State v. Allison

• Decision Date: 21 December 2010
• Docket Number: No. WD 70395.,WD 70395.
• Citation: 326 S.W.3d 81
• Parties: STATE of Missouri, Respondent, v. Robert M. ALLISON, Appellant.
• Court: Missouri Court of Appeals

326 S.W.3d 81

STATE of Missouri, Respondent,

v.Robert M. ALLISON, Appellant.

No. WD 70395.

Missouri Court of Appeals, Western District.

Sept. 14, 2010.

Motion for Rehearing and/or Transfer t Supreme Court Denied Nov. 2, 2010.

Application for Transfer Denied Dec. 21, 2010.

Daniel E. Hunt, Jefferson City, MO, for appellant.

Shaun J. Mackelprang and John M. Reeves, Jefferson City, MO, for respondent.

Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

Robert Allison ("Allison") appeals from the trial court's judgment finding Allison guilty of seven counts of the Class B felony delivery of a controlled substance, section 195.211,¹ following a jury trial. Allison contends that the trial court: (1) erred by not sustaining a motion to suppress evidence seized from his home and business; (2) erred in overruling objections to Detective Brad Ford's ("Detective Ford") testimony relaying a conversation with a confidential informant; (3) plainly erred in permitting the State to cross examine two of Allison's witnesses about prior misconduct and in permitting the State to rebut the witnesses' denial of the prior misconduct with Detective Ford's testimony; and (4) erred in entering a judgment of guilty on Count 2 which had been dismissed by the State. We amend the trial court's judgment with respect to the determination of guilt on Count 2 and a related finding of dismissal of Count 9. In all other respects, the judgment of the trial court is affirmed.

Factual and Procedural History

Detective Ford was an undercover narcotics officer for the Fulton Police Department who used an undercover identity.² On June 19, 2004, Detective Ford and a confidential informant ("CI") met Allison at the Post Office Bar & Grill. There Detective Ford agreed to buy three and a half grams of methamphetamine from Allison for $200. The three went to Allison's truck, and Allison drove them about a block away. Allison then stopped his car and produced a softball-size bag of methamphetamine from the center console of his truck. Allison retrieved three and a half grams of methamphetamine from the bag, rolled the drugs up in a dollar bill, and gave the drugs to the CI. Allison returned the men to the bar parking lot. The CI later gave the drugs to Detective Ford. Subsequent testing confirmed the substance was methamphetamine, a controlled substance.

On April 26, 2005, Detective Ford and the CI met with Allison at Allison's auto body shop, K & R Garage. The meeting was scheduled after Allison contacted the CI to ask if he "wanted any medicine." The CI reported the call to Detective Ford who told the CI to call Allison back to arrange a meeting. At the meeting, Allison gave the CI ten pills. Subsequent testing showed the pills to be oxycodone, a controlled substance.

On May 24, 2005, Detective Ford and the CI again met with Allison at his auto body shop. Allison told them that he had forty morphine pills that he did not want. Detective Ford offered to buy the pills from Allison. Allison accepted Detective Ford's offer and retrieved two bags containing the pills. Subsequent testing confirmed the pills were morphine, a controlled substance.

On June 1, 2005, Detective Ford and the CI met with Allison at Allison's apartment in Auxvasse, Missouri. Allison offered Vicodin to both men. Both men accepted the pills. Subsequent testing confirmed the pills were Vicodin, which contains hydrocodone, a controlled substance.

On July 18, 2005, Detective Ford and the CI met with Allison at 1382 Blue Ridge.³ They discussed purchasing methamphetamine from Allison. Allison did not have any methamphetamine. Allison offered OxyContin pills to both men, which both men accepted. Subsequent testing confirmed the pills to be oxycodone, a form of OxyContin, a controlled substance.

On July 29, 2005, Detective Ford and the CI met with Allison at Allison's apartment to purchase methamphetamine. Cassie Allison, a minor, was present. Allison, Detective Ford, and the CI went into Allison's bedroom and closed the door. Allison retrieved a bag from his closet and set it on the top of a dresser. Allison pulled out a large triple-beam scale. Allison then retrieved a bag of methamphetamine and measured out an ounce. The purchase price was $1,200. Detective Ford told Allison that he only had $800. Allison replied that he trusted Detective Ford. Detective Ford told Allison that he would pay him the balance the next day. Detective Ford returned the following day with the $400 balance. Subsequent testing confirmed the substance purchased at Allison's apartment was 27.8 grams of methamphetamine.

On September 1, 2005, Detective Ford, the CI, and Allison met at the CI's apartment in Fulton. Detective Ford agreed to purchase two pounds of marijuana from Allison for $1,350. Detective Ford went to his vehicle, retrieved the money, and gave it to Allison. Allison then made a phone call because he did not have the marijuana with him. Allison told Detective Ford to drive to Allison's apartment to pick up the marijuana. Detective Ford did so. Cassie Allison was waiting for him. She produced a block of marijuana from under her shirt and handed it to Detective Ford. Subsequent testing confirmed the substance to be 885 grams of marijuana, a controlled substance.

Allison was charged as a prior and persistent offender with nine counts of the class B felony of delivery of a controlled substance in Callaway County. A motion for change of venue was granted, and venue was moved to Boone County. Counts 2 and 8 were dismissed by the State prior to trial.⁴

Following a jury trial, Allison was found guilty of the remaining seven counts. The trial court sentenced Allison to twentyyears on each count, to run concurrently. This appeal follows.

Point I

In his first point on appeal, Allison claims that the trial court erred in denying a renewed motion to suppress, which sought to exclude from evidence the controlled substances obtained during Detective Ford's purchases at Allison's home and business. Allison claims this evidence was illegally obtained because Detective Ford did not have a warrant, and any consent given to enter the premises was not valid because it was obtained through fraud and deception.

The State argues that this claim is not cognizable as Allison has only challenged the trial court's ruling on a motion to suppress. "A trial court's ruling on a motion to suppress is interlocutory and is subject to change during trial. 'Accordingly, a motion to suppress, in and of itself, preserves nothing for appeal, and ordinarily, a point relied on that refers only to a ruling on such motion is fatally defective.' " State v. Smith, 185 S.W.3d 747, 755 (Mo.App. S.D.2006) ( quoting State v. Shifkowski, 57 S.W.3d 309, 316 (Mo.App. S.D.2001)); State v. Barriner, 210 S.W.3d 285, 296 (Mo.App. W.D.2006). Nevertheless, "appellate courts may exercise discretion and attempt to resolve issues on their merits unless the defective point impedes disposition of the case on its merits. A brief impedes disposition on the merits if it fails to give notice of the basis for the claimed error." Atkins v. McPhetridge, 213 S.W.3d 116, 120 (Mo.App. S.D.2006) (citation omitted).

Allison renewed his motion to suppress before trial, raised objections at trial to the introduction into evidence of the controlled substances purchased at his home and business,⁵ and included the same claims in his motion for new trial. The trial court and the State were on notice at each critical point in the process that Allison was challenging the trial court's admission of the controlled substances as well as the denial of the motion to suppress. Though Allison's point relied on should have referred to the admission of the evidence over objection, and not simply to the denial of the motion to suppress, the point relied on and the brief do not impede the State's ability to address Allison's claimed error under the circumstances. Thus, we will treat Allison's first point on appeal as challenging both the denial of the motion to suppress and the admission of the evidence related to Detective Ford's entry into Allison's home and business without a warrant or valid consent.

Standard of Review

We consider the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling on a motion to suppress. State v. Brand, 309 S.W.3d 887, 892 (Mo.App. W.D.2010). We will reverse the trial court's ruling only if it is clearly erroneous. Id. "We consider all facts and reasonable inferences in the light most favorable to the trial court's ruling." State v. Cain, 287 S.W.3d 699, 705 (Mo.App. S.D.2009). "Whether the Fourth Amendment has been violated, however, is anissue of law that we review de novo." Brand, 309 S.W.3d at 892. Once evidence has been found not to have been obtained in violation of the Fourth Amendment, we review its admission into evidence for an abuse of discretion. Id.

Analysis

The Fourth Amendment to the United States Constitution guarantees citizens the right to be free from "unreasonable searches and seizures." "Article I, section 15 of the Missouri Constitution provides the same guarantees against unreasonable search and seizures; thus, the same analysis applies to cases under the Missouri Constitution as under the United States Constitution." State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009). As a general rule, "[w]arrantless searches and seizures inside a home are presumptively unreasonable" and unconstitutional. State v. Rutter, 93 S.W.3d 714, 723 (Mo. banc 2002). However, one exception to this rule is consent of the owner. State v. Cromer, 186 S.W.3d 333, 342 (Mo.App. W.D.2005).

Allison contends that he could not have given valid consent to Detective Ford to enter his home and business because he was deceived by Detective Ford's undercover status. This argument has no merit. It is...