State of Missouri v. Ronda Sue Reeter

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
Respondent, )
)
v. ) WD81725
)
RONDA SUE REETER, ) FILED: September 10, 2019
Appellant. )
Appeal from the Circuit Court of Livingston Cuonty
The Honorable Jim P. Valbracht, Judge
Before Division One: Cynthia L. Martin, P.J., and
Victor C. Howard and Alok Ahuja, JJ.
Following a bench trial in the Circuit Court of Livingston County, Ronda Sue
Reeter was convicted of the class B misdemeanor of driving while intoxicated.
Reeter appeals. She argues that the circuit court plainly erred in admitting into
evidence the results of an illegally obtained blood test. She also argues that she
received ineffective assistance of counsel when her trial attorney failed to move to
suppress the blood test results. We affirm.
Factual Background1
In the early morning of June 11, 2017, Missouri State Highway Patrol
Trooper Brian Raney observed a vehicle going in the opposite direction on U.S.
Highway 65 in Livingston County. The vehicle was travelling unusually slowly,
and then pulled over on the side of the road. Trooper Raney turned his patrol car
1 We review the facts in the light most favorable to the verdict. State v. Lee,
498 S.W.3d 442, 446 n.1 (Mo. App. W.D. 2016) (citation omitted).
around, stopped behind the vehicle, and activated his emergency lights. Trooper
Raney approached the vehicle on foot to speak with the driver. He detected an odor
of alcohol coming from the interior of the vehicle.
Reeter was seated in the vehicle’s driver’s seat. She informed Trooper Raney
that she had pulled over because she thought she had hit something, possibly an
animal. Reeter admitted to having consumed alcohol with her dinner earlier in the
evening. Trooper Raney asked Reeter to accompany him to his patrol car. In his
vehicle, Trooper Raney detected an odor of alcohol coming from Reeter, and
observed that her eyes were glassy and bloodshot and that she spoke with a “thick
tongue.”
Trooper Raney attempted to administer a series of field sobriety tests. First,
he requested that Reeter submit to a portable breath test. Although Reeter
consented, after four attempts Trooper Raney was unable to obtain a testable
sample. Trooper Raney asked Reeter to recite the alphabet and to count backwards
from ninety-nine to seventy-four. He reported that Reeter quickly recited the
alphabet, but did not state each letter as Trooper Raney had requested. He testified
that, while counting backwards, Reeter slurred her speech and stopped counting at
seventy-eight instead of seventy-four as instructed. Next, Trooper Raney attempted
to perform a walk-and-turn test and a standing balance test outside his patrol car.
Reeter stated that she could not complete the tests because she was disoriented by
the patrol car’s rooftop lights, and had balance issues due to prior medical problems.
Finally, Trooper Raney performed a horizontal gaze nystagmus test. He testified
that Reeter exhibited four of six possible clues of intoxication on the horizontal gaze
nystagmus test; a driver exhibiting two clues had failed the test.
Based on Trooper Raney’s observations, he arrested Reeter on suspicion of
driving under the influence of drugs or alcohol. Trooper Raney took Reeter to a
local hospital to obtain blood and urine samples for chemical testing. At the
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hospital, Trooper Raney read Reeter the Implied Consent form, which informed her
that if she refused the test, her driver’s license would be revoked. See §§ 577.020,
577.041.2, RSMo. Reeter became argumentative, contesting whether she should
have to submit to testing, and questioning who was going to pay for the tests.
Eventually, Reeter consented to the blood and urine tests after Trooper Raney
clarified that she would not have to pay for the testing at that time (although he
told her that a court might later order her to pay for the testing). After the
hospital’s medical technician drew Reeter’s blood and obtained a urine sample,
Reeter demanded that the samples be left at the hospital and tested there. Despite
Reeter’s objections, Trooper Raney collected Reeter’s blood and urine samples and
placed them into evidence containers for transfer to the Highway Patrol’s crime lab
for testing.
Reeter was charged with driving while intoxicated. At her bench trial, the
Highway Patrol lab technician who tested Reeter’s blood samples testified that the
samples revealed a blood alcohol concentration of .097 percent. (Reeter’s urine
sample was not tested.) When the State moved to introduce the lab technician’s
report of the blood test results, defense counsel objected on the basis of improper
foundation and “typical chain of custody issues.” The circuit court overruled defense
counsel’s objections and admitted the report into evidence. At the conclusion of the
bench trial, the circuit court found that “under the totality of the circumstances . . .
[T]rooper [Raney] had reason to request the [blood] test, [and] that he properly gave
the Implied Consent law.” The court found Reeter guilty of driving while
intoxicated and sentenced her to a fine, fees and costs totaling $716.50.
Reeter appeals.
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Discussion
I.
Reeter first argues that the circuit court plainly erred by admitting the blood
test results into evidence. She contends that the blood test results were illegally
obtained because she did not give her unconditional and unqualified consent to the
drawing and subsequent testing of her blood.
Reeter acknowledges that her trial counsel did not object to the admissibility
of the blood test results on the basis that the blood samples were illegally obtained
and tested (instead, counsel objected only that a proper foundation had not been
laid). Because the issue was not properly preserved for appeal (as Reeter concedes),
it is reviewable only for plain error. State v. Clay, 533 S.W.3d 710, 717 (Mo. 2017).
On plain error review, an appellant must show: (1) an “evident, obvious, and clear”
error by the trial court that (2) has caused a “manifest injustice or miscarriage of
justice.” State v. Celis-Garcia, 420 S.W.3d 723, 727 (Mo. App. W.D. 2014) (citation
and internal quotation marks omitted).
The circuit court did not plainly err in admitting the blood test results,
because the evidence establishes that Reeter consented to having her blood drawn
and tested. Under § 577.020.1(1), RSMo, a driver operating a motor vehicle in
Missouri is deemed to have impliedly consented to a chemical test to determine
blood alcohol concentration if the driver is arrested on probable cause to believe that
he or she is driving while intoxicated.
A driver may withdraw the statutory implied consent, and refuse testing. See
Murphy v. Dir. of Revenue, 170 S.W.3d 507, 510 (Mo. App. W.D. 2005) (noting that a
driver subject to § 577.020 is free to “explicitly negate[ ] or withdraw[ ]” the implied
consent); § 577.041, RSMo. An arrestee may refuse a chemical test by expressly
stating their refusal to submit to a requested test, or simply by not participating in
the actions necessary to complete the test. Spradling v. Deimeke, 528 S.W.2d 759,
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766 (Mo. 1975); Kotar v. Dir. of Revenue, 169 S.W.3d 921, 925 (Mo. App. W.D. 2005).
In addition, courts in driver’s license suspension or revocation cases have held that
a law enforcement officer may deem a driver’s conditional or qualified consent to be
the equivalent of a refusal. Kotar, 169 S.W.3d at 925; Spradling, 528 S.W.2d at
766. For example, an arrestee who states that he does not want to take a test, but
will do so if the arresting officer wants him to, has given a conditional consent
which the officer can treat as a refusal. Zimmerman v. Dir. of Revenue, 72 S.W.3d
634, 637 (Mo. App. S.D. 2002). Additionally, a driver’s consent which is conditioned
upon his first being allowed to use the restroom may be deemed a refusal. Rogers v.
Dir. of Revenue, 184 S.W.3d 137, 144 (Mo. App. W.D. 2006).
Here, Reeter argues that she did not give her unqualified consent to a blood
draw, and that her actions should be deemed a refusal.2 Reeter initially complained
that she had done nothing wrong, and therefore should not be required to submit to
a chemical test; she also stated that she was unwilling to pay for any testing
conducted at the hospital to which Trooper Raney had taken her.
Arguably, Reeter’s initial responses could be deemed to be a refusal. Trooper
Raney was not required to accept Reeter’s initial refusal as the end of the matter,
however. We have explained that, under the relevant statutes, “should a driver
initially refuse to submit to chemical testing, the arresting officer has the choice of
either permitting the driver to withdraw his refusal and submit to chemical testing
or of letting the driver's initial refusal stand as grounds to administratively revoke
the driver's license.” Rothwell v. Dir. of Revenue, 419 S.W.3d 200, 206 (Mo. App.
W.D. 2013) (footnote omitted). Thus, “[t]hough [Reeter] initially refused [her]
consent to submit to chemical testing, it was within Trooper [Raney]’s discretion to
2 Notably, although Reeter now claims that her statements should be deemed
to be a refusal (and that the adverse blood test results should therefore have been
suppressed), she did not suffer the consequences of a refusal at the time (namely, the
administrative revocation of her driving privileges for one year under § 302.574, RSMo).
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persist in his efforts to secure [Reeter]’s consent, or to let [Reeter]’s initial refusal
stand as grounds to administratively revoke [her] license.” Id.
In this case, despite Reeter’s initial reluctance to give blood and urine
samples, she ultimately agreed to provide samples after Trooper Raney informed
her that she would not have to pay for the testing at that time (although a court
might later require her to do so). Trooper Raney testified that, once he clarified
that Reeter would not be expected to pay for the testing when it occurred, “she
decided to take it.” Reeter herself testified that she “originally agreed to let him
draw the blood,” and only objected after her blood had been drawn when she learned
that Trooper Raney was going to take the samples with him, and would not be
leaving them at the hospital for testing. Whatever her initial response, Reeter gave
her unqualified consent to the blood draw before it was administered.
Reeter also argues that she qualified or conditioned her consent because,
after her blood was drawn, she asked Trooper Raney to leave the samples at the
hospital to be tested, and objected to him taking the samples for testing at the
Highway Patrol’s lab. By the time Reeter attempted to direct where her samples
would be tested, however, her blood had already been drawn, and Trooper Raney
had taken possession of the samples. And Reeter had already consented to have her
blood drawn and tested. The Informed Consent form which Trooper Raney read to
Reeter informed her that he was “requesting [that she] submit to a chemical test” of
her blood “[t]o determine the alcohol or drug content of [her] blood.” See
§ 577.020.1. By agreeing to this request, Reeter necessarily agreed not only to have
her blood drawn, but also to have it subjected to laboratory analysis to determine
whether it contained drugs or alcohol. See State v. Swartz, 517 S.W.3d 40, 49-50
(Mo. App. W.D. 2017) (search warrant which “authorized the search and seizure of
[driver]’s body to obtain a blood sample to . . . locate ‘evidence of the crime of driving
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while intoxicated’” “was sufficient to authorize both the blood draw and the
[laboratory] testing of the blood to secure evidence” of driving while intoxicated).3
After the sample was drawn, Reeter did not seek to withdraw her consent to
having her blood tested; she merely attempted to dictate where, and by whom, the
testing would be conducted. Reeter cites no authority to support her claim that she
was entitled to direct the manner in which her blood would be analyzed, after
having consented to the collecting and testing of a blood sample. Sections 577.020
and 577.041 give a driver two options after they have been arrested for driving
while intoxicated: they can either consent to the chemical testing of their breath,
blood, saliva or urine for drugs or alcohol; or they can refuse that consent. The
statutes do not authorize drivers to direct how the chemical testing will be
conducted.
Because Reeter consented to the collection and testing of her blood, the
circuit court did not plainly err in admitting the blood test results into evidence.
Point I is denied.
II.
In her second Point, Reeter argues that she received ineffective assistance of
counsel at trial, because her counsel failed to object to admission of the blood test
results on the basis that those results had been illegally obtained.
There are several problems with Reeter’s ineffective-assistance-of-counsel
argument. First, “claims of ineffective assistance of counsel cannot be asserted on a
direct appeal from a misdemeanor conviction. Defendant’s remedy, if any, for
3 Notably, caselaw addressing Fourth Amendment search-and-seizure issues
generally holds that “the taking and later analysis of . . . [a] blood [sample] are ‘a single
event for fourth amendment purposes,’ and that ‘a “search” is completed upon the drawing
of the blood.’” Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (quoting United States v.
Snyder, 852 F.2d 471, 474 (9th Cir. 1988); Johnson v. Quander, 440 F.3d 489, 500 (D.C. Cir.
2006)). Under this reasoning, “the testing of [a driver]’s blood require[s] no justification
beyond that which [is] necessary to draw the blood” in the first place. Id. See also, e.g.,
People v. Woodard, 909 N.W.2d 299, 305-10 (Mich. App. 2017) (collecting cases).
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ineffective assistance of counsel in misdemeanor cases is by habeas corpus.” State
v. Morovitz, 867 S.W.2d 506, 510 (Mo. 1993); accord, State v. Reynolds, 360 S.W.3d
332, 336 (Mo. App. W.D. 2012). We recognize that, because Reeter was convicted of
a misdemeanor and was not sentenced to incarceration, she may not be able to
assert her ineffective assistance of counsel claim in any other manner (such as in a
post-conviction relief motion, or in a petition for habeas corpus relief).4
Nevertheless, we consider ourselves bound to follow the Missouri Supreme Court’s
holding in Morovitz.
Even if this appeal were an appropriate procedural vehicle to raise an
ineffective assistance of counsel claim, it is not clear that Reeter is entitled to assert
such a claim at all. Reeter was charged with, and convicted of, a misdemeanor. The
Supreme Court of the United States has made clear that the Sixth Amendment
right to counsel attaches to prosecution for a misdemeanor only if the prosecution
“actually leads to imprisonment.” Alabama v. Shelton, 535 U.S. 654, 661 (2002)
(quoting Argersinger v. Hamlin, 407 U.S. 25, 33 (1972)); see also Nichols v. United
States, 511 U.S. 738, 746-47 (1994); Scott v. Illinois, 440 U.S. 367, 374 (1979).
Missouri courts have likewise recognized that the constitutional right to counsel
does not attach to a misdemeanor prosecution, even if imprisonment is a statutorily
authorized punishment for the misdemeanor, unless a term of imprisonment is
actually imposed on the defendant. Trimble v. State, 593 S.W.2d 542, 545 (Mo.
1980); State v. Keeth, 203 S.W.3d 718, 726-28 (Mo. App. S.D. 2006).
In this case, the circuit court imposed only financial penalties on Reeter, and
did not sentence her to any term of imprisonment or confinement. Therefore,
Reeter had no constitutional right to counsel in this case. “Where there is no
4 Rule 29.15 provides a post-conviction remedy for “[a] person convicted of a
felony after trial,” while Rule 91.01 allows “[a]ny person restrained of liberty within this
state” to petition for habeas relief.
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constitutional right to counsel there can be no right to effective assistance of
counsel.” Pollard v. Delo, 28 F.3d 887, 888 (8th Cir. 1994)) (citing Wainright v.
Torna, 455 U.S. 586 (1982)); see also, e.g., Barnett v. State, 103 S.W.3d 765, 773 (Mo.
2003) (“There is no constitutional right to counsel in a post-conviction proceeding.
Thus, a post-conviction movant has no right to effective assistance of counsel.”)
(citing State v. Hunter, 840 S.W.2d 850, 871 (Mo. 1992)).
Finally, as explained in § I, above, the results of Reeter’s blood test were
admissible, because she consented to the collection and testing of her blood. A
motion to suppress would not have been successful, and “counsel will not be found
to be ineffective for failing to investigate and file a meritless motion to suppress.”
Stragliati v. State, 556 S.W.3d 660, 664 (Mo. App. E.D. 2018) (citation and internal
quotation marks omitted); see also, e.g., Coon v. State, 504 S.W.3d 888, 892 (Mo.
App. W.D. 2016). Therefore, even if Reeter were entitled to assert an ineffective
assistance of counsel claim in this appeal, we would reject that claim.
Point II is denied.
Conclusion
The judgment of the circuit court is affirmed.
Alok Ahuja, Judge
All concur.
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