Wednesday, March 17, 2004

Sentencing Transcript on appeal Cause No. CR203-1336M, S. D. No. 26269



IN THE MISSOURI COURT OF APPEALS

SOUTHERN DISTRICT

STATE OF MISSOURI,
               
          Respondent,
               
v.              S. D. No. 26269
             
DAVID G. JEEP,
             
          Appellant.   

IN THE CAMDEN COUNTY CIRCUIT COURT
TWENTY-SIXTH JUDICIAL CIRCUIT, ASSOCIATE DIVISION
The Honorable Bruce Colyer, Judge

STATE OF MISSOURI,     
               
          Plaintiff,       
               
v.              Cause No. CR203-1336M
               
DAVID G. JEEP,
             
          Defendant.       

TRANSCRIPT ON APPEAL

APPEARANCES:

Mr. W. Steven Rives        Mr. W. James Icenogle
Attorney at Law           Attorney at Law
2140 Bagnell Dam Blvd.    1 Court Circle, Suite 10
Lake Ozark, MO  65049     Camdenton, MO  65020
For:  State               For:  State
(Appeared 2/3/04)         (Appeared 3/17/04)

Mr. David G. Jeep
16325 Centerpointe Drive
Grover, MO  63040-1602
  Pro Se

Transcribed by
Jennifer M. van Rosmalen, CERT
Certified Electronic Reporter and Transcriber
Official Transcription Vendor for
Office of State Courts Administrator


I N D E X

TUESDAY, FEBRUARY 3, 2004

                          PAGE

Jury Panel Sworn               7

Voir Dire Examination of Jury Panel            9

Jury Sworn                     41

MAI-CR 302.01 and 302.02 Ready to Jury      44

Opening Statement by Mr. Rives        44
Opening Statement by Mr. Jeep         47


STATE'S EVIDENCE:

ALEX LITTLE
  Direct Examination by Mr. Rives           52
  Cross-Examination by Mr. Jeep               78

DAVID MATTHEW SCHWENN
  Direct Examination by Mr. Rives           90
  Cross-Examination by Mr. Jeep               98

TIM TAYLOR
  Direct Examination by Mr. Rives           99
  Cross-Examination by Mr. Jeep              118

States rests                122


DEFENDANT'S EVIDENCE:

ALEX LITTLE
  Direct Examination by Mr. Jeep            122

CHRISTINE LYNN SILVA
  Direct Examination by Mr. Jeep            131
  Cross-Examination by Mr. Rives            136

DAVID G. JEEP
  Direct Testimony by Mr. Jeep                143
  Cross-Examination by Mr. Rives            150

Defendant rests              165

I N D E X
(Continued)

TUESDAY, FEBRUARY 3, 2004

                          PAGE
STATE'S REBUTTAL EVIDENCE:

DAVID MATTHEW SCHWENN
  Direct Examination by Mr. Rives          165


DEFENDANT'S SURREBUTTAL EVIDENCE:

ALEX LITTLE
  Direct Examination by Mr. Jeep            169


Instruction Conference              172

MAI-CR 302.01 and 302.02 Re-read to Jury     173
Instructions Read to Jury             173

Opening Argument by Mr. Rives         178
Closing Argument by Mr. Jeep      182
Closing Argument by Mr. Rives         190


Bailiff sworn              191

Verdicts Read              196


SENTENCING:

Instruction Conference              199

Instructions Ready to Jury           201

Opening argument by Mr. Rives         203
Closing Argument by Mr. Jeep      206
Closing Argument by Mr. Rives         208

Bailiff sworn              210

Verdict Read                213

o0o


I N D E X
(Continued)

WEDNESDAY, MARCH 17, 2004

                          PAGE

Motion for Mistrial               219
Motion Denied              225

Motion to Overturn Verdict           219
Motion Withdrawn             226

Motion for Directed Verdict         220
Motion Withdrawn             226


Sentence                   229


o0o


E X H I B I T S

                         RECEIVED

STATE'S EXHIBITS:

1 - Certified driving record      114
2 – Lifeloc portable breath test             63
3 - Alcohol influence report      108
4 - BAC Data Master evidence tape          113
5 – Section 2.7, breath-alcohol instrument training    142
6 – DWI arrest documentation, 12/30/77      --


DEFENDANT'S EXHIBITS:

A – Uncertified driving record        --
B - Internet printout of Section 302.190      --

The complete TRANSCRIPT is available upon Request


           THE COURT:  Very well.
           Mr. Jeep, these are your motions.  Do you wish to argue your motions?
           MR. JEEP:  Yes.
           THE COURT:  Very well.  If you would designate which motion you wish to argue at this time and--
           MR. JEEP:  Well, I would take up the mistrial, the last one first, on the 29th.
           It's my position that during the trial, Officer Little testified that a four-inch heel was what required notification and I think--how did I word it here--he repeatedly stated under oath that it was a four-inch heel, not the two-inch heel, that required notification of opportunity for removal of said shoes prior to take both the walk-and-turn and one-leg-stand test.
           I submit that the National Highway Safety standard requires individuals wearing more than a two-inch high heel should be given the opportunity to remove their shoes.  He said he had been trained in that and he testified as an authority and it was--he was wrong.  It was just not--I provided a copy of the DWI detection and standardization field sobriety test participant manual, 2002, which I did not have at the time of the trial; only became available to me later.  I had asked for it prior to trial, but the prosecutor would not provide one.  Neither would the State I guess. 
           But on page--let's see here--these pages aren't numbered, but it's section 8, page 11, item 4, "test conditions", the second paragraph, the last sentence says:
           "Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes." 
           This is the standard that I was told that the State would apply to me and the State testified that it was a four-inch heel at trial, and it's clearly a two-inch heel in the documentation here.  That's my position on that issue.
           On the second issue that I spoke of in my motion, Officer Taylor had given a swore--what I believed to be a sworn testimony as part of the police record where he stated that I blew for 15 seconds.  When I asked him that at trial, he said, no, that's not what it was.  I hadn't blown a steady blow for 15 seconds.  I repeated the question, and again he refused to confirm his prior statement.  This conflict in what he had said in a prior statement and what he says at trial I felt was prejudicial and against me and something I couldn't have foreseen or been asked to defend against because he changed his story basically from the report to the testimony.
           Those are the two points that I feel warrant a mistrial.
           THE COURT:  Okay.  Anything else with regard to that motion?
           MR. JEEP:  No.
           THE COURT:  Mr. Icenogle?
           MR. ICENOGLE:  Briefly in response, Your Honor.
           As the Court's aware, the NHTSA standards are not mandatory.  As I understand the defendant's argument, it is essentially that Officer Taylor testified that--Officer Taylor testified that he believed that the NHTSA standard was a four-inch heel and not a two-inch heel.  I don't recall the testimony in that regard, but it really doesn't matter what it was because it's his recollection as to what the NHTSA standard is is not critical in this case, and if defendant wished to cross-examine him using that NHTSA standard, it was up to him to get the appropriate NHTSA statements.
           He has suggested that somehow it is the obligation of the State[1] to provide him with that.  Obviously, it is not.
           With respect to I guess what he's saying is that Officer Taylor said something in his report that was different than what his testimony is.  Obviously, likewise, it's up to Mr. Jeep to point that out to the jury through the utilization of the report in question.  In essence, it's too late[2] to make that argument at this time.
           THE COURT:  Mr. Jeep, I think you--at least the Court's taking the position that if you wish to impeach a witness by the use of standards, assuming that you have the right to do that, it was up to you to present that at the time of trial to impeach Mr.--or Officer Little and with regard to that, and I think it was up to you to take the initiative to impeach his testimony at that time. 
           Secondly, with regard to Officer Taylor, I think the same thing.  If it's your position that he testified contrary to his police report, it's this Court's position that you had the opportunity at that time to impeach him as to what his report said as compared to what he testified, and you did not take that opportunity.
           Therefore, your motion for mistrial will be denied on both counts.
           Now, as to your next?
           MR. JEEP:  I relinquish the other ones if you're going to deny that one.  They're all based on the same two topics, so--
           THE COURT:  Okay.  You do not wish to--You wish to withdraw those motions?
           MR. JEEP:  Yes.
           THE COURT:  Okay.  I'm sorry.  The other three I think we had--I think there was a total of four, so the other three you're wishing to withdraw?
           MR. JEEP:  There was two motions and a letter of information basically.
           THE COURT:  And you wish to with--have--to withdraw having the Court consider those three?
            MR. JEEP:  If you're going to deny the first one, yes, I want the other two to be (indiscernible).
           THE COURT:  All right.  And I do.
           At this time, the Court's ready for sentencing. [3]
           Do--Mr. Jeep, do you have any reason to state to this Court as to why sentencing should not take place at this time?
           MR. JEEP:  I'm going to appeal this.
           THE COURT:  I mean that's certainly your right. 
           MR. JEEP:  Okay.  That's my--
           THE COURT:  Yeah.  I mean I'm not--
           MR. JEEP:  Okay. 
           THE COURT:  Yeah.  And I certainly--Does the State have any reason why sentencing should not be passed--placed at this--take place at this time?
           MR. ICENOGLE:  It does not.  It does not, Your Honor.
           THE COURT:  State have any--wish to make any statements to the Court with regard to sentencing?
           MR. ICENOGLE:  Well, given that the jury's verdict was a fine to be determined by the Court, the State's recommendation is the Court impose the maximum fine in both cases.
           THE COURT:  Mr. Jeep, do you wish to address the Court with regard to Count I and/or Count III?  As to Count I, Count I would be the charge of DWI.
           MR. JEEP:  Well, nothing more than I stated in my motion that I believe that they told me that the standard was NHTSA, I think the prosecutor attorney told me that directly, and--Oh--told me that directly when I made a motion, pre-trial motion as to what the standard was.  He told me it was the NHTSA standard.  I asked for a copy of that NHTSA standard.  He told me he wouldn't give me one.  I felt I was being prosecuted under a standard I could not acquire.  I did ultimately acquire it after the fact, and I can document that I required it--got it after the fact.  I had applied for it prior to, but did not receive it until after the trial date through issues that nobody can really say that were--was anybody's fault, but nonetheless, I feel I was prosecuted to a standard that they didn't adhere to, that they didn't testify to.  They testified to it inaccurately.
           And that's my only position on that.
           THE COURT:  Well, what did you do to acquire that standard?
           MR. JEEP:  I ordered it from a--I first went to the website for NHTSA, and they referred me to a government publications that cost $150 to get this booklet, and I thought that was exorbitant, and I didn't do it.  I later found it on disk from the National Association of Criminal Defense Lawyers, and I acquired that copy for $50.  I ordered it on the 25th of January, they cashed my check on the 30th of January, they shipped it to me on the 9th of February.  My trial date was the 3rd of February.
           THE COURT:  Any reason you could not acquire that earlier?
           MR. JEEP:  Other than I didn't have any access to it, didn't know about it, had no knowledge of it.
           THE COURT:  Any reason you couldn't have found--found out and gone to the internet earlier and found it?
           MR. JEEP:  I was trying, sir.  I did my due diligence.  I tried. 
           The State purported that he was a trained technician in this area, and he clearly made a mistake.
           THE COURT:  Anything else?
           MR. JEEP:  That's it, sir.
           THE COURT:  As to Count I, the Court orders you to pay a fine of $500, plus the cost of this action.  As to Count III, which--Count I being the DWI.
           Count III being the charge of failure to obey--failure to signal before changing lanes, the Court orders you to pay a fine of $300.  In addition, the Court orders you to pay the cost of this action.
           With regard to the bond that has been paid that has been--been posted in this matter, the Court orders that bond to apply to your fine and court costs.
           Do you wish additional time in which to pay the balance?
           MR. JEEP:  I can pay the $800.  I don't know what the balance would be beyond that, sir.
           THE COURT:  I'm sorry?
           MR. JEEP:  I don't know what the balance would be beyond that.
           THE COURT:  Well, there would be approximately $1,100 in court costs I believe.
           MR. JEEP:  Plus the $800?  So I'm--
           THE COURT:  Yes, sir.
           THE COURT:  --only going to owe like $150?
           THE COURT:  I'm sorry?
           MR. JEEP:  Today I'll only owe like $150, if my math is right?  1,750 was my bond?
           THE COURT:  Don't hold me to that, but I think--
           MR. JEEP:  That'd be 650 left--
           THE COURT:  --there'd be more than that because there's additional court costs in addition to just what the jury fee would be.  I would say you're probably looking at close to $2,100, but now don't hold me to that exactly either.
           MR. JEEP:  I don't have that money right now, sir, no.
           THE COURT:  Okay. 
           MR. JEEP:  I need at least 30 days.
           THE COURT:  I believe May 10th is the payment date normally.  The Court will grant you till May 10, 2004, at 9:00 a.m., to pay the balance.  If that has not been paid, then you're ordered to be here in court on that date at 9:00.
           MR. JEEP:  Okay. 
           MR. ICENOGLE:  (Indiscernible) find out (indiscernible).
           MR. JEEP:  Can I get a total from the clerk I guess then?
           THE COURT:  The clerk can give you that total. 
           Okay.  Anything further on behalf of the State?
           MR. ICENOGLE:  No, Your Honor.
           THE COURT:  Anything further on behalf of the defendant, Mr. Jeep?
           MR. JEEP:  No.
           THE COURT:  Very well.
           That will conclude our record in this hearing.
           Thank you.
o0o





[1] Judges and Prosecutors can allow violation the Constitution i.e., Brady, BECAUSE THEY HAVE IMMUNITY!!!! Brady v. Maryland, 373 U.S. 83 (1963), says: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.Page 373 U. S. 87.  The issue of violating an established standard goes to credibility of the witness and is “material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
[2] There is NO STATUTE of limitation on CIVIL RIGHTS ISSUES.  Judges and Prosecutors can allow violation the Constitution i.e., Brady, BECAUSE THEY HAVE IMMUNITY!!!! Brady v. Maryland, 373 U.S. 83 (1963), says: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.Page 373 U. S. 87.  The issue of violating an established standard goes to credibility of the witness and is “material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
[3] Judges and Prosecutors can allow violation the Constitution i.e., Brady, BECAUSE THEY HAVE IMMUNITY!!!! Brady v. Maryland, 373 U.S. 83 (1963), says: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.Page 373 U. S. 87.  The issue of violating an established standard goes to credibility of the witness and is “material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 
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