SUPREME COURT OF MISSOURI en banc KYLE G. PETERSEN, ) Opinion issued November 22, 2022 ) Appellant, ) ) v. ) No. SC99522 ) STATE OF MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY The Honorable Jason R. Brown, Judge
Following a bench trial, Kyle G. Petersen (hereinafter, “Defendant”) was found
guilty of driving while intoxicated as a persistent offender. Section 577.010, RSMo
Supp. 2017. The circuit court sentenced Defendant to four years’ imprisonment,
suspended the execution of the sentence, and placed him on five years’ supervised
probation.
Defendant claims the circuit court erred in overruling his pretrial motion to
suppress and his pretrial motion in limine and allowing testimony of his breath test
results. This Court finds no error. The circuit court’s judgment is affirmed. 1
1 This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution. Factual and Procedural Background
On September 9, 2018, Missouri Highway Patrol Trooper David Henley
(hereinafter, “Trooper Henley”) was dispatched to assist Missouri Highway Patrol
Trooper Thomas Meyer (hereinafter, “Trooper Meyer”) with a motor vehicle crash.
When Trooper Henley arrived on the scene, he observed a vehicle upside down in a field.
Trooper Henley concluded, based upon the markings where the vehicle departed the
roadway, the vehicle did not leave the roadway as a result of a collision with another
vehicle.
Trooper Meyer directed Trooper Henley to Defendant, who was handcuffed.
Trooper Meyer indicated Defendant “appeared to be impaired.” When Trooper Henley
approached Defendant, he noticed the strong odor of alcohol on his breath. Trooper
Henley observed Defendant’s eyes were watery and bloodshot, and Defendant had a
distant stare. Trooper Henley also stated Defendant’s speech was slurred and he spoke
very quietly. Trooper Henley then requested Defendant sit in his police vehicle and
perform the Horizontal Gaze Nystagmus (hereinafter, “HGN”) test, which Defendant
failed.
Based on his training and experience, Trooper Henley concluded Defendant was
intoxicated and placed him under arrest. Trooper Henley sought and received
Defendant’s consent to provide a breath sample for chemical analysis. That sample
revealed Defendant’s blood alcohol content was above the legal limit of “eight-
hundredths of one percent.” Section 577.012.1(1), RSMo 2016.
2 Prior to trial, Defendant filed a motion to suppress evidence. Defendant requested
suppression of the results of his breath test, testimony regarding any observations made
about his impairment while in custody, and the HGN test results. Following an
evidentiary hearing, the circuit court sustained Defendant’s motion regarding statements
he made without the benefit of Miranda 2 warnings but overruled the motion regarding all
other evidence of intoxication.
On the morning of trial, Defendant filed a motion in limine, seeking to exclude
evidence of intoxication because he had been seized illegally and the breath test was
administered improperly. The circuit court overruled his motion.
The case then proceeded to a bench trial. Following the introduction of all the
evidence, the circuit court found Defendant guilty of driving while intoxicated as a
persistent offender. Defendant appeals.
Analysis
Defendant asserts the circuit court erred in overruling his pretrial motion to
suppress and his pretrial motion in limine. 3 Defendant claims the circuit court erred in
overruling his motion to suppress because he was physically restrained prior to field and
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). 3 Defendant raised a point on appeal identifying a possible error made by the Southern District. That point fails to comply with Rule 84.04(d)(1)(A) because it does not identify a challenged ruling or action made by the circuit court. “By focusing solely on what he argues the court of appeals did correctly, he fails to identify--let alone challenge--any error by the [circuit] court.” Williams v. Hubbard, 455 S.W.3d 426, 432 (Mo. banc 2015). However, this Court decides cases on their merits when possible. Cox v. Kan. City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 n.4 (Mo. banc 2015). Hence, this Court will analyze whether Defendant preserved his pretrial motions. 3 chemical testing as well as before the arresting officer made observations of impairment.
Defendant argues this violated his Fourth Amendment rights. Further, Defendant
requests this Court to revisit the long-standing rules delineating preservation of trial error
for appellate review.
Objecting to the admission of evidence in a pretrial motion “is not sufficient to
preserve for appeal any error in failing to exclude it.” State v. Hughes, 563 S.W.3d 119,
124 (Mo. banc 2018). As this Court recently held:
To preserve a pretrial objection, a party must renew the objection in court and make a record that identifies not only the action to which the party is objecting but also the legal basis for the objection. Only an objection made timely at trial will preserve an issue for appeal.
State v. Minor, 648 S.W.3d 721, 729 (Mo. banc 2022) (internal citations and quotations
omitted). “The objection at trial must be specific, and on appeal, the same grounds must
be relied upon.” State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012). Further, a “claim
of constitutional error must be raised at the first opportunity and with citation to specific
constitutional objections.” Minor, 648 S.W.3d at 729. “The objection at trial must be
specific and made contemporaneously with the purported error.” State v. Driskill, 459
S.W.3d 412, 426 (Mo. banc 2015). 4
4 This is in contrast to the federal rules of evidence, which do not require a party to renew a pretrial objection at trial when there is a definitive ruling made on the record. Federal Rule 103(b) states, “Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” However, when practicing in the federal courts, a practitioner should recognize the Eighth Circuit “has never defined precisely the bounds of a ‘definitive’ ruling.” United States v. Young, 753 F.3d 757, 775 (8th Cir. 2014).
4 A party is required to object at trial to allow the circuit court the opportunity to
reconsider its “prior ruling against the backdrop of the evidence actually adduced at
trial.” Hughes, 563 S.W.3d at 124. This allows a party to control whether to maintain
the objection because the party may determine the objection is meritless based upon the
evidence actually adduced or the party strategically may decide not to object. State v.
Yowell, 513 S.W.2d 397, 403 (Mo. banc 1974), superseded on other grounds by section
542.296, RSMo 1986.
An appellate court is a court of review, determining whether the circuit court’s
rulings were correct. State v.
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SUPREME COURT OF MISSOURI en banc KYLE G. PETERSEN, ) Opinion issued November 22, 2022 ) Appellant, ) ) v. ) No. SC99522 ) STATE OF MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY The Honorable Jason R. Brown, Judge
Following a bench trial, Kyle G. Petersen (hereinafter, “Defendant”) was found
guilty of driving while intoxicated as a persistent offender. Section 577.010, RSMo
Supp. 2017. The circuit court sentenced Defendant to four years’ imprisonment,
suspended the execution of the sentence, and placed him on five years’ supervised
probation.
Defendant claims the circuit court erred in overruling his pretrial motion to
suppress and his pretrial motion in limine and allowing testimony of his breath test
results. This Court finds no error. The circuit court’s judgment is affirmed. 1
1 This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution. Factual and Procedural Background
On September 9, 2018, Missouri Highway Patrol Trooper David Henley
(hereinafter, “Trooper Henley”) was dispatched to assist Missouri Highway Patrol
Trooper Thomas Meyer (hereinafter, “Trooper Meyer”) with a motor vehicle crash.
When Trooper Henley arrived on the scene, he observed a vehicle upside down in a field.
Trooper Henley concluded, based upon the markings where the vehicle departed the
roadway, the vehicle did not leave the roadway as a result of a collision with another
vehicle.
Trooper Meyer directed Trooper Henley to Defendant, who was handcuffed.
Trooper Meyer indicated Defendant “appeared to be impaired.” When Trooper Henley
approached Defendant, he noticed the strong odor of alcohol on his breath. Trooper
Henley observed Defendant’s eyes were watery and bloodshot, and Defendant had a
distant stare. Trooper Henley also stated Defendant’s speech was slurred and he spoke
very quietly. Trooper Henley then requested Defendant sit in his police vehicle and
perform the Horizontal Gaze Nystagmus (hereinafter, “HGN”) test, which Defendant
failed.
Based on his training and experience, Trooper Henley concluded Defendant was
intoxicated and placed him under arrest. Trooper Henley sought and received
Defendant’s consent to provide a breath sample for chemical analysis. That sample
revealed Defendant’s blood alcohol content was above the legal limit of “eight-
hundredths of one percent.” Section 577.012.1(1), RSMo 2016.
2 Prior to trial, Defendant filed a motion to suppress evidence. Defendant requested
suppression of the results of his breath test, testimony regarding any observations made
about his impairment while in custody, and the HGN test results. Following an
evidentiary hearing, the circuit court sustained Defendant’s motion regarding statements
he made without the benefit of Miranda 2 warnings but overruled the motion regarding all
other evidence of intoxication.
On the morning of trial, Defendant filed a motion in limine, seeking to exclude
evidence of intoxication because he had been seized illegally and the breath test was
administered improperly. The circuit court overruled his motion.
The case then proceeded to a bench trial. Following the introduction of all the
evidence, the circuit court found Defendant guilty of driving while intoxicated as a
persistent offender. Defendant appeals.
Analysis
Defendant asserts the circuit court erred in overruling his pretrial motion to
suppress and his pretrial motion in limine. 3 Defendant claims the circuit court erred in
overruling his motion to suppress because he was physically restrained prior to field and
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). 3 Defendant raised a point on appeal identifying a possible error made by the Southern District. That point fails to comply with Rule 84.04(d)(1)(A) because it does not identify a challenged ruling or action made by the circuit court. “By focusing solely on what he argues the court of appeals did correctly, he fails to identify--let alone challenge--any error by the [circuit] court.” Williams v. Hubbard, 455 S.W.3d 426, 432 (Mo. banc 2015). However, this Court decides cases on their merits when possible. Cox v. Kan. City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 n.4 (Mo. banc 2015). Hence, this Court will analyze whether Defendant preserved his pretrial motions. 3 chemical testing as well as before the arresting officer made observations of impairment.
Defendant argues this violated his Fourth Amendment rights. Further, Defendant
requests this Court to revisit the long-standing rules delineating preservation of trial error
for appellate review.
Objecting to the admission of evidence in a pretrial motion “is not sufficient to
preserve for appeal any error in failing to exclude it.” State v. Hughes, 563 S.W.3d 119,
124 (Mo. banc 2018). As this Court recently held:
To preserve a pretrial objection, a party must renew the objection in court and make a record that identifies not only the action to which the party is objecting but also the legal basis for the objection. Only an objection made timely at trial will preserve an issue for appeal.
State v. Minor, 648 S.W.3d 721, 729 (Mo. banc 2022) (internal citations and quotations
omitted). “The objection at trial must be specific, and on appeal, the same grounds must
be relied upon.” State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012). Further, a “claim
of constitutional error must be raised at the first opportunity and with citation to specific
constitutional objections.” Minor, 648 S.W.3d at 729. “The objection at trial must be
specific and made contemporaneously with the purported error.” State v. Driskill, 459
S.W.3d 412, 426 (Mo. banc 2015). 4
4 This is in contrast to the federal rules of evidence, which do not require a party to renew a pretrial objection at trial when there is a definitive ruling made on the record. Federal Rule 103(b) states, “Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” However, when practicing in the federal courts, a practitioner should recognize the Eighth Circuit “has never defined precisely the bounds of a ‘definitive’ ruling.” United States v. Young, 753 F.3d 757, 775 (8th Cir. 2014).
4 A party is required to object at trial to allow the circuit court the opportunity to
reconsider its “prior ruling against the backdrop of the evidence actually adduced at
trial.” Hughes, 563 S.W.3d at 124. This allows a party to control whether to maintain
the objection because the party may determine the objection is meritless based upon the
evidence actually adduced or the party strategically may decide not to object. State v.
Yowell, 513 S.W.2d 397, 403 (Mo. banc 1974), superseded on other grounds by section
542.296, RSMo 1986.
An appellate court is a court of review, determining whether the circuit court’s
rulings were correct. State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011).
Accordingly, “a party seeking the correction of error must stand or fall on the record
made in the [circuit] court.” Id. (quoting State v. Thomas, 969 S.W.2d 354, 355 (Mo.
App. W.D. 1998)). An objection presented to the circuit court may not be broadened on
appeal. Driskill, 459 S.W.3d at 426.
At trial, Defendant never raised a Fourth Amendment challenge to the admission
of his breath test results. Defendant’s objection to the admission of the breath test was
that he objected “to it based on previous arguments on lack of foundation and improper
procedure.” When Trooper Henley testified about his observations while administering
the HGN test, defense counsel stated, “Judge, if you could just show my objection during
this testimony.” Upon review, it is unknown what foundational element, procedural
requirement, or other objection was challenged.
“A ‘general objection of lack of foundation does not call to the court’s attention
the aspect of the foundation which is considered lacking. As such it is inadequate to
5 preserve the matter for review.’” State v. McFadden, 369 S.W.3d 727, 753 (Mo. banc
2012) (quoting Stewart v. Dir. of Revenue, 702 S.W.2d 472, 476 (Mo. banc 1986)).
Merely objecting with an unspecified objection or “lack of foundation and improper
procedure” does not advise the circuit court sufficiently as to the nature of Defendant’s
objection and the basis for his argument on appeal. The lack of a specific objection does
not allow the circuit court to correct any potential error at the earliest opportunity, nor
does it adequately inform the appellate court as to the precise challenge to the evidence
being presented. State v. Loper, 609 S.W.3d 725, 733 (Mo. banc 2020).
“Generally, this Court does not review unpreserved claims of error.” State v.
Brandolese, 601 S.W.3d 519, 525 (Mo. banc 2020). “Plain error review is discretionary.”
Id. at 526. “[U]nless a claim of plain error facially establishes substantial grounds for
believing that ‘manifest injustice or miscarriage of justice has resulted,’ this Court will
decline to exercise its discretion to review for plain error under Rule 30.20.” State v.
Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). A defendant “bears the burden of
demonstrating a manifest injustice occurred.” Loper, 609 S.W.3d at 733. Because
Defendant does not request plain error review or present an argument supporting the
claim of error, he is unable to meet his burden of demonstrating a manifest injustice
occurred. This Court’s review of the facts and circumstances in this case fails to reveal
any circuit court error that was evident, obvious, or clear.
6 Conclusion
The circuit court’s judgment is affirmed.
____________________________ GEORGE W. DRAPER III, Judge
All concur.