State v. Metz

• Decision Date: 13 February 2001
• Citation: 43 S.W.3d 374
• Parties: (Mo.App. W.D. 2001) . State of Missouri, Respondent, v. Conrad E. Metz, Appellant. WD57486 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

43 S.W.3d 374 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Conrad E. Metz, Appellant.

WD57486

Missouri Court of Appeals Western District

Handdown Date: 02/13/2001

Appeal From: Circuit Court of Clay County, Hon. Larry D. Harman

Counsel for Appellant: Andrew A. Schroeder

Counsel for Respondent: Philip M. Koppe

Opinion Summary: Conrad Metz appeals from his convictions of Count I, possession of a controlled substance, methamphetamine ("meth"), section 195.202 RSMo 1994, and Counts II and III, attempted manufacture of a controlled substance, sections 195.211 and 564.011 RSMo 1994.

Mr. Metz raises two points on appeal. First, he alleges that the trial court erred in denying his motion for judgment of acquittal at the close of all of the evidence and in submitting Instruction No. 6 because the evidence was insufficient to prove beyond a reasonable doubt as to Count II: (1) that he possessed the recovered materials comprising the meth lab, and (2) that he had taken a substantial step towards the commission of the crime of manufacturing meth. Second, he alleges that the trial court erred in overruling his motion to suppress and in subsequently admitting evidence seized from his home because when he consented to the search of his home, he was "seized" but not given his Miranda warnings, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

AFFIRMED.

Division I holds: (1) The evidence was sufficient to show that Mr. Metz "constructively possessed," as the term is used in section 195.010 (32) RSMo 1994, items used in the ephedrine reduction method of manufacturing meth. The evidence was likewise sufficient to show that he took a "substantial step," as the term is used in section 564.011.1 RSMo 1994, toward the attempted manufacturing of meth. Thus, the State produced sufficient evidence from which a jury could find him guilty on Count II of the attempted manufacture of a controlled substance, meth, section 195.211.

(2) A police officer's request for consent to search is not a "custodial interrogation," as that term is used in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because consenting to a search is not a self-incriminating statement under the Fifth Amendment. Thus, the officer's failure to read Mr. Metz his Miranda rights after he had been arrested on an outstanding warrant and prior to obtaining his consent to search his home did not vitiate the consent.

Opinion Author: Victor C. Howard, Judge

Opinion Vote: AFFIRMED. Breckenridge, P.J., and Ulrich, J., concur.

Opinion:

Defendant Conrad Metz (hereinafter referred to as "Mr. Metz") appeals from the judgment entered following his convictions by a jury in the Circuit Court of Clay County for Count I, possession of a controlled substance, methamphetamine, section 195.202 RSMo 1994, and Counts II and III, attempted manufacture of a controlled substance, sections 195.211 and 564.011 RSMo 1994.

Mr. Metz raises two points on appeal. First, he alleges that the trial court erred in denying his motion for judgment of acquittal at the close of all of the evidence and in submitting Instruction No. 6. He claims that the court erred because the evidence was insufficient to prove beyond a reasonable doubt as to Count II: (1) that he possessed the recovered materials comprising the meth lab, and (2) that he had taken a substantial step towards the commission of the crime of manufacturing meth. Second, Mr. Metz alleges that the trial court erred in overruling his motion to suppress and in subsequently admitting evidence seized from his home because when he consented to the search of his home, he was "seized" but not given his Miranda¹ warnings.

We affirm.

Facts

In April of 1997, police were investigating Mr. Metz's home for suspicion of narcotics activity. Several hours after the surveillance was completed, officers on patrol in the area pulled over Mr. Metz's vehicle for failure to signal before turning. Mr. Metz pulled his vehicle over into a driveway (later determined to be his own) and immediately exited the car, taking several steps toward a camouflaged truck parked in the driveway. The officer observed that before Mr. Metz went behind the truck, he motioned "like maybe he was tossing" something. Mr. Metz was arrested after a computer check showed that he had an outstanding bench warrant for his arrest. The officers then located, on the ground in the area where Mr. Metz had run toward the truck, four syringes and a small plastic film container. The container had a "yellowish, unknown type" of liquid with small white crystals in it. The items appeared to have been recently placed there. Mr. Metz admitted the items were his and said they were for his diabetes. He later denied the items were his, but he admitted that he had used speed, including methamphetamines (hereinafter referred to as "meth"), for twenty years. Lab tests later confirmed the presence of meth in the film container.

When the officers informed Mr. Metz that his house had been under surveillance and asked him to consent to a search of the residence, he first orally agreed and then signed a written consent to search his house. The officers found no plain view signs of illegal activity on the first, second and third floors of the house. They then exited into the garage, where there was a chemical odor consistent with meth production. From the garage, they entered the basement through a separate door. In the basement, the officers located an old refrigerator and freezer, a washer and dryer, and a room separated by a hanging curtain. The officers learned that the curtained-off room in the basement belonged to Mr. Metz's son, Carl. Near the washer and dryer, officers observed glassware, tubing, kitty litter, muriatic acid and a two-burner electric hot plate. In the freezer was a jar with a two-layer liquid believed to be acetone inside (commonly referred to as a "freezer pull" in meth production). Although the officers could tell that a meth "cook" had recently taken place, they could not determine precisely when. When they searched Carl's truck in the driveway, they found a five-gallon container of acetone, a one-gallon container of hydrochloric acid, and a meth recipe near Carl's identification card.

Carl arrived at the house as the officers were conducting their search. He immediately objected to the search. Thus, the officers sought a search warrant before searching his "room" in the basement. After Mr. Metz, Carl and Carl's girlfriend Lori, who was also living in Mr. Metz's home, were taken into custody and Mr. Metz's bedridden father was taken to the hospital, the police returned to Mr. Metz's home with a search warrant. Additional items used to manufacture meth were then found in the basement. In addition, an electronic scale and Ziploc baggies were found in Mr. Metz's bedroom.

No charges were filed in 1997, but the Metz home remained under investigation. In February of 1999, almost two years after the aforementioned search, a detective performed a "car check" on a car leaving Mr. Metz's residence. As a result of the stop, the detective seized red phosphorous, black iodine, and a white powder -- items commonly known to be used in meth production. The police then did a "trash pull" at the Metz home. In the trash, they found additional items indicative of meth manufacturing in addition to a bill and a deposit slip with Mr. Metz's name on them. The officers then obtained another search warrant. The search again resulted in the discovery of items consistent with meth production. Carl was in jail at the time, so only Mr. Metz and Lori were present. Mr. Metz's right thumbprint was found on a Pyrex dish located in the basement with the meth materials. No meth (in its final form) was found in the house. Mr. Metz again denied knowledge of a meth lab in the basement.Mr. Metz was subsequently charged with possession of a controlled substance, methamphetamine, and two counts of attempted manufacture of a controlled substance. After a hearing on his pretrial motion to suppress physical evidence and statements, the trial court granted his motion to suppress Mr. Metz's statements that he made after his arrest to Sergeant Keith Trader, because Mr. Metz "was not given his Miranda warnings prior to Sergeant Trader's interrogation of [Mr. Metz]." The motion was denied in all other respects. A jury subsequently convicted Mr. Metz as charged. This appeal followed.

Point I: Insufficient Evidence

Mr. Metz's first point relates to his conviction on Count II² of attempted manufacture of meth, section 195.211 RSMo 1994³ and section 564.011. Mr. Metz argues that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence and in submitting Instruction No. 6. Specifically, he alleges that the evidence was insufficient to prove beyond a reasonable doubt: (1) that Mr. Metz possessed the recovered materials comprising the meth lab, and (2) that Mr. Metz had taken a substantial step towards the commission of the crime of manufacturing meth. We address these sub-points separately.

(1) Possession

A charge of attempt to manufacture a controlled substance, meth, under sections 564.011 and 195.211 requires the State to prove that Mr. Metz, with the purpose of manufacturing a controlled substance, did any act that was a substantial step toward the commission of that offense. State v. Withrow, 8 S.W.3d 75, 80 (Mo. banc 1999). As in Withrow, the State's theory set forth in the Information filed against Mr. Metz was that Mr. Metz attempted to manufacture a controlled substance "by being in possession of items used in the ephedrine reduction method of manufacturing methamphetamine."

Section 195.211.1 states that "it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute,...