State of Missouri, Plaintiff/Respondent v. Carlos Perry , 447 S.W.3d 749 ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED100483
)
Plaintiff/Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
v. )
) Hon. Rex Burlison
CARLOS PERRY, )
)
Defendant/Appellant. ) Filed: September 23, 2014
Introduction
Carlos Perry (Appellant) appeals from the trial court’s judgment entered upon a jury
verdict convicting him of three counts of possession of a controlled substance. We affirm.
Factual and Procedural Background
On August 27, 2010, Appellant ran a stop sign while driving alone in his girlfriend’s car,
as witnessed by two St. Louis Metropolitan police officers in a police car, Officer Brent Fincher
and Officer Thomas Schaab. The officers did not activate their lights or siren but followed
Appellant to a convenience store. Appellant went into the convenience store. After Appellant
got back in the car and drove away from the store, the officers followed him. Appellant made a
turn, failing to signal, and ran another stop sign. The officers pulled Appellant over, and noticed
him fumbling with something near the passenger side door. After the officers approached the car
and asked for his identification, Appellant gave them his Missouri state identification. The
officers observed Appellant to be very nervous. They asked him to step out of the car and patted
him down. After checking Appellant’s name and the car’s license plate, the officers discovered
Appellant had several outstanding warrants, and the car was registered to a woman Appellant
stated was his girlfriend. Officer Fincher placed Appellant under arrest for the outstanding
warrants and patted him down again, searching his pockets this time. In his pockets, Officer
Fincher found a roll of money totaling $815 and a baggie containing three smaller baggies each
containing, respectively, a small amount of heroin, a small amount of cocaine, and two
hydrocodone pills. Officer Fincher arrested Appellant for the drugs, put him in the back seat of
the police car, then searched his car. The officers found no other drugs or any weapons, but in
the glove compartment discovered $4000 in cash. Officer Fincher placed the contraband and
cash in the trunk of the police car and they took Appellant to the police station.
On August 27, 2010, Appellant was charged by indictment with three counts of
possession of a controlled substance pursuant to Section 195.202.1 Appellant filed a pretrial
motion to suppress the drugs and money based on illegal search and seizure that was denied.
Appellant again objected to the admission of the drugs and money at trial; said objection was
denied. Appellant made a continuing objection, which the trial court noted.
At trial, Officer Fincher testified about the events surrounding Appellant’s arrest. Officer
Schaab did not testify. During closing arguments, defense counsel argued Officer Fincher
planted the drugs on Appellant so that the police could keep the money found in his vehicle.
Defense counsel also commented on Officer Schaab’s failure to testify at trial to corroborate
Officer Fincher’s rendition of the events as they transpired on the night of Appellant’s arrest.
1
All statutory references are to RSMo 2006, unless otherwise indicated.
2
In response, the State maintained to the jury that if there had been anything illegal about
the stop and seizure, they would not be there that day. Appellant objected, and argued to the
bench this statement invaded the province of the jury. The trial court sustained the objection and
instructed the jury to disregard the statement. Appellant also moved for a mistrial, which was
denied. With regard to the defense’s comment on Officer Schaab’s absence from the
proceedings, the State said to the jury that it “didn’t call the other officer because we didn’t need
to. He would testify to the same exact thing.” Defense counsel objected, and argued to the
bench that he wanted a mistrial because the State was arguing as to what a non-testifying witness
would have testified, which was improper. The trial court sustained the objection as arguing
facts not in evidence, and instructed the jury to disregard any statement made about what a
witness who had not testified would have said. The trial court denied the motion for mistrial.
On March 13, 2013, the jury found Appellant guilty on all counts. On April 26, 2013, the
trial court sentenced Appellant to ten years in the custody of the Department of Corrections,
pursuant to the long-term drug treatment program. This appeal follows.
Points on Appeal
In his first point, Appellant claims the trial court erred in denying his motion to suppress
and objection to the admission of the evidence resulting from the stop of his car as violative of
his rights against unreasonable search and seizure and to due process of law, in that he was
pulled over not for a mere traffic stop, but as the result of an investigatory stop without probable
cause, reasonable suspicion or a warrant.
In his second point, Appellant asserts the trial court erred in denying his motion to
suppress and objection to the admission of the evidence resulting from the search of his car,
because this denial violated his rights against unreasonable search and seizure and to due process
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of law, in that the officer could not justify a warrantless search of his car for his own safety after
Appellant was handcuffed and locked in the back seat of the police car.
In his third point, Appellant contends the trial court abused its discretion when it failed to
grant his motion for a mistrial because that denial violated his right to due process of law, in that
the prosecutor argued that if there was anything illegal about the stop of the car Appellant was
driving, there would not have been a trial that day. Appellant maintains this argument allowed
the jury to infer that the trial court had already decided there was no issue with the legality of the
stop of his car or the officer’s conduct, interfering with his right to an impartial and unbiased jury
and shifting the burden of persuasion.
In his fourth point, Appellant argues the trial court abused its discretion when it failed to
grant his motion for a mistrial because that denial violated his right to due process of law in that
the prosecutor stated facts not in the record and improperly vouched for the State’s own witness
by stating that Officer Schaab would have backed up Officer Fincher’s version of events had he
taken the stand, when Officer Schaab was never called or took the stand, and he was not legally
unavailable.
In his fifth point, Appellant claims the trial court erred and abused its discretion when it
refused to allow him to cross-examine Officer Fincher about the St. Louis Metropolitan Police
Department special order regarding asset forfeiture, because not allowing this cross-examination
violated his rights to due process of law and confrontation of witnesses, in that cross-
examination would have allowed him to impeach Officer Fincher’s credibility, level of training
and experience. Appellant maintains the police department’s policy regarding asset forfeiture,
and Officer Fincher’s knowledge of it, ability to follow it, and potential flagrant disregard of it
directly related to the credibility of the officer as to the events surrounding his arrest.
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Discussion
Points I and II- Search and Seizure
In his first two points, Appellant claims he was pulled over not for a mere traffic stop, but
as the result of an investigatory stop without probable cause, reasonable suspicion or a warrant
and the officer could not justify a warrantless search of his car for his own safety after Appellant
was secured in the police car.
In our review of the trial court’s denial of the motion to suppress, we look only to
determine whether the evidence was sufficient to support the ruling. State v. Burkhardt, 795
S.W.2d 399, 404 (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, we must decide only whether there was adequate evidence to support the trial
court’s action. Id. It is not required that the trooper be right in his belief the automobile
contained contraband, only that such belief was reasonable. Id. The weight of the evidence and
the credibility of the witnesses is for the trial court’s determination. Id.
The decision to stop an automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred. State v. Pike, 162 S.W.3d 464, 473 (Mo.banc 2005).
Here, Officer Fincher had probable cause to believe that three traffic violations had occurred in
that he observed Appellant run two stop signs and make a turn without signaling, so his decision
to stop Appellant’s vehicle was justifiable and legal. During a traffic stop, an officer may detain
the vehicle for the time necessary to conduct a reasonable investigation of the traffic violation.
State v. Hoyt, 75 S.W.3d 879, 882 (Mo.App. W.D. 2002). A reasonable investigation may
include requesting the driver to sit in the patrol car, questioning the driver about his destination,
and obtaining the driver’s license, registration and insurance information. Id.
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Once the investigation has concluded, the detainee must be allowed to proceed unless
specific, articulable facts create an objectively reasonable suspicion that the individual is
involved in criminal activity. Id. This suspicion must come about during the time necessary to
effect the purpose of the stop. Id. Here, while pulling Appellant over, Officer Fincher observed
Appellant make furtive movements toward the passenger side of the vehicle prior to stopping his
vehicle. Officer Fincher also noted Appellant was very nervous when the officer was speaking
to him. After running Appellant’s name, several outstanding warrants were discovered. All of
these factors constitute a basis for reasonable suspicion for the officers to further detain
Appellant and search his vehicle. Burkhardt, 795 S.W.2d at 404. Probable cause may arise
when the facts and circumstances within the knowledge of the seizing officer are sufficient in
themselves to produce in a man of reasonable caution a belief that the contents of the automobile
offend the law. State v. Hornbeck, 492 S.W.2d 802, 805 (Mo.1973). See also State v. Logan,
914 S.W.3d 806, 808 (Mo.App. W.D. 1995) (conviction upheld where officer pulled defendant
over for weaving in traffic and then searched car after new basis arose because driver acted
nervous, passengers told inconsistent stories about ownership of the vehicle); State v. Bunts, 867
S.W.2d 277, 280 (Mo.App. S.D. 1993) (continued detention and search were appropriate where
during investigation, defendant was very nervous, shaking, moving in his seat, and his voice was
cracking); Burkhardt, 795 S.W.2d at 404, citing Chambers v. Maroney, 399 U.S. 42, 51 (1970)
(search of an automobile on the highways pursuant to probable cause to believe that contraband,
weapons or evidence of a crime are within the automobile is well-established exception to the
Fourth Amendment warrant requirement). We find the officers’ detention and search of
Appellant was constitutionally permitted, and the trial court did not err in denying Appellant’s
motion to suppress evidence and in admitting the evidence at trial.
6
Appellant maintains the search of his car and seizure of the drugs and money were illegal
because the direct statement of the investigating officer was that he was attempting to make sure
Appellant was in the car when he was issued a citation for running a stop sign, and the officer
purposefully delayed making a lawful stop to issue a traffic citation to ensure that he was able to
search the car without probable cause, reasonable suspicion or a warrant. However, Officer
Fincher’s intent or motive in stopping Appellant’s vehicle is unimportant as long as his actions
were lawful. Hoyt, 75 S.W.3d at 883. Here, we have determined his actions were legal from the
initial stop of Appellant’s car to the seizure of evidence within the car as well as Appellant’s
person. Accordingly, Points I and II are denied.
Points III and IV – Improper Closing Argument
In his third and fourth points, Appellant complains about the prosecutor’s statements in
closing argument that if there was anything illegal about the stop of the car Appellant was
driving, there would not have been a trial, and that Officer Schaab would corroborate everything
Officer Fincher recounted about the events of the stop and seizure.
A trial court’s ruling regarding closing argument will not be overturned absent an abuse
of discretion resulting in prejudice to the defendant. State v. Simmons, 944 S.W.2d 165, 178-79
(Mo.banc 1997). An abuse of discretion exists only where the prosecutor’s statements are
plainly unwarranted and clearly injurious to the defendant. Id. The trial court is in the best
position to appraise the consequence of a closing argument, and has broad discretion to
determine if the particular line of argument is proper. Titsworth v. Powell, 776 S.W.2d 416, 420
(Mo.App. E.D. 1989).
The trial court granted Appellant’s objections to both of the challenged statements at trial
and instructed the jury to disregard them. The trial court specifically instructed the jury to
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disregard any reference to any witness that was not there or did not come in to testify, and to
reach its verdict based on the evidence that was presented and the reasonable inferences that are
drawn from the evidence. The court also specifically told the jury that the statement by the
prosecutor as to any legality or illegality of the stop was improper, it was not an issue in the case,
and they were to disregard it.
Appellant maintains these curative instructions or admonitions were not enough and the
trial court should have granted a mistrial. A mistrial is a drastic remedy to be used only in the
most extraordinary circumstances when there is a grievous error which cannot otherwise be
remedied. State v. Davis, 122 S.W.3d 690, 692 (Mo.App. E.D. 2003). We review the trial
court’s refusal to declare a mistrial on an abuse of discretion standard because the trial court is in
a superior position to determine the effect of improper remarks, and what, if anything, must be
done to cure the problem. Id. at 692-93.
Improper statements by a prosecutor do not always require reversal of a conviction.
State v. Ozier, 961 S.W.2d 95, 98 (Mo.App. E.D. 1998). An appellate court evaluates the facts
of each case independently, and reverses a conviction only if the challenged comments had a
decisive effect on a jury’s verdict. Id. For a prosecutor’s comments to have had a decisive
effect, there must be a reasonable probability that, absent the comments, the verdict would have
been different. Id.
Here, there is not a reasonable probability that the verdict would have been different had
the State not made the comments complained of by Appellant. First, the trial court instructed the
jury to disregard the comments. A jury is presumed to follow the instructions given by the trial
court. Davis, 122 S.W.3d at 693. Second, parties are allowed wide latitude during closing
arguments. State v. Rasheed, 340 S.W.3d 280, 286 (Mo.App. E.D. 2011). Finally, the
8
prosecutor’s remarks were not made spontaneously but tailored to rebut particular arguments
made by defense counsel in closing, i.e., that the police had planted the drugs in Appellant’s car
so they could steal his money. The trial court found that the prosecutor’s responses to defense
counsel’s statements went a bit too far in terms of suggesting special knowledge or commenting
on a fact not in evidence, both of which are improper,2 but did not go so far as to have a decisive
effect on the jury such that a mistrial was warranted and thus delivered a curative instruction to
the jury. We find no error in the trial court’s decision. We find the trial court’s curative
measures appropriate in nature and degree to the State’s comments in closing arguments, and
that a mistrial was not warranted. Accordingly, Points III and IV are denied.
Point V – Asset Forfeiture
In his fifth point, Appellant claims the trial court erred and abused its discretion when it
refused to allow him to cross-examine Officer Fincher about a St. Louis Metropolitan Police
Department special order from the Chief of Police regarding asset forfeiture procedure.
Appellant asserts such cross-examination would have allowed him to impeach Officer Fincher’s
credibility.
The trial court has broad discretion in deciding the scope of cross-examination. State v.
Gaines, 316 S.W.3d 440, 447 (Mo.App. W.D. 2010). We will not interfere absent a clear abuse
of discretion. Id. In matters involving admission of testimony, review is for prejudice, not mere
error. Id. Reversal will result only if error was so prejudicial that it deprived defendant of a fair
trial. Id.
Appellant’s defense theory was that Officer Fincher framed him by planting drugs in his
car so he could take Appellant’s money through asset forfeiture. On direct exam, Officer
2
Parties are allowed wide latitude during closing arguments; however, counsel may not stray beyond the evidence
presented to the jury, suggest special or personal knowledge, or make ad hominem attacks designed to inflame the
jury. Rasheed, 340 S.W.3d at 286.
9
Fincher testified that when he discovered the $4,000 in Appellant’s car, he turned the money
over to the asset forfeiture department. He testified after he turned the money in, he did not see
it again. On cross-exam, defense counsel questioned Officer Fincher about asset forfeiture
procedures to be followed when there is a certain amount of money discovered. Officer Fincher
stated he was not altogether familiar exactly with the procedures, but he thought that when a
certain amount of money is involved, the officer is supposed to call the asset forfeiture
department to the scene. Specifically, the following was said:
[Defense counsel] Q: Officer Fincher, you are aware of the Metropolitan Police
Department special orders regarding asset forfeiture, aren’t you?
…
[Officer Fincher] A: I would say Sergeant Paul Bieniasz has a much more accurate –
Q: That’s not my question.
A: Oh, you’re right. Absolutely. I am not completely familiar with it, no.
Q: So you don’t know what the procedures are for asset forfeiture?
A: I know you call them –
Q: What?
A: I said I know you call them if there’s drugs or money involved and it’s over, I think,
what, $14,000. Not 14,000, but 1,400 or $1,600. There’s a dollar amount, I’d have to look it up,
you call them and ask them what to do.
Q: And, also, if the amount is over a certain amount of money, you’re supposed to have
assets actually come out to the scene; is that right?
A: Well, you would call them and ask them if they want to come to the scene. Ultimately,
if they decide otherwise, you can’t force them.
Q: If I were to give you a copy –
[The State] Objection, your Honor, lack of foundation. May we approach?
At the bench, the following was said:
[The State]: Judge, the officer has just said he’s not familiar with the information that
[defense counsel] is about to show him. He can’t testify to it.
[Defense counsel]: Your Honor, I was going to try to refresh his recollection because it’s
a Metropolitan Police Department special order from the chief of police. I would think that the
police officers would actually know what the proper procedures were.
[The State]: There’s nothing to refresh his recollection about it, your Honor.
The Court: Why is this relevant?
[Defense counsel]: It’s relevant because I think it goes towards the police officer’s
credibility and the fact that he – he’s not –
The Court: Credibility on what?
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[Defense counsel]: Credibility on seizing the money, and, I think, frankly, it goes towards
the whole procedure and everything he’s done. So I think his credibility about testifying
truthfully under oath and what actually happened when he was at the scene, if he processed that
scene properly.
[The State]: Your Honor, the officer didn’t even seize the money himself, that was done
by asset forfeiture.
The Court: Yeah. The – you can ask him about those guidelines. My understanding, at
this point, he said he’s unaware of – you can’t refresh a memory that he’s already declared that
he is unaware of. So I think that’s where we are right now. He said he’s not familiar, other than
that, you call him, so I don’t believe you can refresh his memory when he doesn’t have a
memory to be recalled.
[Defense counsel]: One of the things he did testify to, he thought about certain amounts
of money there was, I guess.
The Court: Why is the amount relevant when his testimony is that he called them? The
point is that he called them, right? What’s relevant about the amount of money?
[Defense counsel]: The point is that he called him, but according to this special rule that
you’re going to come to the scene, asset forfeiture to come to the scene.
The Court: Special rules that he’s said he doesn’t—he’s not aware of.
[The State]: He’s not the proper person to testify to the special orders.
[Defense counsel]: Well, he does sound like he’s aware of some of it because he’s
providing information about amounts of money and what the procedure is. It’s just he’s
providing it incorrectly.
[The State]: Then he’s not the witness to give you the information.
The Court: I’m going to sustain the objection at this time.
The trial court did not abuse its discretion in limiting Appellant’s cross-examination of
Officer Fincher regarding his knowledge of the asset forfeiture special order, because while
defense counsel stated he was attempting to refresh Officer Fincher’s recollection, Officer
Fincher repeatedly stated he had no recollection of the order to refresh. When asked if he was
familiar with the special order, Officer Fincher testified that he was “not completely familiar
with it, no.” He did not testify he was familiar with it but having trouble remembering its
contents. Therefore, there was nothing to refresh.
Also, Appellant did not submit the document itself as an offer of proof, nor did he
attempt to lay a foundation for it and/or authenticate it (presumably as a business record) in order
to submit it as such, which was the basis of the State’s initial objection to it. Appellant’s
claimed missed opportunity to impeach Officer Fincher’s credibility by proving his alleged
11
intention violation of the depar
nal rtment’s spec order reg
cial garding asse forfeiture b planting
et by
drugs on Appellant and stealing his money is baseless. T
a h s There is no e
evidence in t record th
the hat
Officer Fincher did anything othe than turn over to the a
F a er asset forfeitu departme the mone
ure ent ey
recovered with the dr
d rugs from Appellant’s ca Defense counsel’s fa
ar. ailure to imp
peach Office
er
Fincher’s testimony was not due to the trial court’s ruling limiting cr
s w c g ross-examina
ation on the
special order.
For these reas
sons, Point V is denied.
Conclusion
C
The judgment of the trial court is affirmed.
T
Sher B. Sulliva P.J.
rri an,
Mary K. Hoff, J., andd
Philip M. Hess, J., co
oncur.
12