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State v. Hodges7/19/1999
restee, inter alia, that the arrestee's refusal to take the test can be used against him or her in court. See McMaster v. Lohman, 941 S.W.2d 813, 816 (Mo.App. 1997). However, Defendant failed to object to the admission of the "refusal to consent" evidence at trial. He also failed to raise this claim of error in his motion for new trial. Consequently, Defendant has not preserved this issue for our review. See State v. Kelley, 953 S.W.2d 73, 88 (Mo.App. 1997), cert. denied, _____ U.S. _____, 118 S.Ct. 1173, 140 L.Ed.2d 182 (1998). Nevertheless, Defendant asks that we exercise our discretion to review this claim of trial court error under the plain error standard.
A trial Judge's function in a criminal case is not to help lawyers try their lawsuits. Kelley, 953 S.W.2d at 89 . "They [trial Judges] preside to Judge a lawsuit." State v. Drewel, 835 S.W.2d 494, 499 (Mo.App. 1992). "Without objection or other request for relief, a trial court's options are narrowed to uninvited interference in the lawsuit, thus subjecting the trial court to the accusation of trying '"my lawsuit."'" Kelley, 953 S.W.2d at 89 (citations omitted).
"'The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.'" State v. McMillin, 783 S.W.2d 82, 98 (Mo.banc 1990) (quoting State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983)); State v Smith, 979 S.W.2d 215, 219 (Mo.App. 1998). Unless a claim of error "facially establishes substantial grounds for believing that 'manifest inJustice or miscarriage of Justice has resulted,'" appellate courts will decline to review for plain error. State v. Brown, 902 S.W.2d 278, 284 (Mo.banc 1995).
We decline to exercise our discretionary authority to review for plain error here. Defendant's complaint concerns a foundational fact, i.e., the State did not lay an adequate foundation for admission of evidence of Defendant's refusal to submit to a breathalyzer test. As to unpreserved complaints of foundational deficiencies, our courts have stated:
"'It is particularly important that where an inadequate foundation has been laid for admission of evidence that the objection made be specific as such foundation deficiencies can frequently be remedied. We will not review the contention of inadequate foundation raised for the first time on appeal.'" State v. Blue, 875 S.W.2d 632, 633 (Mo.App. 1994) (quoting State v. Jones, 569 S.W.2d 15, 16 (Mo.App. 1978)).
This reasoning is apropos here. If Defendant had properly objected to Wilson's testimony regarding Defendant's refusal to take a breathalyzer test, the trial court would have been alerted to the foundational issue and would have been able to quickly resolve the matter.
Moreover, Wilson testified generally that he "advised [Defendant] of the Missouri Implied Consent Law." Neither the prosecutor nor defense counsel ever specifically asked Wilson what he told Defendant about the consequences of refusing to consent to the breathalyzer test. Instead, the prosecutor asked Wilson what "questions" he had asked Defendant with regard to Missouri's implied consent law. Wilson gave a non-responsive and voluntary answer when he replied, " e is advised . . . his license would be revoked for a year should he refuse to take the test." Nothing in the record definitively indicates that Defendant was not fully advised of the consequences of his refusal to consent to the breathalyzer test pursuant to section 577.041.1. Under the circumstances, the trial court may well have viewed Wilson's broad statement of compliance with the implied consent law as sufficient foundation and left it to the defense attorney to make some furthe
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