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State v. Lindsey5/4/1999
Appeal From: Circuit Court of Boone County, Hon. Jodie Capshaw Asel
Opinion Vote: AFFIRMED. Breckenridge, C.J., P.J., Lowenstein, Ulrich, Hanna, Spinden, Smart, Stith, and Howard, JJ., concur.
Ellis, J., concurs in part and Dissents in part in separate opinion.
Smith and Riederer, JJ., join in the opinion Concurring in part and Dissenting in part.
Opinion:
Merle C. Lindsey was convicted, after jury trial, of driving while intoxicated in violation of section 577.010, RSMo 1994. He challenges the sentence of ninety days confinement imposed by the trial court. Lindsey contends that the trial court erred in sentencing him to ninety days of confinement because the sentence reflected retaliation against him for exercising his right to trial by jury. He also complains that the sentence constituted cruel and unusual punishment in view of his current health because of the risk that he will die while serving his sentence in a county jail. Lindsey also challenges the trial court's action in overruling his challenges for cause to two members of the venire panel. Finally, Lindsey complains of irregularities in the trial court's acceptance of the jury's verdict on the basis that one of the jurors was taken to the hospital after the verdict was reached and was never polled.
Because we conclude that Discussion of Lindsey's last three points would have no precedential value, we will affirm as to those points by summary order pursuant to Rule 30.25(b), and are furnishing to the parties a memorandum of the reasons for our decision as to those issues. In this opinion, we will address only the issue of whether the sentence of the trial court constituted unlawful retaliation for exercising the right to plead not guilty.
Factual Background
On April 17, 1996, at 9:45 p.m., Missouri State Highway Patrolman Ken Robinson investigated a vehicle stopped in the eastbound passing lane of I-70 in Callaway County. Trooper Robinson discovered Lindsey in the car, lying on his back with his feet outside the car and the car door open. The headlights of the car were on, the key was in the ignition and the gear shift was in neutral. Trooper Robinson was concerned about removing Lindsey from the car and moving the vehicle because it was an obvious traffic hazard. Eventually, with the assistance of another highway patrolman, Corporal Charles Easely, Trooper Robinson removed Lindsey from the car. Trooper Robinson formed the opinion that Lindsey was intoxicated, noting:
Mr. Lindsey had glassy, bloodshot eyes. He reeked of alcoholic beverage, the odor of alcoholic beverages. His clothes were mussed. His zipper was open when I first encountered him. He was--His speech was slurred and incoherent. He seemed to not be real sure of where he was or what he was even about.
When Trooper Robinson asked Lindsey whether he had been drinking, Lindsey admitted that he had "consumed a few beers" and some vodka. Lindsey also told the trooper that he had arrhythmia and was taking medication for that condition.
Trooper Robinson arrested Lindsey for driving while intoxicated. Lindsey asked the trooper several times what state he was in. At this point, Trooper Robinson conducted an inventory search of Lindsey's car before a tow truck arrived to take it away. When the trooper returned to his car to transport Lindsey, he noticed that Lindsey had urinated upon himself. Lindsey was then administered field sobriety tests. When asked to recite the alphabet, Lindsey reached the letter "G" before remarking, "Oh, hell with this sh--."
Lindsey was taken to Callaway Community Hospital in Fulton, Missouri. After the implie
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