State v. Kelly

• Decision Date: 04 November 2003
• Docket Number: No. ED 81563.,ED 81563.
• Citation: 119 S.W.3d 587
• Parties: STATE of Missouri, Respondent, v. Akimrazie K. KELLY, Appellant.
• Court: Missouri Court of Appeals

119 S.W.3d 587

STATE of Missouri, Respondent, v. Akimrazie K. KELLY, Appellant.

No. ED 81563.

Missouri Court of Appeals, Eastern District, Division Five.

November 4, 2003.

William J. Swift, Columbia, MO, for appellant.

John M. Morris, Dora Fichter (co-counsel), Jefferson City, MO, for respondent.

OPINION

GLENN A. NORTON, Presiding Judge.

Akimrazie Kelly appeals the judgment entered on his conviction for possession of a controlled substance. We affirm.

I. BACKGROUND

At 10:45 p.m., three police officers were patrolling for illegal activity on a block of a "known drug area" where they had "had prior dealings." They were driving in an unmarked detective car with an antenna on the back. The officer who was driving wore a police raid jacket with "police" written on the front and "St. Louis Police" written on the back; the officer riding in the backseat also wore a police raid jacket that said "police" "down the side" and "St. Louis Police" on the back. Otherwise, the officers were in plain clothes.

The officers saw Kelly standing alone on the sidewalk in front of a residence; he caught their attention because they had "had prior dealings" with that residence. As they pulled the car up to the curb along side of Kelly, the driver shined a million-watt hand-held spotlight on Kelly. The passenger side of the car was closest to Kelly, and the officer in the backseat was about five feet from him. Kelly looked in the officers' direction and then ran up a double set of stairs that led from the sidewalk up to the residence. The officers testified that this behavior in a known drug area was suspicious, so two of the officers chased after him, while the driver kept the spotlight on Kelly. One of the officers followed Kelly up the steps. He saw Kelly pull his hand out of a pocket and, as he put it towards his mouth, something fell to the ground on the landing between the two sets of stairs. The officer was right behind him at this time and saw that what had fallen was a clear plastic bag containing an off-white rock substance, which the officer believed to be crack cocaine. At that point, the officer told Kelly to stop and grabbed his arm. When Kelly resisted, the other officer struck his leg and Kelly was handcuffed. The officers took the bag containing what turned out to be crack cocaine.

The jury found Kelly guilty of possession of a controlled substance, and Kelly appeals.

II. DISCUSSION

A. Mistrial for Admission of Propensity Evidence

Kelly objected to the testimony that he caught the officers' attention because he was standing in front of a residence with which they had "had prior dealings." Kelly's request for a mistrial on the grounds that this testimony created an inference that Kelly or his family were drug dealers or involved in drug activity was denied. Mistrial is a drastic remedy that should be granted only in extraordinary circumstances. State v. Parker, 886 S.W.2d 908, 922 (Mo. banc 1994). We review the denial of a request for a mistrial for abuse of discretion. State v. Spencer, 50 S.W.3d 869, 876 (Mo.App. E.D.2001). There was no abuse of discretion here.

It is well-settled that evidence of uncharged misconduct is inadmissible for the purpose of showing a defendant's propensity to commit crimes. State v. Driscoll, 55 S.W.3d 350, 354 (Mo. banc 2001). Evidence runs afoul of this rule if it shows that the defendant has committed, been accused of, been convicted of, or definitely been associated with another crime. State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). Vague and indefinite references to misconduct, however, do not warrant mistrial. Id.; see also State v. Willis, 10 S.W.3d 156, 158 (Mo.App. E.D.1999). Unless the reference is clear evidence of the defendant's involvement in another crime, denying a mistrial is not an abuse of discretion. Hornbuckle, 769 S.W.2d at 96; Willis, 10 S.W.3d at 158.

The testimony in this case was not clear evidence of another crime. The police officer's comment about unspecified prior dealings with the residence in front of which Kelly was standing did not refer to any specific criminal act by Kelly or anyone living at that residence and did not definitely associate him with another crime. This reference was too vague to warrant a mistrial. See Willis, 10 S.W.3d at 158 (not abuse to deny mistrial for reference to defendant's gang membership because no reference to specific crime by defendant or gang); State v. Riggins, 987 S.W.2d 457, 462 (Mo.App. W.D.1999) (not abuse to deny mistrial for witness's remark that he knew defendant "from the penitentiary" because it was vague, indefinite and did not show defendant convicted of crime); see also State v. Crooks, 64 S.W.3d 887, 892 (Mo.App. S.D.2002) (not plain error to admit testimony that undercover officer had been to defendant's home with confidential informants who used and sold drugs because it did not implicate defendant in prior criminal activity); State v. Boulware, 923 S.W.2d 402, 406 (Mo.App. W.D.1996) (not plain error to deny mistrial for remark about defendant's parole officer because it was vague, indefinite and did not refer to specific crime).

The cases on which Kelly relies are wholly inapplicable because in each, the conviction was reversed and remanded for a new trial based on the admission of clear evidence that the defendant had been involved in other illegal drug transactions. See State v. Parker, 988 S.W.2d 93, 96 (Mo.App. S.D.1999) (informant testified about other purchases of cocaine from defendant); State v. Dudley, 912 S.W.2d 525, 530 (Mo.App. W.D.1995) (state introduced evidence of defendant's prior conviction for selling codeine); State v. Owen, 753 S.W.2d 114, 114-15 (Mo.App. S.D.1988) (undercover officer testified about other sale of marijuana to defendant).

Point I is denied.

B. Admission of Drugs

In his second point, Kelly contends that the court erred by refusing to suppress admission of the drugs into evidence. He argues that the officers had no probable cause or reasonable suspicion to believe that Kelly was involved in a crime when they seized him and, therefore, the drugs they recovered were the fruits of an illegal seizure in violation of the Fourth Amendment of the United States Constitution. The State argues that the drugs were in plain view and, thus, were properly seized and admitted at trial. We agree with the State.

On review of the trial court's decision not to suppress evidence, we view the facts and any reasonable inferences therefrom in the light most favorable to that decision and disregard any contrary evidence and inferences. State v. Lewis, 17 S.W.3d 168, 170 (Mo.App. E.D.2000). "If the trial court's ruling is plausible in light of the record viewed in its entirety, this court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. Nevertheless, we must consider whether the ruling is a proper application of Fourth Amendment precepts. State v. Stevens, 845 S.W.2d 124, 128 (Mo.App. E.D.1993).

The plain view exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. State v. Rutter, 93 S.W.3d 714, 724 (Mo. banc 2002) (citing Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982)).

[A] person's reasonable expectation of privacy diminishes as to items that are readily visible in an otherwise private location into which police are invited or a public location to which all have access. Under this exception, an officer who is lawfully located in a place from which the object can plainly be seen may seize the object so long as there is probable cause to believe that the object is connected to the crime.

State v. Johnston, 957 S.W.2d 734, 742 (Mo. banc 1997).

There is no question that in this case the bag that fell from Kelly's possession was readily visible, it contained what was clearly contraband and the officer had probable cause to believe that it was connected to the crime of possessing a controlled substance. But the area from which the officer viewed the drugs was not a public street, as the State asserts in its brief, where, of course, the officer would have had a right to be. Rather, the testimony clearly shows that the officer was already at or near the top of the first set of stairs leading from the public sidewalk to the private residence when he observed the drugs that had fallen on the landing. Thus, the issue is whether the officer was lawfully on this private property.

The Fourth Amendment inherently acknowledges the sanctity of one's home and extends protection to the curtilage thereof, including all "out-buildings" connected with or close to the residence, such as garages, sheds, barns, yards and lots. State v. Schweitzer, 879 S.W.2d 594, 596 (Mo.App. E.D.1994); State v. Fierge, 673 S.W.2d 855, 856 (Mo.App. E.D.1984). Whether a particular area is curtilage depends on four factors: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) how the area is used; and (4) the steps taken to protect the area from observation by people passing by. United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); see also Schweitzer, 879 S.W.2d at 596.

While Fourth Amendment protections extend to curtilage areas, that does not mean that police cannot enter a curtilage area without a warrant. State v. Edwards, 36 S.W.3d 22, 26 (Mo.App. W.D.2000). "To the contrary, `it is altogether proper for police with legitimate business to enter the areas of curtilage open to the public.'" Id. (quoting State v. Kriley, 976 S.W.2d 16, 22 (Mo.App. W.D.1998)); see also State v. Akers, 723 S.W.2d 9, 14 (Mo.App. W.D.1986). Whether a particular area of curtilage is deemed open to the public is determined on a case by case basis. Edwa...