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Zempel v. Slater12/6/2005
pecifics of the particular case. See, e.g., Disbrow v. Boehmer, 711 S.W.2d 917, 923-24 (Mo. App. E.D. 1986). In Disbrow, the plaintiff sought to set aside her mother's will and offered expert testimony about the general symptoms of arteriosclerosis--a disease her mother had--and its effects on one's mental faculties. This Court disagreed that the evidence was irrelevant and speculative because, after testimony regarding the general symptoms of the disease, the expert went on to explain how the disease affected the testatrix, which was relevant to her testamentary capacity. Id. at 924. Under those circumstances, it was not an abuse of discretion to admit the expert's testimony. Id.
According to the reasoning in the above cases, the officer's testimony in this case about the effects of alcohol on people generally was admissible because he also testified--albeit indirectly--about the effects of alcohol on Slater in this case. Namely, the officer testified that failure to include alcohol on the police report indicated that alcohol had not contributed to this accident. Slater claims that any benefit from this testimony was weakened substantially by the inflammatory and misleading implications that Slater had skillfully fooled the officers despite his drunkenness. But the officers had already testified that Slater's blood alcohol content was not above the legal limit based on the portable breath test. There was nothing in either of the officers' testimony to suggest that Slater could have fooled the portable breath test. At best, one could conclude that he was drunker than he appeared, but still not drunk enough according to the portable breath test to have been arrested or to have caused one to conclude that alcohol contributed to accident. Slater suffered no prejudice from that inference. Moreover, without more, merely mentioning the change in the law does not create an unfairly prejudicial inference that Slater would have been over the new lower limit; even if that could be inferred, again it was not prejudicial in light of the evidence that alcohol did not contribute to the accident. Finally, the curative measures discussed above served to lessen any prejudice attending these comments. See section II.A.1, supra.
Point II is denied.
3. Habit Evidence
Slater argues that the trial court erred by admitting evidence that Zempel had a habit of obeying the speed limit. He argues that the ride Zempel and his son took on the day of the accident was unlike any previous rides they had taken and, therefore, there was no foundation for admitting evidence of his habits on those other rides. Slater also contends that this evidence did not constitute a true habit because Zempel's compliance with the speed limit was not automatic and was dependent on too many conditions, namely, being on a motorcycle with his son. Finally, Slater argues that Zempel's and his son's testimony was self-serving and was in the present tense, which does not demonstrate that the habit existed before the time of the accident. We find no merit in any of these arguments and no clear abuse of the trial court's decision regarding the admission of this evidence. See Fairbanks, 13 S.W.3d at 318.
From the rare occasions on which Missouri courts have addressed the admissibility of habit evidence, the following principles emerge. Habit evidence "'is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit or routine practice.'" Hawkins v. Whittenberg, 587 S.W.2d 358, 364 n.2 (Mo. App. S.D. 1979) (quoting Fed. R. Evid. 406). The admissibility of habit evidence should be restricted and kept within narrow limits. Hawkins, 587 S.W.2d at 363(citing Hodges v.
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