State v. West

• Citation: 58 S.W.3d 563
• Decision Date: 07 August 2001
• Docket Number: WD58797
• Parties: State of Missouri, Respondent v. Damar West, Appellant. WD58797 Missouri Court of Appeals Western District 0
• Court: Court of Appeal of Missouri (US)

State of Missouri, Respondent v Damar West, Appellant

WD58797

Missouri Court of Appeals Western District

08/07/2001

Appeal From: Circuit Court of Jackson County, Hon. Lee E. Wells

Counsel for Appellant: Andrew A. Schroeder

Counsel for Respondent: Susan L. Brown

Opinion Summary:

Damar West was convicted by a jury of one count of class C felony possession of a controlled substance, cocaine base, section 195.202, RSMo 1994, and one count of class A misdemeanor possession of less than 35 grams of marijuana, section 195.202, RSMo 1994. He was sentenced to terms of one year in prison for possession of a controlled substance, and four months in the county jail for possession of marijuana, to be served concurrently. On appeal, West challenges the court's overruling of his motion to suppress, claiming, first, that the stop of the vehicle in which he was riding was illegal because it was made without reasonable suspicion, and second, that the evidence of crack cocaine and marijuana was obtained as the result of an unlawful search and seizure.

Division Four holds: (1) The court did not err in overruling West's motion to suppress because the officer had reasonable suspicion to stop the vehicle in which he was riding. At the moment of the seizure, the officer utilized the specific and articulable facts of age, race, gender and location available to him from the victim's description which, when taken together with the rational inferences from those facts, made the investigative stop for further identification appropriate.

(2) The court did not err in overruling West's motion to suppress evidence of crack cocaine and marijuana. Upon making the valid stop, the officer had a reasonable, particularized suspicion that West might be armed. Thus, the officer frisked West, not to discover evidence of marijuana and crack cocaine, but to allow him to pursue the investigation without fear for his safety.

(3) The court erred in sentencing West, in its written judgment, to one year in the Department of Corrections on the controlled substance charge, after the court had orally pronounced a sentence of one year in the county jail. Because the oral sentence is materially different from the written one, the sentence on the controlled substance charge is reversed, and the cause is remanded for the sole purpose of entry of an amended sentence which is consistent with the oral pronouncement of one year in the county jail.

Spinden, P.J., and Howard, J., concur.

Patricia Breckenridge, Judge

Damar West was convicted by a jury of one count of the class C felony of possession of a controlled substance, cocaine base, section 195.202, RSMo 1994,¹ and one count of the class A misdemeanor of possession of less than 35 grams of marijuana, section 195.202. He was sentenced to terms of one year in prison for possession of a controlled substance, and four months in the county jail for possession of marijuana, to be served concurrently. On appeal, Mr. West challenges the court's overruling of his motion to suppress, claiming that the stop of the vehicle in which Mr. West was riding was illegal because it was made without reasonable suspicion. He claims that the officer did not have "particularized suspicion of criminal activity before the stop, but was attempting to establish that standard after the stop." Second, he claims that the trial court erred in overruling his motion to suppress the evidence of crack cocaine and marijuana because it was obtained as the result of an unlawful search and seizure. This court finds that the stop of the vehicle in which Mr. West was riding was supported by reasonable suspicion and the ensuing frisk of Mr. West was proper. Thus, the trial court did not abuse its discretion in overruling his motion to suppress. Because this court finds that Mr. West's sentence of one year in prison on the controlled substance charge was inconsistent with the trial court's oral pronouncement of a sentence of one year in jail, his sentence on the controlled substance charge is reversed and the cause is remanded for entry of an amended sentence on that charge.Factual and Procedural Background

Because the sufficiency of the evidence is not challenged, only a brief recitation of the facts is necessary. On April 2, 1999, Officer Gary Hartman of the Kansas City, Missouri, police department responded to a 911 call concerning a strong-arm robbery at 4125 Paseo around 4:30 p.m. The victim informed Officer Hartman that two black males in their late teens to early twenties had assaulted and robbed him. One of the suspects was described as approximately five feet seven inches tall, weighing 150 to 160 pounds. The second suspect was described as approximately six feet tall, weighing 200 pounds. The victim told Officer Hartman that the two men ran across the street to a residence at 4128 Paseo. The victim believed that one of the suspects, whom he knew as "Lee," lived at 4144 Paseo. The police then checked both residences, but no one answered when officers knocked.

During the next few days, Officer Hartman conducted surveillance on these two residences to follow-up on his investigation and see if he could identify any of the suspects of the robbery in or around the houses. Four days later, Officer Hartman observed a vehicle parked in the back driveway of the house at 4144 Paseo, which had been "posted" by the police department as a drug house. Officer Hartman initially observed two black males leave the residence and get into the car. Officer Hartman then pulled his vehicle over to wait for the driver to pull away from the residence so that he could stop the vehicle. Shortly thereafter, the vehicle drove past Officer Hartman, who noticed that another black male and a black female had gotten into the backseat of the vehicle. He did not, however, see either of these individuals get into the vehicle. He did observe that the three males "were younger black males fitting the description of late teens to early twenties," which was consistent with the description of the robbery suspects. After the vehicle passed, Officer Hartman pulled out behind the vehicle, called for a second police car to respond, and then stopped the vehicle.

While he was waiting for a backup unit to arrive, Officer Hartman observed Mr. West turn and look back at him. When the backup unit arrived, Officer Hartman approached the vehicle. As he did so, he could smell a strong odor of marijuana coming from the vehicle. Officer Hartman stopped just behind where Mr. West was seated. Officer Hartman noticed that Mr. West appeared nervous. Once backup arrived, Officer Hartman ordered all four persons out of the vehicle and conducted a pat-down frisk. When he frisked Mr. West, Officer Hartman felt what he immediately knew was a plastic baggie containing marijuana. Once the bag was removed from the pocket, a marijuana blunt² was also found inside the bag. Mr. West was then arrested. During booking, Officer Hartman also recovered from Mr. West a baggie containing a beige, rock-like substance, later determined to be crack cocaine.

Mr. West was charged with one count of possession of a controlled substance, cocaine base, section 195.202, and one count of possession of less than 35 grams of marijuana, section 195.202. Prior to the presentation of evidence at trial, a hearing was held on Mr. West's motion to suppress. The trial court denied Mr. West's motion. Thereafter, a trial was held at which Mr. West presented no evidence in his defense. The jury convicted Mr. West on both counts and recommended a sentence of one year's imprisonment on the controlled substance charge and four months' imprisonment on the marijuana charge, both to be served in the Jackson County Jail. Following the recommendation of the jury, the trial court orally pronounced a one-year sentence in the county jail on the controlled substance charge and four months in the county jail on the marijuana charge. The trial court's written sentence and judgment indicated that Mr. West was sentenced to one year in prison on the controlled substance charge and four months in the county jail on the marijuana charge. This appeal follows. Standard of Review

This court's review of a trial court's decision concerning a motion to suppress evidence "is limited to a determination of whether there is substantial evidence to support its decision." State v. Tackett, 12 S.W.3d 332, 336 (Mo. App. 2000). The decision of the trial court will be reversed only if it is clearly erroneous and this court is "left with a definite and firm belief a mistake has been made." State v. Leavitt, 993 S.W.2d 557, 560 (Mo. App. 1999). This court will view all evidence and any reasonable inferences therefrom in the light most favorable to the ruling of the trial court. Tackett, 12 S.W.3d at 336. "In reviewing the trial court's ruling on [a motion to suppress], this [c]ourt considers the record made at the suppression hearing as well as the evidence introduced at trial." State v. Deck, 994 S.W.2d 527, 534 (Mo. banc), cert. denied, 528 U.S. 1009, 120 S.Ct. 508 (1999). While deference is given to the trial court's determination of the credibility of witnesses, "'[t]he ultimate issue of whether the Fourth Amendment was violated is a question of law which this court reviews de novo.'" State v. Pfleiderer, 8 S.W.3d 249, 253 (Mo. App. 1999) (quoting State v. McFall, 991 S.W.2d 671, 673 (Mo. App. 1999)). "At a suppression hearing, the State bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled." State v. Weddle, 18 S.W.3d 389, 391 (Mo. App. 2000). Stop of the Vehicle was Proper

In his first point, Mr. West alleges that the trial court erred in overruling his motion to suppress evidence because Officer Hartman did not have reasonable suspicion to stop the vehicle in which Mr. West was riding. Mr. West argues that the basis for stopping the...