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State v. Stufflebean

Court of Appeals of Missouri, Eastern District, Fourth Division

March 13, 2018

STATE OF MISSOURI, Plaintiff/Respondent,
v.
JASON STUFFLEBEAN, Defendant/Appellant.

         Appeal from the Circuit Court of Montgomery County Hon. Kelly Broniec

          OPINION

          LISA VAN AMBURG, JUDGE.

         Jason Stufflebean appeals the trial court's judgment after a jury convicted him of attempting to manufacture a controlled substance, methamphetamine. Finding no reversible error, we affirm.

         Factual Background

         Jason Stufflebean ("Appellant") was charged with attempting to manufacture methamphetamine, for an incident occurring on May 18, 2012. A jury found him guilty as charged on December 16, 2016. This appeal follows.

         In May 2012, 23354 Lloyd Road (the "Burke property") was owned by Appellant's cousins, Christopher Burke ("Burke") and his sister, Mandy. The Burke property had previously been owned by Christopher and Mandy's father, and the trailer on the Burke property had once been the family's residence, although no one lived there by May 2012.

         On May 16, 2012, deputies responding to report of possible trespassing at 23354 Lloyd Road entered the uninhabited trailer and found a duffle bag containing muriatic acid, Coleman fuel, and an ice-pack label - items consistent with the manufacture of methamphetamine. Because such items were not safe to transport, and no one was available for an immediate pickup of the items, a deputy at the scene hid the bag with the items under the porch until someone could retrieve it.

         Two days later, on May 18, 2012, Deputy Todd Clark ("Clark") and two other deputies responded to a call regarding suspicious activity at the Burke property. On arrival, the officers encountered Burke and Cody Jackson ("Jackson") at the front of the trailer, and Clark observed a third individual run from the rear of the trailer into a wooded area. Clark later testified that he believed the individual to be Appellant based on Clark's viewing of a photograph of Appellant that hung in the sheriff's department squad room. Burke and Jackson were detained, and after an unsuccessful attempt to locate the third individual, Clark conducted what he called a "protective sweep" of the interior of the trailer. During the sweep, he observed more items consistent with the manufacture of methamphetamine.

         Afterward, Clark interviewed Burke, who at first denied that a third person had been present at the trailer. Clark told Burke that he believed it was Appellant who ran from the trailer, and that if Burke told the truth he would not be arrested that night. Burke confirmed that is was Appellant who had run from the trailer. Burke also told Clark that he, Appellant, and Jackson went to the Burke property to "make money" by making methamphetamine.

         Meanwhile, Detective Jeff Doerr ("Doerr"), obtained a search warrant for the trailer. Doerr seized and photographed items from the trailer, including those that were hidden under the porch on May 16. Doerr gave the seized hazardous material items to the drug task force for destruction. He did not obtain permission from the court or take representative samples of the materials before their destruction.

         Further investigation yielded evidence that Burke had purchased pseudoephedrine on May 18. Doerr and Lieutenant Scott Schoenfeld ("Schoenfeld") went to Burke's home on May 21 to interview him further. At that point, Burke said that he bought the pseudoephedrine for Appellant and told the officers the entire sequence of events from May 18, which included Burke and Appellant visiting several different stores to purchase ingredients for methamphetamine manufacture. Officers then investigated Burke's claims by viewing surveillance videos and obtaining receipts for items purchased, some of which were admitted as evidence at trial. At trial, Burke testified that he did not remember making the statements to police on May 18 and 21.

         Additional facts relevant to the points on appeal appear below.

         Analysis[1]

         The State claims that Appellant's Points I and IV are multifarious and are therefore not subject to appellate review. While we agree that Appellant's Points I and IV are multifarious, we prefer to decide cases on the merits when it is feasible to do so, as it is here.

         Fourth Amendment claim (Point I)

         For his first point, Appellant contends that the trial erred in overruling his motion to suppress evidence seized from the Burke Property and in overruling his motion to reconsider suppression of the same evidence. Appellant claims that the police violated his Fourth Amendment rights with respect to the evidence seized from the Burke Property on May 16 and 18. We review a trial court's ruling on a motion to suppress for clear error, reversing only if "we are left with the definite and firm impression that a mistake has been made." State v. Pierce, 504 S.W.3d 766, 769 (Mo. App. E.D. 2016). We defer to the trial court's factual findings and credibility determinations and consider all evidence and reasonable inferences in the light most favorable to the trial court's ruling, disregarding all contrary evidence and inferences. State v. Loggins, 445 S.W.3d 105, 109 (Mo. App. E.D. 2014). Finally, "while we defer to the trial court's factual findings and credibility determinations, the question of whether the Fourth Amendment has been violated is a legal one that we review de novo." State v. Brown, 382 S.W.3d 147, 156 (Mo. App. W.D. 2012).

         The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures . . ." U.S. Const. amend. IV. Fourth Amendment rights are personal and may not be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134. To show that his Fourth Amendment rights have been violated personally, a defendant must have an actual, subjective expectation of privacy in the place or thing searched, and that expectation must be "reasonable" or "legitimate." State v. Faruqi, 344 S.W.3d 193, 205 (Mo. banc 2011). A defendant who does not have a reasonable expectation of privacy related to that property at the time of the allegedly improper search or seizure lacks standing to complain of the search or seizure of property. State v. Mosby, 94 S.W.3d 410, 416 (Mo. App. W.D. 2003). Even if Appellant had a personal, subjective expectation or belief that his property in the Burke trailer would go undisturbed, that is not enough. A "legitimate" expectation of privacy requires more than a subjective expectation of not being discovered. Brown, 382 S.W.3d at 157.

         Appellant does not claim the trailer was a residence for the purposes of Fourth Amendment analysis.[2] Instead he asserts that his "business use of the trailer as acknowledged by the trial court gave rise to a legitimate expectation of privacy and suffices to confer standing." The purported "business use" refers to Appellant's work for his brother James's tree service. Our review of the record shows that Appellant lacked standing to challenge the searches because this claimed expectation of privacy was not reasonable.

         The evidence on record is that, in the summer of 2012, James and others working for his tree service, including Appellant, would come to the Burke property "a couple times a week" to burn tree debris, that they sometimes kept a change of clothes or coolers in the trailer, and that before the water was disconnected in the spring of 2012, they would sometimes wash up in the trailer, as well. Appellant did not own the Burke Property or the trailer thereon, nor did he stay at the trailer overnight on or between May 16 and 18. During that time, the trailer was in the process of being torn down, the water was shut off in the trailer, and only one room in the trailer offered safe shelter; otherwise, in various places, the trailer's walls were missing, the roof was caving in, and the floor was rotting away.

         "Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." State v. Williams, 485 S.W.3d 797, 801 (Mo. App. W.D. 2016), citing Rakas, 439 U.S. at 143 n.12. Appellant's claim of a reasonable, business-related expectation of privacy in the trailer is wholly unsupported by the evidence. Although Appellant asserts that "the Fourth Amendment applies to a shack on a worksite as much as it does to a living room at a residence, "[3] we see no evidence in the record supporting a reasonable conclusion that the trailer was used as "commercial premises" for the tree service. James testified that the trailer was in the process of being scrapped in May 2012, and that James and the tree service employees used it for the very limited purposes of storing a change of clothes or a cooler a couple of days per week. There is no evidence that James kept tools, equipment, or records relating to the business in the trailer, or that James met with customers, planned jobs or performed any part of his business operations inside the trailer. Even if we assume, arguendo, that James had an expectation of privacy in the trailer as owner of the tree service, Appellant offers no authority to support his claim that he may assert James's privacy interest vicariously. Compare New York v. Burger, 482 U.S. at 699 ("An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable, ") with Rakas, 439 U.S. 133-34, supra.

         Concluding that Appellant had no legitimate privacy interest via traditional concepts of property control or ownership, nor as an employee of James's tree service, we next examine whether society would otherwise find Appellant's expectation of privacy to be legitimate or reasonable. Williams, 485 S.W.3d at 801. Appellant did not attempt to protect his claimed privacy interest; the trailer was open to the elements due to its missing roof and walls, and not secured against intruders. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967). Tree service employees were only present at the trailer intermittently, at all other times the trailer would appear abandoned and accessible to any person who felt inclined to enter. There were no signs warning against trespass, fences, or other barriers to entry that would demonstrate an expectation of privacy. See State v. Pierce, 504 S.W.3d 766, 771 (Mo. App. E.D. 2016) (Homeowner demonstrated his expectation of privacy in chicken coop by locating it within a barbed wire fence, posting "no trespassing" signs, and denying others entry to his property); State v. Nichols, 628 S.W.2d 732, 735 (Mo. App. S.D. 1982) ("One of the main rights attaching to property is the right to exclude others and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude").

         We are not persuaded of a societal expectation of privacy in a partially collapsed, uninhabited, and dilapidated trailer which is not used as a residence or for legitimate commercial purposes and is also wholly unsecured and left open to the public and the elements. This finding is even stronger when, as here, the party claiming the privacy interest does not have a personal proprietary, residential, or occupational interest in the building. Point I is therefore denied.

         Fruits of the searches (Point II)

         In his second point, Appellant claims that whether or not he had a legitimate expectation of privacy in the trailer, the searches were nonetheless illegal, and their fruits, namely Burke's statements to officers on May 18 and 21, should be suppressed. We disagree. As discussed with respect to Point I, Appellant had no legitimate expectation of privacy in the trailer, thus he cannot assert a violation of his Fourth Amendment rights. "[S]uppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." Alderman v. United States, 394 U.S. 165, 171-72 (1969). We decline Appellant's request that we exercise so-called "pragmatic judicial supervision of very questionable law-enforcement tactics." Point II is denied.

         Burke's out-of-court statements (Point III)

         For his third point, Appellant claims that the trial court erred in admitting the testimony from Clark, Doerr, and Schoenfeld regarding Burke's out-of-court, unsworn hearsay statements. Appellant further challenges the admission of audio recordings of those statements. Appellant essentially argues that no inconsistent statement exists when the witness cannot remember whether he made the statement. For this issue, Appellant concedes that he did not object to Clark's testimony at trial, however, the issues as to Doerr's and Schoenfield's testimony were properly preserved. Because the basis of the claim is the same for all of the testimony, and for ease of analysis, we address all three officers' testimony as if preserved.

         We review the admission of evidence for abuse of discretion. State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). We will not disturb a trial court's broad discretion in admitting evidence unless it is clearly against the logic of the circumstances. Id. Even then, we reverse for evidentiary error only on a demonstration of prejudice. Id.

         Section 491.074 allows for the use of prior inconsistent statements as substantive evidence in criminal cases:

Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.

         Admission of a prior inconsistent statement requires a foundational inquiry as to whether the witness made the statement and whether the statement is true. State v. Reed, 282 S.W.3d 835, 838 (Mo. banc 2009). "If a witness claims not to remember if a prior statement was or was not made, a proper foundation has been laid to admit the prior inconsistent statement." Id. At trial, Burke testified that he did not recall any of the statements he made to officers on May 18 or 21, nor did he meaningfully recall any other events of May 18. Burke testified only that he, Appellant, and Jackson were present at the trailer on his property when sheriff's deputies arrived there on May 18, that he spoke to deputies that day, and that a few days later, two officers came to speak with him. Burke testified that although he could not recall making certain statements, he did not deny making those statements. Hence, the State laid a proper foundation for admitting the officers' testimony about Burke's prior statements.

         Appellant further claims that the trial court erred in allowing testimony about recordings of Burke's May 18 and 21 statements because the State did not quote each of Burke's prior statements verbatim in its examination of Burke or confront Burke after each inconsistent answer by reading or playing the prior statement back while he was still on the stand. However, the Missouri Supreme Court, in Reed, has held that "[a] specific question is not necessary to lay a foundation" for the admission of a prior inconsistent statement. 282 S.W.3d at 838.

         The cases Appellant cites for his contention that the proponent of a prior inconsistent statement must specifically quote the statement in question are inapposite to the instant case. In Reed, the State elicited testimony from an officer that a witness told him that he believed the defendant was making methamphetamine, even though "the State failed even to ask [the witness] a generally related question" to whether he ever said he believed the defendant was making methamphetamine. In State v. Duncan, 397 S.W.3d 531 (Mo. App. E.D. 2013), this court held that impeachment was improper when a witness was impeached using a prior statement made by another person, that was not materially inconsistent with the witness's trial testimony. In State v. Tolen, 295 S.W.3d 883 (Mo. App. E.D. 2009), the defendant wished to admit a phone call in which the victim told the defendant that her aunt lied. However, on examination, the question asked of the victim was whether she told the defendant that she, the victim, told a third party that her aunt lied. This court held that the trial court did not err in finding that the victim's response during examination was not inconsistent with her statement on the phone call, noting that "[a]bsent the threshold showing of an inconsistency between the testimony and the statements contained within the proffered exhibits, use of the exhibits to impeach is questionable." Id. at 889-90. Here, no such issues exist. Unlike in Reed, here, Burke was questioned directly about the statements he made to officers on May 18 and 21, for example:

Q: Do you recall telling the police you were buying [the pills] ...

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