. improperly interrupted trial court arresting his offi- cross-examination jury. Finally, he cer and dismissed complains judge improperly that the trial interrupted and dis- closing argument his upon missed State.

We affirm. AND PROCEDURAL

FACTUAL

BACKGROUND Joseph stopped by Mr. St. Rose was ap- at Police McConaha Officer Gerard a.m. on October proximately 1:30 pick- after the Mr. Rose’s officer observed Morrey, Ap- Joseph Joseph, A. St. for proceed up light, truck at a red slow pellant. intersection, and make through a left Jr., for Dwight Scroggins, Joseph, K St. was still red. After signal turn while the Respondent. over, pulling Rose Officer McConaha Mr. intoxicants, and strong detected odor of SPINDEN, M. Presiding PAUL Before that Mr. the officer noticed Rose’s also LOWENSTEIN, L. Judge, HAROLD asked, Mr. Rose eyes When glassy. were ULRICH, PATRICIA A. ROBERT G. drinking. had been Officer denied that he BRECKENRIDGE, SMART, JAMES M. the vehicle Mr. Rose exit McConaha had ELLIS, JR., M. JOSEPH VICTOR C. actions, the smell of driving because of his HOWARD, NEWTON, THOMAS H. look of intoxi- intoxicants, general HOLLIGER, R. RONALD LISA officer adminis- point, cation. At that HARDWICK, Judges, and WHITE tests, TURNAGE, hori- sobriety tered Judge. WILLIAM E. three field Senior (“HGN”) test, gaze nystagmus zontal in denying his motion in limine to exclude test, one-leg stand and the walk-and-turn evidence of his failure to submit to the test. breathalyzer test because refusal was not suspension found his administrative upon poor perfor- Based Mr. Rose’s hearing. Rulings motions in limine tests, sobriety mance on these the officer interlocutory preserve are nature and concluded that Mr. Rose was intoxicated. appellate for nothing review. See State again He was asked if he had drink- been Carr, W.D. “Well, ing, responded, and Mr. Rose I had 2001). preserve To a claim of for error two beers.” Mr. Rose was arrested for appellate review as to the admission of transported police DWI to the station. evidence, party seeking to exclude the station, At the Mr. agreed Rose to submit object evidence must at trial to its admis However, sample. to a breath being after Here, however, sion. See id. 855-56. given opportunities, three the officer con- prosecution when the adduced cluded Mr. Rose was not attempting from concerning Officer McConaha give sample a valid because the breatha- refusal, Rose’s defense counsel did not ob lyzer emitted an audible tone “like beeping Therefore, ject. the issue has not been you just if let it set there by itself’ and preserved appellate review. Although because the device into which Mr. Rose apprise Mr. Rose does this court of the blowing did not up “cloud from con- applicable pursuant standard of review Thus, densation.” Mr. Rose was marked 84.04(e),3 presume Rule re he down as a refusal. It was the officer’s quests plain pursuant error review to Rule opinion, even without the benefit of a 30.20. result, breathalyzer that Mr. Rose was under the influence of night. alcohol that review, plain Under error Mr. Rose Accordingly, Mr. Rose was charged with injustice must show that a a manifest DWI, B class misdemeanor of miscarriage justice of occurred. Even guilty.2 577.010,1 § a jury found him though the State concedes in its brief that appeal

This follows. the Associate Circuit Court of Buchanan County reinstated Rose’s license after

LEGAL ANALYSIS a trial de novo on the basis that the evi Because the claims of error raised in presented dence at the hearing was insuffi III, Points II and if found in Mr. Rose’s cient, Mr. Rose has not filed a record of favor, would bear on sufficiency of hearing administrative with this court. I, evidence claim he raises Point we It appellant’s responsibility pre is the to points address prior addressing these to 81.12(d). pare appeal. the record on Rule Point I. Furthermore, whatever the reason for trial trial, object counsel’s failure to the claim

I. Evidence of Mr. Rose’s Failure to he essentially seems to raise is a collateral Breathalyzer to a Submit Test estoppel argument, maintaining that In Mr. point prosecution Rose’s second precluded on should be from in appeal, he claims that the trial court erred troducing of a driver’s evidence refusal indicated, 304.281, statutory signal, § 1. Unless otherwise all ref- a red traffic but none of his erences are points appeal to RSMo 2000. on concern conviction. charged guilty 2. He Supreme was also with and found 3.All rule are references to Missouri (2002). turning of the class C misdemeanor of left on Court Rules of, pendent by, and not affected driver’s refusal found the adminis where no is context, charges of to the criminal plea guilty aris- trative and the courts of this state occurrence.”). out of ing the same assertion typically have held that such an Clarkston, merit. is without See State v. Because of the aforementioned case law W.D.1998) 705, (Mo.App. case, overall circumstances this (“The to to a fact the refusal consent are that Mr. Rose not confident did breath could not be used as a basis test injustice a miscarriage suffer manifest or a license not make revoke did [the driver’s] justice. point This denied. is breath inad [the test] refusal take II. The HGN Test and Related for purposes, missible other such Testimony4 explain why ... State did not have ... direct level of alcohol evidence discussing sobriety the field ad- tests blood, on other and instead relied [his] Rose, to Mr. Officer ministered McConaha intoxication.”); also State see points Rose six testified that Mr. scored (Mo. Mayfield, 918-919 gaze nystagmus test. The the horizontal S.D.1998) App. revo (stipulation license eye point one for move- HGN test scores proceeding cation that officer did not for ment of alcohol influence indicative probable stop cause did not motorist eye, tests for each each three estop collaterally the State in later DWI points, a possible score of six highest Rotter, case); State 958 S.W.2d an points or more indica- score four W.D.1997) (stipulation li (Mo.App. during suspect intoxicated. See tion hearing that driver had Revenue, cense revocation Parrish 11 S.W.3d v. Dir. of did E.D.1999). not refused submit to breath test Although some- (Mo.App. estoppel not effect in driv awkward, have collateral this what name DWI); er’s v. War criminal quite descriptive: field, 11-12 S.D. involuntary Nystagmus jerking is an 1993) (finding suspension in prior license test, indi- eyes. Under hearing administrative defendant was are tested as vidual’s movements eye did not bar the driver automobile they are determining means whether of DWI); prosecution Pagano for v. Dir. A sus- under influence of alcohol. the of Revenue, 948, (Mo.App. 927 object S.W.2d 951 to an such pect required is follow E.D.1996) plea (stating guilty “driver’s in the eyes as pen as a or finger proceeding the criminal was not conclusive along a hori- object laterally is moved the of any as to of elements the adminis the of the sus- plane periphery zontal to license, suspension sepa- of driver’s trative are three pect’s [T]here vision. present for duty did not waive Director’s rate that an officer looks indicators was, fact, First, per in the an that driver under officer evidence the HGN test. suspect operating smoothly son vehicle. The how follows the observes the object periph- driver as it is moved court’s determination whether Jerking ery suspect’s inde- vision. person was the behind wheel was point us to address Mr. Rose’s throughout 4. this of the sufficient for Footnotes Section and, borrowing appeal, from Justice opinion provide juris- will citations to other Georgia, proclamation jurisdictions Blair’s in Chisholm to show how those dictions 419, 450, (1793), (2 Dall.) L.Ed. 440 relating 2 U.S. 1 with similar to the use of dealt issues only from which Although noteworthy, law is the fountain evidence. these Missouri HGN draw; authority to which reso- we shall are determinative of our authorities appeal. law we shall of Mr. Point III. Missouri is lution Rose’s

97 eyes expert rather than the follow ability teney as an and the test’s scientific object smoothly influ- efficacy. indicates the Second, ence of alcohol. ob- an officer it quar As relates to Mr. Rose’s jerk-

serves whether not a distinctive test’s first eyes efficacy, recog in the at rel with the ing occurs the maximum point acceptance of deviation when moves to nized scientific eye HGN Hill, the far periphery vision. test in v. Hill. In we found that Distinctive jerking general is indicative of the influence of test has ac “the HGN achieved Third, alcohol. an officer ceptance observes within the behavioral science angle nystagmus Nys- at which community. occurs. We find that when tagmus occurring eye at or before by per trained adequately administered looking at a 45-degree angle indica- sonnel, the HGN test is admissible as evi tive of the influence of alcohol. Hill, dence of intoxication.” 865 at S.W.2d Thus, with Frye accordance Hill, State v. (Mo.App. 865 S.W.2d 704 (D.C.Cir. States, United 293 F. W.D.1993), overruled on other grounds 1923), may HGN evidence be admitted (Mo. Carson, State v. 941 S.W.2d into without obtaining evidence first ex 1997). banc pert testimony regarding the test’s Admissibility The A. validity, provided scientific an appro HGN Test Results Hill, priate foundation is laid. See 704; Link, S.W.2d at State v. courts of this state typically find (Mo. 2000).5 that HGN 144-45 banc admissible reli- Subse as quently, able measure this illegal level of intoxi- court’s Southern District See, cation in prosecutions e.g., adopted Myers, Hill State v. DWI. Clarkston, case, 64, S.D.1997). Also, 717. In this 64-5 this challenges Rose the trial court’s deci- court’s Eastern District relied on Hill. has Parrish, sion to testify: allow Officer McConaha to (holding See S.W.3d at 654-55 scores, my experience, that, “Six they’ve al- proceeding, a license revocation ways been the legal upon above limit .10. the driver’s refusal to submit to a [of] I’ve never had breath, one scored six arresting below.” chemical test her specifically, point More Mr. Rose’s grounds third officer had reasonable to arrest intoxicated, claims that Officer McConaha incom- for driving the driver while petent testify because an insufficient noting particular that the driver’s score foundation laid compe- points both his on an “clearly six HGN test was explanation 5. eloquent provided by persuaded by the If the court. trial court is the Supreme evidence, of Court Illinois is here for offered court defendant's then the has the Note, however, the benefit of members of the Missouri bench right to bar its admission. and bar: obligation that it is the defendant’s to show that the test results are infirm. It is not the Although longer required the is no to responsibility of the State to show that the Frye show that the HGN test satisfies the scientifically tests and results are valid. may standard it before introduce the results proof by Absent the defense that the HGN evidence, validity of an HGN into test of unsound, test is the State need show beyond HGN tests and test results is not gave officer who the test was challenge. aIf defendant has evidence procedure showing scientifically trained in and the test HGN tests are unsound, properly may interpose appro- he was administered. then Basler, 545, priate objection People to the HGN and 193 Ill.2d 251 Ill.Dec. test results 1, (2000). present supporting his evidence to the trial 740 N.E.2d 4-5 98 intoxication”) Hill, tests, performance sobriety (citing

indicative of 865 on field 704). in particular. at HGN S.W.2d Mr. Rose asks us to revisit and reverse of in As circumstantial evidence Hill, testing claiming that the use of HGN toxication, clearly test results are HGN in assisting to an officer should be limited Where, here, a driver admissible. as determining to the field whether arrest HGN, points on scores four or more drinking driving a for a and viola- driver evidence that the driv there substantial tion. Mr. Rose refers to Alsbach v. us Duffy er v. Dir. is intoxicated. See of (Mo. Bader, 1985), 700 S.W.2d 823 banc Revenue, (Mo.App. 378 966 S.W.2d which, note, prior was decided to our W.D.1998). Indeed, a points “score six in Hill. Alsbach concerned the decision clearly indicative intoxication.” admissibility testimony Parrish, a (emphasis of witness add at S.W.3d intoxication, ed). a that was involved in a motor vehicle colli- Although indicative of sion, test particular on the pertained where the to driver’s score matters intoxi presumption hypnosis. does create through memories refreshed That ultimate conclusion rests cation. Supreme at 824. The Court of See id. fact, the trier is free to believe who testimony in- Missouri held that such and to testimony or officer’s disbelieve the admissible the courts Missouri. See given it. weight ascribe the to parallel id. at We see no between testimony concerning post-hypnotic memo- his an is free to state Before officer adequately ries and an perfor opinion or her to the driver’s as regarding trained law enforcement officer however, test, ade an mance on the HGN during properly her observations quate foundation must be established. sobriety field test. We have administered 1) that officer showing This consists of an previously opportunity been afforded such adequately trained to administer Hill, holding reexamine our we de- 2) that the opinion; test render Clarkston, clined do so. See Hill, administered. See pro- at 717. neither S.W.2d Because he at 704; Duffy, at 966 S.W.2d any vides a scientific basis nor offered Trial courts have broad discretion 378-79. evidence before the court causes ex admit or determining whether to Hill, question holding us to Mr. Morrow, 968 testimony. clude See State argument compel Rose’s is insufficient 1998). (Mo. Accord banc precedent depart us from this time a suffi of whether the determination ingly, consequence either. As Rose’s laid for Officer foundation was cient refusal, prosecution in this case had per testify to Mr. Rose’s McConaha to rely indirect evidence of intoxication. was within formance on the HGN test why a We see no reason driver’s refusal See of the trial court. sound discretion test, to a which would to submit chemical Moffatt, West v. Estate of provide precise a more measure arguably W.D.2000). (“BAC”), of blood alcohol content should inability to an for the State give First, rise con training “adequate by prove police intoxication alternative means hours of eight of a minimum sists use inter through the of circumstantial evidence on how to administer and training Hill, intoxication, at pret 865 arresting as the offi- the test.” S.W.2d such HGN the test must be testimony Secondly, it to the driver’s 704. cer’s as relates

99 Hill, trial, See out in to him at such as administered.6 id. As set cross-examination. Ferguson, See 495 Proper administration of the HGN test (Mo. 2000) (Defendant’s (1) “remedy banc is requires the test be conducted evidence, suspect follow an not to the to cross- requiring ob- exclude but ject pen a finger, pencil such as with experts examine and to call the state’s eyes object the laterally as is moved expert concerning of his own” witnesses along plane periphery a horizontal to the evidence). DNA (2) vision, suspect’s of the and the scored, interpreted

indicators be and Testimony Attributing B. (a) time, eye one at a as follows: the Upon Level Based BAC person administering the test to ob- Test HGN Results suspect serve smoothly how follows now narrow focus to We our object periph- the as it is the moved to scores, Officer McConaha’s statement “Six ery suspect’s Jerking the vision. in my experience, they’ve always been eyes ability the than rather the to follow above the limit I’ve never legal [of] .10. object smoothly the indicates the influ- Hill, In had one that six scored below.” (b) alcohol; person ence of the adminis- here, experi as the officer stated that his tering the test to observe whether or persons performed ence showed that who not a jerking distinctive occurs in the appellant registered on the HGN test eyes at maximum point the of deviation above a breathalyzer .10% on machine. eye when the moves to far periphery Hill, Hill, See 865 S.W.2d at 705. In we jerking vision. Distinctive is indica- challenged reviewed the statement alcohol; (c) tive of the influence of plain error because there nowas person administering the test is to to the at trial it testimony and because was angle observe the at nystagmus which appellant’s raised motion for a occurs. Here, however, new trial. id. See Officer Id. at 704. Although Mr. Rose does not particular McConaha’s was met specifically challenge argument por- Graves, objection, with an see State v. tion of his brief Officer quali- McGonaha’s (Mo. 1979), banc and the fications or the manner which Officer again issue was raised Mr. Rose’s mo test, McConaha administered the HGN 29.11(d). trial, tion for a new see Rule officer ap- testified he received had Thus, admissibility pre the issue twenty proximately training hours of served for appellate review. Because the test, transcript HGN reveals trial court with is vested broad discretion the test was properly administered. trial, to admit and exclude evidence Thus, a sufficient foundation was laid for will affirm the trial court’s decision absent admission Officer testi- McConaha’s a clear abuse of discretion. State v. mony concerning See of the results (Mo. Middleton, test. banc Any criticisms that Mr. Rose might 1999). An have about the HGN abuse discretion will be general test or as it applied ruling against to him found in “a clearly should have been borne out through circumstances, the various options logic arbitrary available so State, (Alaska administering App.1998). Where the officer "failed to P.2d substantially comply testing however, proper pro- Missouri, proper administration cedures," jurisdictions most would "treat this requirement of the HGN is a foundational affecting weight issue as of HGN evidence Duffy, under Hill. 966 S.W.2d at 379. See rather its admissibility.” than Ballard v.

100 merely evi jus- regarded to sense as circumstantial as shock the of unreasonable tice, of intoxication. lacking careful consideration.” dence Marshall, 486, v. 18 S.W.3d City Rasse of Although Officer McConaha W.D.2000). 489 opinion state an that specifically did not registered BAC Although as circum Mr. Rose’s would admissible .10%, created upon testimony or a stantial evidence of intoxication above foundation, that such was the adequate test results are remarkable inference HGN case, of a and we admission inadmissible to establish that driver’s find a such an abuse of discretion. specific content was of was blood alcohol Hill, prerequisite A .10% not a to degree. at 705.7 BAC of is See 865 S.W.2d § Further, convicting re See 577.010.1. suggests Hill that HGN test DWI. fact, to a a is still free conclude a sults are inadmissible to estimate that even if the driver’s alcohol content driver is intoxicated particular driver’s blood Thus, id.8 be less than .10%. See exceeded a certain level. See BAC is shown to Buckler, 565, from v. 988 S.W.2d 566-68 arising evidence HGN tests is to be State 907, generally of Taylor, purpose indi Accord v. 694 A.2d 912 vant for the limited 7. State (Me. 1997) precisely ("using to cating presence HGN results of alcohol” "the quantify improper”); alcohol blood content percentage was used to fix a HGN test not 700, City McLaughlin, Fargo 512 N.W.2d State, v. content”); Yell v. blood alcohol 856 (N.D.1994) ("the may attempt not 708 officer 996, (Okla.Crim.App.1993) (finding 997 P.2d quantify specific upon a BAC based to testimony because a stat error in the officer’s State, test”); 880 S.W.2d HGN Emerson v. utory provision provided “evidence other 759, (“A (Tex.Crim.App.1994) 769 witness may than that derived from chemical tests not may quantify not use the HGN evidence levels”). quantify be used to alcohol Sullivan, BAC”); State v. 310 S.C. defendant’s 311, 766, (1993) ("HGN 426 S.E.2d tests 769 State, 543, Md.App. 124 Wilson v. Accord a not constitute evidence to establish shall 494, (1999) (officer’s testimony 723 A.2d 498 content”) (ci specific degree of blood alcohol ,.. [appellant's] believe that blood alcohol "I omitted); Buening, People tation v. 229 Ill. high- probably point or was one zero content 538, 542, App.3d 170 Ill.Dec. 592 N.E.2d Ballard, inadmissible); er,” 955 P.2d at 634, 1222, 1227-28, denied, appeal 146 Ill.2d (the may witness "correlate the HGN 942 not 806, (1992) 460 602 N.E.2d 176 Ill.Dec. particular any blood-alcohol test result (“[W]e saying may evidence be are not such levels, level, it, words, range or level of blood-alcohol quantify used to other utilized Ruthardt, 680 impairment”); State v. A.2d establish a defendant’s BAC in absence blood, 349, analysis ("testimony a of the defendant’s (Del.Super.Ct.1996) chemical 361 breath, We hold test or urine. therefore HGN conclu- not admissible as HGN test results is admissible, any evi results are other con- proof that a driver’s blood alcohol sive behavior, prove dence of defendant’s a 0.10”); O'Key, State v. 321 Or. tent exceeded under the influence of alco defendant is 285, 663, (1995) (en banc) P.2d 681 899 hol, provided proper has been foundation ("HGN not test admissible to 878, Garrett, laid.”); Idaho 811 State v. 119 driving prove while hav- that defendant 488, (1991) ("HGN may test results P.2d 491 more”); State ing percent or ex a BAC .08 be at trial establish the defen not used 514, Court, City v. 799 165 Ariz. rel. Hamilton dant’s blood alcohol level in absence 855, (1990) (en banc) (HGN test 857-58 P.2d analysis the defendant’s the chemical to estimate BAC in results are "inadmissible blood, breath, Bresson, urine.’’); or manner, including any estimates of BAC over 123, 1330, 554 N.E.2d Ohio St.3d .10%, analysis in the absence of chemical ("an (1990) may testify as what officer Barker, breath, blood, urine.”); State v. or specific or a driver’s actual he she believes ("Esti- (1988) W.Va. S.E.2d be, solely on BAC would the HGN level based on the blood content based mates of alcohol State, results”); see also Whitson inadmissible.”). test are (1993) 797-98 Ark. nystagmus ("testimony is rele- of the driver’s W.D.1999) (affirming con- analysis person’s DWI 3. Chemical of the breathalyzer viction where test breath, blood, saliva, measured or urine to be con- .094%). driver’s BAC at “Intoxication ais pursuant provisions sidered valid to the physical condition usually by evidenced un- of sections 577.020 to 577.041 shall be feet, steadiness on the slurring of speech, performed according ap- to methods lack body coordination impair- and an proved by department the state Blumer, ment of motor reflexes.” by personnel health licensed medical or 792 (Mo.App.1977). Inas- by person a possessing permit a valid Hill, much as through the of “linguis- use by department issued the state of health (as gymnastics” tic characterized purpose. for this appellant), suggests that an officer who department 4. The state of health that, testifies experience, the officer’s shall approve satisfactory techniques, persons points who score six on the HGN devices, equipment, or methods be register test also above .10% on the pursuant considered provi- valid to the breathalyzer is not testifying the same as sions of sections 577.020 to 577.041 and that the individual defendant particu- has a shall establish standards to ascertain the lar blood alcohol content and is qualifications competence of individ- admissible, we think otherwise and hold analyses uals to conduct and to issue that it is an abuse of discretion for a trial permits subject which shall be to termi- court to admit such testimony absent an nation or revocation by depart- the state adequate foundation which establishes the ment of health. ability witness’ to determine that per- performance son’s on the repre- HGN test 577.020.3^4; § § see 577.026. “The re- sents a BAC excess of a certain level. quirement adhering to the division of Central to holding our testimony that the health provide standards is to a substitute in this case is inadmissible—indeed unac- for the common law foundation for intro- ceptable defense counsel’s —is duction in evidence of the amount of alco- as well as preser- counsel’s system. hol testing individual’s vation of the appellate review, issue for process procedural is a in- requirement to which distinguishes this case from Hill. Mack, sure accurate results.” State v. While the General Assembly provided in W.D.1995) (cita- 630 (Mo.App. § competent 577.037.3 that evidence bear- omitted). tions ing question on the person whether a Although legislature deter was intoxicated may trial, be introduced at mined that a video recording during made Chapter implicitly limits the methods the administration of a field sobriety test of quantifying alcohol levels. Section admissible, 577.020.7, § shall be see 577.020 provides any person op- who merely HGN test erates a one of several field motor vehicle on high- Missouri sobriety may tests that ways shall be be utilized to deemed to have assist consented to police chemical officer in testing person’s breath, determining whether blood, saliva, probable cause exists to urine to arrest a driver determine the upon intoxication, blood alcohol person suspicion content if the based has results, been upon arrested those sobriety reasonable test like other field belief person results, driving while intoxicated. are admissible as circumstan § See 577.020.1. However, Subsections 3 and 4 of tial evidence of intoxication. be § 577.020 set forth the standards for tests cause sobriety subject field tests are not administered under this section: regulations promulgated by Depart-

102 Health, probability “there a reasonable that ment the HGN test does not that is of standing in the absence of such evidence the verdict enjoy the same as chemical test- breath, blood, saliva, have different.” State v. Han ing of a or would been driver’s 892, Thus, (Mo.App. 973 896-97 way, urine. could not introduce S.W.2d the State W.D.1998) Bell, 950 (referencing State of Mr. Rose’s without first evidence BAC 1997)). (Mo. banc for such 484-486 laying adequate an foundation S.W.2d and, Missouri ex put, Supreme Our Court of has testimony, simply Officer McCon- competent plained: aha not or qualified was specific with a BAC equate a HGN score prejudicial im- test is whether the [T]he Although adequately the officer level. was was outcome-determi- proper admission properly the trained administered is a distinction between native. There and, test, extent, proper- HGN and outcome-determi- evidence-specific expert, the record does ly received an prejudice the prejudice. native When expertise in not that the officer’s establish resulting improper the admission from an administering the HGN test included evidence-specific and only of evidence is ability to correlate the test results guilt evidence of is otherwise over- the person’s Quite frankly, BAC. we are not required. whelming, reversal is not “[mjaybe that Officer McConaha’s satisfied contrast, resulting the prejudice when training HGN test is 20” hours admission of evidence improper from such, to do As there was no sufficient so. outcome-determinative, reversal is re- is laid would allow the officer foundation finding quired. A of outcome-determi- BAC exceeded suggest Mr. Rose’s prejudice “expresses judicial native erred, therefore, .10%. The trial court erroneously that the admitted conclusion testify Officer McConaha to re- allowing that, jury influenced evidence so garding Mr. Rose’s alcohol concentration. and balanced when considered with ad- all against evidence courts, attorneys, Trial witnesses mitted, probability is a reasonable there parties justice sys- other our relevant have reached a dif- that the would tem, that, unless a foun- are now on notice erroneously conclusion but for ferent dation is laid that establishes witness’s admitted evidence.” with a ability to correlate HGN score level, testimony unacceptable BAC such Barriner, 139, 150 State v. be For us to con- shall inadmissible. (Mo. 2000) State v. Rob (discussing banc practice akin to would be done such (Mo. 1997), erts, 948 banc and, consequently, Pandora’s box opening denied, 522 U.S. S.Ct. cert. alleviate, eliminate, any if not need would (1998)) (citations omit 139 L.Ed.2d for law enforcement officers to administer ted). bears burden defendant blood, analysis a chemical a driver’s showing probability a reasonable urine, breath, or saliva. in the different have been verdict would See State evidence. absence such Prejudice

C. Danikas, W.D.1999). the offi Rose claims that par That Officer McConaha’s erroneously particular testimony was inadmissible does cer’s testimony ticular admitted, assuming that ostensibly An inquiry. not our abuse discre end ad improperly challenged prejudicial war nature tion in evidence admitting appar readily be if the admission mitted evidence would a new trial rants defendant, say ent. which prejudiced improper

Admission evi seemed to cross-examination prosecutor’s opening dence if other state- is harmless contradict the stated, guilt improper if the he to evalu- overwhelming, “[Y]ou ment when just all highlighted together. evidence is and cumulative ate them You can’t use of other 973 Hanway, evidence. See one.” Here, S.W.2d at 897. the State make did Moreover, prose by comments made the inadmissible

some about the statements closing in opening cutor statements and prosecutor jury evidence. told the arguments are not evidence. See State statements, during opening Madison, (Mo. banc you testify Officer McConaha will to 1999). instructs, MAI-CR3d 302.02 “The that, on experience based his and train- attorneys are not opening statements police ing as a with gaze officer the Instruction No. 2 in this evidence.” case test, nystagmus that that means he’s to and jury upon was read the was based alcohol, under a beyond the influence of Similarly, MAI-CR3d 302.02. MAI-CR presumed intoxication, level of that closing arguments 3d 302.06 instructs that capable safely operating he’s not evidence, and that are not members of the motor vehicle. Based on that alone. by jury guided are be the evidence and added). (Emphasis addition, prose- In the given by the law as to them the court. cutor told the jury in the first half Instruction No. 10 in this case based was closing arguments, 302.06, upon jury MAI-CR 3d and the six, orally highest

And the also instructed the same manner score is and that’s in response what he to an defense did. He scored six. He scored you closing during arguments. the most can counsel Be do. And the officer jury presmned when “a know happens, testified that cause and [sic] instructions,” Madison, opinion his follow the experience, person the say we cannot that the inad under the influence They’re of alcohol. missible statement beyond legal presumption the in- combined with the of—of prosecutor’s toxication. reference to the same opening closing arguments statements and with agree We the dissent this jury “so influenced the ... there is a amounts to “highlighting” the inadmissible probability jury reasonable would but, evidence, although excerpts may these have reached different conclusion but for be as improperly construed un- attributing erroneously admitted Bar evidence.” test, significance due pros- riner, S.W.3d at 150. simply ecutor referenced the as HGN test piece Overall, one puzzle overall and relied neither nor Officer McConaha just heavily upon upon as the other evidence of prosecutor dwelled the HGN test prosecutor rely intoxication. The did not as an indicator of BAC while the officer Further, solely performance on Mr. Rose’s respectfully was a witness. we as HGN test with disagree intoxication.9 the dissent’s view that Offi- Furthermore, Officer not McConaha did cer McConaha’s statement influenced the identify being jury the HGN test reli- the aura of as more with scientific evidence any prediction able an indicator of intoxication than to Mr. because officer’s fact, sobriety other his field test.10 Rose’s BAC was not touted as scientific See, Wilson, See, 9. 723 A.2d at 501. e.g., e.g., Murphy, 451 N.W.2d State v. (Iowa 1990). evidence; rather, are greater infra, there was no detail we confident that suggestion anything that Officer McConaha was but a no virtually danger there is rendering lay law officer enforcement would have reached a different conclusion opinion in the regarding experiences but for the contested evidence.11 so, field. Even the inadmissible statement us Although charges the dissent that, cumulative of other evidence imperfections against weighing effect, attempted quantify Rose’s our own view of Mr. Rose’s or inno- guilt Therefore, as exceeding BAC .10%. for the cence, say simply cannot that Officer admission of Officer McConaha’s statement, McConaha’s isolated when con- harmless, be evi- considered other guilt, sidered with the other evidence of so be See guilt overwhelming. dence must as jury guilty infected a dictate Hanway, 973 at 897. S.W.2d verdict based on the officer’s statement guilt The evidence of Mr. Rose’s is dis- Hanway, In alone. III, greater cussed in detail in Section W.D.1998), (Mo.App. a 892 arrived at illus- infra, following summary but There, similar the trial court erred result. overwhelming trates nature of the evi- testify a allowing regarding an officer to against Mr. Rose. McConaha dence Officer test, statute, is, portable breath which Mr. turn testified that Rose executed a left inadmissible as evidence intoxication. intersection, through an oblivious to the defendant, among at See id. 896. The light fact that was red. The officer things, every other failed other field sobri- he alcohol Mr. testified that smelled on test, alcohol, ety smelled of had bloodshot him pulling Rose after over and noticed watery and eyes, difficulty and had walk- glassy eyes. that Mr. Rose had Officer ing balancing. and id. 897. Al- See McConaha further testified that Mr. Rose Hanway arguably more though involved (the sobriety failed all three field tests evidence of intoxication than the case be- test, test, one-leg stand and the HGN us, is for necessary engage fore it us to test). the officer in- walk-and-turn After speculation hypothesize in theoretical three, formed Rose of his failure on all Mr. imaginary dividing line is be- where admitted, despite previous Mr. Rose tween of intoxication” “other evidence “Well, consumption, of alcohol I denial had overwhelming and that which considered could Significantly, two beers.” sufficient It is us to declare that is not. also Mr. Rose’s refusal to submit consider the other evidence of Mr. Rose’s intoxi- sup- breathalyzer a exam evidence cation was in this case sim- overwhelming 577.041.1; § guilt. See State v. porting his the im- ply say because we cannot 188, (Mo.App. Knifong, 53 S.W.3d 194 W.D.2001). proper admission of McConaha’s Officer Considering the other evi- particular testimony was outcome-determi- guilt, of Mr. Rose’s which has been dence only summarized here and is discussed native. However, Garrett, (finding error.

11. See 811 P.2d at 490-92 least was reversible 0.10% admitting testimony significance HGN overstating error in under without proof test result was that the defendant’s BAC ability jury’s law a to consider Missouri limit, prescribed but not find- above to a chemical defendant's refusal to submit light ing the other reversible error evi- analysis, refusal admissi- such intoxication). The dissent notes that dence of “only Maryland where material ble under law Special Appeals Maryland Court held in guilt or to a matter other than relevant State, Md.App. 723 A.2d Wilson v. 124 State, 322 Md. innocence." Krauss (1999) improper that the admission of added). (1991) (emphasis A.2d relating to a BAC of at testimony HGN results Regarding from D. Conclusion at 567. We will refrain Testimony determining evidence or is- weighing func- credibility, sues of witness which is a conclusion, Officer testi- McConaha’s jury’s “and it jury, tion of the is within the mony, effectively which connected all, of a province to believe some or none performance Rose’s test to a the HGN Brown, testimony.” State v. witness’ inadmissible, .10%, in excess of BAC W.D.1999). court and the trial abused its discretion admitting testimony. Although such “Driving while intoxicated” adequately may testify trained officer per § defined in 577.010 as “[a] follows: of a properly the results administered ‘driving son commits the crime of while operates HGN test indicated a of intoxi- if he vehicle likelihood intoxicated’ motor cation, or drugged HGN evidence is not ad- an intoxicated condition.” An de under Hill to a defen- “intoxicated condition” is further missible correlate influ by § fined 577.001.2 as performance precise dant’s to a BAC or to “under the alcohol, substance, ence of controlled or a minimum BAC. Such is unac- any An drug, in the combination thereof.” ceptable face of an actual, However, measure of alcohol just be numerical blood should not admitted. essential to content is not the State’s case. injustice we unable to find a were manifest of Hill, Although prima case intoxication in are jury we unable find that the facie established, 577.037, pursuant § when would not have of convicted Mr. Rose DWI analysis a chemical reveals a driver’s blood erroneously but for the testimo- admitted alcohol concentration to be ten-hundredths Therefore, ny. Point in part III is granted (.10%) more, pres of percent one “the part, and in denied and a of the reversal percent by ence of ten-hundredths of one judgment trial court’s and sentence follow- in a weight of alcohol defendant’s blood is ing jury’s unnecessary conviction is not an element of essential of the offense Mr. because Rose has not demonstrated Clarkston, driving while intoxicated.” that he acquitted would been but for Blumer, 711 (quoting S.W.2d at improperly admitted evidence. 792). Instead, is no S.W.2d at where there BAC, analysis chemical driver’s Sufficiency III. of the Evidence solely its may proof meet burden of In point appeal, his first through that of a witness argues Mr. Rose that the trial court erred had a opportunity reasonable to observe in his denying motion for a judgment offender. alleged Knifong, See In acquittal. reviewing acquit a motion 193; § (pro at see also 577.037.3 denied, tal been that has we limited to are viding analysis that chemical aof driver’s determining whether the was suf evidence blood, breath, saliva, or urine not the ficient to make a case and submissible intoxication). of proving exclusive means there whether is sufficient from Here, which jury a reasonable could have found there is Mr. no evidence of guilty beyond Mr. Rose a reasonable Rose’s actual blood alcohol at the level stopped doubt. State v. Young, See time he was Officer McConaha. W.D.2001). However, arriving was there substantial evidence decision, our we view and all jury the evidence before the from which it deter could in light reasonable inferences most mine that Mr. Rose an driving verdict, disregarding to the morning favorable while intoxicated condition on the Buckler, contrary all evidence. jury See 988 October 2000. The heard testimo- was under the ny that “when the Rose influence alcohol from Officer McConaha night. way through half in- truck was about tersection, ... arrow turned [left turn] light Viewing the evidence most him; phase green. But it didn’t seem to verdict, to the we find that there favorable way.” pulling After going he was on his sufficient evidence adduced make over, the vehicle the officer noticed case and that there was suffi- submissible alcohol and strong Mr. Rose had a smell of from which a reasonable cient evidence jury also heard tes- glassy eyes. had Rose guilty could have found Mr. regarding timony from Officer McConaha doubt. beyond Accordingly, reasonable difficulties apparent per- Mr. Rose’s I Point is denied.

forming sobriety field tests. The officer Interruption Defense Counsel’s Mr. failed all three that

testified that Rose IV. taking the Cross-Examination were administered. While one- test, his swayed, Mr. Rose used leg stand claims Point IV Rose balance, put foot arms to down interrup sua sponte trial court’s In the three or more times. walk-and-turn during defense counsel’s cross-exami tion toe, test, Mr. Rose did not touch heel to improper nation Officer McConaha was turn, improper used his arms did prejudiced Initially, his defense. balance, stopped walking order bal- claim of error was not raised note this himself, steps seven instead ance took and, trial, in his motion for a new there returning. Finally, as dis- nine when fore, had this conten any review to be six supra, Mr. Rose also scored cussed plain can error. See Rule tion be HGN, points substantial on the which is 29.11(d); “To to Rule 30.20. be entitled that he was intoxicated. See plain re under a error standard of relief 378; at see also Parr- Duffy, S.W.2d view, appellant show that the trial must (a ish, points of six 655 “score substantially so affected his court’s error intoxication.”). clearly indicative of injustice if will occur rights that manifest Barriner, error is left uncorrected.” in- The officer also testified that he 34 S.W.3d at he the field formed Mr. Rose that failed unreviewable, however. As Point IV asked, you “Are sure sobriety tests appeal, on point other raised every with drinking?” not McConaha you’re Officer court apprise Rose fails to this Mr. “Well, I responded, that Mr. Rose testified of review. See Rule applicable standard 577.041.1, § two beers.” Pursuant to had 84.04(e). addition, his point In relied Mr. Rose’s could also consider 84.04(d). His comply Rule does breathaly- to submit to apparent refusal point reads: his supporting guilt. zer exam as evidence pre-emptorily, in only Not The trial court erred at 194. Knifong, See it, cut- objection an before refuse, and without given he was three did Rose disallowing appellant coun- sample, ting off and provide to breath opportunities effort to cross-examine Officer puff out sel’s but he instead chose to his cheeks prior his regarding McConaha pretend to blow into device. Offi- opinion of the ab- concerning his stated that “it was clear cer McConaha testified scientific, i.e., quantifiable accura- give a valid sam- solute he did not want drawn from to be cy of the conclusion ple.” Finally, McConaha testified Officer as to BAC levels. experience the HGN test results on his opinion, as to his based such, proper officer, As cross-examination that Mr. as a law enforcement attempted interpret at that we this objection appeal. and no had been If raised act juncture attorney. would be as an by prosecuting point, we forced which, Rose, trial sponte interruption clearly, Such sua for Mr. advocate judicial no proceeding purpose Weisenburger City served See St. cannot do. prejudice appellant’s but worked to (Mo.App. W.D. Joseph, 51 S.W.3d presentation reflec- due defense and was 2001). seeming developing tive of a animus Further, argument Mr. Rose’s against appellant’s the trial coun- judge correspond with issue raised does not specif- apparently previous sel due to his argument point relied on. ruling ic to the Court’s denom- IV, portion supporting Point he raises a inating “expert” McConaha Officer as an judicial partiality claim of unrelated allowing him to offer evi- scientific case, present and which facts of the despite dence. And his assurance to Instead, unsupported legal argument. him- inject counsel that he would not so theory conjecture. is based on His this thusly, again, proceedings, self into the reads, in pertinent part: brief that, exactly this Court did as described appears It this instant case that the (TR 111), in Points V and VI with the judge may gotten caught up trial consequence improperly prejudicing competitive the moment of work further, jury, against appellant’s po- and, may a “flash- have suffered [sic] sition. back” to when he was a man as younger 84.04(d)(1) governs appellate Rule court prosecutor trying cases assistant

review of the decision of trial court and felt it against defense counsel and supplies for a proper point the form relied object or was “at time to the conviction on. The provides, pertinent part, rule risk.” point that each shall: to the trial inquire We decline (A) identify ruling the trial court integrity in Mr. Rose’s light court’s appellant action the challenges; issue, failure to brief this com- (B) concisely legal state reasons On, plete sup- with its own Point Relied for appellant’s the claim of reversible argument, legal to au- porting and citation error; and seems, transcript the thority. It based on (C) explain in summary why, fashion Appellant’s and the comments made in case, in of legal the context the those Brief, part friction the some exists on reasons support the claim of reversible judge counsel toward trial in defense the error. case, is not although this the reason entire- point substantially The in shall be the beyond previously-quoted ref- ly clear the following “The trial in form: court erred their relation- erence to former adversarial [identify challenged or ac- mling the provides 32.07 mechanism for ship. Rule a tion], the legal [state because reasons does not change judge. The record error], the claim reversible in request- for a change judge reflect that was reasons, legal in the [explain why the request, ed. In the absence of such we case, support context the the claim of to criticize attempt appeal find on counsel’s ].” reversible error distasteful, judge and we are loath the in of counsel’s substantially plain Point IV in form to find error the face is not the 84.04(d)(1). court, Also, in to the trial necessi- disrespect set out Rule it is not which interruption place in first and all clear to what “Points V and VI” tated the the appeal. on on points refers because he raises five continues it, objection on before as it relates to the trial court’s chal- the bench the As jury above, point, in this the was and unilat- lenged action described thereafter erally jury, admonished. not MAI-CR excused before counsel was instructed the cited in his unnecessarily, thereby Because there is no caselaw and approved, that an inter- support brief to his notion engendering prejudice against and bias ruption of cross-examination under these appellant’s wholly disrupting case and error, plain Mr. circumstances amounts continuity the in- undermining and and adequately has not demonstrated a Rose persuasiveness appellant tended in event that had injustice manifest argument on behalf of closing counsel’s grant plain chosen to error review. appellant, especially same related to conclusion(s) be appropriate Point dismissed. testing from and the drawn weight given be offi- Interruption arresting Y. of Defense Counsel’s testimony. interruption Closing Argument cer’s Such and unnecessary instruction was a clear point fifth his Rose’s similar to clearly which abuse of discretion point. During closing argument, fourth injurious likely case and defendant’s argued that defense counsel the HGN test jury’s on ver- had decisive effect “scientifically unverifiable.” After an dict. objection, jury court excused the issue appellant’s discussed the with counsel both The submits that fifth returned, jury the court point appeal comply sides. When with Rule does 84.04(d). simply that the courts of Mis- agree. point instructed The We 84.04(d)(1). generally accepted validity unintelligible souri “have and violates Rule gaze nystagmus Furthermore, test.” argument support point applicable this does not include point His fifth as follows: reads 84.04(e). Rule standard of review. pre-emp- the trial That court erred Point dismissed. torily, apparent frustration di- appellant’s attorney, called rected at CONCLUSION upon to the bench attorneys

[sic] the I prosecutor’s appellant’s claim error Point speaking denied, part III is argument granted and Point appellant attorney’s closing part. McConaha’s regarding appropriateness of Office and denied Officer testimony concerning perfor- Mr. Rose’s purported scientific [sic ] McConaha’s i.e., ad- objective mance on the HGN test was testimony, absolute accu- missible, and, although the court racy, of his conclusion from the ob- allowing in appel- its discretion officer served HGN abused indicators/score scores, BAC,” experience, in testify, my and lant was “over .10% “over “Six intoxication,” legal limit they’ve always limit his been above the legal conclusion(s) scored six were .10. I’ve never had one that ability [of] assert such below,” testimony in and the admission such wholly lacking legal foundation province jury of the as fact did not result outcome-determinative invaded the ruling prejudice of said was the other finder. The effect because Also, overwhelming. guilt was prejudicially compounded as Court Rose’s evidence adduced jury out of the courtroom there was sufficient ordered case, and there appellant’s closing ar- make in the middle submissible a reason- ruling from evidence from which gument, simply instead of sufficient jury gave opinion response able could have found his guilty Mr. Rose McConaha “Officer, prosecutor’s question: to the beyond Finally, a reasonable doubt. your experience training, based on and II, IV, Points and areV dismissed because you?” what does a score of six indicate to the claims error raised therein have not object prosecutor’s ques- Rose to the did properly preserved appellate been re- objecting tion. He announced he was view. “incompetent that McConaha was to make judgment ap- The circuit court’s such a conclusion.” The circuit court DWI, pellant’s jury pursuant conviction for properly objection. overruled the 577.010, §to is affirmed. Hill, court This declared State v. (Mo.App.1993), “that the LOWENSTEIN, L. HAROLD general acceptance HGN test has achieved Presiding Judge, and LISA WHITE community. within the behavioral science HARDWICK, Judge, concur. find that We when administered SPINDEN, PAUL M. Presiding Judge, by adequately personnel, trained the HGN in separate opinion. writes concurring test is admissible as evidence of intoxi ULRICH, Judge ROBERT G. concurs. cation.” That conclusion was reaffirmed in Myers, (Mo.App. State v. 940 S.W.2d 64 SMART, M. Judge, JAMES concurs 1997). with Presiding Judge SPINDEN’s Hence, circuit court was correct concurring opinion and in the result of McConaha, permitting question ask- Judge NEWTON’s majority opinion. ing explain him to the HGN test results. TURNAGE, E. WILLIAM Senior Had jury McConaha told the Judge, concurs with Judge NEWTON’s Rose’s score was six—the observation of majority Presiding Judge SPINDEN’s sought fact that Rose to restrict McCon- concurring opinion. testimony aha’s to—the would not any significance been able to attach HOLLIGER, RONALD R. Judge, or meaning testimony. prose- to the writes for the dissent. Judges PATRICIA cutor asking explain McConaha to BRECKENRIDGE, A. JOSEPH M. significance of a score of six. ELLIS, and VICTOR C. HOWARD Previously, the circuit court had sus- concur. tained prosecutor Rose’s that the SPINDEN, M. PAUL Presiding Judge, had failed to show that McConaha had concurring. training experience sufficient with the explain test to be able what the test was Officer Gerard McConaha’s and what its results prose- indicated. The that a score of six on the gaze horizontal cutor by inquiring extensively cured this nystagmus always, experience, experience into McConaha’s training person indicated that the taking the test end, with the test. At the the circuit court had a blood alcohol concentration of .10 properly declared that prosecutor had percent volunteered, apparently was a established sufficient foundation for seek- nonresponsive opinion to Douglas which ing explanation McConaha’s of the test such, object. Rose did not As the testimo- results. ny properly was admitted into evidence weight became an issue of for object prose- Rose continued to that the

trier of fact. Washington v. Hos- Barnes cution had not laid sufficient foundation (Mo. 1995). 611, pital, 897 S.W.2d 616 banc eliciting any opinion any for kind from excuse his concerning the test. The cir- The dissenter would silence McConaha him—a objec- objection craft an for cuit court overruled these would “[Wjhen Hill, foundationally for prop- lack of scientific basis tions. As we said testify specific as to the erly by adequately trained McConaha administered That meaning of the test results. personnel, the HGN test is admissible as Hill, objected objection. not Rose’s He at 704. The was evidence[J” S.W.2d opinion prosecutor giving any McConaha’s established McConaha was —that a giving any opinion lacked properly trained to administer the test. McConaha’s already As we have estab- Logic explain dictates that he be able to scientific basis. lished, this was incorrect. Where Rose they what the results were and what focusing specific erred was in not meant. challenge any opinion of choosing prosecutor obviously expecting The was any kind. testify McConaha to that a score of six came, key offending When indicated that Rose was intoxicated. That object His failure to Rose sat silent. by prosecutor asking, is indicated has made Supreme crucial. The Court halting given fashion after McConaha had question exists as to quite clear that a “[i]f opinion a score of six indicated opinion testimony of proffered whether the that Rose’s blood alcohol concentration expert1 supported by an sufficient percent, that—you’re .10 “And that — foundation, ques- factual or scientific basically telling jury they’re intox- It be admissibility. tion is one of must answered, icated?” McConaha “Yes.” timely objection or motion to raised simply Had McConaha said that at the strike.”2, at 616. Washington, outset —that a score of six indicated that if is raised or a happens What no testimony Rose was intoxicated —his would Supreme The motion to strike is made? acceptable. been He didn’t. quite Court instructed: opinion He offered an that a score of six testimony has been ad- opinion Once always indicated blood alcohol concentra- evidence, mitted, may it be any as other percent tion of .10 correlation that the —a determining upon purposes relied state had established no foundation sci- case. See submissibility Hill, making. ence for As we said in Company, 360 Cab Goodman Allen recognized has the HGN test as Missouri (1950). Mo. intoxication, predictor an indicator of not a this testi- probative effect of The natural specific of a blood alcohol concentration. jury. mony a consideration for Roetheli, 354 Mo. DeMoulin problem for Rose is that after (1945). offending opinion, McConaha uttered his Hence, object, silent, Rose did not making objection. sat no He Id. because Rose of what justifica- opinion was an issue objected strenuously, had without McConaha’s tion, give the giving any opinion, weight should to McConaha’s opinion’s admissi- clearly and not an issue of the gave but when McConaha what was opinion, bility. improper an he sat silent. emphasis. properly recognized circuit court I added the

1. The expert to the extent that it McConaha permit explain willing to McConaha to generally what its what the HGN test was and results meant.

HI Supreme reaffirmed, come, The Court in By used the issue to on seek reversal Markets, Inc., appeal. note v. National Super Supreme As the has ex Court (Mo. 1995), plained, “Appellate S.W.2d courts have held an long banc objection to a standing principle question specif should be so only specific objec ic the trial court can preserve recognize tions what rule appellate issues for review. evidence is Bynote being why The invoked and the rule court said: responsive would disallow a Em answer.” urges National that Bynote failed to Stores, Inc., ery v. Wal-Mart require show that she would future sur- (Mo. 439, 446 1998). banc gery because neither of her health care provider witnesses they testified I As noted a similar situation in State opinion Butler, founded their on assertedly (Mo.App.2000) talismanic degree J., “reasonable (Spinden, of medical concurring), “Because of the certainty.” Unfortunately, objection, National did lack of we need not concern specific not offer objection at trial that ourselves with whether the content of [an phrase had not expert’s opinion] testimony been used. The proper objections Lipede plain offered—that Dr. absence of error. The circuit lacked qualifications court did not err in admitting discuss the error, of surgery objection. costs and that Dr. offered without Forbes Without lacked qualifications plain we have no basis for necessary error review.” therefore, majority, discuss surgery at need not concern all—were not suffi- cient to itself with whether challenge degree opinion McConaha’s of certain- prejudicial ty of either of the because the evidence was opinions witnesses’ erroneously dissenter, about the need for admitted. The surgery. By failing token, to offer the same need not specific objection trial, anguish over at Na- proper tional standard for deprived Bynote prejudi- whether opportuni- cial ty to ask the evidence is “outcome question in determinative” the form that National because the evidence erroneously now was not appeal. demands on See Seabaugh Farms, Inc., admitted. Milde (Mo. 1991). banc More- Finally, I majority note that the gratu- over, National failed to question pro- itously reviews Rose’s contention that the

viders’ degree of certainty on cross-ex- circuit court granted should have his mo- amination, proper forum for raising tion in limine to exclude evidence of his the doubts it brings up appeal. now refusal to take a breath test because refus- presents This case al identical situation. was not found his administrative sus- Rose’s only objection pension hearing plain trial error. I agree concerned qualifications. He the majority pre- did not offer a that Rose did not “talis- manie” at trial. serve this issue for review rulings because on motions in limine interlocutory are now, him To allow to do so as the dissen- nature object and because he did not when do, ter would would inherently be unfair the state introduced evidence of his refus- practice. him, It permit would however, al. I disagree, majori- with the effect, to “sandbag” the By circuit court. ty’s reviewing injustice for manifest withholding specific objection, he avoid- miscarriage justice plain under error. prosecutor’s ed the being able to cure the problem proper with a question or with grants authority Rule 30.20 us to consid- circuit proper court’s “plain instruction to the affecting er errors rights substantial and, getting after an unfavorable out- ... injustice when that manifest [we find]

112 for a justice clearly

or of has resulted” The evidence was sufficient miscarriage plain presents driving from The rule a bit to find that Rose was while error. Hence, authority ma- by granting of a conundrum us intoxicated. I concur with the plain jority judg- to review error if we find mani- in the circuit court’s affirming injustice justice. miscarriage fest or a of ment. finding are we to make a of manifest

How injustice justice or a miscarriage of with- ULRICH, Judge, ROBERT JAMES G. reviewing out the case? SMART, Jr., E. Judge, M. and WILLIAM AGE, Judge, TURN Senior concur. Supreme suggested Court State (Mo. Brown, 278, banc), v. 902 S.W.2d 284 HOLLIGER, Judge, RONALD R. denied, 1031, 679, cert. 516 U.S. 116 S.Ct. dissenting. (1995), 133 L.Ed.2d 527 that it intended for portions fully I concur with all of Rule 30.20 to mean that we should first majority opinion except for the determina- plain examine whether the claim of error is admitting Officer tion that the error that, face, one on its establishes substan concerning per- McConaha’s tial grounds believing for that manifest and blood equation sonal of HGN scores injustice miscarriage justice or has oc error prejudicial alcohol was not levels then, in Only curred. the Brown court requires reversal. structed, should we review the claim to injustice determine whether manifest or a correctly states Although majority miscai'riage justice actually occurred. Barriner, the test from v. 34 S.W.3d State plain If claim we find error (Mo. 2000) (whether 150 banc facially does not establish substantial prejudice specific or outcome is “evidence injus grounds believing for manifest determinative”), incorrectly majority occurred, justice miscarriage tice or has Bar- applies the to the case at hand. test we should decline to exercise our discre the differ- extensively riner did not discuss tion to review a claim of error under Rule prejudice types ence between these two Brown, “The 30.20. 902 S.W.2d at 284. Roberts, v. 948 S.W.2d but did cite State prejudicial makes it all rule clear (Mo. 1997). specific banc Evidence is, error —that reversible error —can be “prejudice a trial court prejudice is the Dowell, plain error.” deemed State probative weighs it considers when (Mo.App.2000). Plain er its against evidence piece value of a evident, ror is obvious and clear error. at 592. Out- potential prejudice.” Id. (Mo. Bailey, “if occurs prejudice come-determinative App.1992). prejudices more-likely-than-not the error the defen- proceeding against I from the face of this the entire do not discern Barriner, evident, specific issue and clear error. dant.” Id. record obvious Indeed, uncharged majority “Mis- was the erroneous evidence recognizes, as the evidence; hold, nev- estoppel for collateral misconduct or other crimes souri courts ertheless, that a num- this writer submits purposes, relationship that no exists be- are that the court discussed of fact a criminal ber of factors tween determination specific helpful applying fact the evidence case and a determination of made prejudice proeeeding[.]” an administrative State v. outcome determinative (1) Rotter, The factors included (Mo.App.1997). this case. erroneously Hence, that was I decline to review Rose’s amount would evi- to which the admitted and the extent contention under Rule 30.20. H3 (2) trial, prosecutor the has dence was referred to in eration of whether the admitted erroneously improper the evi- highlighted whether evidence cannot be trial, (3) highlighted was during by looking dence the at made the evidence merely prosecutor’s the of whether introduction prose- the use that the ignoring itself and purpose- was Here, the evidence intentional and it is puts cutor such evidence. inadvertent, (4) im- ful or and the does prosecutor’s the obviously apparent directly admitted properly evidence relate purpose opin- theme was to admit the and charged 150-51. to the offense. Id. at of the the testimony ion officer show necessarily factors are These not exhaus- jury an scientific basis for con- equivalent may upon vary tive and the depending (blood level) alcohol though viction even particular type of evidence at issue. breath or analysis. there was no blood majority of The considers these some simply majority The concludes that the ignores but the im- factors the fact that of guilt other evidence defendant’s is over- properly admitted not collat- evidence was However, in whelming. the Court Barri- any respect goes directly eral in but to the ner, upon majority purports which the charged an other- heart offense. In ” rely, rejected “so narrow a expressly test. case, jury circumstantial the wise evidence evidence, here, nothing Id. 150. The improperly heard scientific evidence of a usual more than the evidence of observa- (blood level) basis alcohol the convict by police tests seen tions and field officers per- defendant. In fact strength the and every day. and trial judges There apparent of suasiveness evidence scientific nothing any about unusual that evi- is one the reasons that courts of the turn, improper dence: an strong odor many other states strictly prohibited intoxicants, eyes, glassy failure field so- testimony equating HGN scores blood briety It is difficult to in tests. see how Court, alcohol levels. v. Superior virtually any circumstantial evidence DWI (1986). 149 Ariz. 718 P.2d case the admission HGN based blood majority places emphasis strong The preju- alcohol level evidence could ever be the fact that the testify officer did not majority’s analysis. dicial the The under that the HGN test was than more rehable majority declared a has class But, fact, field sobriety the other test.1 type competent evidence but with no prosecutor the told opening the practical consequences adverse for its ad- statement the as in- HGN test alone majority’s mission. conclusion would terpreted by the officer was sufficient permit encourage prosecutorial and abuse. Thus, convict. rather than this perfect only Because a trial evidence, exists cumulative to being other as the theory, justice necessity permit both majority suggests, prosecution’s discretion, considerations of theory harmlessness avowed was that all of other prejudice determining evidence was cumulative admissi- to the HGN test bility legal it of evidence and the conse- and the officer’s indicat- quences improper pre- ed an alcohol blood level admission. Never- beyond (or theless, limit. more Although majority prejudice precisely sumed thereof) not, appli- lack should opening correct statements clos- standard arguments evidence, cation, ing are not consid- a method re- become which a Although specialized requires training in fact it is. It one of It is the more than sobriety any the field tests that has scientific sobriety field most of the other tests. indicating of alcohol. basis influence

viewing imperfections court weighs testify specific meaning of officer to as to the (or against its views of guilt own of the HGN test results. The trial court innocence). Rather, attempt we must opinion was of the that under Hill officer, admittedly difficult task considering minimally qualified if to administer HGN, a jury how would have been affected or not qualified opin- and scientific by improper affected evidence for it is ion testimony was admissible not determinative outcome that es- HGN score of six was an indicator of sential. This writer has no confidence that intoxication but also that there was a sci- a jury ignored would have and found over- entific correlation between that score and whelming the other evidence of defen- at least a minimum blood alcohol level. guilt improper opinion dant’s without the concurring opinion ignores The that dis- relating majori- the HGN test to a scien- tinction and mischaracterizes equivalent tific ty’s explanation of blood alcohol. Hill and the limitations prosecutor’s fact it was so central to the holding. of its strategy and the essence of the crime Although majority has done a com- charged virtually impossible that it is job evi- analyzing why mendable being conceive of such evidence ignored, admitted, dence should I been unimportant, superfluous or not dramati- respectfully with its conclusion disagree cally persuasive as to the issue of guilt. require the error does not reversal. majority

The cites one case from anoth state, Garrett, BRECKENRIDGE, er State v. 119 Idaho PATRICIA A. (1991), ELLIS, proposition 811 P.2d 488 for the Judge, Judge, JOSEPH M. HOWARD, that the admission of al testimony, Judge, such VICTOR C. concur error, though prejudicial. was not And with Dissent.

although the court there enunciated a Bamner, apparently

standard similar to

there no extended or considered dis any

cussion of factors. Other states have held,

clearly opinion as our now majority does, opinion testimony equating CORP., HEATER JOHNSON d/b/a HGN scores with levels of alcohol in the Marcraft, Respon- Johnson blood is inadmissible. At least one has dent/Cross-Appellant, improper also held admission was State, reversible error. Wilson v. 124 Md. (1999). 723 A.2d 501-02

App. DEPPE, Appellant/Cross- David Respondent. respect concurring opinion I With respectfully disagree with the author’s No. ED 80011. pre- conclusion that the error was not Appeals, Missouri Court by proper objection. objective served The District, Eastern is, preservation requirement as the Division Four. notes, concurring opinion prevent sand- objection the trial court. bagging of Sept. by made defense counsel cited opinion incorporated also concurring

referenced his earlier as to a lack foundationally

of scientific basis for the

Case Details

Case Name: State v. Rose

Court Name: Missouri Court of Appeals

Date Published: Jul 30, 2002

Citation: 86 S.W.3d 90

Docket Number: WD 59925

Court Abbreviation: Mo. Ct. App.