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Zempel v. Slater12/6/2005
of negligence. Moreover, the evidence of alcohol consumption was put into context by both officers' testimony that Slater's blood alcohol content was not above the legal limit and that alcohol had not been a probable contributing cause to this accident. In addition, Slater denied that he had anything to drink the day of the accident and denied that he had told the officer that he had been drinking. In closing argument, Slater's counsel pointed out the conflict between Slater's denial and the officer's testimony, asked the jury to consider who was telling the truth and argued that the alcohol evidence was an effort to throw a side issue into the case. Counsel then reminded the jury that the evidence showed that Slater had passed the sobriety tests and that the odor of alcohol was "about him," not on his breath. The arguments of counsel, the other evidence and the limiting instruction were sufficient to lessen the prejudice that may have resulted from the admission of the evidence of Slater's alcohol consumption.
Point I is denied.
2. Other Testimony Regarding Alcohol
Slater contends that the second officer's comment that an alcoholic or someone "drunker than a skunk" might still pass a field sobriety test and reference to the change in the legal limit was irrelevant, highly prejudicial and without foundation. Slater argues that the officer had no personal knowledge that he had been drinking because the officer was unsure about why he knew Slater had consumed one or two beers and had trouble recalling any details of this incident. He claims also that mentioning the new lower legal limit implied that Slater would have been over the limit under the new law. The prejudicial effect of this implication, Slater claims, was made worse by the officer's testimony about the general effects of alcohol on other people. We disagree.
First, the equivocation and problems with recall in the officer's testimony go to the weight of this testimony, not its admissibility. Cf. State v. Holmes, 823 S.W.2d 55, 57 (Mo. App. E.D. 1991) (foundational testimony regarding identification of physical evidence need not be free from doubt to be admissible; such questions of weight are for the jury). This officer's testimony regarding Slater's alcohol consumption--that he had one or two beers and that the portable breath test revealed Slater had been drinking--was admissible for the same reasons discussed above: it was relevant, and its relevance was not outweighed by undue prejudice. See section II.A.1, supra.
Second, the officer's mention of the change in the legal limit and his testimony about the effects of alcohol on other people was also admissible. In his argument to the contrary, Slater relies on Yingling v. Hartwig, 925 S.W.2d 952, 956 (Mo. App. W.D. 1996). In that personal injury case, the defendant's medical expert testified that there was a difference between complaints made by patients not in litigation and those made by patients in litigation. Id. at 955. The court called these statements "generalities, without any indication of similarity with or application to [the plaintiff]" and denounced their use: A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether [the plaintiff] continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony.
Id. But there is no abuse of discretion in admitting testimony regarding generalities if the witness also compares or applies those general principles to the s
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