State v. Rios, WD

• Decision Date: 03 November 1992
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Carlos RIOS, Appellant. 45897.
• Court: Missouri Court of Appeals

Page 284

840 S.W.2d 284

STATE of Missouri, Respondent, v. Carlos RIOS, Appellant.

No. WD 45897.

Missouri Court of Appeals Western District.

Nov. 3, 1992.

Philip H. Schwarz, Kansas City, for appellant.

William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, C.J., and BERREY and BRECKENRIDGE, JJ.

LOWENSTEIN, Chief Judge.

The appellant, Carlos Rios, appeals from his conviction of two counts of the sale of a controlled substance and one count of possession of a controlled substance. Rios has alleged six points of error that occurred during the trial of his case. As his first point of error, Rios alleges that the trial court improperly denied his motion to strike the venire when the prosecutor prejudicially struck a black juror. The second argument centers around a photo Rios alleges was fruit of the poisonous tree because the police took his photo during an arrest in his domicile without an arrest warrant. For his third and fourth points, Rios alleges the prosecutor made prejudicial, "hearsay" remarks that were immaterial and irrelevant in her opening statement. Next, he objects to the use of an expert opinion without a proper foundation for the method used to arrive at his opinion. His last point on appeal is the state failed to offer any evidence that cocaine base is a controlled substance.

Facts on Appeal

Rios sold crack cocaine to a Kansas City undercover police detective February 14, 1991. The detective, Steven Campo, knocked on a window at Rios' apartment and told him that he wanted a "twenty," meaning twenty dollars' worth of crack cocaine. Rios sold Campo the amount of crack cocaine that he had requested. Campo returned to Rios' apartment five days later and bought another "twenty" from Rios. This night, February 19, a police unit with a search warrant for the apartment waited outside until Campo returned and described Rios and another person in the apartment. Then, an officer with the police unit which had the search warrant broke down Rios' front door and entered the apartment.

The officers found Rios in the bathroom. Because the toilet was flushing, an officer broke the toilet and recovered a Kool cigarette package with crack cocaine in it. The officers also found the marked money that Campo had used to buy the crack cocaine from Rios. The officers took Rios' photograph and arrested him.

A jury convicted Rios and recommended consecutive terms for ten years on each count of sale and five years on the count of possession of controlled substance. The court followed the jury's recommendation, and Rios appealed. This court affirms.

Other facts relevant to the points will be in the discussion of that point.

Venire

The trial judge properly overruled the defendant's motion to dismiss the jury or in the alternative seat a black juror whom the prosecutor struck peremptorily. The defendant alleged that striking the black juror amounted to a Batson violation because the State failed to give a "satisfactory non-racial reason". Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), State v. Antwine, 743 S.W.2d 51 (Mo.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). Once the defendant makes out a prima facie case of discrimination, the State must give an explanation that is (1) neutral, (2) related to the case to be tried, (3) clear and reasonably specific, and (4) legitimate. State v. Hudson, 793 S.W.2d 872, 881 (Mo.App.1990). If the state articulates an acceptable reason for the strike, the court should deem the prosecutor's explanation race-neutral unless a discriminatory intent is inherent in the explanation. State v. Parker, 836 S.W.2d 930, 939 n. 6 (Mo. banc 1992). Then, the burden shifts to the defendant to show that the prosecutor's reason was a pretext for racial discrimination. Id. This court may not set aside the trial court's findings unless they are clearly erroneous. Antwine, 743 S.W.2d at 66. A finding is clearly erroneous when the reviewing court is left with a definite and firm impression that a mistake has been committed. Id.

During venire, the prosecutor struck the last of two blacks who sat on the panel. The defense made out a prima facie case of discrimination and moved to strike the entire venire panel or in the alternative, seat the juror. Although the prosecutor never asked the juror any questions, the prosecutor alleged that he struck her because she was married to a pastor. In reply, defense counsel said this was a "flimsy excuse." The court denied the defendant's motion without explanation. Later in the trial during a recess, the judge asked the name of the juror the State struck and stated on the record that the State had "valid, nonracial reasons for exercising the peremptory strike." The record does not disclose whether the prosecutor failed to strike a similarly situated white venireperson or any other pretext of discrimination. The decision of the trial judge was not clearly erroneous. Point I is denied.

Additionally, the trial court did not err when it denied Rios' motion to suppress a photographic array that included a picture of him taken when the police entered his home with a valid search warrant and ended up arresting him. Rios alleges as Point II of his appeal, a constitutional violation occurred when the police arrived at his house with a search warrant, found crack cocaine, arrested him without an arrest warrant and took his picture.

This court must uphold a trial court's decision on a motion to suppress if the evidence is sufficient to sustain the trial court's findings. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), cert. dismissed, 480 U.S. 698, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987). Rios correctly points out that "a warrantless, non-consensual entry into a suspect's home to make a routine felony arrest is violative of a suspect's Fourth Amendment rights." State v. Mayes, 654 S.W.2d 926, 935 (Mo.App.1983). However, Rios' case differs because the police had a search warrant to authorize their presence. The search warrant carries with it the right to detain the occupants of the house while the officers conducted the search. Michigan v. Summers, 452 U.S. 692, 694, 101 S.Ct. 2587, 2590, 69 L.Ed.2d 340 (1981). In Summers, the police detained a person while they searched the premises under the authority of a valid search warrant. Once the police found contraband, the subject of the warrant, they had probable cause to arrest the person in the house. Id. "Because it was lawful to require respondent to ... remain in the house until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible." Id.

In this case, once the police found the crack cocaine in Rios' house, they had probable cause to arrest Rios and did. The police took the photo during a valid search and subsequent arrest. As such, the photo was not fruit of the poisonous tree. The police properly could detain the people in the house while the officers conducted the search. The search turned up crack cocaine which provided the officers with probable cause to arrest Rios. As such, the evidence is sufficient to support the trial court's decision to overrule Rios' motion to suppress.

Prosecutor's Statements about Drug Hotline

Although certain remarks made by the prosecutor in her opening statement bordered on inadmissibility, the statements were not prejudicial error. A reviewing court must uphold a conviction if the challenged references in the opening statement refer to arguably admissible evidence, and the reference was made in good faith...