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Duncan v. State9/19/2000
This case presents a question of when the introduction of inadmissible evidence rises to the level of prejudice necessary to reverse a jury verdict.
Ronald Duncan appeals from his conviction for driving while intoxicated pursuant to section 577.010 RSMo (1994). We accept as true all the evidence favorable to the state, including all favorable inferences drawn from the evidence. State v. Smith, 11 S.W.2d 733, 736 (Mo.App. E.D. 1999).
On October 17, 1998, at approximately 2:00 a.m., State Highway Patrol Trooper Russ Sargent observed Ronald Duncan speeding. As Sargent's vehicle approached Duncan's, Duncan turned into a subdivision. Sargent pulled over and waited on the shoulder. When Duncan returned to the highway less than a minute later Sargent stopped him for speeding. After failing to produce identification, Duncan was asked to step out of his car. According to Trooper Sargent, Duncan smelled of liquor, swayed back and forth, slurred his speech and had glassy eyes. Because Sargent suspected that Duncan was intoxicated, he administered a series of field sobriety tests, including a portable breath test (PBT). Duncan failed the PBT and three of the other four field sobriety tests. Based on his observations and the results of the PBT, Sargent arrested Duncan for driving while intoxicated. At the station, Duncan admitted to Sargent that he drank four beers that evening between 11:00 p.m. and approximately 1:30 a.m., but refused to take a breath analysis test.
At trial, the court admitted Sargent's testimony that Duncan failed the portable breath test, despite defense counsel's continuing objection and offer to stipulate to probable cause. At closing argument, the prosecutor reminded the jury three times that Duncan had failed the portable breath test. Duncan was then convicted for driving while intoxicated.
Duncan appeals, maintaining that the trial court erred in admitting the results of the portable breath test, and that this was prejudicial. Duncan points to section 577.021 RSMo (1994), which states that evidence of a portable breath test "shall not be admissible as evidence of blood alcohol content." While the state concedes that the trial court erred in admitting the results of the portable breath test, it contends the error was harmless because the admissible evidence overwhelmingly showed that Duncan was driving while intoxicated.
We review the trial court's admission of evidence for an abuse of discretion. State v. Danikas, 11 S.W.2d 782, 792 (Mo.App. W.D. 1999). An abuse of discretion in admitting challenged evidence is reversible error only if the admission prejudiced the defendant. Id.; State v. Russell, 872 S.W.2d 866, 869 (Mo.App. S.D. 1994). To prove prejudice, a defendant must show "a reasonable probability that in the absence of such evidence the verdict would have been different." Danikas, 11 S.W.2d at 792. Improperly admitted evidence should not be declared harmless unless it is harmless without question and it is clear that the jury was not influenced by or disregarded the evidence. Russell, 872 S.W.2d at 869. Admission of improper evidence is harmless if (a) the other evidence of guilt is overwhelming or (b) the improper evidence is not highlighted and cumulative of other evidence. State v. Hanway, 973 S.W.2d 892, 897 (Mo.App. W.D. 1998).
A roadside portable breath test indicates the presence of alcohol based on a breath sample. It is designed for use by police officers to assist them in determining whether they have probable cause to arrest a suspect. Hanway, 973 S.W.2d at 896. The portable test is not subject to the same Department of Health Regulations that govern breath analysis tests admissible to prove that a
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