State v. McDonald
| Decision Date | 09 December 1999 |
| Citation | 10 S.W.3d 561 |
| Parties | (Mo.App. S.D. 1999) State of Missouri, Respondent v. Emmett R. McDonald, Appellant 22742 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Greene County, Hon. J. Miles Sweeney, Judge
Counsel for Appellant: Gary E. Brotherton
Counsel for Respondent: Shaun J. Mackelprang
Opinion Summary: None
Appellant, charged with trafficking drugs in the second degree, waived trial by jury. The trial court, after hearing evidence on a motion to suppress filed by Appellant, denied the motion. Later, without further evidence, the trial court entered judgment declaring Appellant guilty of the offense charged and imposing a ten-year prison sentence.1
Appellant brings this appeal from that judgment. His sole point relied on reads:
.
Inasmuch as Appellant's point relied on refers to him as "Emmett," this opinion, to avoid confusion, shall use that desig-nation.
On January 26, 1993, Carl L. Hicks, a special agent of the Drug Enforcement Administration, arrested Emmett on a Greyhound bus in Springfield after discovering "[s]ix kilograms of cocaine" in a bag beneath the seat Emmett was occupying.
The prosecutor charged Emmett with violating section 195.223.2(2), RSMo Cum. Supp. 1992. The information alleged that Emmett:
" . . . possessed, had under his control, and brought in to [sic] the State of Missouri 450 grams or more of a compound, mixture or preperation [sic] containing a detectable amount of cocaine salts or their optical and geometric isomers and salts of isomers, knowing or conciously [sic] disregarding a substantial and unjus-tifiable risk that the compound, mixture or preparation contained the aforementioned controlled substance."
Emmett, through retained counsel, filed a "Motion to Quash the Defendants [sic] Arrest and Suppress Evidence." The motion averred Emmett's arrest and the seizure of the cocaine violated sundry rights conferred by the Constitution of the United States and the Constitution of Missouri.
On March 24, 1995, the trial court conducted a hearing on the motion.2 Emmett appeared in person with two lawyers.3 One of them announced:
"[W]e would like for the Court to consider this as a trial and motion to suppress since the only real issue is whether there . . . is a suppressible issue in this case."
Emmett's other lawyer said:
The trial court articulated its understanding of counsels' proposal thus:
One of Emmett's lawyers replied: "That's the way I'd like to go, sir."
The trial court thereupon permitted Emmett to waive trial by jury per Rule 27.01(b), Missouri Rules of Criminal Procedure (1995), and heard evidence on the motion to suppress. The facts set forth in the ensuing twelve paragraphs are gleaned from that evidence.
1. On January 26, 1993, a Greyhound bus en route from Los Angeles to St. Louis stopped in Springfield for a "lunch break." Agent Hicks and detective Dana Carrington of the Springfield Police Department were awaiting it. When it stopped, Hicks and Carrington "watched [some of] the passengers get off . . . to see if there were any passengers that [they] wanted to . . . inter-view."
2. After those passengers exited, Hicks and Carrington boarded the bus. Hicks talked to a couple of passengers at the front, while Carrington walked to the back and began talking to passengers there. Emmett, one of the passengers who had remained on the bus, was seated "about halfway back." Hicks noticed Emmett was "intently watching the interviews."
3. Hicks approached Emmett and "had a conversation with him." Emmett said he boarded the bus in Hollywood and was re-turning to his home in Dayton, Ohio. However, when Hicks asked to see Emmett's ticket, Emmett produced one showing he boarded at El Monte, California. Hicks, formerly assigned to the Los An-geles area, was aware that "narcotics traffickers" in the Los Angeles area board eastbound buses in El Monte (ten miles east of Los Angeles) so "they don't have to go through the main bus sta-tion in downtown Los Angeles."
4. Describing Emmett's demeanor, Hicks stated:
5. As the conversation progressed, Hicks noticed "a green travel bag" beneath the seat occupied by Emmett. The bag "had a shirt draped over it and . . . through the handles." Carrington asked Emmett who the bag "belonged to."
6. Emmett replied it did not belong to him and he "did not know who it belonged to."
7. Hicks found Emmett's reply unusual, as Emmett "had his shoes off at that time and his shoes were propped up on the end of the bag." Hicks picked up the bag, placed it on the seat next to Emmett, and asked Emmett if he (Hicks) could search it for drugs. Hicks told Emmett that if the bag belonged to him, he did not have to consent to the search.
8. According to Hicks, Emmett said, "I don't want you to search the bag."
9. Hicks found that reply unusual because Emmett had already denied ownership of the bag and said he did not know who it be-longed to. Hicks thereupon told Emmett he would be "briefly detained" because the officers "were going to summon the drug dog to examine the bag."
10. In response to that announcement, Emmett said: However, added Emmett, "I don't want you to search it while it's sitting in the seat next to me."
11. Hicks moved the bag from the seat to the aisle, opened it, and found the cocaine. Hicks thereupon arrested Emmett. Asked what occurred next, Hicks answered, "[Emmett] put his shoes on and grabbed his shirt off of the green travel bag, pulling it through the handles, and walked off the bus with . . . Carring- ton."
12. Hicks then interviewed passengers seated near Emmett and learned Emmett "had the seat all to himself . . . [n]o one was sitting next to him."
On June 28, 1996, the trial court denied the motion to sup-press.4
The next pertinent activity of record is a docket entry October 26, 1998, stating, inter alia: 5
On December 18, 1998, Emmett appeared in the trial court with appointed counsel. The trial court announced:
After comments by Emmett, his lawyer, and the prosecutor regarding sentence, the trial court pronounced sentence as re-ported in the first paragraph of this opinion.
Emmett's point relied on (quoted earlier) makes two attacks on his conviction. The first is that the trial court never found the State proved Emmett guilty beyond a reasonable doubt, but instead concluded that the denial of the motion to suppress had the "practical effect" of a conviction.
In support of that premise, Emmett points out that to pre-vail on the suppression motion, the State "merely had to persuade [the trial court] by a preponderance of the...
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