Wallace v. Director of Revenue

KENNEDY, Judge. The Director of Revenue appeals from an order of the circuit court reinstating Michael E. Wallace’s driver’s license which had been revoked by the Department of Revenue pursuant to sections 302.500-.540, RSMo 1986. An earlier trial had also resulted in the reinstatement of the driver’s license, but we reversed the order and remanded for further consideration of the question whether Wallace’s operation of his vehicle was an unusual operation so as to justify his stop by the officer. Wallace v. Director of Revenue, 754 S.W.2d 900 (Mo.App.1988). The stipulated issue throughout has been whether the officer who arrested Wallace had probable cause to stop Wallace as he operated a motor vehicle on the highway. Our holding in the first appeal was that the trial court had erred in [894] finding, solely on the ground that the officer had observed no traffic offense by Wallace before the stop, an absence of probable cause therefor. We held the court should have upheld the stop if the evidence showed the officer observed merely unusual operation of the driver’s automobile.1 The case upon retrial was submitted to the same judge upon the record made in the first trial, with the addition of a record of Wallace’s guilty plea to careless and imprudent driving in connection with the incident which resulted in the license revocation. The evidence was as follows: Wallace was driving along Highway 50 in Jackson County at approximately 3:45 a.m. on January 15, 1987. Trooper J. K. Tram-mell of the Missouri State Highway Patrol testified as follows: I was behind the vehicle, following it; and while I was following the vehicle, it was traveling about 55 miles an hour, as was I. Its brake lights came on and it was jerking, like ... the brakes were being slammed on. It did this approximately four times. And after that, it then swerved off onto the shoulder, came back on, and then it jerked back off onto the shoulder. At that point I turned on my emergency equipment on the patrol vehicle and was pulling off onto the shoulder directly behind the vehicle. After Wallace was stopped, Trooper Trammell observed that Wallace appeared to be under the influence of intoxicants. A breathalyzer test showed a blood alcohol concentration of .15 percent. She charged him with driving while intoxicated. Wallace’s testimony contradicted Trooper Trammell’s in some material respects. He testified that he was following a car which had a radar detector as he drove along Highway 50. The car with the radar detector notified him there was a police officer ahead. The other car slowed down to 45 miles per hour and Wallace continued at 55 miles per hour. He said he slowed down and pulled to the shoulder of the road. He said he didn’t make a sudden stop but gradually slowed down. If he had slammed on his brakes, he said, the officer would probably have hit him because she was “pretty close” behind him. He did not know at that time, however, that it was an officer who was directly behind him. His reason for pulling over to the side of the road was to urinate. As he was slowing down and before he had come to a complete stop the officer turned on her emergency lights and perhaps her siren. When the officer came to his car, according to his testimony, she asked him why he braked four times. He responded by saying that it was not his car and he was not used to it. He testified he wasn’t really thinking too well “in the rash of the moment”. He said he imagined the real reason was to remain at the speed limit. Wallace denied that he at any time had swerved his car off the traveled portion of the roadway and back on. If the trial judge believed Wallace’s testimony, it was competent for him to find that there was neither an observable traffic offense nor any unusual operation of the automobile which justified the police officer’s stop of the Wallace automobile. Credibility of witnesses, of course, is for the trier of fact. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988); Sur-Gro Finance, Inc. v. Smith, 755 S.W.2d 439, 441-42 (Mo.App.1988). Taking the direct [895] evidence and the inferences therefrom which support the judgment of the court below, and disregarding the contrary evidence and inferences, we can only affirm the judgment of the trial court. Nail Boutique, Inc. v. Church, 758 S.W.2d 206, 208 (Mo.App.1988); St. Charles County v. McPeak, 730 S.W.2d 611, 612 (Mo.App.1987). The Director of Revenue urges that Wallace’s guilty plea to the charge of careless and imprudent driving is conclusive upon him in the absence of an explanation by Wallace, and such guilty plea required the judge to disbelieve Wallace’s version. A guilty plea in a criminal proceeding constitutes an admission of the charge against him, but it is not binding and conclusive upon the pleader in another proceeding. Pruiett v. Wilform, 477 S.W.2d 76, 80 (Mo.1972); Ferguson v. Boyd, 448 S.W.2d 901, 903 (Mo.1970). The cases are collected in 20 Missouri Digest 2d, Evidence, section 265(11). It was up to the trier of fact to give the guilty plea the weight to which he deemed it to be entitled, along with all the other evidence in the case. Herbert, 757 S.W.2d at 587. Pruiett v. Wilform, 477 S.W.2d 76, is instructive on the effect in a civil case of evidence of a guilty plea in a criminal case growing out of the same incident.2 There a defendant in a suit for damages was charged with having intentionally (as opposed to negligently) shot the plaintiff’s decedent. There was introduced into evidence defendant’s plea of guilty to “manslaughter”. Pointing out that manslaughter may be an intentional or a negligent homicide, the court said, "the plea of guilty means substantially nothing without a record of the charge.” Pruiett, 477 S.W.2d at 80. Similarly in the case before us, a plea of guilty to “careless imprudent” would mean nothing, for careless and imprudent driving could be done in a multitude of ways and the guilty plea constituted no admission of any of the acts which Trooper Trammell testified to. In the case before us, unlike Pruiett, we do have a record of the charge. Wallace was originally charged by the “uniform traffic ticket” with driving while intoxicated. The charge was amended by striking out the description of the offense and in its place writing the words “careless imprudent”. The amendment further narrows the charge to a violation of section 304.016.4, RSMo 1986. That statutory subsection prohibits driving to the left side of the road under certain circumstances. Pleading guilty to the amended charge constituted no admission of the acts which, according to the testimony of Trooper Trammell, caused her to stop Wallace. The guilty plea to the amended charge, obviously a compromised arrangement, was not entitled as a matter of law to any more weight than the trial judge gave it. Judgment affirmed. SHANGLER, J., concurs. TURNAGE, J., dissents in separate opinion. Footnotes [1] In the earlier appeal, we held that the trial court’s determination upon the first trial that Wallace had committed no observable traffic offense was supported by the evidence, but we remanded for the limited purpose of the determination by the trial court whether Wallace’s driving constituted unusual operation of the vehicle. Thus, the issue of Wallace's commission of an observable traffic offense was, as a matter of "the law of the case", foreclosed by the first trial and appeal. That issue became res judica-ta. The only issue which the trial court could consider was whether there was an unusual operation of the vehicle which would justify the stop. Creason v. Harding, 126 S.W.2d 1179, 1183-84 (Mo. banc 1939); see also Butcher v. Main, 426 S.W.2d 356, 358 (Mo.1968); Bray v. St. Louis-San Francisco Railway Co., 259 S.W.2d 132, 138 (Mo.App.1953); Choate v. Dunaway, 254 S.W.2d 298, 302-03 (Mo.App.1953). [2] Pruiett, 477 S.W.2d 76, stands for the proposition that a guilty plea to a criminal charge is an admission which will make a prima facie case against the defendant in a civil proceeding for damages, if the criminal charge was the same act for which damages are sought. It by no means holds that such admission is conclusive upon the defendant in the civil proceeding, or that it overrides defendant’s denial in the later civil proceeding as a matter of law.