State v. Cardona-Rivera

• Decision Date: 31 July 1998
• Docket Number: D,CARDONA-RIVER,No. 21157,21157
• Citation: 975 S.W.2d 200
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jairoefendant-Appellant.
• Court: Missouri Court of Appeals

Page 200

975 S.W.2d 200

STATE of Missouri, Plaintiff-Respondent, v. Jairo CARDONA-RIVERA, Defendant-Appellant.

No. 21157.

Missouri Court of Appeals,

Southern District,

Division One.

July 31, 1998.

W. Geary Jaco, Christopher J. Angles, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Joiner, Asst. Atty. Gen., Jefferson City, for Respondent.

GARRISON, Presiding Judge.

Jairo Cardona-Rivera ("Defendant") was convicted by a jury of attempted trafficking in the first degree, § 195.222.2(2), ¹ and was sentenced as a prior drug offender to thirty years without eligibility for probation or parole. He raises five points of error on this appeal relating to the denial of his motion to suppress; the alleged ineffectiveness of his trial counsel; the exclusion of exculpatory statements allegedly made by him; the alleged failure to provide him with a competent and unbiased interpreter at trial; and the state's reference to him as a Colombian. We affirm.

Defendant does not challenge the sufficiency of the evidence to support the conviction. Viewed in the light most favorable to the verdict, the evidence indicates that Defendant was riding as a passenger in a 1984 Toyota Corolla on October 28, 1993 when it was stopped by Missouri Highway Patrol Trooper Jeffery Heath ("Trooper Heath") after he observed the car following another vehicle too closely. Trooper Heath noticed fast food wrappers in the car, as well as two maps and an atlas, which he interpreted as an indication that the occupants were traveling without taking time to stop and eat meals. The driver, Carlos Patino ("Patino"), who produced an Illinois driver's license, was asked by Trooper Heath to step to the rear of the vehicle, where he identified Defendant as the owner of the vehicle. Trooper Heath then spoke with Defendant who admitted that he was the vehicle's owner and produced a registration confirming his ownership. Defendant, however, told Trooper Heath that he did not know the driver's name, where the trip originated, or where they were going. Patino also later denied knowing where the trip originated or its intended destination, as well as Defendant's name.

Trooper Heath issued a warning to Patino, returned his license, and told him he was free to go. As they were getting out of the patrol car, the trooper asked Patino if he had any guns, drugs or weapons in the car. Patino denied that they did, but the trooper thought he seemed nervous. The trooper then sought, and received, permission from Patino to search the car. While Patino waited at the front of the Corolla, Trooper Heath told Defendant that Patino had given him permission to search the car, and asked him to also wait at the front of the car. The trooper found eight bundles of cocaine in the trunk, and placed Defendant and Patino under arrest.

After Defendant was informed of his rights, he identified the suitcase which contained the cocaine as "mine," and said that the contents were "clocaine." When asked if he meant "cocaine," Defendant said that he did. Defendant also said that he and Patino were going to Chicago, that he had been paid $1,000 to make the trip, and that there was six or seven kilograms of cocaine in the suitcase.

Defendant's only evidence at trial consisted of the testimony of Patino, who said that the cocaine was his, that he did not tell Defendant it was in the car, and that Defendant had merely agreed to drive Patino from Chicago to Memphis and back for $500.

Defendant's first point on appeal is:

The trial court erred where [sic] it denied [Defendant's] motion to suppress evidence seized following a third-party consent search and the law was not followed because no reasonable police officer could believe he had valid consent to search the car where the true known owner was present and did not give permission.

Defendant's point relates to the denial of his pre-trial motion to suppress physical evidence seized as a result of the search of the car. The scope of the issue for determination on appeal is that which is framed in the point relied on. State v. Talbert, 873 S.W.2d 321, 323 (Mo.App. S.D.1994). 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 a motion is fatally defective. State v. Rodgers, 899 S.W.2d 909, 911 (Mo.App. S.D.1995).

Beyond that, a ruling on a motion to suppress is interlocutory and subject to change during the course of the trial. Id. Therefore, a specific objection is required when the evidence is offered at trial to preserve the issue for appellate review. Id.; State v. Downen, 952 S.W.2d 807, 811 (Mo.App. W.D.1997); State v. Mills, 735 S.W.2d 197, 200 (Mo.App. E.D.1987).

In the instant case, the only seized evidence Defendant complains about is the cocaine. When the State offered that evidence at trial, the court asked Defendant's counsel if he had any objection, to which he responded, "No, Your Honor." This constituted an affirmative waiver of any objection to this evidence. State v. Scott, 858 S.W.2d 282, 285 (Mo.App. W.D.1993). Under such circumstances, plain error review is not warranted. Id. See also State v. Stillman, 938 S.W.2d 287, 290 (Mo.App. W.D.1997). This point is denied.

Defendant's second point is:

The trial court erred in sustaining the prosecutor's hearsay objections to the co-defendant's testimony as to exculpatory statements made by [Defendant], because under Rule 401 of the Federal Rules of Evidence the statements are nonhearsay and the law was not followed in that the statements, if allowed, would have negated [Defendant's] guilt.

This point does not state what evidence the trial court allegedly erroneously excluded, or specify why the exclusion was erroneous. Rule 30.06(d) requires that a point relied on "shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous." Three things are required to comply with the "wherein" and "why" requirements of the Rule: (1) a statement of the action or ruling complained of; (2) why the ruling was erroneous; and (3) wherein the evidence or other matter supports the position the party asserts the trial court should have taken. State v. Rabe, 870 S.W.2d 453, 455 (Mo.App. S.D.1994). A point written in violation of Rule 30.06(d) preserves nothing for review. State v. Higgins, 852 S.W.2d 172, 175 (Mo.App. S.D.1993). We may exercise our discretion, however, and review for plain error resulting in manifest injustice or a miscarriage of justice. Rule 30.20.

In the argument section of his brief, Defendant identifies the excluded testimony as that of Patino during direct examination by Defendant's attorney. Specifically, he contends that the trial court incorrectly sustained hearsay objections when Patino was asked if Defendant had told him how long he had had his car; what Defendant said when they were discussing their plans; and whether Defendant had asked Patino to drive the car. Defendant made an offer of proof indicating that Patino would testify that Defendant told him that he had just purchased the car and still owed $500 on it, and that Patino offered him $500 to drive him to Memphis. The offer of proof did not indicate how Patino was expected to testify concerning the questions about what Defendant said about their plans and whether he asked Patino to drive the car.

When an objection to proffered evidence is sustained, the party offering the evidence must demonstrate its relevancy and materiality by way of an offer of proof in order to preserve the matter for appellate review. State v. Jordan, 699 S.W.2d 80, 83 (Mo.App. E.D.1985). The purpose of an offer of proof is to insure that the trial court and opposing counsel understand what evidence is being offered and its relevance to the case. State v. Townsend, 737 S.W.2d 191, 192 (Mo.banc 1987). The offer should be specific and in sufficient detail to demonstrate its admissibility; mere conclusions of counsel will not suffice. Id.

The preferred method of making an offer of proof is to question the witness outside the presence of the jury. Id. Some Missouri courts have also allowed counsel to make the offer in narrative form by summarizing the proposed testimony of the witness. Id. It is, however, more difficult for counsel to present a detailed and specific summary of a witness's testimony without presenting conclusions of counsel. Id. Therefore, when counsel uses the narrative offer of proof he runs a greater risk that the court will find the offer insufficient. Id. Here, Defendant's counsel did not attempt to make an offer of proof concerning two of the three issues about which Defendant sought to have Patino testify. The purported offer of proof concerning how long Defendant had owned his car did not indicate how that information would be relevant to the issues in the case. The trial court is not required to speculate on a party's reasons for introducing evidence, and may assume that the party making the offer of proof has stated it as fully and favorably as possible. Id. For these reasons alone, the portion of Defendant's point dealing with this testimony is not well taken.

Defendant also complains that the trial court sustained a hearsay objection and instructed the jury to disregard Patino's statement that when they were arrested, Defendant asked him "what have you got me into." He contends that this testimony, as well as the other purported testimony of Patino, was admissible as "admissions."

Defendant's theory is highlighted by the statement in his brief that "any statements whatsoever made by [Defendant] should have been admissible as nonhearsay admissions." He argues that an admission "is a statement or act done that amounts to a prior acknowledgment by one of the parties to an action of one of the relevant facts." He cites State v. Isa, 850 S.W.2d 876 (Mo.banc 1993) for the proposition that a statement need not be...