Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Warren County 15BB-CR00628-01
Honorable Wesley Dalton
P. Page, Presiding Judge.
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.
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.
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.
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.
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."
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.
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
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.
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 ...