State v. McCleary
| Decision Date | 11 March 2014 |
| Docket Number | No. ED 98906.,ED 98906. |
| Citation | 423 S.W.3d 888 |
| Parties | STATE of Missouri, Respondent, v. George Dewey McCLEARY, III, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
David M. James, St. Peters, MO, for appellant.
Chris Koster, Atty. Gen., Timothy A. Blackwell, Asst. Atty. Gen., Jefferson City, MO, for respondent.
The defendant, George McCleary, appeals the judgment entered by the Circuit Court of Montgomery County following his conviction by a jury of attempt to manufacture a controlled substance, namely methamphetamine, in violation of section 195.211 RSMo. (Supp.2012), for which the trial court sentenced him to 15 years of incarceration. The defendant challenges the trial court's denial of his motion to suppress physical evidence and incriminating statements, and the trial court's permitting the State to question defense witness Mary Mehrle about a prior municipal shoplifting violation. We affirm the trial court's judgment.
On March 9, 2010, Jeff Doerr, a detective with the Warren County Sheriff's Department, was conducting surveillance across the street from a Walgreen's store in Warrenton to see if people entering the store might be reasonably suspected of involvement with methamphetamine. He was looking for those he either previously had contact with in connection with methamphetamine or those who had the distinctive appearance of a methamphetamine user. Detective Doerr observed the defendant enter and exit the store, and return to his truck with a white bag in hand. Further investigation revealed that the truck the defendant was driving was registered to a person known to be associated with methamphetamine manufacturing and who shared the defendant's last name.
Detective Welschmeyer of the Warren County Sheriff's Department then observed the truck enter a parking lot for a strip mall several blocks south of Walgreen's. Detective Doerr arrived to watch the parking lot and observed the defendant and Mary Mehrle leaving the Dollar General store with a yellow bag. Detective Doerr then observed the defendant drive to Chic Lumber where he and Mehrle exited the store with a brown bag and drove east toward Wright City. After receiving a call from Detective Doerr, Lieutenant Schoenfeld inquired at Chic Lumber and learned that the defendant had bought plastic tubing. Knowing that persons involved with methamphetamine commonly go from store to store to purchase supplies for manufacturing the drug, Detective Doerr followed the defendant's truck as it proceeded toward Wright City. Detective Doerr observed the defendant make a left turn without using his turn signal, and requested that Detective Welschmeyer, who was following Detective Doerr in a marked patrol car, make the traffic stop.
Detective Welschmeyer also observed the defendant make a left turn without signaling, and initiated a traffic stop. The State presented at trial the audio recording of the traffic stop and Detective Welschmeyer's exchange with the defendant. Within the first two minutes of the stop, Detective Welschmeyer asked the defendant and Mehrle what they were doing that day, took the identification of both, and asked whether there was anything in the truck that he needed to know about, such as weapons or drugs. The defendant replied that there was not. At about two minutes into the stop, Detective Welschmeyer requested a record check of the defendant and Mehrle. At about three minutes into the stop, Detective Welschmeyeragain asked whether there was anything in the truck that he needed to know about. Detective Welschmeyer asked if the defendant had a problem with him taking a look in the truck, and the defendant replied “[n]o, there's nothing in there” and a few seconds later, “[n]o drugs whatsoever.” About thirty seconds later, the defendant gave Detective Welschmeyer consent to search his person. All of this occurred within the first four minutes of the stop.
In the truck, Detectives Welschmeyer and Doerr found a Dollar General bag containing Kingsford lighter fluid, a brown bag containing plastic tubing, and a Walgreen's bag containing instant cold packs. In plain view on the front seat was a piece of loose-leaf paper containing a list of several items, namely “Kingsford,” “fire,” lye, batteries, salt, and cold packs.1 Detective Doerr recognized the list as a recipe for methamphetamine that was missing only the pseudoephedrine, and the defendant had in his possession three of the items commonly associated with methamphetamine production—namely the lighter fluid, tubing, and cold packs.
At about six and one-half minutes into the stop, Detective Welschmeyer placed the defendant under arrest and read him his Miranda warnings.2 The results of the record checks came in about eight minutes into the stop. The defendant told the detectives that he had just been released from prison for manufacturing methamphetamine, was in need of money, and would not be paid until the end of the week. He explained that he had made a bad decision in agreeing to purchase the items on the list in return for payment. The defendant showed the officers the residence where he had agreed to deliver the items. When the officers later returned to the residence, they found an anhydrous ammonia generator made from cold packs.
The State charged the defendant as a persistent drug offender with attempt to manufacture a controlled substance, specifically methamphetamine. The defendant filed a motion to suppress the physical evidence seized and any incriminating statements he made. The trial court denied the defendant's motion after an evidentiary hearing. The defendant also filed a motion in limine which sought, inter alia, to prevent the State from questioning defense witness Mary Mehrle about a municipal shoplifting violation. The trial court granted this portion of the defendant's motion in limine unless Mehrle opened the door by testifying to the effect that she had never been arrested or been in trouble.
At trial, the defendant's girlfriend, Mary Mehrle, testified as the only defense witness. She explained that she bought lighter fluid because she planned to barbecue that evening, and she bought plastic tubing for an aquarium she had just purchased. Mehrle testified that the defendant told her he was going into Walgreen's to get something for his knee pain. She then described the traffic stop and how the lieutenant told her over and over to tell the officers the real purpose of the plastic tubing, and how she was handcuffed and placed in the patrol car. Mehrle disclosed that she had a DWI and a misdemeanor trespassing conviction.
On cross-examination, the State challenged Mehrle's recollection of the events. The State then asked Mehrle if she had taken notes or made audio recordings during the incident, and Mehrle replied that she had not. On redirect, the defense questioned Mehrle about the significance of the events and her memory of them.
Q. Miss Mehrle, was this the only event in your life that happened like this, that you had this kind of experience being stopped and being interrogated by the police and have your boy friend [sic] hauled off to jail?
A. Yes.
Q. Would an event like that tend to stick in your memory?
A. Very much.
Q. You weren't involved in a bunch of other cases making a bunch of other arrests of other people; were you?
A. No.
Q. That's very easy for you to remember what happened?
A. Very, yeah. It sticks there.
At a sidebar, the State contended that Mehrle had opened the door to cross-examine her about her municipal shoplifting violation because she The defendant argued that the door had not been opened, that the State's characterization of the question and the witness's response was neither what he had asked nor what the witness had testified. The trial court responded that The trial court overruled the defendant's objection and allowed the State to cross-examine Mehrle on that subject. The State asked Mehrle if she remembered “being detained for stealing staples, trash bags, trash bags [sic], pseudoephedrine, shirts[,] and baby wipes” from Walmart. The State then elicited evidence that the police gave Mehrle a ticket for the stealing, and that she pleaded guilty to the offense. The defendant did not specifically object to the State's reference to pseudoephedrine in the cross-examination. The State agreed that it would not mention the pseudoephedrine shoplifted from Walmart in its closing argument. However, we do not have a transcript of the State's closing argument in the record before us.
The jury found the defendant guilty of attempt to manufacture a controlled substance, namely methamphetamine. The trial court sentenced the defendant as a persistent drug offender to 15 years of incarceration. The defendant appeals.
In two points on appeal, the defendant challenges the trial court's denial of his motion to suppress physical evidence and incriminating statements he made during the traffic stop and the trial court's permitting the State to question defense witness Mehrle about a prior municipal shoplifting violation.
In his first point, the defendant asserts the trial court erred in denying his motion to suppress physical evidence and incriminating statements he made during the traffic stop. He argues that the officers illegally expanded the scope of their initial traffic investigation without reasonable suspicion that he was committing or had committed a crime.
We review a trial court's ruling on a motion to suppress in the light most favorable to the ruling, and we defer to the trial court's determinations of credibility. State v. Stover, 388 S.W.3d 138, 149...
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