State v. Zuroweste

Decision Date02 April 2019
Docket NumberNo. SC 97229,SC 97229
Citation570 S.W.3d 51
Parties STATE of Missouri, Respondent, v. Danielle Ann ZUROWESTE, Appellant.
CourtMissouri Supreme Court

Zuroweste was represented by Carol D. Jansen of the public defender’s office in Columbia, (573) 777-9977.

The state was represented by Evan J. Buchheim of the attorney general’s office in Jefferson City, (573) 751-3321.

W. Brent Powell, Judge

Danielle Ann Zuroweste appeals a judgment of conviction for possession of a controlled substance. A jury found Zuroweste guilty of possession of methamphetamine, and the circuit court sentenced her to prison pursuant to the 120-day institutional treatment program. On appeal, Zuroweste argues the circuit court erred by admitting into evidence a recorded statement Zuroweste made because the State did not disclose the recording until four days before trial. Although the State clearly violated the rules of discovery by failing to timely disclose the recorded statement, the judgment is affirmed because the discovery violation did not warrant the drastic sanction of excluding the evidence as Zuroweste requested when a continuance would have remedied any alleged prejudice to Zuroweste.

Factual and Procedural Background

On September 21, 2015, a police officer responded to a reported domestic matter. After speaking with several individuals at the scene, the officer began searching for Zuroweste. The officer observed a vehicle matching the description of Zuroweste’s vehicle and conducted a traffic stop. During the stop, the officer noticed a plastic baggy, which appeared to contain a white residue consistent with the appearance of illegal drugs.1 The officer recovered the plastic baggy and also seized two glass pipes containing burnt marijuana. The officer arrested Zuroweste and transported her to the Warren County jail. Zuroweste was subsequently charged with possession of a controlled substance and drug paraphernalia.

While she was in jail,2 Zuroweste made a series of telephone calls. During one of these calls, placed September 26, 2015, Zuroweste stated, "I've learned my lesson," "I know it’s wrong and I shouldn't be doing it," and "I am never going to do it again."

Following a waiver of preliminary hearing, Zuroweste was charged by information with one count of felony possession of a controlled substance and one count of possession of drug paraphernalia, a misdemeanor. On June 10, 2016, following the filing of the information, Zuroweste filed a written request for discovery requesting, in relevant part, "Any written or recorded, statements and the substance of any oral statements made by the defendant." Zuroweste’s case was set for trial November 14, 2016. Four days before the trial was set to begin, the State disclosed the recorded telephone call Zuroweste made September 26, 2015.3 After the State informed Zuroweste of its intent to use the recorded telephone call as evidence at trial, Zuroweste objected to the late disclosure. The State claimed it did not know about the call until that day and it delivered a copy of the recording to Zuroweste as soon as it was discovered. The State justified the late disclosure, arguing it has to "juggle the trial docket," it doesn't always know "what case is going [to trial] sometimes until days before," and "the State [has] to prep multiple cases for trial, but [doesn't] know which one’s going until days before."

Zuroweste filed a pretrial motion to exclude the recorded telephone call from evidence as a sanction for the alleged discovery violation. Despite arguing the late disclosure prejudiced her because she did not have time to investigate the call and offer evidence to contradict the State’s evidence, Zuroweste did not seek a continuance as a remedy to the discovery violation in her pretrial motion. The circuit court overruled her motion to exclude the evidence. Immediately prior to trial, Zuroweste pleaded guilty to the misdemeanor possession of drug paraphernalia charge.4 On the morning of trial, the circuit court asked Zuroweste if she was sure she wanted to reject the State’s plea offer for the felony possession charge, which contemplated dismissing the felony charge pending successful completion of a drug court program. Zuroweste confirmed she wished to reject the State’s offer, explaining she could not commit to the drug court program due to the distance between the court and her residence. Zuroweste’s case proceeded to trial.

During the trial, the State introduced the September 26 telephone call, over Zuroweste’s objection, as evidence in support of its theory that Zuroweste knew the baggy contained methamphetamine, equating the recorded statements with an admission of guilt. During closing arguments, the State encouraged the jury to play the recorded telephone call during its deliberations, and the jury did request the recording during deliberations. The jury returned a verdict finding Zuroweste guilty of felony possession of methamphetamine. Zuroweste moved for a new trial, again citing the State’s alleged discovery violation. The circuit court overruled her motion and entered judgment on the jury’s verdict. The circuit court sentenced Zuroweste to seven years in prison pursuant to the 120-day institutional treatment program authorized by § 559.115.5 Zuroweste appealed, and this Court granted transfer after an opinion by the court of appeals pursuant to Rule 84.04.

Standard of Review

"In reviewing criminal discovery claims, this Court will overturn the trial court only if it appears that the trial court abused its discretion." State v. Taylor , 944 S.W.2d 925, 932 (Mo. banc 1997). Even when there is a discovery violation, "[a] trial court’s denial of a requested sanction is an abuse of discretion only where the admission of the evidence results in fundamental unfairness to the defendant." State v. Taylor , 298 S.W.3d 482, 502 (Mo. banc 2009) ; see also State v. Edwards , 116 S.W.3d 511, 534 (Mo. banc 2003) ; State v. Royal , 610 S.W.2d 946, 951 (Mo. banc 1981).


Through its rules, this Court seeks to facilitate and promote discovery in criminal cases. The rules of criminal discovery exist "to eliminate surprise by allowing both sides to know the witnesses and evidence to be introduced at trial." State v. Walkup , 220 S.W.3d 748, 753 (Mo. banc 2007) (internal brackets and quotation omitted). "The Rules of criminal discovery are not mere etiquette nor is compliance discretionary." State v. Whitfield , 837 S.W.2d 503, 507 (Mo. banc 1992) (internal quotation omitted). The discovery rules exist to "aid the truth-finding aspect of the legal system." Id. at 508. The rules also "foster informed pleas, expedited trials, a minimum of surprise, and the opportunity for effective cross-examination." State v. Wells , 639 S.W.2d 563, 566 (Mo. banc 1982).

On appeal, Zuroweste claims the circuit court erred in admitting the recorded telephone call she placed September 26th because the call was untimely disclosed in violation of the rules of discovery, and the late disclosure prevented her from adequately preparing for trial. Although this Court agrees the State violated the rules of discovery, the circuit court did not abuse its discretion admitting the recorded telephone call at trial because any unfairness resulting from the late disclosure could have been remedied by a continuance, which Zuroweste never requested. For this reason, the admission of the evidence did not result in fundamental unfairness to Zuroweste warranting reversal of her conviction.

A. The untimely disclosure of the recorded telephone call was a discovery violation.

The State labored both in its brief and at oral argument to convince this Court its late response to Zuroweste’s discovery request did not constitute a discovery violation. The State’s arguments ring hollow, however, as there can be no question there was a discovery violation in this case.

The State first argues it did not violate the rules of discovery because the call was not in its possession. Both the plain text of Rule 25.036 and Missouri cases expose the weakness in the State’s position. Rule 25.03 sets out the mandatory disclosures the State is required to make when it receives a request for discovery in a criminal case. It states, in pertinent part, "[T]he state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control ... [a]ny written or recorded statements and the substance of any oral statements made by the defendant." Rule 25.03(A)(2) (emphasis added). For the purpose of this rule and subdivision, "the state" is limited to "the prosecutor as a representative of the State of Missouri, and not to any other state official or entity." State v. Johnson , 513 S.W.3d 360, 366 n.3 (Mo. App. 2016). Therefore, because the recorded telephone calls Zuroweste made in the Warren County jail were not in the prosecutor’s possession, but instead were in the possession of the Warren County sheriff’s department,7 the State is correct that Rule 25.03(A) did not obligate disclosure by the prosecutor in this case. But the scope of information and material subject to mandatory disclosure under Rule 25.03 encompasses more than information in the prosecutor’s possession.

Although Rule 25.03(A) did not require disclosure, Rule 25.03(C) obligated the State to exercise diligence and good faith to retrieve and disclose the recorded telephone calls Zuroweste made while she was detained in the Warren County jail. The State contends the rules of criminal discovery "[do] not impose an affirmative duty on the State" to search for and retrieve information from the Warren County jail, but this position is inconsistent with the language of Rule 25.03(C) and exhibits a disingenuous reading of this Court’s relevant cases. Rule 25.03(C) clearly states:

If the defense in its request designates material or information which would be discoverable under this Rule if in the

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