State v. Pennell

• Decision Date: 30 April 2013
• Docket Number: No. ED 97678.,ED 97678.
• Parties: STATE of Missouri, Respondent, v. Michael PENNELL, Appellant.
• Court: Missouri Court of Appeals

399 S.W.3d 81

STATE of Missouri, Respondent,

v.Michael PENNELL, Appellant.

No. ED 97678.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 30, 2013.

Alexa Irene Pearson, Columbia, MO, for appellant.

Chris Koster, Jessica P. Meredith, Jefferson City, MO, for respondent.

ROY L. RICHTER, Judge.

Michael Pennell (“Defendant”) appeals from the trial court's judgment, after a jury trial, convicting him of one count of the class B felony of distribution, delivery or sale of a controlled substance, in violation of Section 195.211, RSMo Cum.Supp.2012.¹ Defendant was sentenced to fifteen years of imprisonment. We affirm.

I. Background

Viewed in the light most favorable to the verdict, the jury was presented with the following evidence:

In the spring of 2010, the manager of a Pamida store, which housed a drop-off location for UPS, contacted Detective Michael Murphy of the Northeast Missouri Task Force because the manager believed that Jake Humphrey was dropping off packages related to drug activity. The Pamida manager found it suspicious that Mr. Humphrey was spending $60 to ship incense and catalogs overnight. Humphrey was shipping packages to Rhonda Stevenson in Kansas City, Kansas. Rhonda Stevenson and Defendant have four children together and live together in the house at the address to which the packages were being shipped.

In May of 2010, Kansas City drug enforcement officers intercepted a suspicious package being sent to Mr. Humphrey at an address in Palmyra, Missouri. The return address on the package showed “Common Scents” with an address corresponding to the vacant lot next to the residence occupied by Ms. Stevenson and Defendant. Northeast Missouri Drug Task Force officers posed as UPS delivery men and attempted to deliver the package to Mr. Humphrey in Palmyra without success.

The undelivered package contained a Pampers box which held about 9 ounces of methamphetamine and 2 pounds of marijuana, intended for Mr. Humphrey.

Defendant later was arrested, waived his Miranda rights and admitted that he had been shipping drugs via UPS to Mr. Humphrey on numerous occasions.

Defendant offered no evidence at trial.

Additional facts will be discussed as they pertain to Defendant's points on appeal.

II. Discussion

Defendant raises five points on appeal. In his first point, he claims the trial court clearly and plainly erred in denying his motion to suppress the police officers' testimony about his alleged statements, and in admitting this evidence at trial over objections, because this denied his rights to due process of law and against self-incrimination, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 19 of the Missouri Constitution. Specifically, Defendant contends he did not voluntarily or freely provide truthful statements after a knowing waiver of rights, and the officers' disputed testimony of his statements was the only evidence supporting his guilt, resulting in a manifest injustice or miscarriage of justice.

Second, Defendant alleges the trial court abused its discretion in admitting Defendant's out-of-court statements into evidence as substantive evidence of his guilt for distribution of a controlled substance, because this deprived him of his right to due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution, in that there was no independent proof of the corpus delecti of the offense other than Defendant's own statement, which was unrecorded and contested. Defendant argues even if he had not challenged the accuracy of the officers' version of his unrecorded interrogation, Defendant's statements cannot be used as substantive evidence.

In his third point, Defendant alleges the trial court abused its discretion in overruling Defendant's objections to State's Exhibits 2, 3, and 4, a box containing controlled substances, because this denied Defendant his rights to due process of law and a fair trial, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, in that the State failed to prove that these items were in the same condition as when they were seized, because the State admittedly could not prove how these items ended up in the hands of the non-testifying officers who handed them off to Officer Hays, and nobody could explain who had opened and resealed the box, or whether any of the items within it had been tampered with, because the State failed to prove its origin.

In his fourth and fifth points, Defendant contends the trial court erred in overruling Defendant's objections to Instruction No. 5, the verdict director for distribution of a controlled substance, and in submitting this instruction to the jury, because this violated Defendant's rights to due process of law and a fair trial, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, in that the instruction did not comply with Missouri Approved Instructions (“MAI”) or the Notes on Use. Defendant argues in his fourth point that the State did not name or describe the person to whom drugs were allegedly delivered, nor did it name any specific date within the month-long charging period the crime was alleged to have occurred. Defendant argues that submitting the verdict director in this form prejudiced Defendant by substantially lowering the State's burden of proof on essential elements of this offense. In his fifth and final point, Defendant alleges the prosecutor argued Defendant had attempted to distribute methamphetamine, but the jury was not instructed to determine beyond a reasonable doubt if any alleged conduct was a substantial step toward the commission of the offense or whether Defendant engaged in any such conduct with the requisite purpose, because the instruction merely included a definition of “delivery” as including an attempt but contained no factual allegations, and submitting this instruction prejudiced Defendant because it eliminated the State's burden of proof on essential elements of the offense and so misdirected the jury that it seriously undermines confidence in the verdict.

A. Point I: Defendant's Statements through Officers' Testimony were Admissible.

First, Defendant claims the trial court plainly erred in denying his motion to suppress the officers' testimony about his alleged statements, and in admitting this evidence at trial over objections. Defendant argues that he did not freely or voluntarily provide truthful statements after a knowing waiver of rights, and the officers' disputed testimony of his statements was the only evidence supporting his guilt, resulting in a manifest injustice or miscarriage of justice.

A ruling on a motion to suppress is interlocutory, and does not preserve issues for appellate review. State v. Roark, 229 S.W.3d 216, 218–19 (Mo.App. W.D.2007). Defendant did not object to the officers' testimony about Defendant's statements to police when they were first presented at trial, and only included the court's error in denying the motion to suppress in the motion for a new trial.

i. Standard of Review

Generally, when reviewing a trial court's ruling on a motion to suppress, an appellate court reviews the case in the light most favorable to the ruling, disregarding any contrary evidence or adverse inferences. State v. Waldrup, 331 S.W.3d 668, 672 (Mo. banc 2011). “The inquiry is limited to determining if the decision is supported by substantial evidence, whether that evidence is presented at the suppression hearing itself or during trial.” Id. A “trial court's ruling on a motion to suppress will be reversed only if it is clearly erroneous.” Id. This Court defers to the trial court's credibility determinations and factual findings. State v. Nylon, 311 S.W.3d 869, 884 (Mo.App. E.D.2010).

However, because Defendant has not properly preserved this point, we undergo an analysis for plain error. Rule 30.20; Nylon, 311 S.W.3d at 884. A request for plain error review triggers the commencement of a two-step analysis by an appellate court. State v. Campbell, 122 S.W.3d 736, 740 (Mo.App. S.D.2004). The first step of this analysis is to determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Id. If facially substantial grounds are found to exist, the appellate court should secondly engage in plain error review to determine whether manifest injustice or a miscarriage of justice has actually occurred. Id. If facially substantial grounds are not found to exist, however, the appellate court should decline to exercise its discretion to review the claim of plain error pursuant to Rule 30.20. Id. To find manifest injustice, this Court must find that the trial court's error in admitting the evidence was outcome determinative. State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006).

ii. Analysis

Miranda v. Arizona requires that a person must be adequately and effectively apprised of his rights, and those rights must be fully honored by officers. 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The person must be informed in clear and unequivocal terms that he has the right to remain silent, and he must be clearly informed that he has the right to consult with a lawyer and have the lawyer present during interrogation. Id. at 467–68, 471, 86 S.Ct. 1602. To admit a suspect's statement, the state may show either an express or “implicit” waiver of the Miranda right to remain silent. Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098 (2010) (citing North Carolina v. Butler, 441 U.S. 369, 376, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). “If the suspect effectively waives his right to counsel after receiving the Miranda warnings,...