State v. King

964 S.W.2d 480, 1998 Mo. App. LEXIS 419, 1998 WL 94626
Missouri Court of Appeals·Decided March 6, 1998·No. No. 21633·Published·Cited by 3 cases

Opinion

PARRISH, Presiding Judge.

William King (defendant) appeals convictions of driving while his license was suspended (Count I), § 303.370.3, RSMo 1994; failing to stop for a stop sign (Count II), § 304.351.4(l)(a);1 failure to yield to an emergency vehicle sounding audible siren signal or displaying lighted visible red light (Count III), § 304.022.1; and resisting arrest (Count IV), § 575.150. This court affirms.

The state filed no brief in this case. This court has been provided no explanation for the flagrant disregard by the prosecuting attorney of Barton County of the requirements of § 56.060.1, RSMo 1994, that provide:

If any misdemeanor case is taken to the court of appeals by appeal [the prosecuting attorney] shall represent the state in the case in the court and make out and cause to be printed, at the expense of the county, all necessary abstracts of record and briefs, and if necessary appear in the court in person, or shall employ some attorney at his own expense to represent the state in the court,....

As explained in State v. Bowlin, 850 S.W.2d 116, 116-17 (Mo.App.1993), and reiterated more recently in State v. Musil, 935 S.W.2d 379, 380-81 (Mo.App.1996):

Our review of this ease is not aided by the State’s failure to file a brief. No penalty is prescribed for failure to file a brief on an appeal of a misdemeanor conviction. State v. Harrington, 679 S.W.2d 906, 907 (Mo.App.1984); State v. Michaels, 543 S.W.2d 245, 247 (Mo.App.1976). However, this leaves us with nothing presented other than the ... arguments of defendant. It is not the function of the appellate court to serve as advocate for any party to an appeal. When one party fails to file a brief, the court is left with the dilemma of [482] deciding the case (and possibly establishing precedent for future cases) without the benefit of that party’s authorities and points of view. Appellate courts should not be asked or expected to assume such a role. Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978).

“[W]e cannot understand why a prosecutor would neglect his statutory duty to see that the state was adequately represented through the entire criminal proceeding.” State v. Harrington, 679 S.W.2d at 907.

The following facts are gleaned from this court’s review of the transcript filed as part of defendant’s record on appeal.

During the early morning hours of September 29, 1996, Lamar Police Officer Tammy Deherrera2 observed a gray flatbed pickup truck with Oklahoma license plates weaving on the roadway within the city limits of Lamar. She suspected its driver was intoxicated. She activated the emergency lights on the top of her patrol car and pursued the pickup. The pickup did not stop, but continued traveling through the city at the same rate of speed at which it was traveling before pursuit.

The Lamar Police Department has a policy that requires officers to obtain permission from their supervisor in order to pursue cars beyond the city limits. Officer Deherrera inquired whether she had permission to continue her pursuit. She was advised that a highway patrol officer was en route to assist and was instructed to discontinue the pursuit.

Officer Deherrera stopped her patrol car just beyond the Lamar city limits. She pulled onto the gravel shoulder of the roadway. She could see emergency lights approaching in her rear view mirror. A white highway patrol car passed her. At the time it passed, she could see both it and the pickup she had been pursuing. The pickup had continued eastbound on Highway 160.

The highway patrol vehicle was driven by Cpl. Mike Stone. He had been coming into Lamar from the west when he heard radio traffic concerning Officer Deherrera’s pursuit. He continued eastbound through town until he saw the flashing red lights on Officer Deherrera’s patrol car. Cpl. Stone explained, “And then I could see the — her patrol car was on the shoulder of the roadway, and I saw the truck that she was — she was chasing.”

When Cpl. Stone passed Officer Deherr-era’s patrol car, the pickup truck “was probably 20 car lengths ahead of her.” He continued to pursue the pickup. Cpl. Stone closed the distance between his patrol ear and the pickup. The pickup’s left turn signal was flashing. Cpl. Stone testified that he got to the pickup; that it was in a left turn lane “right on the centerline.” He believed the pickup was going to turn left. Cpl. Stone told the court and jury:

And then it set down in front of me quickly, and I braked quickly and steered to the right. At this time the truck veered hard right and I had to turn short of the intersection. And my right wheel — right rear wheel struck the tin whistle and slightly bent it, but it didn’t disable me.

Cpl. Stone observed that the vehicle “was a gray truck, flatbed, one male driver in it wearing a ball cap.” It had an Oklahoma license plate.

The pickup turned south. Cpl. Stone followed. He turned on a red and blue light bar on his patrol car to signal for the pickup to stop. The pickup accelerated to 60 mph. Cpl. Stone turned on his siren and called for assistance with the pursuit.

The pickup continued to travel in a southerly direction until it came to Southeast 20th Lane where it turned east. Cpl. Stone followed with both his emergency lights and siren activated. The pickup came to T Highway where there was a stop sign. The pickup crossed the highway without even slowing its speed. After “[ajbout a quarter of a mile” the pickup turned into a field. Cpl. Stone followed the pickup into the field. He realized his car could not travel across the terrain of the field and turned around. His car [483] became stuck before he got back to the roadway.

Barton County Deputy Sheriff Shannon Higgins was on duty during the early morning of September 29, 1996. He heard radio transmissions concerning a vehicle that had not stopped for a Lamar city officer. He drove east out of Lamar on Highway 160. He learned that the city officer had discontinued pursuit and that a highway patrol car continued to pursue the fleeing vehicle; that the vehicle had continued eastbound on Highway 160. As he approached 20th Road, he saw a vehicle pass over T Highway followed by an emergency vehicle. He believed the emergency vehicle was the highway patrol car.

Officer Higgins was “approximately three-quarters of a mile away to the north” from the two vehicles. He explained what he saw as he drove toward them. He lost sight of the vehicles briefly until he topped a hill. He testified, “And I noticed the vehicles looked to be snaking, turning continuously back and forth.” As he got closer he realized they were in a field.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. King, 964 S.W.2d 480, 1998 Mo. App. LEXIS 419, 1998 WL 94626 (Mo. Ct. App. 1998).

964 S.W.2d 480 (State v. King) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Shelton
529 S.W.3d 853 (Missouri Court of Appeals, 2017)
State v. Barrett
41 S.W.3d 561 (Missouri Court of Appeals, 2001)
State v. Frye
998 S.W.2d 575 (Missouri Court of Appeals, 1999)