In the 

Missouri Court of Appeals

Western District

STATE OF MISSOURI,

 Respondent,

v.

MICHAEL L. ELLMAKER,

 Appellant.

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WD83026

OPINION FILED:

October 20, 2020

Appeal from the Circuit Court of Platte County, Missouri

The Honorable James Walter Van Amburg, Judge

Before Division Three:

Gary D. Witt, P.J., Lisa White Hardwick and Thomas N. Chapman, JJ.

Michael Ellmaker (“Ellmaker”) was convicted of driving while intoxicated (“DWI”) 

following a jury trial in the Circuit Court of Platte County. The trial court found that Ellmaker 

was a habitual offender due to his six prior intoxication-related traffic offenses, entered a 

conviction for the class B felony of driving while intoxicated, and sentenced Ellmaker 

accordingly. Ellmaker appeals. In his first point, he argues that the trial court erred in finding

that he was a habitual offender because the evidence produced by the State was insufficient to 

prove that two of his prior convictions qualify as intoxication-related traffic offenses. In his 

second point, he argues that the court erred in permitting testimony that referred to Ellmaker’s 

post-arrest silence. In his third point, he contends that the trial court plainly erred in failing to 
2

intervene when the State impermissibly referred to Ellmaker’s post-arrest silence in opening 

statement and closing argument. We have determined that the trial court erred in permitting 

testimony regarding Ellmaker’s post-arrest silence as substantive evidence of guilt. The 

judgment is reversed, and the case is remanded.

Factual and Procedural History

On April 8, 2017, Sergeant Campbell (“Campbell”) received a broadcast about a possible 

intoxicated driver leaving the Argosy Casino in a silver four-door car. Campbell spotted a silver 

Buick Lucerne with expired license plates, and began following the vehicle. He noticed the 

vehicle crossed the double solid lines as it went around a curve. As the vehicle stopped at a red 

light, Campbell saw the driver of the vehicle take a drink from a can inside a blue koozie. When 

the light turned green, Campbell stopped the vehicle, which was driven by Ellmaker. When 

asked for his license, registration, and insurance, Ellmaker was not able to provide these 

documents, and instead offered a cell phone bill. At this time, Ellmaker asked if his passenger 

could drive. Campbell noticed that Ellmaker’s eyes were watery and bloodshot, and could smell 

alcohol when Ellmaker spoke. Ellmaker indicated that he had not been drinking and that the can 

in the car was a Coke. However, the passenger volunteered that the can (later confirmed to be a 

Busch beer can) was the passenger’s beer. 

Campbell testified that Ellmaker “kind of staggered” while exiting his car and maintained 

contact with the trunk of the vehicle as he stood. When asked, Ellmaker agreed to take a field 

sobriety test, but mentioned that “he had a bad knee.” 

Sergeant Campbell testified that there are three standardized field sobriety tests: the 

horizontal gaze nystagmus (HGN), the walk and turn, and the one-legged stand. Due to his 

purported physical disability, Ellmaker was not asked to perform the walk and turn or one-legged 
3

stand tests, but was asked to perform the HGN field sobriety test. The HGN is an eye test that 

checks for six indicators of impairment. Sergeant Campbell testified that four positive indicators 

suggest impairment, and that six of six clues indicate a “high level of BAC, blood alcohol 

content.” Ellmaker showed all six clues, which led Campbell to conclude that Ellmaker was 

impaired.1

Sergeant Campbell placed Ellmaker under arrest. When he was told that he was being 

placed under arrest subject to the administration of a breathalyzer, Ellmaker stated that he had 

just come from the casino and had “had a few.” At the Riverside Police Station, Campbell 

administered a breathalyzer test. The test used allows the taker six attempts to provide a 

sufficient sample of air. If a sufficient sample is not provided in six attempts, then the machine 

times out, and it is treated as a refusal. Ellmaker did not provide a sufficient amount of air in his 

six attempts, and was thus considered to have refused to take the breathalyzer test. 

After providing Ellmaker his Miranda warnings, Sergeant Campbell asked Ellmaker a 

number of questions. Mr. Ellmaker said that he was gambling at the Ameristar Casino.

Ellmaker said that he started drinking at five o’clock and stopped drinking ten minutes after six 

o’clock (an hour and ten minutes). However, Ellmaker also indicated that he was drinking at a 

pace of one beer an hour, and that he drank three beers (which suggested he had been drinking 

for three hours). When asked whether he was under the influence when he was stopped, 

Ellmaker said that he did not want to answer that question. 

 

1 Sergeant Campbell also testified that, in addition to the field sobriety tests, there were other things that he looked 

for to determine whether Ellmaker was intoxicated. This included whether he could follow the instructions of a 

“divided attention task” – to put his feet together and his hands to his side. Ellmaker did successfully follow said 

instructions. Campbell also acknowledged that he did not report that Ellmaker’s speech was slurred or that he used 

profanity; and did not find that he was confused or that he spoke incoherently. 
4

Ellmaker was charged in Platte County Circuit Court with the class B felony of driving 

while intoxicated as a habitual offender. He was also charged with the misdemeanor2of failure 

to drive on the right half of the roadway. After a jury trial, Ellmaker was convicted on the DWI 

offense. He was sentenced to ten years of imprisonment. He appeals to this court. 

Point One

In his first point on appeal, Ellmaker contends that the trial court erred in finding him to 

be a habitual DWI offender, because there was insufficient evidence to prove that two of his six 

prior convictions qualified as intoxication-related traffic offenses (“IRTOs”).

Driving while intoxicated is a class B felony if the defendant is a habitual offender, 

whereas the offense is a class C felony if the defendant is a chronic offender. § 577.010.3 A 

“habitual offender” is a person found guilty of five or more IRTOs committed on separate 

occasions, while a “chronic offender” is a person who has been found guilty of four or more such 

IRTOs. § 577.001(5), (11). Section 577.023.4 provides in relevant part:

Evidence offered as proof of the defendant’s status as a . . . habitual offender . . . 

shall include but not be limited to evidence of findings of guilt received by a search 

of the records of the Missouri uniform law enforcement system, including criminal 

history records from the central repository or records from the driving while 

intoxicated tracking system (DWITS) maintained by the Missouri state highway 

patrol, or the certified driving record maintained by the Missouri department of 

revenue.

The State has the burden to prove prior IRTOs beyond a reasonable doubt. State v. 

Craig, 287 S.W.3d 676, 681 (Mo. banc 2009). “The standard of review for this court-tried issue 

is the same as in a jury-tried case.” State v. Cordell, 500 S.W.3d 343, 345 (Mo. App. S.D. 2016). 

 

2 A mistrial was declared on the misdemeanor offense after the jury was deadlocked on that count, and the State 

dismissed that charge following the trial. 

3 Because the relevant time for determining whether a previous offense constitutes an IRTO is the date of the current 

offense (April 8, 2017), all statutory references are to RSMo 2016, unless otherwise noted.
5

Under section 577.023, the State need only present sufficient facts to support a finding beyond a 

reasonable doubt that the defendant either pled guilty or was found guilty of the requisite number 

of prior IRTOs. State v. Coday, 496 S.W.3d 572, 574 (Mo. App. W.D. 2016). In making this

determination, “we accept as true all evidence to prove the prior offenses together with all 

reasonable inferences that support the circuit court’s finding.” State v. Rigsby, 589 S.W.3d 661, 

664 (Mo. App. W.D. 2019) (quoting Coday, 496 S.W.3d at 574). 

In this matter, the State presented evidence seeking to show that Ellmaker had six prior 

IRTOs. State's Exhibit 1, which was comprised of records showing a 2006 Jackson County 

conviction for C felony (aggravated offender) DWI, was admitted without objection. Following 

its admission, the trial court asked if there was any argument regarding State’s Exhibit 1. 

Ellmaker's counsel then indicated what ended up being the entire extent of his argument at trial 

regarding the admission of his prior convictions:

So I do have a - I don't have a general objection. In State v. O'Coday [sic], which 

is 496 S.W.3d 572, to the extent that that felony conviction is insufficient to 

support a conviction of DWI or DUI in the State of Missouri under the laws at 

that time, we would be objecting, but nothing further.4 

The State then offered State's Exhibit 2, which included the DWITS records from the Highway 

Patrol, and also offered State’s Exhibit 3, which included Ellmaker’s driving record maintained 

by the Missouri Department of Revenue (“DOR”). In response to State's Exhibits 2 and 3 (which 

included all six of Ellmaker’s prior convictions for driving while intoxicated), Ellmaker’s 

counsel indicated, “No objection, well other than the same objection to the last, the State v. 

Coday, just the general objection.” Ellmaker did not state which of the six convictions he was 

 

4 State v. Coday, 496 S.W.3d 572 (Mo. App. W.D. 2016).
6

challenging or make any specific argument as to how or why any of the convictions would be 

impacted by the holding in Coday. 

On appeal, Ellmaker challenges the sufficiency of the State’s evidence in support of the 

court’s determination that Ellmaker was a habitual offender pursuant to Section 577.001(11). He 

argues that the February 18, 19935and December 21, 19936convictions in the Circuit Court of 

Jackson County, Missouri for driving while intoxicated under section 577.010 were insufficient 

because they did not constitute IRTOs.

7

 Regarding both of the challenged 1993 convictions, the 

DWITS records maintained by the highway patrol indicated (under the charge code description), 

“DWI/ALCOHOL.” Ellmaker’s DOR driving record indicates that he was convicted of 

“DRIVING WHILE INTOXICATED” in both of the challenged 1993 IRTOs.

“In determining whether a previous offense qualifies as an IRTO it must involve conduct 

sought to be deterred at the time of the present offense.” Cordell, 500 S.W.3d at 345. At the 

time of Ellmaker’s present (2017) offense, driving while intoxicated fell within the definition of 

an “intoxication-related traffic offense.” § 577.001(15). “A person commit[ted] the offense of 

driving while intoxicated if he or she operate[d] a vehicle while in an intoxicated condition.” § 

577.010.1. “‘Drive’, ‘driving’, ‘operates’, or ‘operating’, mean[t] physically driving or operating 

a vehicle or vessel[.]” § 577.001(9). However, at the time of Ellmaker’s two contested 1993 

convictions, the terms “‘drive’, ‘driving’, ‘operates’ or ‘operating’ mean[t] physically driving or 

 

5 For events occurring on May 30, 1992.

6 For events occurring on January 1, 1993.

7 Ellmaker does not challenge that the other four convictions constitute IRTOs. They are as follows: (1) a July 27, 

2006 conviction for driving while intoxicated (for events occurring on October 8, 2005, as set forth in the Jackson 

County Circuit Court records included in State’s Exhibit 1); (2) a December 21, 1993 conviction for driving while 

intoxicated (for events occurring on April 6, 1993); (3) a January 18, 1989 conviction for driving while intoxicated 

(for events occurring on November 21, 1988); and (4) a November 13, 1985 conviction for driving while intoxicated 

(for events occurring on August 16, 1985).
7

operating or being in actual physical control of a motor vehicle.” § 577.001.1 RSMo (1994) 

(emphasis added). Due to the removal of the phrase “or being in actual physical control” from 

the statute, Ellmaker contends that two of his convictions from 1993 may have involved only 

being in physical control of the vehicle rather than physically driving or operating the vehicle as 

“driving” and “operating” were defined at the time of his present offense. The issue presented 

by Ellmaker is whether the evidence presented by the State showing that he had two 1993 

convictions for “DRIVING WHILE INTOXICATED” is sufficient evidence to support a finding 

beyond a reasonable doubt that the conduct giving rise to those convictions was for driving or 

operating a motor vehicle while intoxicated, given that he might have been convicted for conduct 

(being in physical control rather than physically driving or operating) that would not constitute 

an IRTO at the time of his present (2017) offense.8

In State v. Gibson, it was not disputed that the prior offense that was considered for 

enhancement purposes involved “physical control of a motor vehicle while under the influence 

of alcohol” and did not include actual operation of the vehicle. 122 S.W.3d 121, 130 (Mo. App. 

W.D. 2003). In Gibson, our court determined that, because the past offense for which the 

appellant was convicted would not constitute an IRTO at the time of the offense being appealed, 

the prior offense did not qualify as an IRTO for enhancement purposes. Id. However, 

Ellmaker’s case is distinct from Gibson in that Ellmaker’s contested convictions are labeled as 

 

8 We note that Ellmaker failed to direct the trial court to which prior convictions he was challenging or provide any 

argument as to how State v. Coday was applicable or relevant to any of the six prior convictions contained within the 

exhibits. On appeal, he argues that the trial court should have known the status of the relevant Missouri statutes 

which were in effect over 25 years before and should have determined on its own that the two 1993 convictions did 

not constitute valid IRTOs under the current law. For the trial court to have undertaken such an exercise would have 

put it in the position of becoming an advocate for a party, which it cannot do. State v. Deweese, 540 S.W.3d 490, 

494 (Mo. App. W.D. 2018).
8

convictions for “DRIVING WHILE INTOXICATED” in the DOR driving records, and said 

records do not identify the specific conduct (physical control, rather than driving or operating) 

that would no longer constitute “driving” or “operating” for purposes of an IRTO. Thus, unlike 

the appellant in Gibson, Ellmaker does not argue that his convictions were for conduct that no 

longer constituted an IRTO; he argues that they might have been for such conduct, and that the 

State’s evidence thus fails to establish beyond a reasonable doubt that Ellmaker’s conduct did 

qualify as an IRTO. 

Missouri courts have held that when “the legislature lists a particular source as 

authorizing the trial court to find the existence of a prior conviction, that source contains all the 

information necessary to prove the prior conviction.” State v. Rattles, 450 S.W.3d 470, 474 (Mo. 

App. S.D. 2014); State v. Miller, 153 S.W.3d 333, 338 (Mo. App. S.D. 2005) (“In our view, 

section 577.023.149demonstrates clear legislative intent to establish the minimum evidentiary 

burden which must be met by the State in order to make a prima facie showing that a prior 

conviction qualifies as a predicate offense for purposes of enhanced punishment.”). 

The State contends that, at minimum, the State’s evidence (the DWITS and DOR records 

indicating that Ellmaker was “driving” while intoxicated) established a prima facie case that 

Ellmaker had a sufficient number of priors, and therefore, it was incumbent on Ellmaker to 

introduce evidence that the convictions did not occur or were for conduct that no longer 

constitutes an IRTO. See State v. Thomas, 969 S.W.2d 354, 357 (Mo. App. W.D. 1998) (“The 

Department of Revenue records, therefore, explicitly established that Mr. Thomas was twice 

convicted of driving while intoxicated. If the Department of Revenue records were erroneous, it 

 

9 This subsection is currently located at 577.023.4, but the relevant language remains unchanged.
9

was incumbent on Mr. Thomas to introduce evidence establishing that no such convictions 

occurred.”).10

State v. Cordell involved a nearly identical argument and evidentiary basis as presented 

in this matter. 500 S.W.3d at 345. In Cordell, the defendant argued that a DOR-certified driving

record, which indicated municipal convictions for “DRIVING WHILE INTOXICATED,” was 

insufficient because it did not 

exclude the possibilities that, (1) in addition to criminalizing driving or operating a 

motor vehicle while in an intoxicated condition, the driving-while-intoxicated 

ordinance underlying either or both municipal convictions at that time might have 

criminalized other conduct, such as being in actual physical control of a vehicle 

while intoxicated, and (2) it was for this other conduct that she was convicted. 

Id. at 346. The court rejected the defendant’s argument, noting that it miscomprehended “the 

nature of the State’s burden of proof and the use of circumstantial evidence to satisfy that 

burden.” Id. 

The Cordell court noted that the evidence before the trial court showed via DOR records 

that the defendant had three prior convictions for “DRIVING WHILE INTOXICATED.” Id. at 

347. This circumstantial evidence, according to Cordell, supported the inference that the 

conduct underlying these convictions comported with physically driving a motor vehicle in an 

intoxicated condition, and thereby met the definition of an IRTO. Id. Because drawing this 

inference was reasonable, the court held that the trial court did not err in inferring that a 

 

10 In Thomas, the defendant did not dispute the fact of his prior driving while intoxicated convictions or argue that 

they may have been based on conduct that no longer qualifies as an IRTO; rather, he argued the admissibility and 

sufficiency of DOR records. Thomas, 969 S.W.2d at 355. The events in Thomas occurred in 1995, prior to the 1996 

amendment that removed the “actual physical control” language from the definition of driving. Additionally, 

Department of Revenue records were not, at the time, expressly statutorily authorized as evidence of prior 

convictions for persistent offender status. 
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conviction for “DRIVING WHILE INTOXICATED” was indeed a conviction for driving while 

intoxicated. Id. 

As in Cordell, we find that the State made a prima facie showing that Ellmaker’s prior 

convictions qualified as IRTOs. “Prima facie evidence, if not refuted, constitutes proof beyond a 

reasonable doubt.” State v. Johnson, 160 S.W.3d 839, 843 (Mo. App. S.D. 2005) (quoting 

Wright-El v. State, 760 S.W.2d 488, 490 (Mo. App. E.D. 1988)). Although the State’s evidence 

does not entirely exclude the possibility that Ellmaker may have been convicted for conduct that 

no longer qualifies as an IRTO, “we cannot say here that it was unreasonable for the trial court to 

infer that [Ellmaker’s past] conviction[s] for ‘driving while intoxicated’ [were] conviction[s] for 

driving while intoxicated.” Cordell, 500 S.W.3d at 347. Once the state made its prima facie 

showing, Ellmaker was capable of making appropriate arguments and/or introducing evidence to 

rebut the reasonable inference that the convictions constituted valid IRTOs under the statute. 

However, absent such a showing by Ellmaker, we cannot say that the trial court’s inference was 

unreasonable.11

Point one is denied. 

 

11 Ellmaker’s reliance on State v. Coday, 496 S.W.3d 572 (Mo. App. W.D. 2016), is misplaced. In State v. Coday, 

the appellant had two prior convictions for “driving under influence of alcohol and/or drugs” in violation of Kansas 

law. Id. at 575. The relevant statute in Kansas defining the offense included language that no person “shall operate 

or attempt to operate any vehicle[.]” Id. The State provided evidence from traffic appearance dockets which 

indicated that the appellant had pled guilty to two offenses of “driving while under influence of alcohol and/or 

drugs.” Id. at 575-76. In Coday, our court concluded that convictions for “attempting to operate” did not constitute 

IRTOs for purposes of section 577.023, and, therefore, the State did not establish beyond a reasonable doubt that 

Coday did in fact operate a vehicle while under the influence of alcohol and drugs. Id. at 576. However, Coday can 

be distinguished. Unlike the circumstances in State v. Cordell, or in this matter, in State v Coday the State relied on 

traffic court records from the State of Kansas, and did not rely upon records (such as DWITS or DOR records) 

statutorily recognized under section 577.023.4 to establish IRTOs – records that contain “all the information 

necessary to prove the prior conviction.” See Rattles, 450 S.W.3d at 474; see also Miller, 153 S.W.3d at 338 (“In 

our view, section 577.023.[4] demonstrates clear legislative intent to establish the minimum evidentiary burden 

which must be met by the State in order to make a prima facie showing that a prior conviction qualifies as a 

predicate offense for purposes of enhanced punishment.”). 
11

Points Two and Three

In his second point on appeal, Ellmaker contends that the trial court erred in admitting 

testimony that impermissibly commented on Ellmaker’s post-arrest silence under circumstances 

that called imperatively for an admission or denial of guilt. In his third point, he contends that 

the trial court plainly erred in failing to intervene when the State argued to the jury that 

Ellmaker’s reclamation of his right to silence was evidence of Ellmaker’s guilt. We address 

these points together.

The Fifth Amendment12 provides that “[n]o person . . . shall be compelled in any criminal 

case to be a witness against himself[.]” U.S. Const. amend. V. The privilege against selfincrimination requires that “those taken into police custody be informed that they have the right 

to remain silent, that anything they say can be used against them and that they have the right to 

counsel before submitting to interrogation.” State v. Dexter, 954 S.W.2d 332, 337 (Mo. banc 

1997) (citing Miranda v. Arizona, 384 U.S. 436, 467-73 (1966)). 

In Doyle v. Ohio, the United States Supreme Court held that it violates the defendant’s 

due process rights to allow a defendant’s post-arrest, post-Miranda silence13 to be used to 

impeach the defendant at trial. 426 U.S. 610, 618 (1976). This rule is premised on “the 

fundamental unfairness of implicitly assuring a suspect that his silence will not be used against 

him and then using his silence to impeach an explanation subsequently offered at trial.” Dexter, 

954 S.W.2d at 337 (quoting Wainwright v. Greenfield, 474 U.S. 284, 291 (1986)). See also State 

v. Brooks, 304 S.W.3d 130, 133 (Mo. banc 2010) (“Breaching the implied assurances of the 

 

12 The Fifth Amendment privilege against self-incrimination applies to the states through the Fourteenth 

Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).

13 In the context of post-Miranda warnings silence, “silence does not mean only muteness; it includes the statement 

of a desire to remain silent[.]” Wainwright v. Greenfield, 474 U.S. 284, 295 n.13 (1986).
12

Miranda warning is an affront to the fundamental fairness required by the Due Process Clause.”). 

Relying on the notion of fundamental unfairness in Doyle, “Missouri’s cases have held that postMiranda silence cannot be used as evidence to incriminate a defendant.” Brooks, 304 S.W.3d at 

133 (“Moreover, post-Miranda silence cannot be used to impeach a defendant’s testimony.”). 

Although “we review the trial court’s decision to admit evidence for abuse of discretion, 

whether a defendant’s constitutional rights were violated is a question of law reviewed de novo.” 

State v. Williams, 366 S.W.3d 609, 615 (Mo. App. W.D. 2012) (internal quotations omitted). If a

Doyle violation is found, courts have “discretion to review the violation or violations in the 

context of the entire record.” Brooks, 304 S.W.3d at 137. When the error is preserved, it is 

reviewed to determine whether it is harmless beyond a reasonable doubt. Id. The State has the 

burden of demonstrating that “no reasonable doubt exists that the admitted evidence failed to 

contribute to the jury’s verdict.” State v. Rice, 573 S.W.3d 53, 72 (Mo. banc 2019) (quoting 

Brooks, 304 S.W.3d at 137). In determining the effect of a Doyle violation on the jury’s verdict, 

we examine four factors:14 “(1) whether the government 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 

otherwise overwhelming.” Brooks, 304 S.W.3d at 137. 

 

14 The four factors used to evaluate the effect of a Doyle violation on a jury verdict are the same for preserved and 

unpreserved error. State v. Dexter, 954 S.W.2d 332, 340 n.1 (Mo. banc 1997). As discussed below, Ellmaker 

acknowledges that the errors alleged in his third point are not properly preserved. However, the effect of 

unpreserved Doyle violations factors into our analysis of whether the government made repeated Doyle violations. 

Accordingly, the errors alleged in Ellmaker’s third point will be considered in evaluating the effect on the jury of the 

Doyle violation alleged in Ellmaker’s properly preserved second point. See Brooks, 304 S.W.3d at 136 n.2 (“In this 

case, these unpreserved errors are considered in addition to the preserved errors for purposes of determining whether 

the State has met its burden to show that these constitutional violations were harmless beyond a reasonable doubt.”). 

Because our disposition of Point Two resolves the appeal and because the repeated (but unpreserved) Doyle

violations claimed in Point Three are among the factors considered in determining the effect (prejudice) resulting 

from the preserved Doyle violation addressed in Point Two, we do not separately address Ellmaker’s third point.
13

The State contends that Ellmaker’s second point is not properly preserved, because 

Ellmaker raised different grounds in his motion for new trial than he did on appeal. See State v. 

Starks, 470 S.W.3d 410, 413 (Mo. App. E.D. 2015) (“To preserve an allegation of error for 

appellate review, an objection stating the grounds must be made at trial, that same objection must 

be set out in the motion for new trial, and the objection must be carried forward in the appellate 

brief.”). We find that Ellmaker’s second point is properly preserved, because the right against 

self-incrimination as well as the relevant constitutional provisions were raised by objection at 

trial, in Ellmaker’s motion for new trial, and in his appellate brief.

In his properly preserved second point, Ellmaker claims a Doyle violation occurred 

during the State’s direct examination of Sergeant Campbell when the following exchange 

occurred: 

[The State]: And did you ask this defendant that final question, if he was under the 

influence when he was stopped?

[Campbell]: Yes.

[The State]: Was the defendant willing to give you an answer?

[Defense Counsel]: Your Honor, may we approach?

At this point, defense counsel objected on the grounds that he believed the witness was 

going to make a statement as to Ellmaker’s silence about a particular question, which, if allowed, 

would violate his right against self-incrimination. The objection was overruled, and the 

following exchange occurred:

[The State]: How did the defendant answer when you asked him if he was under the 

influence?

[Campbell]: He said he did not want to answer that question.
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[The State]: Did the defendant refuse to answer any other of your questions that day?

[Campbell]: No.

[The State]: Nothing further of this witness, Your Honor.

In his third point, Ellmaker alleges that further Doyle violations occurred when the State 

referred to Ellmaker’s refusal to answer during opening statement and closing argument. 

Ellmaker acknowledges that his third point is not properly preserved, due to the lack of an 

objection during the State’s comments during opening statement and closing argument. 

However, we have “discretion to engage in plain error review of issues concerning substantial 

rights, especially constitutional rights such as the one at issue here.” Brooks, 304 S.W.3d at 136 

n.2. As previously discussed, when a properly preserved Doyle violation is reviewed under the 

harmless beyond a reasonable doubt standard, whether the government made repeated Doyle 

violations is necessarily part of the analysis. See id. at 137. 

During opening statement, the State said to the jury:

The defendant provided answers to most of Sergeant Campbell’s questions. He 

admitted to drinking. He said he had three beers, roughly one every hour starting 

at five p.m. at the Ameristar Casino. The only question the defendant refused to 

answer was whether he was under the influence when he was stopped.

During closing argument, the State twice referred to Ellmaker’s refusal to answer the 

question as evidence of a guilty conscience. In the first instance, the State argued that the 

“defendant had a guilty conscience as evidenced” when “[h]e refused to answer Sergeant 

Campbell’s question whether he was under the influence[.]” Later, the State argued to the jury:

But we have another case where the defendant’s guilty conscience shows itself. 

And that’s when Sergeant Campbell interviews the defendant back at the Riverside 

Police Department. Defendant answers the majority of Sergeant Campbell’s 

questions but there is one question that he refuses to answer and that is whether he 
15

was under the influence at the time of the stop. Why didn’t he answer that question? 

Because he knew he was and he didn’t want to tell Sergeant Campbell the truth.

The State argues that no Doyle violation occurred, because Ellmaker waived the right to 

silence and never effectively revoked his waiver. Therefore, according to the State, it was proper 

to use his express refusal to answer as substantive evidence of his guilt. The State argues further 

that the reassertion of the right is “not available to avoid a single offensive question[.]” State v. 

Ervin, 398 S.W.3d 95, 100 (Mo. App. S.D. 2013) (quoting State v. Smart, 756 S.W.2d 578, 581 

(Mo. App. W.D. 1988)). 

Ellmaker contends that he effectively reclaimed his right to silence when he responded 

that he did not want to answer Sergeant Campbell’s question, which called imperatively for an 

admission or denial of whether he was under the influence at the time of the stop. He contends 

further that it would be fundamentally unfair to implicitly assure him that his silence would not 

be used against him only to use his exercise of his Fifth Amendment privilege as evidence of his 

guilt. 

A defendant may waive his right to remain silent by making substantive statements to 

police. Brooks, 304 S.W.3d at 133; see also State v. Crow, 728 S.W.2d 229, 232 (Mo. App. E.D. 

1987) (“To waive his right to not have the State comment on the exercise of his right to silence, a 

defendant must make a statement obviously related to something, and then the waiver is only as 

to the subject matter of that statement.”). After a defendant “waives his right to remain silent, all 

speech or non-silence, by a defendant may be admitted into evidence and remarked on.” State v. 

Frazier, 927 S.W.2d 378, 379-80 (Mo. App. W.D. 1996). This waiver can be revoked at any 

time, “at which point his silence is again protected.” Id. at 380. As described in detail in 

Frazier:
16

Once the defendant revokes the waiver of his right to remain silent, the state can 

show the circumstances under which an interrogation was terminated. Nonetheless, 

any evidence describing the conclusion of an interrogation must be carefully 

scrutinized. Evidence in regard to the conclusion of an interrogation which reveals 

that the defendant was failing to answer a direct charge of guilt is improper. 

Likewise, evidence which reflects that the defendant “clammed up” under 

circumstances calling imperatively for an admission or denial should not be 

admitted. However, to the extent that no inference of guilt can reasonably be drawn 

from evidence describing the conclusion of an interrogation, it is admissible.

Id. (internal citations omitted).

In the case at bar, Ellmaker initially waived his right to silence by answering a number of 

Sergeant Campbell’s questions. Thus, the State was allowed to comment on the subject matter 

of the statements that Ellmaker did make. The issues that need to be resolved are whether 

Ellmaker effectively revoked the waiver of his right to silence and whether the State violated his 

rights by using his refusal to answer as substantive evidence of his guilt.15

After receiving Miranda warnings, if an individual “indicates in any manner, at any time 

prior to or during the questioning, that he wishes to remain silent, the interrogation must cease.” 

State v. Rice, 573 S.W.3d 53, 67 (Mo. banc 2019) (quoting Miranda v. Arizona, 384 U.S. at 473-

74) (emphasis added by Missouri Supreme Court). “[N]o ritualistic formula or talismanic phrase 

is essential in order to invoke the privilege against self-incrimination.” Rice, 573 S.W.3d at 67 

(quoting Emspak v. United States, 349 U.S. 190, 194 (1955)). But, to invoke this right, the

individual “must give a clear, consistent expression of a desire to remain silent.” Rice, 573 

S.W.3d at 67 (internal quotations omitted). 

 

15 We note that this case does not involve the use of post-arrest silence for impeachment purposes; rather, it involves 

the use of such silence as substantive evidence of guilt in the State’s case-in-chief. Using post-arrest silence as 

substantive evidence of guilt is different from and more serious than the use of post-arrest silence for impeachment 

purposes. See State v. Graves, 27 S.W.3d 806, 811 (Mo. App. W.D. 2000) (“[W]e consider such a use of all postarrest silence, both before and after Miranda warnings are issued, repugnant to the Fifth Amendment privilege 

against self-incrimination.”). 
17

Ellmaker reclaimed his right to silence by expressly refusing to answer Sergeant 

Campbell’s question.16 In refusing to answer the question, he indicated a clear desire to remain 

silent; and, significantly, the interrogation was then terminated. As this express refusal 

concluded the interrogation, Ellmaker maintained a clear and consistent position as to his desire 

to then remain silent. He never wavered from this position thereafter; and he did not provide any

further statements. 

The circumstances under which Ellmaker asserted his right to remain silent are the same 

as those described in Frazier. 927 S.W.2d at 380. Sergeant Campbell’s testimony “reflect[ed] 

that the defendant ‘clammed up’ under circumstances calling imperatively for an admission or 

denial” of whether Ellmaker was driving under the influence. Id. Because a direct inference of 

guilt can be drawn from Ellmaker’s refusal to answer the question, (an inference the State asked 

the jury to draw in its closing argument), a Doyle violation occurred when Sergeant Campbell 

was allowed to testify at trial regarding Ellmaker’s assertion of his right to remain silent. 

The case at bar is distinct from State v. Ervin, upon which the State principally relies. In 

Ervin, a defendant was interrogated and initially answered the detective’s questions. 398 S.W.3d 

at 99. When the defendant was asked if he knew how the victim was injured, he did not respond; 

when asked again, he responded, “That’s what this whole thing is about?” Id. After the 

detective explained the goal was to figure out how the victim was injured, the defendant said that 

he did not want to talk anymore, at which point the interview ended. Id. The Ervin court 

determined that the portion of the video that showed the defendant’s silence before asking a 

 

16 It is not clear from the record precisely what Mr. Ellmaker said in refusing to answer. Sergeant Campbell testified 

that Mr. Ellmaker “said he did not want to answer that question.” This was in response to being asked the “final 

question” of whether he was under the influence when he was stopped.
18

question was admissible because the defendant had not yet affirmatively invoked his right to 

silence. Id. at 100. As to when the defendant did affirmatively assert his rights, the Ervin court 

made clear “that such evidence cannot be used to incriminate a defendant.” Id. However, 

because the Ervin court found that the evidence did not create an impermissible inference of 

guilt, the evidence was held to be admissible. Id. at 101 (“This is not a case where the defendant 

refused to answer a direct charge of guilt or ‘clammed up’ under circumstances calling for an 

admission or denial.”). The Ervin court also found significant that the State never drew attention 

to the assertion of the Fifth Amendment privilege during opening statement, testimony, or 

closing argument. Id.17

Conversely, the testimony regarding Ellmaker’s assertion of his Fifth Amendment 

privilege to remain silent was in answer to a question directly relating to his guilt of the offense, 

such that a jury could conclude he refused to answer because he was guilty. In fact, that was 

precisely the inference that the State argued should be drawn in closing argument. “[E]vidence 

which reflects that the defendant ‘clammed up’ under circumstances calling imperatively for an 

admission or denial should not be admitted.” Frazier, 927 S.W.2d at 380. The trial court erred 

in admitting into evidence Sergeant Campbell’s testimony that Ellmaker refused to answer 

whether he was driving under the influence.

Having determined that it was a violation of Ellmaker’s constitutional rights to allow 

Campbell to testify about Ellmaker’s exercise of his right against self-incrimination as 

substantive evidence of his guilt, the burden shifts to the State to prove that this “federal 

 

17 In affirming the denial of Ervin’s subsequent habeas claim, the United States Court of Appeals for the Eighth 

Circuit noted that “the crux of a Doyle violation is whether the state was permitted to make specific inquiries or 

arguments about a defendant’s post-Miranda silence as a way to infer guilt.” Ervin v. Bowersox, 892 F.3d 979, 984 

(8th Cir. 2018) (citing Greer v. Miller, 483 U.S. 756, 765-66 (1987)).
19

constitutional error was harmless beyond a reasonable doubt.” Brooks, 304 S.W.3d at 137. 

Under this standard, the State must show “that no reasonable doubt exists that the admitted 

evidence failed to contribute to the jury’s verdict.” Id. In determining the effect of a Doyle 

violation on the jury’s verdict, we examine four factors: “(1) whether the government 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 otherwise overwhelming.” Id. 

Regarding the first factor, the State made repeated Doyle violations. The State elicited 

Sergeant Campbell’s testimony about Ellmaker’s refusal to answer the question about his guilt 

and then emphasized the importance of this refusal by asking Campbell whether Ellmaker 

refused to answer any other questions. In that Campbell was the State’s sole witness, the impact 

of this testimony was considerable. The State committed further Doyle violations when it

referred to Ellmaker’s post-arrest silence in its opening statement and when it argued in closing 

that his refusal to answer was evidence of his guilt.

As to the second factor, no curative action was taken to ameliorate the effect of the Doyle 

violation. The trial court erred in admitting Sergeant Campbell’s testimony and took no effort 

then or at other times the State addressed (in its opening statement and closing argument) 

Ellmaker’s assertion of his Fifth Amendment Right to remain silent. 

With respect to the third factor, Ellmaker’s defense was that the State could not carry its 

burden of proving beyond a reasonable doubt that he had committed the charged crimes. 

Although Ellmaker did not testify, some testimony favorable to him was elicited during the 

cross-examination of Sergeant Campbell who testified that he did not report that Ellmaker 

exhibited slurred speech or incoherence. This defense was not transparently frivolous.
20

As to the fourth factor, the State presented other evidence of Ellmaker’s intoxication. 

Sergeant Campbell received a broadcast of a possibly intoxicated driver matching the description 

of the vehicle driven by Ellmaker. Ellmaker exhibited six of six clues on the HGN18 test, which 

indicated to Sergeant Campbell that Ellmaker was intoxicated. He provided six insufficient air 

samples on the breathalyzer test, which is treated as a refusal and indicated to Sergeant Campbell 

that Ellmaker was intoxicated. Sergeant Campbell testified that Ellmaker had bloodshot, watery 

eyes and that he could smell alcohol when Ellmaker spoke. Ellmaker could not produce his 

license, registration, or insurance, but instead provided a cell phone bill as proof of his identity. 

Ellmaker asked at one point if his passenger could drive. He admitted to having “had a few.” 

Additionally, the answers Ellmaker provided to Sergeant Campbell’s questions contained

inconsistencies. For example, he stated that he had one beer per hour and around three beers

total, but he provided a timeline that indicated he had only been drinking for a little over an hour. 

While this may certainly constitute evidence of Ellmaker’s guilt, the question before us is 

whether this evidence was so overwhelming that “no reasonable doubt exists that the

[erroneously admitted] evidence failed to contribute to the jury’s verdict.” Brooks, 304 S.W.3d 

at 137. We cannot say that the other evidence of Ellmaker’s guilt was so overwhelming that the 

State’s repeated Doyle violations were harmless beyond a reasonable doubt.19 Put another way, 

it is reasonable to doubt that the erroneously admitted evidence (of Ellmaker’s assertion of his

 

18 “Although indicative of intoxication, a driver’s particular score on the HGN test does not create a presumption of 

intoxication. That ultimate conclusion rests with the trier of fact, who is free to believe or disbelieve the officer’s 

testimony and to ascribe the weight given to it.” State v. Rose, 86 S.W.3d 90, 98 (Mo. App. W.D. 2002). 

19 We note that neither of the other two standard field sobriety tests were conducted to corroborate the results of the 

HGN test. And, although Sergeant Campbell testified that he observed Ellmaker cross the double lines while 

driving, the jury was deadlocked on this count.
21

right to remain silent) did not contribute to the jury’s guilty verdict – that it is reasonable to 

conclude that such evidence could have contributed to the jury’s guilty verdict.

Point two is granted.20

Conclusion

The judgment is reversed and the cause is remanded for further proceedings consistent 

with this opinion.

/s/Thomas N. Chapman

Thomas N. Chapman, Judge

All concur.

 

20 As previously noted, because our disposition of Point Two resolves the appeal, we do not separately address the 

Doyle violations raised in Ellmaker’s third point.