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). 
2 

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. 
3 

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. 
4 

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-
5 

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). 
6 

 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 
7 

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 
8 

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. 

 

5 This 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. 
9 

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: 
10 

 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. 
11 

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 
12 

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. 
13 

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 
1 

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 
2 

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).