State v. Preston, s. 60486
| Decision Date | 20 July 1993 |
| Docket Number | Nos. 60486,62442,s. 60486 |
| Parties | STATE of Missouri, Respondent, v. Burl PRESTON, Appellant. Burl PRESTON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Saleeby, Asst. Atty. Gen., Jefferson City, for respondent.
Elizabeth Haines, St. Louis, for appellant.
Appellant, Burl Preston, appeals his jury conviction for possession of Phencyclidine, a controlled substance, in violation of § 195.202 R.S.Mo.1986. He was sentenced as a prior and persistent offender to a three year prison sentence. He also appeals the denial of his post-conviction relief (Rule 29.15) motion without an evidentiary hearing.
On appeal, appellant claims the trial court erred in (1) denying his motion to suppress certain evidence because the evidence was the product of an illegal search and seizure; (2) overruling his objections to the prosecutor's comments during closing argument on matters not in evidence; and (3) submitting MAI-CR3d 302.04 defining "reasonable doubt." He also claims the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because the record does not refute his claim that trial counsel was ineffective. We affirm.
Appellant does not contest the sufficiency of the evidence so we briefly review the evidence in a light most favorable to the verdict. On March 21, 1990, at approximately 9:00 p.m., Officer John Stransky of the St. Louis Police Department was patrolling in the 4100 block of West Florissant, an area he described as a "high drug, high crime area." He noticed a white Lincoln Continental automobile with an expired license plate sticker travelling right in front of him. While travelling behind this vehicle, he used the mobile data terminal computer in his patrol car to check if the car was stolen and that it was properly registered. Upon doing so he found that the license plates were indeed expired, and pulled appellant over for operating a motor vehicle without valid license plates.
Officer Stransky exited his car, went to the driver's window of the white Lincoln, and asked the driver for his driver's license. At that point, Officer Stransky detected a strong odor of ether which, based upon his experience, he believed to be Phencyclidine (PCP). Appellant, the driver of the vehicle, was observed by Officer Stransky to have a strong odor of ether on his breath, watery and bloodshot eyes, and he was nervous and fidgety. A passenger in the car also appeared to have watery and bloodshot eyes and was nervous and fidgety. Officer Stransky had both men exit the vehicle because he believed there was PCP in the car or in that area. For his safety, Officer Stransky conducted a pat-down search of appellant and felt a bulge maybe three inches in length in his right coat pocket which he believed to be a pocket knife. He then reached into appellant's pocket and pulled out a bottle which had a strong odor of ether on it. Officer Stransky also found a cigarette which had a strong ether odor inside the pocket. The record does not indicate whether or not the cigarette was retrieved with the same reach as the bottle. Officer Stransky placed appellant in handcuffs, and appellant made a spontaneous statement to the effect of, Appellant was taken into custody, and placed in the back seat of Officer Stransky's patrol car. At some point, an assist officer arrived at the scene, and Officer Stransky made a search of appellant's car in an area where the driver's hands could have reached. Appellant was subsequently charged with possession of a controlled substance, to wit, PCP. After a jury trial during which the bottle and cigarette were admitted in evidence, and evidence established that the cigarette contained PCP, appellant was convicted.
Appellant's first point is that the trial court erred in denying his motion to suppress the bottle and cigarette because they were the product of an illegal search and seizure in that Officer Stransky did not possess a reasonable belief based on specific and articulable facts which reasonably warranted a belief that appellant was dangerous and might gain immediate control of weapons. Further, appellant contends, Officer Stransky exceeded the scope of a protective search where he had no legitimate reason for believing that either the bottle or cigarette item was a weapon.
Though appellant's point is directed to the trial court's overruling of his motion to suppress evidence, the focus is on the overruling of appellant's objection at trial as to the admission of the evidence. In reviewing the trial court's ruling, we look only to determine whether the evidence was sufficient to support the ruling. State v. Burkhardt, 795 S.W.2d 399, 404[6, 7] (Mo.banc 1990). It is not this court's province to substitute its discretion for that of the trial court, but instead from the record before us which encompasses all the circumstances, the total atmosphere of the case, we decide only whether there was sufficient evidence to support the trial court's action. Id. The weight of the evidence and the credibility of the witnesses is for the trial court's determination. Id. We note that neither the bottle in question nor any representation thereof has been made a part of the record on appeal. The record does not contain a transcript of a pre-trial suppression hearing, if any such hearing was held.
The evidence adduced at trial shows that appellant was pulled over by Officer Stransky because he was driving a car with an expired license plate sticker. Since Officer Stransky had witnessed a traffic violation, he had authority to stop the automobile for purposes of issuing a traffic summons. State v. Reynolds, 753 S.W.2d 1, 2 (Mo.App.1988). Upon approaching the driver's window, Officer Stransky detected an odor of ether which, through his experience, he associated with the presence of PCP. Even without this indication of illegal conduct, however, it was proper for Officer Stransky to order appellant and the passenger out of the vehicle. Id., at 2.
Further, a police officer may in appropriate circumstances and manner approach a person for the purpose of investigating possibly criminal behavior and conduct a protective search for weapons even though he lacks probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 1880-81, 20 L.Ed.2d 889, 906-07 (1968). An investigative detention is lawful if, in the totality of the circumstances, a "particularized suspicion" results that the person stopped is engaged in wrongdoing. State v. Reynolds, 753 S.W.2d at 2. The retrospective evaluation takes into consideration the inferences which would be drawn by a trained police officer and the evidence is to be viewed as seen by one versed in law enforcement. State v. Simmons, 734 S.W.2d 513, 514[1, 2] (Mo.App.1987) . Here, after appellant was initially stopped for a traffic violation, Officer Stransky detected an ether odor and an odor of ether on the breath of appellant, the driver. He also noticed that appellant's and his companion's eyes were bloodshot and watery, and that both were nervous and fidgety. We find that these observations, combined with Officer Stransky's knowledge regarding the connection between the odor of ether and the presence of PCP, created a particularized suspicion of criminal activity so as to warrant an investigative detention of appellant. Officer Stransky was entitled to conduct a limited search of the person of appellant for weapons if, under all the circumstances present, he was warranted in believing that his safety would be in danger. State v. Sims, 639 S.W.2d 105, 108 (Mo.App.1982). Here, the fact that Officer Stransky had reason to believe that at least appellant was under the influence of PCP, and the fact that he was numerically disadvantaged as the lone police officer at the scene in a high crime area, would justify a limited preliminary search of appellant and his passenger under Terry for weapons in order to protect the officer's safety. See, id., at 108[5-7]. If, while conducting a legitimate Terry search, an officer should discover contraband other than weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1220 (1983). Here, upon feeling an object he believed to be a knife in appellant's right coat pocket, Officer Stransky was justified in securing this item for reasons of his own personal safety. Appellant has no constitutional basis to complain that the bottle and cigarette containing contraband were discovered during the limited body search which accompanied the investigative detention. Sims, at 108[5, 7]. Thus, the trial court did not err in admitting the bottle and the cigarette in evidence. Point denied.
In his next point, appellant contends that the trial court abused its discretion by overruling his objections to the prosecutor's comments during closing arguments where the prosecutor argued matters not in evidence in that the comments were impermissibly calculated to inject irrelevant considerations into the jurors' decision making process and inflame the passions and prejudices of the jury.
During closing argument, the prosecutor made the following statements now the subject of this point on appeal:
To continue reading
Request your trial
-
State v. Lindsay
...to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. State v. Preston , 861 S.W.2d 627, 631 (Mo. App. E.D. 1993) (citing Long , 463 U.S. at 1050, 103 S.Ct. 3469 ).3. Our analysis.We begin our analysis by observing that the trial court fo......
-
State v. Slavin
...there is sufficient evidence to support the court's ruling based on the complete record before the trial court. State v. Preston, 861 S.W.2d 627, 630 (Mo.App.1993). The trial court's ruling on a motion to suppress is reversed only if it is clearly erroneous. State v. Stevens, 845 S.W.2d 124......
-
State v. Delaney, WD
...v. Walls, 744 S.W.2d 791, 797-98 (Mo. banc.1988), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988); State v. Preston, 861 S.W.2d 627, 631 (Mo.App.1993). A conviction will be reversed for improper argument only if it is shown the misstatement had a "decisive effect on the ju......
-
State v. Gantt
...This, in addition to being a night time encounter on the side of a highway, further justified Skinrood's frisk. State v. Preston, 861 S.W.2d 627, 631 (Mo.App. 1993). Hence, we conclude that Skinrood had a lawful basis for frisking Gantt in furtherance of his reasonable suspicion that Gantt ......