STATE OF MISSOURI,                             )
                                               )
          Plaintiff-Respondent,                )
                                               )
vs.                                            )   No. SD34082
                                               )
DONALD CURTIS BILLINGS,                        )   Filed: November 28, 2016
                                               )
          Defendant-Appellant.                 )

             APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                               Honorable Laura J. Johnson

AFFIRMED

          Donald Curtis Billings ("Defendant") appeals from his conviction for one

count of driving while intoxicated. He claims (1) the trial court plainly erred in

allowing the State to both adduce evidence and to argue about evidence that

Defendant refused to answer questions after having been advised of his

Miranda1 rights and (2) the trial court plainly erred in allowing the State to both

adduce evidence and to argue about evidence that Defendant requested an

attorney after having been advised of his Miranda rights. Defendant's claims

are without merit, and we affirm the trial court's judgment.

1   Miranda v. Arizona, 384 U.S. 436 (1966).
                    Factual and Procedural Background

       On Friday, May 3, 2013, Defendant and his longtime friend, Joann Stum,

("Ms. Stum") drove to John's Frosted Mug. They arrived at the restaurant at

approximately one p.m. and began drinking beer.

       Mandi Rogers ("Ms. Rogers") got off work at approximately 11:30 p.m.

that night. On her way home, she "noticed a car in front of [her] that had crossed

the centerline a couple of times." When the car came to a sharp curve, the driver

did not apply the brakes. The car left the roadway, landing in a ditch. Ms. Rogers

stopped and positioned her truck so the headlights were shining on the car and

then approached the car to make sure everyone was okay. She reached the car

less than a minute after it crashed, and the car was not out of her sight as she

approached. She saw no one get out of the car as she approached.

       When she reached the car, Ms. Rogers found Defendant "slumped over the

steering wheel." Ms. Stum was underneath the passenger-side dash board. Ms.

Rogers said she would call for help, but Defendant insisted "that he didn't need

help." Defendant tried to put the car in reverse while Ms. Rogers called for help.

Ms. Rogers later testified that as the first responders arrived, she saw Defendant

get out of the driver's seat and move to the back passenger-side seat. Defendant

was unsteady on his feet and had to hold on to the car the whole way. He smelled

of alcohol and repeatedly stated, "I wasn't the driver."

       Shortly after midnight, Missouri Highway Patrol Trooper Kevin Waters

("Trooper Waters") arrived on the scene. He spoke with an EMT and Ms. Rogers

and then approached Defendant who was in the back seat. As soon as he put his

head in the car to speak with Defendant, Trooper Waters could smell alcohol.

                                          2
Defendant had a glassy, staring look. Trooper Waters asked Defendant to come

to the patrol car to provide information.

       The patrol car was approximately 50 yards away. Defendant moved slowly

and seemed unsure of his steps. When Trooper Waters asked what had

happened, Defendant responded he had not been driving. Trooper Waters asked

Defendant how much he had been drinking, and Defendant replied he did not

know. Defendant told Trooper Waters to call John's Frosted Mug and to ask for

the bar tab.

       Trooper Waters next asked Defendant to complete field sobriety tests.

Trooper Waters started with the alphabet test which Defendant was unable to

complete successfully. Defendant also showed indicators of intoxication on the

counting test. Defendant then refused to participate in the horizontal gaze

nystagmus test or a preliminary breath test. Trooper Waters placed Defendant

under arrest, advised Defendant of his Miranda rights, and transported

Defendant to jail.

       At the jail, Trooper Waters explained the implied consent law to

Defendant. Defendant refused to provide a breath sample without an attorney

present.

       Defendant was charged with driving while intoxicated as a persistent

offender. Defendant was tried by a jury. The jury found Defendant guilty of

driving while intoxicated. The trial court sentenced Defendant to four years in

the Missouri Department of Corrections. This appeal followed.




                                            3
                                   Discussion

       Both of Defendant's points are governed by the same standard of review

and the same legal principles. As Defendant neither objected to the evidence and

arguments he challenges nor raised the claims in his motion for new trial, his

claims are not preserved, and he requests plain error review. The following

standard of review and general principles apply to both points.

       "Plain error review is a two-step process." State v. Fincher, 359 S.W.3d

549, 553 (Mo. App. W.D. 2012). In the first step, the appellate court examines

the record to "determine whether there is, indeed, plain error, which is error that

is 'evident, obvious, and clear.'" State v. Stites, 266 S.W.3d 261, 266 (Mo. App.

S.D. 2008) (quoting State v. Roper, 136 S.W.3d 891, 900 (Mo. App. W.D.

2004)). Only where such error appears will the appellate court continue to the

second step where it determines "whether a manifest injustice or a miscarriage of

justice will result if the error is left uncorrected." Fincher, 359 S.W.3d at 554.

       "In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United States Supreme

Court held that the use for impeachment purposes of a defendant's silence, at the

time of arrest and after receiving Miranda warnings, is fundamentally unfair

and violates the due process clause of the Fourteenth Amendment." State v.

Dexter, 954 S.W.2d 332, 337 (Mo. banc 1997). Moreover, "[i]t is well

established that the State may not use a defendant's post-arrest silence, or

language representing silence, to incriminate the defendant." State v. Mason,

420 S.W.3d 632, 638 (Mo. App. S.D. 2013) (quoting State v. Whitmore, 948

S.W.2d 643, 647 (Mo. App. W.D. 1997)). Additionally, "'[s]ilence' extends to a

defendant's request for counsel." Id. Thus, references to a defendant's post-

                                         4
Miranda silence or request for an attorney have become known as Doyle

violations. However, not all testimony which mentions a defendant's silence or

request for an attorney results in a Doyle violation. For example, where the

defendant initially waives his rights and speaks with the authorities, "the State is

free to show the circumstances under which the interrogation was terminated as

long as no inference of guilt can be reasonably drawn from the evidence." Id. at

639. With these principles in mind, each of Defendant's claims will be addressed

separately. However, for ease of analysis, we take Defendant's claims out of

order.

                        Point Two: Request for an Attorney

         In his second point, Defendant raises two related claims: (1) that the trial

court plainly erred in allowing the prosecutor to elicit testimony that Defendant

requested an attorney after he had been advised of his Miranda rights and (2)

that the trial court plainly erred in permitting the prosecutor to refer to that

testimony during opening statement and closing argument.2 In this point,

Defendant primarily attacks the testimony about the events surrounding his

refusal to submit to a breath test. This argument is without merit because, when

viewed in context, Defendant's statements were a refusal to submit to the breath

test and were admissible under Section 577.041.3



2
  A claim of error in the admission of evidence is a separate claim from a claim that the
prosecutor's argument based on that evidence was error, so a point relied on raising both claims is
multifarious. See State v. McDaniel, 236 S.W.3d 127, 133 (Mo. App. S.D. 2007). "Points relied
on containing multifarious claims violate Rule 84.04(d) and ordinarily are subject to dismissal."
Day v. State, 208 S.W.3d 294, 295 (Mo. App. S.D. 2006). Nevertheless, this Court prefers to
exercise its discretion to resolve appeals on their merits where, as here, the nature of the claim is
readily understandable despite briefing deficiencies. See State v. Leonard, 490 S.W.3d 730,
736-37 (Mo. App. W.D. 2016). All rule references are to Missouri Court Rules (2016).
3 All statutory references are to RSMo Cum. Supp. (2013).


                                                 5
        Evidence of a refusal to submit to a chemical test for blood alcohol content

is admissible in a prosecution for driving while intoxicated under Section

577.010. § 577.041.1.4 "A refusal to take a breath test within the meaning of

§ 577.041.1 occurs when the person under arrest is requested to take the test but

declines to do so of his own volition." State v. Foster, 959 S.W.2d 143, 147

(Mo. App. S.D. 1998). "It is not necessary that the person use the words 'I refuse,'

or that he refuse to blow into the machine." Id. "A refusal can also occur by

remaining silent, or by making a qualified or conditional consent o[r] refusal."

Id.; Spradling v. Deimeke, 528 S.W.2d 759, 765-66 (Mo. 1975) (holding that

a driver had refused to take a breath test where the driver stated "he would not

take the test without an attorney present").

        Here, when the transaction is viewed as a whole, a reasonable fact-finder

could have found that Defendant's request for an attorney was, in fact, merely a

delay tactic used to avoid the breath test. Besides the evidence summarized

above, the prosecution adduced evidence regarding Defendant's request for an

attorney through the testimony of Trooper Waters. Trooper Waters explained he

read Defendant the implied consent law off a form. Then the prosecutor asked

4
 The complete text of that subsection is:
        If a person under arrest, or who has been stopped pursuant to subdivision (2) or
        (3) of subsection 1 of section 577.020, refuses upon the request of the officer to
        submit to any test allowed pursuant to section 577.020, then evidence of the
        refusal shall be admissible in a proceeding pursuant to section 565.024, 565.060,
        or 565.082, or section 577.010 or 577.012. The request of the officer shall include
        the reasons of the officer for requesting the person to submit to a test and also
        shall inform the person that evidence of refusal to take the test may be used
        against such person and that the person's license shall be immediately revoked
        upon refusal to take the test. If a person when requested to submit to any test
        allowed pursuant to section 577.020 requests to speak to an attorney, the person
        shall be granted twenty minutes in which to attempt to contact an attorney. If
        upon the completion of the twenty-minute period the person continues to refuse
        to submit to any test, it shall be deemed a refusal.
§ 577.041.1

                                                 6
about Defendant's refusal: "Do you recall, um, if he just flat out refused or how

was it[?]" Trooper Waters replied, "No. He wanted to speak to his attorney. He

wanted to talk to his lawyer." Trooper Waters then explained he allowed

Defendant 20 minutes to contact an attorney as required by the implied consent

law. When the 20 minutes was over, Trooper Waters testified, Defendant stated

"he wanted an attorney there." Trooper Waters said he explained to Defendant

that he was allowed only 20 minutes to attempt to contact an attorney and that it

was probably not possible to get an attorney to the jail in 20 minutes. Trooper

Waters also testified he explained that at the end of 20 minutes, Defendant would

have to make a decision. Trooper Waters said that at the end of the 20 minutes,

Defendant "basically just continued to say, I want a lawyer here" and "[t]hat he

wouldn't do anything without a lawyer[.]" Trooper Waters testified he ultimately

just finished "processing" Defendant.

       That is, Defendant did not refuse by saying "I refuse." Instead, he refused

by conditioning his refusal on the presence of an attorney. While Defendant had

a right to consult an attorney under the statute, that right was a qualified right,

and a suspect has no absolute right to have an attorney present when he or she

completes a breath test. See Staggs v. Director of Revenue, 223 S.W.3d 866,

873 (Mo. App. W.D. 2007) ("A driver has no constitutional right to speak with an

attorney prior to deciding whether to take the test or to have an attorney present

during the testing."). After being given an opportunity to contact a lawyer and

being told he would have to decide at the end of 20 minutes about whether to

submit to the test, Defendant continued to demand an attorney. Thus, in the

context of the specific facts of this case, Defendant's statements were not a

                                          7
protected request for an attorney, but admissible evidence of Defendant's refusal

to submit to the breath test. See Spradling, 528 S.W.2d at 765-66.

        The trial court did not err, plainly or otherwise, in admitting evidence or

permitting argument that Defendant refused to submit to a breath test by

conditioning his submission upon the presence of an attorney. Point Two is

denied.

           Point One: Defendant's Refusal to Answer Questions

        In his first point, Defendant claims the trial court plainly erred in allowing

the State to elicit testimony that Defendant refused to answer questions after

Trooper Waters advised him of his Miranda rights and in allowing the

prosecutor to refer to that testimony during opening statement and closing

argument.5 Defendant specifically targets Trooper Waters's testimony regarding

what happened after Defendant refused to submit to a breath test. Trooper

Waters stated, "I think I attempted to ask him some questions. He was not

willing to answer questions, so he did not answer any of the questions." Trooper

Waters also testified he did not "push" the questions once Defendant indicated

his unwillingness to cooperate. While it is true Defendant had been advised of

his Miranda rights and refused to answer questions, such testimony standing

alone does not require reversal. In that respect, this case is like State v.

Howell, 838 S.W.2d 158 (Mo. App. S.D. 1992).

        In Howell, the officer testified he took the defendant into custody,

advised him of his rights, and the defendant made no statements. Id. at 160.


5This point is multifarious for the same reason Point Two is multifarious. See n.2, supra.
Nevertheless, we exercise our discretion to review the claims because the arguments are readily
understandable. See Leonard, 490 S.W.3d at 736-37.

                                                8
This Court reasoned that the general rule did "not apply where a defendant did

not stand mute in the face of an accusation because no accusation was made."

Id. at 161. Here, similarly, Defendant was not asked any specific, incriminating

questions. While the form Trooper Waters was supposed to fill out required him

to ask "basic questions as far as the crash," Trooper Waters did not actually ask

those questions. Instead, because Defendant was combative, Trooper Waters

merely asked if Defendant "was willing to answer any questions." Defendant

refused. Thus, like Howell, "[t]his is not a case where an accused clams up in

the face of a charge of guilt, made under circumstances calling imperatively for an

admission or denial." Id. at 162 (quoting State v. Starks, 459 S.W.2d 249, 252

(Mo. 1970)). The trial court did not err in failing to intervene, sua sponte, when

the prosecutor questioned Trooper Waters about whether Defendant was willing

to answer any questions.

       The analysis is different for the State's argument about this evidence,

however. The prosecutor mentioned the refusal to answer questions or to

cooperate in opening statement. Then, again, in closing argument the

prosecutor used the evidence of Defendant's refusal to answer questions to

support the prosecution's theory of the case that Defendant's lack of cooperation

showed Defendant was, in fact, guilty of the offense. At trial, the defense theory

was that Defendant had not been the driver of the vehicle. To counter this theory,

the prosecutor stated in opening statement that the evidence would show "the

defendant refused, refused to cooperate, refused to answer questions adequately,

and refused to give a sample." Then, during closing argument, the prosecutor

closed the State's argument with these assertions:

                                         9
                Trooper told him, you get this amount of time, and then we
         have to make a decision about whether or not you're going to blow.
         He still says, I'm not going to blow; not going to do it.

                 He had every opportunity to cooperate, and all he did was
         continue to refuse. He didn't want to cooperate. He didn't want—at
         the jail the trooper told you he had a whole list of questions as part
         of his investigation, a part of his reports, that, you know, he asked
         people, will you answer some more of my questions.

                He asked him, um, you know, certain things like what—what
         they had to eat that day. I mean, there's a varie—there's a whole
         page of questions. "Nope. I'm not answering any more of your
         questions."

                Why not? Why not? I mean, I think that's one of the most
         important questions you guys can ask yourselves when you're going
         back there to deliberate. Why not? Why not cooperate? Why not
         answer any of these questions? Why not blow?

                If he was so convinced he wasn't driving, why not do any of
         those things? I'll tell you why. Because he was driving and because
         he was intoxicated. And he knew that.

That is, the prosecutor's argument urged the jury to use the fact that Defendant

invoked his right to remain silent to support an inference of guilt, which is a

Doyle violation. See State v. Wessel, 993 S.W.2d 573, 576 (Mo. App. E.D.

1999).

         The next question is whether these two violations, the brief mention in

opening statement and the argument about lack of cooperation and refusal to

answer questions raised in closing argument, caused a manifest injustice or a

miscarriage of justice. See Dexter, 954 S.W.2d at 340. In the context of an

alleged Doyle violation, "the factors used in an analysis of a preserved error

violation pursuant to the harmless-beyond-a-reasonable[-]doubt standard are

the same as those used to determine whether a non-preserved violation is plain

error resulting in manifest injustice." State v. Jones, 7 S.W.3d 413, 418 (Mo.


                                          10
App. E.D. 1999). The Court must consider: "(1) whether the state made repeated

Doyle violations, (2) whether the trial court made any curative effort, (3)

whether the defendant's exculpatory evidence is transparently frivolous, and (4)

whether the other evidence of the defendant's guilt is overwhelming." Id.

       Here, although Defendant argues there were multiple Doyle violations, as

noted in our prior analysis regarding Point Two, there was no error in permitting

evidence that Defendant answered no questions after being advised of his

Miranda rights and there was no error in permitting evidence and argument

that Defendant requested an attorney after being advised of his Miranda rights.

The only Doyle violations, therefore, are in the prosecutor's opening statement

and a brief mention of refusing to answer questions in closing argument. This

factor weighs in favor of the State. See Jones, 7 S.W.3d at 418 (finding there

were no repeated Doyle violations where the Doyle violation involved only "a

few questions and answers").

       Regarding the second factor, although the trial court undertook no

curative efforts, Defendant did not object at any point during trial. "A court

should rarely grant relief on an assertion of plain error as to matters contained

within closing argument." State v. Cornelious, 258 S.W.3d 461, 467 (Mo. App.

W.D. 2008). "In the absence of an objection and request for relief, the court's

options are narrowed to uninvited interference with summation and a

corresponding increase of error by such intervention." Id. Had Defendant

brought the issue to the trial court's attention, the trial court could well have

taken action. The trial court was given no opportunity to remedy the situation.

This factor weighs in favor of the State. See Jones, 7 S.W.3d at 418 (noting that

                                          11
a trial court's failure to take curative action in response to a Doyle violation

"may have been due to [the] defendant's failure to object to the evidence on

specific grounds.").

       The last two factors require examination of the evidence. First, this Court

must determine if the defense was transparently frivolous. It was. The trial

judge, who had the opportunity to view the evidence just as the jury did, said it

best at sentencing when she told Defendant, "I, frankly, just don't believe for a

moment that you weren't driving that car. . . . I found your defense to be

incredible and unbelievable. And you were willing to place the blame of the

incident on your friend to avoid taking the blame for yourself." The only evidence

Defendant relied on to demonstrate he was not driving was that he did not own

the car and that some witnesses saw him in the backseat of the car. This evidence

is frivolous when viewed in light of Ms. Rogers's testimony.

       Ms. Rogers's testimony, when combined with the ample evidence of

Defendant's intoxication, also provides overwhelming evidence of Defendant's

guilt. See State v. Frazier, 927 S.W.2d 378, 382 (Mo. App. W.D. 1996) (finding

no manifest injustice arising from a Doyle violation were the defendant's guilt of

first degree tampering was otherwise clear because it was supported by evidence

that someone saw the defendant driving the car shortly after it was stolen). Ms.

Rogers witnessed the crash and found Defendant in the driver's seat of the

vehicle moments later. She saw Defendant get out of the driver's seat and move

to the back passenger seat. Defendant had apparently been drinking since early

afternoon at John's Frosted Mug. Defendant smelled of alcohol, had glassy eyes

and an unsteady gait, failed two field sobriety tests, and refused two others.

                                         12
Finally, Defendant refused to submit to a chemical test for blood alcohol content.

Defendant's arguments that the evidence was not overwhelming because Trooper

Waters found Defendant in the backseat of the car, and Defendant did not own

the car, simply ignore common sense. The defense was transparently frivolous,

and there was overwhelming evidence to the contrary. There was no manifest

injustice.

       The trial court did not err, plainly or otherwise, in admitting testimony

that Defendant refused to answer any questions after being advised of his

Miranda rights. Even though the prosecutor's use of that evidence during

opening statement and in closing argument violated Doyle, Defendant did not

suffer manifest injustice or a miscarriage of justice because of those violations.

Point Two is denied.

                                     Decision

       The trial court's judgment is affirmed.



MARY W. SHEFFIELD, C.J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

DON E. BURRELL, J. – CONCURS IN SEPARATE OPINION




                                         13
STATE OF MISSOURI,                            )
                                              )
       Plaintiff-Respondent,                  )
                                              )
v.                                            )       No. SD34082
                                              )
DONALD CURTIS BILLINGS,                       )       Filed: November 28, 2016
                                              )
       Defendant-Appellant.                   )

               APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                                   Honorable Laura J. Johnson

OPINION CONCURRING IN RESULT

       I agree that the judgment of the trial court should be affirmed, but I would affirm without

engaging in plain-error review.

       Rule 30.20 is no panacea which a criminal defendant can use to obtain appellate
       review of any alleged error that is unpreserved. “The plain error rule should be
       used sparingly and does not justify a review of every alleged trial error that has
       not been properly preserved for appellate review.” State v. White, 92 S.W.3d 183,
       189 (Mo.App.2002). Rather, plain error is limited to “error that is evident,
       obvious and clear.” Id. The proper parameters of plain error review are
       established by the text of Rule 30.20 itself. It states, in pertinent part, that “plain
       errors affecting substantial rights may be considered in the discretion of the court
       when the court finds that manifest injustice or miscarriage of justice has resulted
       therefrom.” Id. . . . [A]n appellate court is not required to engage in plain error
       review; the decision whether to grant or deny such a request is left to the court's


                                                  1
           discretion. State v. Thurston, 104 S.W.3d 839, 841 (Mo.App.2003); State v.
           Smith, 33 S.W.3d 648, 652 (Mo.App.2000).

State v. Campbell, 122 S.W.3d 736, 739-40 (Mo. App. S.D. 2004)

           Because no complaint whatsoever was voiced at trial about the peril now claimed so

egregious as to have required unasked intervention by the trial court to put a stop to it -- and no

resulting manifest injustice appears -- I would exercise our Rule 30.206 discretion to deny

Defendant's request for plain-error review.



DON E. BURRELL, J. – CONCURRING IN RESULT OPINION AUTHOR




6
    Missouri Court Rules (2016).

                                                  2
