State v. Fuente
| Decision Date | 25 January 1994 |
| Docket Number | No. 75622,75622 |
| Citation | 871 S.W.2d 438 |
| Parties | STATE of Missouri, Respondent, v. Steven M. FUENTE, Appellant. |
| Court | Missouri Supreme Court |
Norman S. London, Thomas F. Flynn, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Steven Fuente was convicted in a court-tried case of possessing more than 35 grams of marijuana and was sentenced to four years imprisonment. He appealed, arguing that the trial court erred when it overruled his motion to suppress statements at the Callaway County Jail and evidence obtained by the highway patrol troopers. The Court of Appeals, Western District, reversed and remanded for a new trial, holding that the statements were taken in violation of Fuente's fifth amendment right to silence. Both parties now appeal to this Court. We affirm the judgment of the trial court.
The evidence adduced at the hearing on the defendant's motion to suppress, which by stipulation of the parties was considered by the trial court in lieu of testimony at trial, disclosed that two members of the Missouri Highway Patrol stopped Steven Fuente for speeding in a construction zone and failing to signal before changing lanes on Interstate 70. Defendant Fuente was traveling approximately 65 miles an hour in a 55 mile-an-hour zone. Trooper Munden testified that when Fuente rolled down the window, she "smelled a faint odor of marijuana being emitted from the vehicle." Munden then asked Fuente to sit in the patrol car while she checked his driver's license and vehicle registration. The car was registered to Fuente's mother in Florida, so there was a delay while the computer checked the vehicle registration.
While Munden was waiting on the registration check, she asked Fuente if she could search the vehicle. Fuente responded that it would be against his constitutional rights to search his vehicle. A few minutes later, Trooper Munden asked Fuente if he had any marijuana in the vehicle. According to Munden, Fuente stated: "Why are you trying to delay my trip?" Munden informed him that she suspected he had marijuana in the vehicle. She then radioed from the patrol car in Fuente's presence for a canine unit to respond to the scene. While she issued Fuente a summons and waited for the canine unit to arrive, Officer Munden asked Fuente what the dogs would "hit on" when they arrived. Munden testified that Fuente responded, "All we've got is a pipe and a little baggie." At Munden's request, Fuente then retrieved the pipe and the "little baggie" of marijuana from the Blazer.
Shortly thereafter, Trooper Munden was notified that the canine unit could not come to the scene. She then approached the passenger in the vehicle, Thomas Kerrigan, and asked him if she could search his bags in the vehicle. Kerrigan consented to the search of his bags. Officer Munden then testified that Kerrigan opened the rear window of the Blazer and at that point she was "blasted" with the smell of marijuana. Kerrigan then pointed out to Officer Munden which bags belonged to him and which belonged to Fuente. Munden then searched Kerrigan's bags and found no contraband. Next, she searched Fuente's bags and discovered 45 pounds of marijuana in defendant's blue bag. Munden arrested Fuente and read him the Miranda warning. After being Mirandized, Fuente told Munden he did not wish to talk to her about the marijuana.
Upon arriving at the Callaway County Jail, Munden informed Trooper Tim Tinnin that Fuente had received his Miranda warning and had decided not to talk to her. Tinnin testified that Munden did not tell him that Fuente had exercised his right to remain silent; Munden only said that Fuente did not wish to talk to her. Less than an hour later, Tinnin started questioning Fuente without re-Mirandizing him or getting a written waiver. Tinnin testified that he asked Fuente if he wanted to talk, to which Fuente replied, "Go ahead, you know, let's talk." The primary purpose of Tinnin's questioning was to determine where Fuente and Kerrigan had obtained the marijuana. Fuente indicated his willingness to cooperate but asked to talk to Kerrigan first. Kerrigan was brought in the room, and the two agreed to talk to Tinnin. During the interview, the troopers learned who sold the marijuana to the defendants, that they had purchased it at a sushi bar in Phoenix, that they intended to sell it to friends in Cincinnati, and that this was their third such trip. Trooper Tinnin testified that Fuente did not indicate at anytime during the questioning that he wished to speak to an attorney.
Fuente filed a motion to suppress (1) the 45 pounds of marijuana found in the Blazer, (2) the statements he made to Officer Munden in the patrol car, and (3) the statements he made at the Callaway County Jail. The court held an evidentiary hearing on Fuente's Motion to Suppress at which five witnesses testified: (1) Trooper Munden, (2) Trooper Spurgeon, (3) Trooper Tinnin, (4) Trooper Breen, and (5) co-defendant Kerrigan. After hearing the witnesses' testimony, the court denied Fuente's motion to suppress the evidence and statements.
Defendant waived his right to trial by jury and consented to a bench trial. At the bench trial, the parties agreed that the trial court could consider the transcript from the hearing on the motion to suppress in reaching its judgment. Defendants Fuente and Kerrigan consented and acknowledged on the record: (1) that there would be no evidence introduced at trial other than the transcript from the motion to suppress hearing, and (2) that there was a stipulation that the substance taken from the Blazer was marijuana. The defendants also acknowledged on the record that they had been advised by their counsel that (1) the judge was certain to find the defendants guilty based on the evidence at the motion to suppress hearing and (2) the prosecutor was planning to recommend a 4-year sentence but was not certain whether he was going to oppose probation.
The State then gave a brief opening statement amounting to approximately ten lines of transcript. Defendants waived their opening statements, and the State introduced the laboratory report on the substance found in the Blazer. Defendants objected for the same reasons set forth in their motion to suppress: that the evidence was discovered as a result of an unconstitutional search and that the statements were made in violation of the defendants' right to remain silent. Defendant Kerrigan also objected for the same reasons set forth in his motion to quash the information.
Defendants once again requested that the record reflect that, for the purposes of the trial, they were maintaining an ongoing objection based on all the reasons presented in: the written motion to suppress, objections made at the hearing on the motion to suppress, and defendants' motion to quash the information. Defendants then waived their right to testify, and both sides rested their case. Defendants renewed their motion for acquittal, and all parties waived closing arguments. The court found beyond a reasonable doubt that both defendants were in possession of more than 35 grams of marijuana, a controlled substance, knowing of its presence and illegal nature.
Defendant Fuente appealed the trial court's denial of his motion to suppress the marijuana and the statements at the Callaway County Jail. The Court of Appeals, Western District, reversed and remanded, holding that (1) the 45 pounds of marijuana was properly admitted as evidence, but (2) Trooper Tinnin did not "scrupulously honor" Fuente's fifth amendment right to silence. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Fuente and the State now file cross appeals to this Court. Fuente raises two issues: (1) that the trial court erred in overruling his motion to suppress the 45 pounds of marijuana and (2) that the trial court erred in overruling his motion to suppress the statements he made to Trooper Munden in the police car. The State raises one point on appeal: that the trial court did not err in admitting into evidence the statements made by Fuente at the Callaway County Jail.
We affirm the trial court's judgment. We hold that: (1) the marijuana was discovered as a result of a lawful search and was properly admitted into evidence; (2) the issue of the admissibility of Fuente's statements to Trooper Munden in the patrol car was not properly preserved for appeal and does not constitute plain error; and (3) Fuente's statements at the Callaway County Jail, even if they were improperly obtained, were not prejudicial, and their admission into evidence was at most harmless error.
Fuente's first point is that the trial court erred in overruling his motion to suppress the marijuana because it was discovered pursuant to an illegal search. We will affirm if the evidence is sufficient to sustain the trial court's finding. State v. Blankenship, 830 S.W.2d 1, 14 (Mo. banc 1992). Deference is given to the trial court's superior opportunity to assess the credibility of the witness and weigh the evidence. State v. Feltrop, 803 S.W.2d 1, 12 (Mo. banc 1991).
Where a trooper has a legitimate reason for stopping a vehicle and detects the odor of marijuana, the trooper has probable cause to search the vehicle. State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992). Here, the trial court found that Trooper Munden stopped Fuente's vehicle for a legitimate reason--failure to signal and speeding. The court also found that Officer Munden smelled marijuana when Fuente rolled down the window of the Blazer. The trial court and the court of appeals, therefore, determined that Munden had probable cause to search the vehicle.
Fuente argues that because Trooper Munden did not search the vehicle immediately after she first approached it, doubt is cast upon her...
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