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Potts v. State7/18/2000
Appeal From: Circuit Court of Livingston County, Hon. Kenneth R. Lewis
Opinion Vote: AFFIRMED. Ellis, J. and Howard, P.J., concur.
Opinion:
Defendant-Appellant Joseph Potts was convicted after a jury trial of one count of driving while intoxicated, in violation of Section 577.010 RSMo 1994, in the Circuit Court of Livingston County, Missouri. Mr. Potts was sentenced, as a prior and persistent offender under Section 577.023 RSMo 1994, to five years imprisonment. He filed a motion for post-conviction relief under Rule 29.15, which was denied after an evidentiary hearing. He appeals the denial of his Rule 29.15 motion for post-conviction relief, alleging only that he was denied effective assistance of counsel on direct appeal from his conviction for driving while intoxicated, in that his counsel failed to argue that the breathalyzer results admitted into evidence at his trial lacked a proper foundation because the State had failed to meet its burden of demonstrating absolute and literal compliance with applicable state regulations. Because we find that Mr. Potts has failed to show that his appellate counsel was ineffective, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The evidence adduced at Mr. Potts' trial, considered in the light most favorable to the verdict, was as follows:
On January 3, 1995, Officer James Young of the Hamilton, Missouri Police Department observed Defendant almost hit another car and cross the center line several times. Officer Young then activated his lights and siren, but Mr. Potts did not immediately pull over. When Mr. Potts eventually stopped his vehicle, he removed the keys from the ignition, and threw them onto the dashboard of his vehicle. Officer Young, upon approaching the vehicle on foot, noticed that Mr. Potts was slumped over in his seat, and had a flushed face. Mr. Potts' speech was also slurred, and he was unable to maintain his balance. Officer Young could also smell the odor of intoxicants emanating from Mr. Potts. He asked Mr. Potts to perform a series of field sobriety tests, but Mr. Potts refused, stating that he could not do them. Officer Young then arrested Mr. Potts on suspicion of driving while intoxicated, and administered a breathalyzer test to Mr. Potts. The machine registered Mr. Potts' blood alcohol content to be 0.31 percent. Throughout this encounter, Mr. Potts was antagonistic, and used profane language.
At Mr. Potts' trial for driving while intoxicated, his defense counsel made a pretrial motion to exclude from evidence the result of the breathalyzer test administered by Officer Young, arguing that the State could not establish a sufficient foundation for its introduction under Section 577.020.3 and regulations issued under it governing performance of chemical tests of a person's breath. To demonstrate a foundation for the breathalyzer results, the State produced a copy of the maintenance reports from the maintenance and calibration tests conducted on the machine which was used to test Mr. Potts' breath after his arrest. Defense counsel asserted in its motion in limine that this foundation was insufficient because 19 CSR 20-30.031(3) (now codified at 19 CSR 25-30.031(3)) was issued pursuant to Section 577.020, and Missouri courts require "absolute and literal compliance" with such regulations. He argues that they require that individuals qualified to conduct breathalyzer tests retain original records of regular maintenance checks performed upon the breathalyzer, and that those individuals submit a copy of the report to the Department of Health within fifteen days from the date of the maintenance check. The regulation provided specifically that:
A Type II
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