State v. Duncan

385 S.W.3d 505, 2012 WL 4857578, 2012 Mo. App. LEXIS 1287
CourtMissouri Court of Appeals
DecidedOctober 15, 2012
DocketNo. SD 31489
StatusPublished
Cited by2 cases

This text of 385 S.W.3d 505 (State v. Duncan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Duncan, 385 S.W.3d 505, 2012 WL 4857578, 2012 Mo. App. LEXIS 1287 (Mo. Ct. App. 2012).

Opinion

WILLIAM W. FRANCIS, JR., J.

Beverly Duncan (“Duncan”) appeals her conviction by a jury for one count of the class B misdemeanor of driving while intoxicated, a violation of section 577.010.1 Duncan was sentenced by the trial court to ninety days “in the custody of the Sheriff of Phelps County” with execution of that sentence suspended with Duncan placed on two years’ probation. In her sole point relied on, Duncan challenges the trial court’s exclusion of a witness disclosed to the State on the day of trial. We affirm the judgment and sentence.

Factual and Procedural Background

Given the narrow scope of Duncan’s appeal, we set forth only those facts necessary to complete our review. Here, Duncan was stopped by a law enforcement officer after failing to bring her “motor scooter” to a complete stop at a stop sign. Upon speaking with Duncan, the officer smelled the odor of intoxicants on her person, noticed Duncan was slurring her speech and, upon questioning, Duncan admitted to the officer she “had had two mixed drinks” prior to driving.2 Duncan then agreed to perform a number of field sobriety tests. After displaying impairment on each test, Duncan was arrested for driving while intoxicated after which she was transported to the police station where she refused to submit to a breath test.

A trial was scheduled for June 22, 2011. During the pre-trial conference, counsel for Duncan informed the trial court that he had “only recently became aware of [their] desire to have a James Jolliff [ (“Jolliff’) ] testify on behalf’ of Duncan.3 Admitting this witness had not been disclosed to the State until that morning, Duncan’s counsel related Jolliff “was present in the courthouse, the witness spoke with him, and it [was their] desire to proceed with him as a [507]*507witness on behalf of [Duncan].” He informed the trial court that “this witness would testify to — to the jury that he, in fact, had thrown alcohol onto [Duncan] and, in addition, had not seen her drink prior to the stop made in this case.” When asked by the trial court why he had not previously disclosed the witness given that the incident at issue occurred almost a year prior to trial, counsel for Duncan explained that “at that point in time we did not know if we were going to use him as a witness and proceeded as if he was not going to be a witness. We have subsequently decided that we’d use him as a witness.” The State objected to such a late endorsement especially given the amount of discoveiy that had taken place in this matter, and the fact that Duncan had even filed supplementary responses to discovery, all without mentioning this potential witness. The trial court then held that its

perusal of the file shows that both sides requested disclosure, disclosure was answered. [Counsel for Duncan] has sought sanctions or a Motion to Compel against the State for not giving him what he wanted, and this is a witness whose — the determination is whether or not they had any material information could have been made months and months ago. And I think disclosing on the morning of trial is not appropriate, so the witness ... is excluded.

No summation of Jolliffs testimony, or offer of proof to support the late endorsement, appears in the transcript. At the close of the evidence, Duncan was convicted by the jury and sentenced by the trial court as set out above. She now appeals.

The sole issue for our consideration is whether the trial court abused its discretion in sustaining the State’s objection to its proposed testimony of Jolliff and in excluding that testimony from the trial. Duncan argues her constitutional rights were violated by such exclusion because Jolliffs testimony “was relevant and material to [her] defense that she was not intoxicated at the time of the traffic stop” such that it was “fundamentally unfair to exclude this evidence.... ” She asserts the trial court’s exclusion was fundamentally unfair because Jolliffs testimony “would have verified [her] testimony that she smelled like alcohol because [Jolliff] threw alcohol on her and never witnessed her drinking prior to the traffic stop, where [the officer] claimed that he suspected she was intoxicated because she smelled of alcohol.”

Standard of Review

In setting out the standard of review in this matter, we note at the outset that Duncan failed to make an offer of proof as to the substance of Jolliffs potential testimony.

When a prospective witness is precluded from testifying, the proper procedure is for the person protesting such exclusion to preserve the anticipated evidence by an offer of proof in the form of questions and answers, or a summation by counsel of the proposed testimony, which should also demonstrate why such testimony was admissible.

State v. Lopez, 836 S.W.2d 28, 33 (Mo.App. E.D.1992). The offer of proof allows for the record to be preserved for appeal. State v. Yole, 136 S.W.3d 175, 178 (Mo.App. W.D.2004). If there is no offer of proof, there is a narrow exception which allows the appellate court to review the exclusion of evidence by the trial court. State v. Peters, 186 S.W.3d 774, 781 (Mo.App. W.D.2006). The three-part test for this exception is: (1) “there must be a complete understanding based on the record of what the excluded testimony would have been”; (2) “the objection must be to a [508]*508category of evidence rather than to specific testimony”; and (3) “the record must reveal that the evidence would have helped its proponent.” Id. (quoting Destin v. Sears, Roebuck & Co., 803 S.W.2d 113, 116 (Mo.App. W.D.1990)). Duncan failed to make an offer of proof in this matter and her counsel’s vague statements do not pull this matter inside the narrow exception to the rule. Thus, Duncan has not preserved this issue for appellate review.

As such, our standard of review, if at all, is for plain error. Rule 30.20.4 Plain-error review is discretionary and involves a two-step analysis. State v. Jennings, 322 S.W.3d 598, 601 (Mo.App. S.D.2010). First, this Court considers the facts and circumstances to facially determine if there was “evident, obvious and clear” error. Id. Only if this Court identifies plain error do we proceed to the second step of determining whether manifest injustice, or a miscarriage of justice resulted. Id. The appellant has the burden of proof on plain-error review. State v. Royer, 322 S.W.3d 603, 606 (Mo.App. S.D.2010). Such review is to be used sparingly and does not justify review of every alleged trial error that has not been properly preserved. State v. Taylor, 166 S.W.3d 599, 610 (Mo.App. S.D.2005).

Analysis

Discovery rules help eliminate surprise and allow both sides to become aware of trial witnesses and evidence. State v. Martin, 103 S.W.3d 255, 260 (Mo.App. W.D.2003).

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Cite This Page — Counsel Stack

Bluebook (online)
385 S.W.3d 505, 2012 WL 4857578, 2012 Mo. App. LEXIS 1287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duncan-moctapp-2012.