State v. Pacheco

• Decision Date: 17 April 2003
• Docket Number: No. 24625.,24625.
• Parties: STATE of Missouri, Respondent, v. Crystal PACHECO, Appellant.
• Court: Missouri Court of Appeals

Page 913

101 S.W.3d 913

STATE of Missouri, Respondent, v. Crystal PACHECO, Appellant.

No. 24625.

Missouri Court of Appeals, Southern District, Division One.

April 17, 2003.

COPYRIGHT MATERIAL OMITTED

Emmett D. Queener, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Mazza Follett, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant, Crystal Pacheco, ("Defendant") appeals from her conviction and sentence after a jury found her guilty of second-degree murder, § 565.021; driving while intoxicated, § 577.010 and § 577.023; leaving the scene of an accident, § 577.060; and driving with a revoked license, § 302.321.¹ The trial court imposed respective concurrent sentences of thirty years, five years, and two years in the Missouri Department of Corrections, and one year in the Greene County jail. Defendant raises two points of trial court error. As more fully explained below, in her first point Defendant contends the trial court erred when it denied her motion to suppress evidence seized without a warrant together with the results of the subsequent laboratory examination of that evidence. In her second point, Defendant posits trial court error on the basis of improperly admitted testimony from an unavailable witness whom Defendant could not effectively cross-examine. We affirm.

"We review the evidence presented at trial in the light most favorable to the verdict." State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999).

The record shows that Ms. Walci Cory worked as a dietary aide at the Springfield Residential Center. On September 23, 2000, Ms. Cory and co-worker Ms. Sandra Fisher timed out at 8:56 p.m. and waited outside their workplace for a member of Ms. Cory's family to pick her up. No one showed up, however, and after a brief wait Ms. Cory elected to walk home, proceeding north along West Avenue.

Ms. Cory failed to arrive home, and the next morning a family member requested the police to search the route between Ms. Cory's workplace and home. Police officers discovered her body in a ditch at the 800 block of South West Avenue, approximately four or five blocks from her workplace and in the proximity of Ballpark Tavern. Ms. Cory had various injuries, tears in the back-left part of her shirt, and blue paint markings located below the tears. Sergeant Randall Wayne Latch and other police officers investigated the scene and uncovered various pieces of evidence, including: blue paint chips from the back of Ms. Cory's shirt and immediate surrounding area; a piece of plastic resembling part of an automobile grill assembly; pieces of silver plastic; a yellow piece of plastic which resembled a vehicle's reflector; and a part from a headlight assembly which had manufacturer's numbers and a marking which indicated a Ford vehicle. Based on this evidence, Sgt. Latch concluded that Ms. Cory was struck from behind by a blue Ford. Later that day, Sgt. Latch observed a Ford van with a grill assembly similar to that found at the accident scene, and concluded that the vehicle involved in the accident was a Ford van. Sgt. Latch and other police officers commenced a search for a blue Ford van with front-end damage, and a canvass of the neighborhood revealed such a vehicle parked in Defendant's driveway, located just north of where Ms. Cory's body was discovered.

Sergeant Latch and several other police officers proceeded to Defendant's house, where a blue Ford van was parked in the driveway at the front of the house. The officers observed that the van had damage to the hood and front-right fender, the headlight assembly, and reflector. Defendant responded to the officers' knock at the door. After Sgt. Latch read Defendant her Miranda rights, she spoke with the officers.² Defendant stated that she did not know how the van was damaged, that other family members who drove the van were out of town for the weekend, and that she had eaten dinner out with a friend the previous night.

In a subsequent videotaped interview at the police station, Defendant waived her Miranda rights and provided additional information. Defendant admitted that she lied about having dinner with a friend the previous night, and stated that, instead, she had consumed alcohol at her home from approximately 4:30 p.m. until between 8:50 and 9:10 p.m., at which time she walked to "Ballpark Tavern."³ Defendant stated that she remained at the tavern until between 12:00 a.m. and 1:00 a.m., when she and another patron returned to her house.⁴ Defendant stated that she had but one set of keys to the van and that she was the only person with access to the van at the time the incident occurred. Defendant also stated that she was "highly intoxicated" the previous evening but denied driving the van. The police arrested Defendant at the conclusion of the interrogation.

Sgt. Latch remained with Defendant's van during Defendant's interrogation at the police station. Sgt. Latch testified that he collected loose paint chips and a piece of "Bondo" (variously described as a "body filler" for a vehicle or "body repair material") from the van to prevent the loss of important evidence. Sgt. Latch also called a tow truck and had the van towed to the police garage, where officers took photographs of the damage.⁵ Latch obtained a warrant to search the van the following day. Afterwards, the Missouri State Highway Patrol Crime Laboratory conducted tests on the van and other seized evidence, and concluded that the paint chips from the van were similar to those recovered from Ms. Cory's body.

During their investigation, police also interviewed Mr. Terry Cook, Defendant's next door neighbor. Mr. Cook provided a written statement to officers which indicated that Defendant's van pulled into his driveway at approximately 9:30 p.m. on the night of the accident and parked bumperto-bumper with his own car, but that after he yelled, the driver re-entered the van and drove it to Defendant's driveway approximately 40 feet further down the road. Although Mr. Cook did not refer to the driver by name, Officer Bryan Crumm testified that when providing the statement Cook referred to the driver as his "nextdoor neighbor." The record shows that Defendant lived next door to Mr. Cook.

Mr. Cook also testified at a preliminary hearing prior to trial, at which time he specifically identified Defendant as the driver of the van. Mr. Cook also placed the time of the event at sometime after 9:00 p.m., and added that while he had not observed the damage to the van he did notice a wire hanging out of the left headlight. Defendant and her counsel were present at the hearing and Defendant's counsel cross-examined Mr. Cook about his observations.

Defendant raises two points of trial court error. In her first point Defendant contends the trial court erred when it denied her motion to suppress evidence seized from her van and the results of the subsequent laboratory examination of that evidence, all in violation of her right to due process of law and to be free from an unreasonable search and seizure as guaranteed by the United States Constitution and the Missouri Constitution. In like manner, in her second point, Defendant maintains she was denied her rights to due process of law and the right to confront and effectively cross-examine witnesses against her when the trial court improperly admitted the preliminary hearing testimony of Mr. Cook, which identified her as the driver of the van at the approximate time of the accident.

As previously set out, in her first point Defendant asserts the trial court erred when it denied her motion to suppress and admitted certain evidence at trial. Specifically, Defendant sought to suppress evidence seized from her van and the results of the subsequent laboratory examination of that evidence. Defendant argues that the officers lacked a valid search warrant and that no valid exception existed to the warrant requirement.

In reviewing the trial court's denial of Defendant's motion to suppress, "`we do not substitute our discretion for that of the trial court and determine only whether there was sufficient evidence to support the trial court's ruling.'" State v. Rowland, 73 S.W.3d 818, 821 (Mo.App.2002) (quoting State v. Peterson, 964 S.W.2d 854, 856 (Mo.App.1998)). We reverse the trial court's ruling on a motion to suppress only if that ruling is clearly erroneous, which occurs when we are left with a definite and firm belief a mistake has been made. Rowland, 73 S.W.3d at 821. We view all evidence and any reasonable inferences therefrom in the light most favorable to the trial court's ruling, and we are free to disregard evidence and inferences contrary to that ruling. Id. We also give due deference to the trial judge, who is in a superior position to assess the credibility of witnesses and the weight of the evidence. Id. "`Although we review the facts under a clearly erroneous standard, the issue of whether the Fourth Amendment has been violated is a question of law which we review de novo.'" State v. Potter, 72 S.W.3d 307, 313 (Mo.App.2002) (quoting State v. Middleton, 43 S.W.3d 881, 884 (Mo.App.2001)).

"The Fourth Amendment protects an individual only from `unreasonable' searches and seizures [and] Missouri's constitutional protection is co-extensive with that provided under the United States Constitution." State v. Adams, 51 S.W.3d 94, 98 (Mo.App. 2001); see also State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999), cert. denied, 528 U.S. 1009, 120 S.Ct. 508, 145 L.Ed.2d 393 (1999). As a general rule, a search that is conducted outside of the judicial process and without prior approval by a judge or magistrate is per se unreasonable. Adams, 51 S.W.3d at 98. However, the state may introduce evidence gathered from such a search if it proves that the search falls within one of the exceptions to the warrant requirement. Id.

Defendant contends that the seizure of the van and the paint chips and other items seized from...