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State v. Zuroweste

Court of Appeals of Missouri, Eastern District, Second Division

April 24, 2018

STATE OF MISSOURI, Respondent,
v.
DANIELLE ANN ZUROWESTE, Appellant.

          Appeal from the Circuit Court of Warren County 15BB-CR00628-01 Honorable Wesley Dalton

          OPINION

          Lisa P. Page, Presiding Judge.

         Danielle Zuroweste appeals the trial court's judgment entered upon a jury verdict convicting her of possession of a controlled substance pursuant to Section 195.202 RSMo (2016). We affirm.

         BACKGROUND

         In September 2015, Sergeant John Beeckman ("Sgt. Beeckman") responded to a child custody issue at Wright City East Elementary School. After speaking with several people at the school, the officer began searching for Zuroweste based upon a description of her car and a photograph from the Department of Revenue database. Sgt. Beeckman received a second call to the school. He spotted Zuroweste's car in the school parking lot and initiated a traffic stop when she left the premises.

         As he approached the vehicle, Sgt. Beeckman observed Zuroweste reaching into the passenger side of the vehicle. He noted her "head was moving a lot" and Zuroweste seemed nervous as he began speaking to her. He noticed a small, orange baggie containing a white, powdery residue lying on the floor of the driver's side of the vehicle, within Zuroweste's reach. Sgt. Beeckman testified he recognized the baggie as one "usually used" to contain narcotics and it appeared someone had tried to conceal the baggie. Zuroweste began crying after she was arrested and placed in the police car.

         Sgt. Beeckman then searched the vehicle and seized the orange baggie along with two glass pipes containing "burnt marijuana." Zuroweste was transported to the Warren County jail. She was charged with felony possession of a controlled substance and unlawful use of drug paraphernalia.

         During her approximately two week incarceration in the Warren County jail, Zuroweste made a phone call to a friend on September 26, 2015. At the beginning of the call, a prerecorded message unequivocally notified her the call would be recorded and subject to monitoring. During the call Zuroweste stated "I've learned my lesson, " "I know it's wrong, and I shouldn't be doing it, " "I am never going to do it again, " and "I don't want to do this shit no more."

         Zuroweste pleaded guilty to unlawful use of drug paraphernalia and not guilty to felony possession of a controlled substance. Trial was set for Monday, November 14, 2016. Prior to trial Zuroweste submitted a request for discovery seeking, in part, "[a]ny written or recorded statements and the substance of any oral statements made by defendant . . . ." On Thursday afternoon prior to the Monday when the trial was set to begin, the State provided notice to Zuroweste of its intent to introduce the recording of her September 26, 2015 phone call ("Exhibit 8"). Defense counsel's office closed shortly thereafter and, due to the intervening Veteran's Day legal holiday on Friday, did not reopen until the day of trial. However, the State made diligent efforts via email, text, and a personal conversation with defense counsel to ensure she received notification prior to the start of trial.

         Zuroweste filed a motion to exclude Exhibit 8, claiming the State's disclosure of the exhibit four days prior to trial prevented her from "fully investigating her case and developing a defense." The trial court denied the motion to exclude and allowed the State to introduce Exhibit 8 at trial. The jury found Zuroweste guilty of possession of a controlled substance and the court entered judgment and sentence. This appeal follows.

         DISCUSSION

         In her sole point on appeal, Zuroweste argues the trial court erred in admitting Exhibit 8 and the related testimony at trial because the State failed to disclose the evidence until the evening of the last business day before trial began on Monday. Zuroweste argues the State's late disclosure of Exhibit 8 violated Missouri Supreme Court Rule 25.03. According to Zuroweste, the late disclosure resulted in her inability to fully investigate her case and develop a defense. We disagree.

         Standard of Review

         Our review of an alleged discovery violation consists of two questions. State v. Pitchford, 514 S.W.3d 693, 698 (Mo.App. E.D. 2017). First, we review whether the State violated Rule 25.03. Id. If so, we next consider the appropriate sanction for such a violation. Id. Each of these decisions is within the sound discretion of the trial court, and we will not reverse the court's decision absent an abuse of discretion. State v. Johnson, 513 S.W.3d 360, 364-65 (Mo.App. E.D. 2016). The trial court abuses its discretion if fundamental unfairness resulted to the defendant. Id. at 365. Fundamental unfairness arises if there is a reasonable likelihood earlier disclosure of the evidence at issue would have affected the result of trial. Id. "For example, fundamental unfairness may be found where the State's failure to disclose resulted in the defendant's genuine surprise at learning of unexpected ...


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