State v. Stolzman, 16777
| Decision Date | 31 October 1990 |
| Docket Number | No. 16777,16777 |
| Citation | 799 S.W.2d 927 |
| Parties | STATE of Missouri, Respondent, v. Douglas Robert STOLZMAN, Appellant. |
| Court | Missouri Court of Appeals |
Michael Baker, Springfield, for appellant.
William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found defendant Douglas Robert Stolzman guilty of possessing cocaine, § 195.020.1, RSMo 1986, a Schedule II controlled substance, § 195.017.4(1)(d), RSMo Supp.1987; State v. Hutchens, 604 S.W.2d 26, 27-28 (Mo.App.1980), and assessed punishment at three years' imprisonment. The trial court entered judgment per the verdict.
Defendant appeals, presenting three points relied on: (1) the evidence was insufficient to support the verdict, (2) the trial court erred in denying defendant's motion for mistrial after the arresting officer testified defendant made no response when asked whether the cocaine belonged to him, and (3) the cocaine should have been suppressed as evidence in that it was seized during a search to which defendant did not voluntarily consent.
In determining whether the evidence was sufficient to support the verdict we view the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the verdict, and disregard all contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that defendant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).
So viewed, the evidence presented to the jury 1 established that about 12:40 p.m., February 9, 1988, Corporal Martin Kent Elmore of the Missouri State Highway Patrol was eastbound in a marked patrol car on U.S. Highway 60 near Willow Springs. He was following a Datsun 280-ZX bearing a Florida license plate.
The Datsun continued east on "the Willow Springs by-pass" until it reached the location where the bypass "merges with 60-63." There the Datsun made "an illegal lane change" by failing to signal.
Elmore stopped the Datsun. Defendant was the driver and sole occupant. Elmore asked defendant for his driver's license. Defendant produced a Florida driver's license bearing his name.
At Elmore's direction, defendant went to the patrol car and seated himself inside with Elmore.
Elmore asked defendant who owned the Datsun. Defendant replied he did not know. Defendant explained he "was driving the car to Florida for a bank and that the paperwork had somehow gotten messed up and that he didn't have a title."
Defendant showed Elmore a letter on the letterhead of First National Bank of Homestead, Florida. The letter was addressed to Springfield Nissan and pertained to a 1982 Datsun, identified by vehicle identification number. The letter referred to defendant by name and stated: "This will serve as authorization for the above named person to pick up the above collateral on behalf of the First National Bank of Homestead." Defendant told Elmore he (defendant) had flown from Florida to Springfield where he picked up the Datsun.
Elmore "ran a computer check" on defendant's driver's license and the Datsun's license plate. Elmore testified: Elmore recounted that the State of Florida was slow to respond so he received no answer to his inquiry.
Elmore decided he needed to establish ownership of the Datsun so he asked defendant for permission to search it. Elmore testified, "... I explained to [defendant] that ... I would like to look in the car and that if he agreed for me to do that, that I needed a signed Consent form giving me permission to do that."
Elmore filled out a written consent form, handed it to defendant, told him to read it, and asked him to sign it. Defendant looked at the document, signed it, and returned it to Elmore.
Elmore instructed defendant to remain in the patrol car. Elmore went to the Datsun, opened the passenger door, looked in the glove box, and "found nothing ... in the way of any legal documents or nothing of any consequence."
A "console" was situated "between the bucket seats, just to the driver's right." A compartment in the console was covered by "a hinged type lid." Elmore estimated the compartment was a foot long, five to six inches wide, and six to eight inches deep. Elmore opened the compartment and looked inside "to see if there might be some documents in there."
The compartment held no documents but did contain: (1) a brown glass vial containing a white powdery substance, (2) a "flip top or hard pack" Marlboro cigarette box containing "some hand rolled cigarettes," (3) a steel bolt, (4) a cigarette lighter element that plugs into an automobile dashboard, and (5) four one-dollar bills. The power cord to a radar detector was plugged into the Datsun's cigarette lighter receptacle. The bottom of the Marlboro box displayed a "Florida tax stamp."
After observing the above items Elmore radioed "for a backup car." Sergeant Michael Weaver of the Missouri State Highway Patrol was dispatched to the scene. Upon arriving he was shown the items in the console compartment.
At trial the prosecutor asked Elmore what he did after showing the items to Weaver. Elmore testified, "Well I asked the defendant if the items belonged to him and at that point he didn't offer any kind of response at all." Defendant's lawyer immediately moved for a mistrial. The trial court denied the motion but instructed the jury to disregard the question and response. This incident is the subject of defendant's second point, discussed infra.
Elmore resumed his search of the Datsun. A suitcase was lying on the passenger seat. It contained clothing and four or five packs of Marlboro cigarettes of the "same hard flip top variety" as the pack in the console.
Elmore arrested defendant and advised him of his "Miranda rights." 2 Elmore then transported defendant to patrol headquarters at Willow Springs. Weaver remained with the Datsun until another officer arrived.
At headquarters Elmore telephoned Springfield Nissan and was informed by a service representative that defendant had picked up the Datsun there that day.
Weaver returned to headquarters and was asked by defendant whether he (defendant) "could have his four dollars ... out of the console." Weaver informed Elmore of the request. Elmore returned the money to defendant.
A forensic chemist tested the substance in the vial and determined it was cocaine.
At trial Sergeant Weaver explained that the vial has a "ball valve" in the top. If the valve is turned it fills a chamber with a pre-measured amount of the substance in the vial. The valve can then be turned another direction, allowing the user to hold the vial to his nose "and sniff it as they drive down the road." Weaver testified that patrol personnel "see several of these from time to time."
Defendant, age 37 at time of trial, testified he had never been convicted of a felony and had never been arrested for one prior to the instant arrest. He stated that before this arrest his occupation was transporting repossessed automobiles for First National Bank of Homestead, Florida. Defendant recounted that about a month prior to the arrest he and another driver came to Springfield to pick up the Datsun and another vehicle. The Datsun was not drivable so it was towed to Springfield Nissan for repair.
Defendant returned to Springfield by plane February 9, 1988, arriving between 10:00 and 11:00 a.m. He went to Springfield Nissan, paid for the repairs, left a copy of the "release letter," and departed in the Datsun.
He drove to a gasoline station, filled the tank, and put in two quarts of oil. Upon paying for those items he received four dollars change which he put in the console compartment. Defendant denied he looked in the compartment at that time.
Defendant testified that when Elmore stopped him he had been in possession of the Datsun "an hour and a half, maybe two hours on the outside." Defendant recalled that neither Elmore nor Weaver was able to lock the Datsun on the roadside.
Defendant denied owning the vial and avowed he was unaware it was in the Datsun. He also denied knowledge of the Marlboro pack in the console. He asserted he did not search the Datsun when he entered it.
Defendant admitted his suitcase contained "Marlboro cigarettes with a hard carton, flip top type." Those cigarette packs bore Florida tax stamps, having been purchased there by him. Defendant also admitted ownership of the radar detector. He had plugged the device into the Datsun's cigarette lighter receptacle, and in doing so had removed the lighter element and placed it in the console compartment.
Defendant presented business records of Springfield Nissan pertaining to the Datsun. They included a repair order, two tow bills, and a stub from a $393.92 check.
Defendant's first point:
"The trial court erred in overruling [defendant's] motion for judgment of acquittal at the close of the State's evidence and at the close of all the evidence for the reason that there was not sufficient evidence presented from which to convict defendant ... of ... possession of cocaine."
Defendant moved for a judgment of acquittal at the close of...
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