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Zempel v. Slater12/6/2005
Hill, 161 S.W. 633, 636 (Mo. App. 1913)). A habit is a person's "'regular practice of meeting a particular kind of situation with a specific type of conduct. . . . The doing of habitual acts may become semi-automatic.'" Hawkins, 587 S.W.2d at 364 n.2 (quotingMcCormick On Evidence section 195, at 462-63 (2d ed.)). To be admissible, the habit must be "'sufficiently regular and uniform, or the circumstances sufficiently similar to outweigh the danger, if any, of prejudice or confusion.'" Hawkins, 587 S.W.2d at 364 n.2 (quotingMcCormick, supra, section 195); see also State v. Ernst, 164 S.W.3d 70, 74 (Mo. App. S.D. 2005) (using above principles to conclude that evidence of one incident was insufficient proof of the defendant's habit or routine).
Here, the evidence that Zempel always obeyed the speed limit when riding with his sons is proper habit evidence and was admissible. The testimony demonstrates that it was Zempel's regular practice every time he had one of his sons on the motorcycle to obey the speed limit, which practice he maintains by having his son read the speed limit sign and then putting the needle of the speedometer on that limit. In this way, the conduct could be construed as having become semi-automatic. The fact that the ride on the day of the accident was the longest ride Zempel had ever taken with his son does not render the habit evidence inadmissible because the habit was to obey the speed limit whenever his son was on the motorcycle with him; there was nothing in the testimony to suggest that Zempel's conduct differed depending on the length of the ride. Therefore, the circumstances under which Zempel testified he always obeyed the speed limit were sufficiently similar to the circumstances on the day of the accident. Although their testimony was largely in the present tense, it was clear that both Zempel and his son were referring, at least in part, to the shorter rides taken before the day of the accident. Moreover, although this was the first long ride, Zempel's son had been on 20 or 30 motorcycle rides with his father and every time Zempel obeyed the speed limit. This is an adequate sampling of Zempel's conduct from which to conclude that this was his regular practice and distinguishes this case from those cited by Slater. See Reyes v. Missouri Pacific Railroad Co.,589 F.2d 791, 795 (5th Cir. 1979) ("four prior convictions for public intoxication spanning a three and one-half year period are of insufficient regularity to rise to the level of 'habit' evidence"); McWhorter v. City of Birmingham, 906 F.2d 674, 679 (11th Cir. 1990) (testimony of four other officers did not establish party's habit of harassing police officers).
Point III is denied.
4. Point of Impact Evidence
Slater argues that the officer's testimony as to the point of impact and the diagram depicting the point of impact were inadmissible because expert opinion testimony is not permitted as to point of impact in a collision case.
First, the questions Zempel's counsel asked regarding the officer's determination of the point of impact were withdrawn after Slater's counsel objected; thereafter, the officer merely testified as to how he arrived at that determination based on his perceptions of the skid marks on the road, which is not testimony that Slater challenges on appeal. Rather, the officer only testified as to his determination of where the impact occurred during cross-examination by Slater's counsel. A party cannot complain that the trial court improperly admitted evidence that was introduced by that party. Foster v. Village of Brownington, 140 S.W.3d 603, 609 (Mo. App. W.D. 2004). Even if Slater could complain about that evidence on appeal, the officer's testimony was
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