Opinion handed down September 25, 2012
Melvin
Stover, Jr. appealed his conviction and sentence of twelve years without
probation or parole for the class A felony of trafficking drugs in the first
degree. On appeal, Mr. Stover claimed
that the trial court erred in: (1) overruling his motion for acquittal on the
ground of insufficient evidence to convince a reasonable trier of fact that he
knowingly possessed the contraband; (2) overruling his motion to suppress the
contraband seized during the search of his vehicle because the detention was
conducted without reasonable suspicion of criminal activity and lasted beyond
the time reasonably required to complete a traffic ticket; (3) overruling his
motion to suppress evidence of incriminating statements made during the
detention and prior to the arresting officers issuing a Miranda warning; (4) allowing into evidence his refusal to consent
to a search of the vehicle; (5) allowing Corporal Hagerty’s testimony that he
received a commendation from the DEA for making the largest PCP seizure in the
history of the United States until 2003; and (6) overruling his objection to
the verdict-directing instruction because it did not require the jury to find
that he knew of the content and character of the PCP or that he was aware of
its presence and nature. The Supreme
Court denied five of Stover’s six points on appeal, but reversed and remanded
because it held that the verdict-directing instruction the trial court gave the
jury resulted in manifest injustice since it failed to require the state to
prove one element of the crime—that Stover knew the content or character of the
substance found in the briefcase in the trunk of his rented vehicle.
I. Facts
& Holding
In November 2003, Missouri State Highway Patrol Corporal Brian
Hagerty[2] observed a 2004 Mercury Grand Marquis with California license plates
traveling eastbound on Interstate 70 in Lafayette County.[3] Hagerty saw the vehicle move from the left
lane into the right lane between two tractor trailers, following fewer than two
car lengths behind the first tractor trailer.[4] The vehicle then slowed down to approximately
55 miles per hour in a 70-mile-per-hour zone.[5] Shortly after 10:54 am,
Hagerty became suspicious of illegal activity and pulled the vehicle over for
following too closely.[6] As Hagerty and
his partner approached the vehicle to speak with its two male occupants, he saw
no evidence of any luggage or any items that might indicate vacation travel.[7] The driver, Melvin Stover, was asked to
accompany Hagerty into his patrol car in order for Hagerty to obtain the
information from Stover necessary to process the traffic stop.[8] During general conversation in the patrol
car, Stover indicated that he and his passenger, Oris Butler, were returning
from a gambling trip in Las Vegas and had to rent a vehicle to return home to
Washington, D.C., because they could not afford to fly back.[9] He later said he needed to return home
because his mother was being admitted to a hospital in Washington, D.C. Hagerty claimed as his conversation with
Stover continued, it caused him to “become increasingly suspicious that Mr.
Stover and Mr. Butler were trafficking narcotics.[10] Contrary to Stover’s assertions, Butler
indicated they chose to drive back to Washington, D.C., because they wanted to
see the country.[11] Because of the
rising suspicion of illegal activity, Hagerty asked Stover if the vehicle
contained anything illegal and subsequently, for consent to search the vehicle.[12] Stover “firmly refused” to consent to a
search and his speech became “strained and his demeanor became argumentative.”[13] A canine unit was called approximately 26
minutes after initiating the stop, and at 11:39, 19 minutes after Hagerty
radioed for the canine unit, the dog “alerted” to the trunk.[14] When the troopers searched the vehicle, they
found about ten gallons of PCP in a suitcase in the trunk.[15] The troopers arrested Stover and advised him
of his Miranda rights.[16] “At the scale house, Stover told the officer
who responded with the canine that he owned the Fossil watch found in a gift
bag in the trunk next to the suitcase containing the PCP.[17]
In February 2007, the state charged Stover with the class A felony
of first-degree drug trafficking.[18]
Stover moved to suppress evidence of the contraband seized during the
search, the evidence of incriminating statements made during the traffic stop,
and the evidence of his refusal to consent to a search.[19] In addition to
overruling the motion, the trial court overruled Stover’s objection to the
definition of “possession” in the state’s verdict director and ultimately, the
jury found Stover guilty.[20] The trial
court overruled Stover’s motion for judgment of acquittal based on the state’s
failure to provide sufficient evidence of knowing possession of the contraband
and sentenced Stover to twelve years in prison without the possibility of
probation or parole.[21]
On
appeal, Mr. Stover claimed that the trial court erred in: (1) overruling his
motion for acquittal on the ground of insufficient evidence to convince a
reasonable trier of fact that he knowingly possessed the contraband; (2)
overruling his motion to suppress the contraband seized during the search of
his vehicle because the detention was conducted without reasonable suspicion of
criminal activity and lasted beyond the time reasonably required to complete a
traffic ticket; (3) overruling his motion to suppress evidence of incriminating
statements made during the detention and prior to the arresting officers
issuing a Miranda warning; (4)
allowing into evidence his refusal to consent to a search of the vehicle; (5)
allowing Corporal Hagerty’s testimony that he received a commendation from the
DEA for making the largest PCP seizure in the history of the United States
until 2003; and (6) overruling his objection to the verdict-directing
instruction because it did not require the jury to find that he knew of the
content and character of the PCP or that he was aware of its presence and
nature. – I’m not sure if you need the reasons in your first paragraph because
you have them again here. Seems repetitive when so close together.
A. Conviction Supported by
Sufficient Evidence
The Supreme Court of Missouri held that the trial court did not
err in overruling Stover’s motion for acquittal.[22] The Court found that based on the evidence presented
at trial, “the state met its burden to show additional incriminating
circumstances to support an inference of Mr. Stover’s knowledge and control
over the controlled substance in the vehicle.[23] In support of the charge, the state alleged
that Stover possessed 90 grams or more of the controlled substance and that
such conduct was a substantial step toward committing the crime by attempting
to distribute.[24] Evidence showing that
the drugs had a large monetary value, Stover had easy access to the trunk,
Stover made false statements to Corporal Hagerty, and that Stover exhibited
physical symptoms of anxiety during the vehicle stop was deemed enough to
reasonably infer that Stover knowingly possessed the PCP.[25]
B.
Reasonable Suspicion Existed for Investigative Detention
The Court held that the trial court did not err in overruling
Stover’s motion to suppress evidence obtained as a result of the traffic stop.[26] The Court noted that Hagerty was justified in
asking questions during the investigation of the traffic stop because “when he
completed the investigation into the traffic violation, he already had
developed reasonable suspicion to detain the travelers further.”[27] Then, “when he asked questions to confirm or
dispel these suspicions, the traveler’s responses were inconsistent and created
additional reasonable suspicion.[28] The
Court ultimately found that Corporal Hagerty detained Mr. Stover under
reasonable suspicion of criminal activity and did not extend the detention
beyond the time necessary to conduct a reasonable investigation.[29]
C.
Verdict Director was Plain Error
The Court held that because the verdict director deviated from the
MAI-CR3d 325.10.2, “it did not require the jury to find that Mr. Stover knew
the content or character of the drugs in the suitcase to find him guilty.”[30] Because Stover told the trooper and a tech
for the highway patrol that he did not look into the trunk, did not know what
was in the trunk, and did not know what was in the suitcase in the trunk, the
record showed that whether Mr. Stover knew the content and substance of the
liquid in the suitcase was seriously disputed.[31] Therefore, the trial court’s failure to
require the jury to find that Mr. Stover knew the content or character of the
drugs in the suitcase relieved the state of its burden of proving each element
of the offense beyond a reasonable doubt.[32]
The Court deemed this failure to be plain error and required the
reversal of Stover’s conviction and sentence and remanded the case to the trial
court.[33]
D. Remaining
Claims of Trial Court Error
Although the plain error with regard to the verdict director is
dispositive, the Court addressed Stover’s remaining claims of trial court error
because the issues are likely to arise on retrial.
The Court held that the statements Stover made during the traffic
stop, before he was advised of his right to remain silent pursuant to Miranda
v. Arizona, 384 U.S. 436 (1966), were admissible.[34] Because these statements did not occur during
a custodial interrogation, they are not subject to suppression on the basis of Miranda.[35]
The Court additionally found that evidence of Stover’s refusal to
consent to the trooper searching the rental vehicle is admissible because the
evidence of Stover’s refusal to consent to the search was used to explain
subsequent actions, not his guilt.[36]
Finally, the Court held that evidence of the DEA publicly
recognizing Corporal Hagerty “for making the largest PCP seizure in the history
of the United States up to 2003,” was not hearsay and thus admissible.[37] The Court noted that the testimony was not
introduced to prove “the truth of the matter asserted” (that the seizure was in
fact the largest in the United States until 2003), but rather to “demonstrate
to the jury that the amount of PCP seized was a large amount, consistent with
the intent to sell or distribute.”[38]
E.
Dissenting Opinion by Judge Fischer
Judge Fischer agreed that the omission of the phrase “knowing of
the substance’s content and character” from the verdict director – in
noncompliance with the approved instruction – was error.[39] He does not agree, however, that this error
results in a miscarriage of justice or manifest injustice warranting relief.[40] Judge Fischer noted that it was undisputed
that 10 gallons of PCP were found in the trunk of Stover’s rental car, and
Stover never disputed the “content and character” of the substance.[41] Judge Fischer asserted that it is implausible
to suggest that the jury would have found Stover was unaware of the content and
character of the PCP while simultaneously finding that he knowingly
distributed, delivered or sold ninety grams or more of the substance.[42]
II. Legal Background
Stover was charged with first-degree trafficking in violation of
section 195.222.5, RSMo Supp. 2011, which provides:
A person commits the crime of trafficking drugs in the first
degree if…he distributes, delivers, manufactures, produces or attempts to
distribute, deliver, manufacture or produce more thank thirty grams of a
mixture or substance containing a detectable amount of phencyclidine (PCP).
“Evidence of knowing possession may support the conviction when
the state alleges that the defendant attempted to distribute, deliver, manufacture
or produce the controlled substance, and this evidence may be circumstantial.”[43] “In cases involving joint control of an
automobile, ‘a defendant is deemed to have both knowledge and control of items
discovered within the automobile, and, therefore, possession in the legal
sense, where there is additional evidence connecting him with the items.”[44]
The Fourth Amendment to the United States Constitution guarantees
the right of all citizens to be free form unreasonable searches and seizures.[45] “A routine traffic stop based on the
violation of state traffic laws is a justifiable seizure under the Fourth
Amendment.”[46] An officer may continue
to detain the individual beyond the time period necessary to investigate the
traffic violation if the officer develops “reasonable and articulable grounds
for suspicion of illegal activity” based on the behavior and responses of the
individual during the traffic stop.[47]
A failure to make a specific objection to a verdict instruction
limits the reviewing court to plain error review.[48] “Instructional error rises to the level of
plain error when the appellant demonstrates that the trial court ‘so
misdirected or failed to instruct the jury as to cause manifest injustice or
miscarriage of justice.’”[49] Further,
plain error exists when an instruction omits an essential element and the
evidence establishing the omitted element was seriously disputed.[50]
III. Comment
The dissent correctly identifies the proper resolution of the case
at hand – there was no injustice or miscarriage of justice. As Judge Fischer asserted that it is
implausible to suggest that the jury would have found Stover was unaware of the
content and character of the PCP while simultaneously finding that he knowingly
distributed, delivered or sold ninety grams or more of the substance, there is
no reason to waste scarce judicial resources and remand this case to the trial
court.
-
Cody Reinberg
[1] No. SC91760 (Mo. Sept.
25, 2012), available at http://www.courts.mo.gov/file.jsp?id=57005. The West reporter citation is State v.
Stover, 388 S.W.3d 138 (Mo 2012) (en banc).
[2] “Missouri State Highway
Patrol Corporal Brian Hagerty has worked in drug interdiction with the highway
patrol since 1998 and has been the supervisor of his troop’s ‘Criminal
Interdiction Unit’ since 2001. By
November 2003, the veteran trooper had made “’hundreds, if not thousands, of
drug interdiction arrests’ during his career.
Most of the significant drug seizures he has made occurred on eastbound
Interstate 70.” Id. at 2.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at 2-3.
[7] Id. at 3.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 5. There were
also discrepancies in the men’s descriptions of dates associated with their
trip, in addition to a later assertion that a third man was with them in Las
Vegas, although he was never identified.
Id. at 6.
[12] Id.
[13] Id.
[14] Id. at 6.
[15] Id.
[16] Id. at 7.
[17] Id.
[18] Id.
[19] Id. at 8.
[20] Id.
[21] Id.
[22] Id. at 14.
[23] Id. at 13.
[24] Id.
[25] Id. at 9-14.
[26] Id. at 17.
[27] Id. at 22.
[28] Id.
[29] Id.
[30] Id. at 28.
[31] Id. at 27-28.
[32] Id. at 28.
[33] Id.
[34] Id. at 29.
[35] Id.
[36] Id. at 30.
[37] Id. at 31.
[38] Id.
[39] Id. at 1 (dissent).
[40] Id.
[41] Id. at 3 (dissent).
[42] Id.
[43] Id. at 10 (citing State v. McNaughton, 924 S.W.2d
517, 526 (Mo. App. 1996)).
[44] State v. Woods, 284
S.W.3d 630, 640 (Mo. App. 2009) (quoting State v. Sanderson, 169 S.W.3d 158,
164 (Mo. App. 2005)).
[45] U.S. Const. amend. IV.
[46] State v. Granado, 148
S.W.3d 309, 311 (Mo. banc 2004).
[47] See State v. Waldrup,
331 S.W.3d 668, 674 (Mo. banc 2011).
[48] No. SC91760, at 25
(Mo. Sept. 25, 2012)
[49] Id. at 26 (quoting
State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007)).
[50] Id.
