State v. Elmore, 23671

Citation43 S.W.3d 421
Decision Date27 March 2001
Docket NumberNo. 23671,23671
Parties(Mo.App. S.D. 2001) State of Missouri, Plaintiff/Respondent v. Sandra Elmore, Defendant/Appellant. 0
CourtCourt of Appeal of Missouri (US)

Appeal From: Circuit Court of Dent County, Hon. William Camm Seay

Counsel for Appellant: Emmett D. Queener

Counsel for Respondent: Karen L. Kramer

Opinion Summary: None

Parrish, P.J. and Montgomery, J., concurs.

Kenneth W. Shrum, Judge

Sandra Elmore ("Defendant") was convicted, following a jury trial, of the Class C felony of possession of methamphetamine, a controlled substance, under section 195.202, RSMo 1994.1 She appeals contending there was insufficient evidence to support the verdict and the trial court erred in admitting certain evidence and statements over her objections. We find sufficient evidence to support the verdict and no reversible error resulted from the admission of evidence. We affirm.

Defendant was at home asleep on the evening of April 10, 1998, when at 10:45 p.m. her husband ("Tom") came home and awakened her to go look at a house. Their present home was near foreclosure due to Tom's drug habit and failure of his mobile home business. Defendant went with Tom noting this was not unusual behavior for him because of his drug habit, and if she refused, he might have become violent. When the couple reached their destination, no one was there to show them the house. The couple then went to Wal-Mart where Tom purchased "some pseudoephedrine," but Defendant did not know why.2 Before the Wal-Mart stop, the couple had stopped at a convenience store where Defendant purchased "Efidac," a sinus medication. Tom then received a page from a friend named Tom Williams ("Williams"). Defendant stated she wanted to go home, but Tom refused and the couple then drove to Williams' house. Tom and Williams talked about "some important business," until Tom asked Defendant to get out of the car and meet Williams. Defendant walked towards the shed behind the house and upon entering, immediately perceived that a "massive lab" was set up to produce methamphetamine. Defendant went back to the car and Tom followed. The couple left the Williams' residence and went to the "Voss Truck Port" where they bought some items to fix Defendant's pickup truck. Among these items were bottles of "Heet" and oil.3

By this time it was the early morning hours of April 11, 1998, and the pair decided to eat breakfast at the Voss truck stop. Tom received another page from Williams who wanted to meet them there. Defendant "knew [her] husband was involved with meth," but saw no harm involved in Williams coming to talk to them because "it didn't matter to me if [Williams] talked to [Tom]" while they were at the truck stop. Williams met them outside the Voss restaurant by Tom's car.

Sometime before Williams' arrival, Officer Mark Reynolds ("Reynolds") of the Missouri Highway Patrol received a radio dispatch that described a car that might be transporting illegal narcotics. Shortly after that, Reynolds received another dispatch that the car was located at the Voss truck stop, and he went there and located the car. Reynolds parked across the highway in order to observe the unoccupied vehicle. After about twenty minutes, Williams showed up and met Defendant and Tom by the car. The trio stood in a "circle" talking and looking nervous. Williams then gave Tom a bag which was put inside Tom's car. Defendant and Tom departed in Tom's car with Reynolds following closely behind.

Upon Tom's failure to signal while attempting to get on Interstate 44, Reynolds turned on his lights to pull the car over. Tom then accelerated to ninety miles per hour and the chase ensued for the next two miles. During the chase, Defendant was "frantically jumping from the front passenger seat to the rear of the vehicle" and throwing items out the window. Finally, Tom pulled over, and he and Defendant were then arrested. Reynolds recovered two bags containing methamphetamine; one from the passenger's seat and another from the side of the interstate. Also recovered in the search of the car were various items which were alleged to be used in the production of methamphetamine. While in custody, Defendant made incriminating statements which were introduced at trial. Defendant sought to exclude from evidence those items recovered in the search of the car and roadway, as well as two incriminating statements, but those objections were overruled. These are the subjects of Defendant's Points II and III; Point I relates to the sufficiency of the evidence. Our resolution of Points II and III will impact the discussion of Point I; therefore, we discuss the points in reverse order.

POINT III: DEFENDANT'S ALLEGEDLY INADMISSIBLE STATEMENTS

Even though officer Reynolds advised Defendant of her constitutional rights per the Miranda warning at the time of her arrest, Defendant asserts the trial court erred by admitting into evidence two statements made by her because the statements were not "freely and voluntarily made," thus violating her rights under the federal and state constitutions.4 Defendant claims that due to "the passage of time, her mental condition, the circumstances surrounding the interrogation, and the lack of subsequent reminders of her rights," she was "unaware" of her rights even though having been so advised upon arrest.

One of the statements about which Defendant complains was made while Defendant was talking to her husband at the county jail. Reynolds was nearby finishing his paperwork when he overheard Defendant say to Tom: "I knew this stuff was going to get us. Now I'm going to die in jail." In a futile attempt to support her point as to this statement, Defendant cites Miranda, 384 U.S. 436, 86 S.Ct. 1602.5 The following is an excerpt from Miranda:

"Our holding . . . briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."

384 U.S. at 443, 86 S.Ct. at 1612 (emphasis added).

The Miranda procedural safeguards are only applicable in the context of custodial interrogation or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). This is not the case here. It is true Defendant was in custody, but the statement was made to her husband and merely overheard by Reynolds. Inexplicably, Defendant fails to address this issue. Defendant's statement was not in response to any express questioning or its functional equivalent; therefore, Miranda does not apply. See State v. Butler, 660 S.W.2d 225, 228[3] (Mo.App. 1983). Under the circumstances, the statement was voluntary, spontaneous, and properly admitted. See State v. Gardner, 741 S.W.2d 1, 3-4[2] (Mo.banc 1987).

The other statement which Defendant alleges was inadmissible was in response to a question asked by Reynolds. Reynolds testified he returned to the jail after searching the interstate and finding a bag containing methamphetamine, and asked Defendant if she threw it out of the car. Reynolds testified Defendant replied, "[Y]es, I told [another officer] that I only threw one out." Defendant attempts to explain the involuntariness of this statement by reliance upon her testimony that she never before had contact with police interrogation, her overall "hysterical" frame of mind, the hours of badgering by the police, and the general unfamiliarity of the situation.6 However, during trial when Reynolds testified about the statement, Defendant did not object. Defendant's failure to timely object to Reynolds' testimony regarding this statement means any claim of error regarding its admission is unpreserved for our review. Gardner, 741 S.W.2d at 3[1]. Under the circumstances, our only review is for plain error.

Plain error review is limited to determining whether there was error affecting substantial rights that resulted in manifest injustice or miscarriage of justice. State v. Gardner, 955 S.W.2d 819, 825[1] (Mo.App. 1997); Rule 29.12(b). "An error is only an injustice if it is prejudicial." State v. Fuente, 871 S.W.2d 438, 443 (Mo.banc 1994). Here, officer Reynolds gave Defendant her Miranda rights. Moreover, even if Defendant's statement to Reynolds was inadmissible due to its involuntary nature caused by post-Miranda circumstances--a finding we need not and do not make--it is not apparent that its admission was prejudicial because there was ample other evidence, as discussed under Point I, for the jury to find Defendant guilty of possession of methamphetamine. Id. On this record, there is no way Defendant could have been prejudiced by the admission of this statement; consequently, the admission of such statement did not rise to the level of manifest injustice. Id. Point III is denied.

POINT II: ALLEGED ERROR IN ADMISSION OF PHYSICAL EVIDENCE.

In Point II, Defendant contends the trial court erred by admitting into evidence certain items recovered during the search of the car and allowing testimony to the effect that these items could be used in the manufacture of methamphetamine.7 Defendant claims the evidence had no probative value and was highly prejudicial because it was evidence of an uncharged crime or bad act; therefore, the evidence should have been excluded as irrelevant. We find no merit to this argument.

A trial court has broad discretion in ascertaining relevance and admissibility of evidence. State v. Hayes, 15 S.W.3d 779, 785[8] (Mo.App. 2000). This court will not interfere with a ruling on the admissibility of evidence absent a clear showing of abuse of discretion. Id. at 785[9]. Evidence of contemporary possession of drug paraphernalia with...

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