State v. Pena, WD

• Decision Date: 27 February 1990
• Docket Number: No. WD,WD
• Citation: 784 S.W.2d 883
• Parties: STATE of Missouri, Respondent, v. Jose G. PENA, Appellant. 41339.
• Court: Missouri Court of Appeals

Page 883

784 S.W.2d 883

STATE of Missouri, Respondent, v. Jose G. PENA, Appellant.

No. WD 41339.

Missouri Court of Appeals,

Western District.

Feb. 27, 1990.

Patrick J. Eng, Christopher S. Kelly, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and LOWENSTEIN and BERREY, JJ.

LOWENSTEIN, Judge.

This appeal is from a jury conviction for felony possession of a controlled substance, § 195.020, RSMo 1986, for which appellant Jose G. Pena was sentenced to ten years imprisonment. Pena sets forth six points of trial court error: 1) error in overruling his motion to suppress statements and physical evidence; 2) violation of his Miranda rights; 3) error in not allowing Pena to question Trooper Chitwood regarding the nature of past traffic stops to show the stopping of Pena's vehicle was without probable cause and as a pretext for searching the vehicle; 4) error in overruling Pena's objection during voir dire concerning the prosecutor's comment that drug abuse is a major problem in our society; 5) error in allowing prosecutor to argue during closing argument that Pena was a "drug dealer" and "drug courier;" and 6) error in allowing prosecutor to argue during rebuttal part of closing argument a certain term of years as punishment where reference to such term of years was not made in first half of closing argument. The judgment of conviction is affirmed, however, the case is remanded for re-sentencing.

As sufficiency of the evidence is not in dispute, the facts viewed in the light most favorable to the verdict is as follows: On the night of March 3, 1988 Missouri Highway Patrol Trooper Martin Chitwood was patrolling Interstate 70 in Boone County. He was eastbound when he noticed a westbound van which appeared to be exceeding the speed limit. Trooper Chitwood crossed the median, paced the van and determined it was traveling 73 miles per hour. He also observed the van weaving in and out of its lane. He stopped the van and went up to the drivers window where he saw Pena, the driver, and another individual in the front passenger seat.

Trooper Chitwood saw a small plastic container sitting on the dashboard of the van filled with a white powdery substance. Pena went with Chitwood into the patrol car where the trooper noticed Pena's eyes were bloodshot and his face was flushed. Pena was advised he had been stopped for speeding and weaving.

At this time, the trooper asked Pena for his consent to search the van. Pena agreed and filled out a consent to search form. During the search, Chitwood seized the container on the dashboard plus a white plastic bag found in the middle of the floor of the van behind the driver's and passenger's seats. Inside this bag were five plastic bags each containing the same amount of a white powdery substance, which was later identified as cocaine.

Chitwood placed Pena under arrest for possession of cocaine, handcuffed him and advised him of his Miranda rights.

Pena told the trooper he was an addict and had been using cocaine for several years. He also stated all the cocaine in the van was his and did not belong to the passenger. Pena's trial testimony was to the effect he admitted the cocaine was his, a) because he thought Chitwood was going to take it and then let Pena go and, b) because he was scared. It was determined the plastic bags contained 137.23 grams of cocaine, however, the container on the dashboard contained table salt.

Pena first claims trial court error in overruling his motion to suppress statements he made to and evidence found by Trooper Chitwood in that the trooper lacked cause to stop the van and because the consent given to search was not given voluntarily.

The standard of review is limited to whether the trial court's decision is supported by substantial evidence, State v. Craig, 759 S.W.2d 377, 378 (Mo.App.1988), stating all facts and reasonable inferences favorably to the order challenged on appeal and disregarding contrary evidence and inferences if the evidence is otherwise sufficient to sustain the trial court's finding. State v. McQuinn, 761 S.W.2d 668, 669 (Mo.App.1988); State v. Singer, 719 S.W.2d 818, 821 (Mo.App.1986).

In the instant case, the trial court deemed Trooper Chitwood's testimony sufficient to find probable cause to stop Pena's vehicle. The trooper testified that, after pacing the van, he determined it to be traveling 73 miles per hour and also observed it weaving off the roadway then back across the center line. This testimony was sufficient for a finding of probable cause. Singer, supra.

The second portion of Pena's first point contends that, even if the stop was valid, the search was not because his consent was not voluntarily given.

A trial court has wide latitude in determining the admissibility of evidence and, absent a clear abuse of discretion, an appellate court will not interfere with this determination. State v. Clark, 711 S.W.2d 928, 932 (Mo.App.1986). No abuse can be shown in this case. The trial court relying on Chitwood's testimony, as it had a right to do, found a valid consent. He testified that after Pena was in the patrol car, he asked for consent to search the vehicle. There was no coercion used, and Pena so agreed in writing. Moreover, Pena testified he voluntarily consented to the search of the van. The fact that Pena later contended Trooper Chitwood told him he had to sign the consent form, that he signed the form after the cocaine was discovered, and that he was scared at the time of the search holds no weight, the court was within its power to disregard this contrary evidence. Point one is denied.

The second point on appeal contends Pena's consent to search was invalid because it was obtained through custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This point raises two questions: 1) was Miranda applicable, and 2) was there an interrogation? A negative response to either question will require denial of this point.

First, in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), it was held "persons temporarily detained pursuant to [traffic stops] are not 'in custody' for the purposes of Miranda." 468 U.S. at 440, 104 S.Ct. at 3150. "[T]he safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a degree associated with formal arrest." Id. (Citation omitted). Only if detention pursuant to a traffic stop renders a motorist "in custody" will he be entitled to the full protection prescribed by Miranda. Id.

In the present case, this court finds Pena was not in custody when consent was given, therefore, Miranda does not apply. Although Pena testified Trooper Chitwood had handcuffed him prior to asking for consent, the trial court chose to instead believe the trooper's testimony--that the stop was a typical traffic violation stop, that Pena was not handcuffed at the time consent was given, and finally, Pena's freedom was not curtailed to any degree associated with formal arrest. This finding was supported by substantial evidence.

Second, even if Miranda was applicable, it is doubtful there was interrogation. "Many courts have held that a request for consent to search is not interrogation for Miranda purposes because consent is not an incriminating statement." (Citations omitted). State v. White, 770 S.W.2d 357, 359 (Mo.App.1989). Moreover, "a Miranda violation in and of itself would not vitiate the consent to search if otherwise voluntarily given." Id. at 360. Point two is denied.

Pena's third point asking for reversal involves the sustaining of the prosecutor's objection, at the evidentiary hearing, to defense counsel's questions of Trooper Chitwood "regarding the nature of past traffic stops in that such evidence would have been that a substantial number of [the trooper's] traffic stops are not for probable cause but rather are stops made because the drivers fit a drug profile."

Initially, the court must dispose of the contention that the trial court was not apprised of the nature of this evidence. Although the court sustained the prosecutor's objection at the hearing, defense counsel made no effort to make an offer of proof. However, at trial defense counsel did make an offer of proof consisting of questioning Trooper Chitwood concerning his proclivity to stop out of state vehicles driven by persons of foreign descent. After the offer, the court "adhere[d] to the ruling that it previously made, that the motion to suppress is overruled."

A trial judge has wide latitude in ruling on evidence adduced by the parties at trial, Clark, at 932. Absent clear abuse, an appellate court will not interfere with the trial court's ruling on the admission or exclusion of evidence. Id. During the offer of proof, the following questioning of Trooper Chitwood occurred:

Q. Do you know approximately or exactly how many stops that you have made that have resulted in arrests for possession of narcotics?

A. This year or?

Q. Whatever estimate you can give me and just tell me the time frame.

A. Oh, I made approximately 55, 60 arrests in the last year and a half to two years.

* * * * * *

Q. Do you have any idea how many of those stops involved cars with out-of-state license plates?

A. No, I wouldn't. I have no idea. I don't keep statistics on it.

* * * * * *

Q. Would you say that more than ten of those involved out-of-state license plates?

A. Yes, probably so.

Q. More than 20?

A. Probably so.

Q. More than 30?

A. Probably so.

Q. More than 40?

A. No, I wouldn't say more than 40, no.

* * * * * *

Q. Do you have any approximation of how many of the drivers were of a foreign descent, meaning not American?

A. Well, if we go on the 10, 20, 30 basis again, I would say less than, less than 20, uh-huh.

On cross-examination, the following questions were asked:

Q. Trooper Chitwood, do you base your...