Tuesday, September 25, 2012

State v. Stover[1]


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.