In the Missouri Court of Appeals Eastern District DIVISION TWO
STATE OF MISSOURI, ) No. ED98906 ) Respondent, ) Appeal from the Circuit Court ) of Montgomery County vs. ) ) Honorable Keith M. Sutherland GEORGE DEWEY McCLEARY, III, ) ) Appellant. ) Filed: March 11, 2014
The defendant, George McCleary, appeals the judgment entered by the Circuit
Court of Montgomery County following his conviction by a jury of attempt to
manufacture a controlled substance, namely methamphetamine, in violation of section
195.211 RSMo. (Supp. 2012), for which the trial court sentenced him to 15 years of
incarceration. The defendant challenges the trial court’s denial of his motion to suppress
physical evidence and incriminating statements, and the trial court’s permitting the State
to question defense witness Mary Mehrle about a prior municipal shoplifting violation.
We affirm the trial court’s judgment.
Factual and Procedural History
On March 9, 2010, Jeff Doerr, a detective with the Warren County Sheriff’s
Department, was conducting surveillance across the street from a Walgreen’s store in
Warrenton to see if people entering the store might be reasonably suspected of
involvement with methamphetamine. He was looking for those he either previously had contact with in connection with methamphetamine or those who had the distinctive
appearance of a methamphetamine user. Detective Doerr observed the defendant enter
and exit the store, and return to his truck with a white bag in hand. Further investigation
revealed that the truck the defendant was driving was registered to a person known to be
associated with methamphetamine manufacturing and who shared the defendant’s last
name.
Detective Welschmeyer of the Warren County Sheriff’s Department then
observed the truck enter a parking lot for a strip mall several blocks south of Walgreen’s.
Detective Doerr arrived to watch the parking lot and observed the defendant and Mary
Mehrle leaving the Dollar General store with a yellow bag. Detective Doerr then
observed the defendant drive to Chic Lumber where he and Mehrle exited the store with a
brown bag and drove east toward Wright City. After receiving a call from Detective
Doerr, Lieutenant Schoenfeld inquired at Chic Lumber and learned that the defendant had
bought plastic tubing. Knowing that persons involved with methamphetamine commonly
go from store to store to purchase supplies for manufacturing the drug, Detective Doerr
followed the defendant’s truck as it proceeded toward Wright City. Detective Doerr
observed the defendant make a left turn without using his turn signal, and requested that
Detective Welschmeyer, who was following Detective Doerr in a marked patrol car,
make the traffic stop.
Detective Welschmeyer also observed the defendant make a left turn without
signaling, and initiated a traffic stop. The State presented at trial the audio recording of
the traffic stop and Detective Welschmeyer’s exchange with the defendant. Within the
first two minutes of the stop, Detective Welschmeyer asked the defendant and Mehrle
2 what they were doing that day, took the identification of both, and asked whether there
was anything in the truck that he needed to know about, such as weapons or drugs. The
defendant replied that there was not. At about two minutes into the stop, Detective
Welschmeyer requested a record check of the defendant and Mehrle. At about three
minutes into the stop, Detective Welschmeyer again asked whether there was anything in
the truck that he needed to know about. Detective Welschmeyer asked if the defendant
had a problem with him taking a look in the truck, and the defendant replied “[n]o,
there’s nothing in there” and a few seconds later, “[n]o drugs whatsoever.” About thirty
seconds later, the defendant gave Detective Welschmeyer consent to search his person.
All of this occurred within the first four minutes of the stop.
In the truck, Detectives Welschmeyer and Doerr found a Dollar General bag
containing Kingsford lighter fluid, a brown bag containing plastic tubing, and a
Walgreen’s bag containing instant cold packs. In plain view on the front seat was a piece
of loose-leaf paper containing a list of several items, namely “Kingsford,” “fire,” lye,
batteries, salt, and cold packs. 1 Detective Doerr recognized the list as a recipe for
methamphetamine that was missing only the pseudoephedrine, and the defendant had in
his possession three of the items commonly associated with methamphetamine
production—namely the lighter fluid, tubing, and cold packs.
At about six and one-half minutes into the stop, Detective Welschmeyer placed
the defendant under arrest and read him his Miranda warnings. 2 The results of the record
checks came in about eight minutes into the stop. The defendant told the detectives that
he had just been released from prison for manufacturing methamphetamine, was in need
1 Sulfuric acid is commonly referred to as “fire” within methamphetamine circles. 2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 of money, and would not be paid until the end of the week. He explained that he had
made a bad decision in agreeing to purchase the items on the list in return for payment.
The defendant showed the officers the residence where he had agreed to deliver the
items. When the officers later returned to the residence, they found an anhydrous
ammonia generator made from cold packs.
The State charged the defendant as a persistent drug offender with attempt to
manufacture a controlled substance, specifically methamphetamine. The defendant filed a
motion to suppress the physical evidence seized and any incriminating statements he
made. The trial court denied the defendant’s motion after an evidentiary hearing. The
defendant also filed a motion in limine which sought, inter alia, to prevent the State from
questioning defense witness Mary Mehrle about a municipal shoplifting violation. The
trial court granted this portion of the defendant’s motion in limine unless Mehrle opened
the door by testifying to the effect that she had never been arrested or been in trouble.
At trial, the defendant’s girlfriend, Mary Mehrle, testified as the only defense
witness. She explained that she bought lighter fluid because she planned to barbecue that
evening, and she bought plastic tubing for an aquarium she had just purchased. Mehrle
testified that the defendant told her he was going into Walgreen’s to get something for his
knee pain. She then described the traffic stop and how the lieutenant told her over and
over to tell the officers the real purpose of the plastic tubing, and how she was
handcuffed and placed in the patrol car. Mehrle disclosed that she had a DWI and a
misdemeanor trespassing conviction.
On cross-examination, the State challenged Mehrle’s recollection of the events.
The State then asked Mehrle if she had taken notes or made audio recordings during the
4 incident, and Mehrle replied that she had not. On redirect, the defense questioned Mehrle
about the significance of the events and her memory of them.
Q. Miss Mehrle, was this the only event in your life that happened like this, that you had this kind of experience being stopped and being interrogated by the police and have your boy friend [sic] hauled off to jail? A. Yes. Q. Would an event like that tend to stick in your memory? A. Very much. Q. You weren’t involved in a bunch of other cases making a bunch of other arrests of other people; were you? A. No. Q. That’s very easy for you to remember what happened? A. Very, yeah. It sticks there.
At a sidebar, the State contended that Mehrle had opened the door to cross-
examine her about her municipal shoplifting violation because she “just testified that
she’s never been in a situation like this with the police interrogating her. I think she’s
opened the door to the stealing from Wal-Mart.” The defendant argued that the door had
not been opened, that the State’s characterization of the question and the witness’s
response was neither what he had asked nor what the witness had testified. The trial court
responded that “[i]t’s not the exact same situation, it can be just a similar situation. I think
you’ve opened it up.” The trial court overruled the defendant’s objection and allowed the
State to cross-examine Mehrle on that subject. The State asked Mehrle if she remembered
“being detained for stealing staples, trash bags, trash bags [sic], pseudoephedrine, shirts[,]
and baby wipes” from Walmart. The State then elicited evidence that the police gave
Mehrle a ticket for the stealing, and that she pleaded guilty to the offense. The defendant
did not specifically object to the State’s reference to pseudoephedrine in the cross-
examination. The State agreed that it would not mention the pseudoephedrine shoplifted
5 from Walmart in its closing argument. However, we do not have a transcript of the
State’s closing argument in the record before us.
The jury found the defendant guilty of attempt to manufacture a controlled
substance, namely methamphetamine. The trial court sentenced the defendant as a
persistent drug offender to 15 years of incarceration. The defendant appeals.
Discussion
In two points on appeal, the defendant challenges the trial court’s denial of his
motion to suppress physical evidence and incriminating statements he made during the
traffic stop and the trial court’s permitting the State to question defense witness Mehrle
about a prior municipal shoplifting violation.
Denial of Motion to Suppress
In his first point, the defendant asserts the trial court erred in denying his motion
to suppress physical evidence and incriminating statements he made during the traffic
stop. He argues that the officers illegally expanded the scope of their initial traffic
investigation without reasonable suspicion that he was committing or had committed a
crime.
We review a trial court’s ruling on a motion to suppress in the light most
favorable to the ruling, and we defer to the trial court’s determinations of credibility.
State v. Stover, 388 S.W.3d 138, 149 (Mo. banc 2012). We limit our review to
determining whether substantial evidence supports the decision. Id. In reviewing the trial
court’s decision overruling a motion to suppress, we consider the evidence presented at
both the suppression hearing and at trial in order to determine whether sufficient evidence
exists in the record to support the trial court’s ruling. State v. Pike, 162 S.W.3d 464, 472
6 (Mo. banc 2005). Whether conduct violates the Fourth Amendment is an issue of law that
we review de novo. Stover, 388 S.W.3d at 149.
The Fourth Amendment to the United States Constitution guarantees citizens the
right to be free from unreasonable searches and seizures. U.S. Const. amend. IV. A
“seizure” occurs when the totality of the circumstances surrounding the incident indicates
that a reasonable person would not have believed he was free to leave. State v. Pesce, 325
S.W.3d 565, 569 (Mo. App. W.D. 2010). A routine traffic stop based on the violation of a
state traffic law is a justifiable seizure under the Fourth Amendment. Stover, 388 S.W.3d
at 149. Such a seizure is constitutional so long as the police do no more than they are
legally permitted and objectively authorized to do. Id. An officer has authority to check
the driver’s license and registration, ask the driver about his destination and purpose, and
request that the driver sit in the patrol car. Id. Although officers may detain a person for a
routine traffic stop, such does not justify indefinite detention. Id. A seizure can become
unconstitutional if the detention lasts beyond the time necessary to conduct a reasonable
investigation of the traffic violation. Id.
Most traffic stops resemble the kind of brief detention authorized in Terry v.
Ohio, 392 U.S. 1 (1968), both in duration and atmosphere. Arizona v. Johnson, 555 U.S.
323, 330 (2009). In the context of a traffic stop, Terry’s requirement of a lawful
investigatory stop is met whenever it is lawful for officers to detain a vehicle and its
occupants, pending inquiry into a vehicular violation. Id. at 327. The officers need not
have any additional cause to believe that any occupant of the vehicle is involved in
criminal activity. Id.
7 Here, Detective Welschmeyer observed the defendant commit a traffic violation
by making a left turn without signaling. When an officer observes a traffic violation and
stops the vehicle, Terry’s requirement of a lawful investigatory stop is met, even absent
additional cause to believe that criminal activity is occurring. Id. The defendant argues,
however, that after stopping him for failing to use his turn signal, the officers expanded
the scope of the initial investigation when, instead of timely issuing a traffic citation or
warning, they asked the defendant to exit the truck and requested consent to search. He
further argues that the officers lacked specific and articulable facts to warrant any
investigation beyond the original purpose of the traffic stop.
A lawful roadside stop begins when officers pull over a vehicle for investigation
of a traffic violation. Id. at 333. The temporary seizure of the occupants of a vehicle
ordinarily continues, and remains reasonable, for the duration of the stop. Id. The stop
normally ends when officers have no further need to control the scene and so inform the
occupants that they are free to leave. Id. An officer may inquire into matters unrelated to
the justification for the traffic stop, and such inquiries do not convert the encounter into
something other than a lawful seizure, so long as those inquiries do not measurably
extend the duration of the stop. Id. An officer may at any time ask a subject whether he
has contraband in the vehicle, and may ask for permission to search. Pesce, 325 S.W.3d
at 569. If the subject consents without coercion, the Constitution does not prohibit the
following search. Id. Thus, an officer is not required to have articulable facts to justify
additional questioning unrelated to the initial justification for the stop. Rather, the issue is
whether the additional questioning measurably extends the duration of the stop. In this
case, it did not.
8 The audio recording of the traffic stop and Detective Welschmeyer’s exchange
with the defendant reveals that Detective Welschmeyer obtained the defendant’s consent
to search the truck a little more than three minutes after initiating the stop. Within the
first two minutes of the stop, Detective Welschmeyer asked the defendant and Mehrle
what they were doing that day, asked for the identification of both in order to run record
checks, and asked whether there was anything in the truck that he needed to know about,
such as weapons or drugs. These were permissible inquiries. See Stover, 388 S.W.3d at
149 (officer has authority to check driver’s license and registration and ask driver about
his destination and purpose); see also Pesce, 325 S.W.3d at 569 (officer may at any time
ask subject whether he has contraband in vehicle). At about two minutes into the stop,
Detective Welschmeyer requested record checks on the defendant and Mehrle. At about
three minutes into the stop, Detective Welschmeyer again asked whether there was
anything in the truck that he needed to know about. Detective Welschmeyer asked if the
defendant had a problem with him taking a look in the truck, and the defendant replied
that he did not because there was nothing in the truck, “no drugs whatsoever.” This entire
exchange occurred within the first four minutes of the stop.
Any contention that Detective Welschmeyer’s inquiries and request for consent to
search measurably extended the duration of the stop is meritless. The officers completed
these inquiries and obtained consent to search in less than four minutes, even before
receiving the results of the record checks. The officers’ inquiries and search of the
defendant’s truck were lawful, and the trial court did not err in overruling the defendant’s
motion to suppress. We deny the defendant’s first point.
Impeachment of Defense Witness
9 In his second point, the defendant claims the trial court erred in allowing the State
to question defense witness Mary Mehrle about a prior conviction because the conviction
was actually an inadmissible municipal violation for shoplifting. Furthermore, the
defendant contends, the State exceeded the scope of permissible inquiry by injecting
details of the violation, specifically that Mehrle had purportedly stolen pseudoephedrine.
The defendant argues that identification of pseudoephedrine was particularly damaging to
the defense because Detective Doerr had already testified that pseudoephedrine was the
only ingredient required to manufacture methamphetamine that was missing from the list
found in the defendant’s truck.
The defendant’s point addresses two issues: 1) admission of evidence that Mehrle
pleaded guilty to a municipal shoplifting violation; and 2) admission of evidence that
pseudoephedrine was involved in that incident. The defendant objected to admission of
Mehrle’s municipal violation, arguing that the door had not been opened to that
information when Mehrle testified that she had never before been in a situation where the
police stopped and interrogated her and arrested her boyfriend. The defendant failed to
specifically object, however, when the State brought out the details of the municipal
violation, namely that Mehrle had purportedly been detained for stealing
pseudoephedrine, among other items.
A trial court possesses broad discretion to admit or exclude evidence. State v.
Taylor, 407 S.W.3d 153, 157 (Mo. App. E.D. 2013). We will not disturb the trial court’s
exercise of this discretion unless it is clearly against the logic of the circumstances. Id.
The trial court abuses its discretion when its ruling is clearly against the logic of the
circumstances and is so unreasonable as to indicate a lack of careful consideration. Id.
10 Generally, municipal-court convictions that are unrelated to the case being tried
are inadmissible. State v. Campbell, 868 S.W.2d 537, 539 (Mo. App. E.D. 1993). Here,
however, the defendant asked Mehrle “was this the only event in your life that happened
like this, that you had this kind of experience being stopped and being interrogated by the
police and have your boy friend [sic] hauled off to jail?” Mehrle replied “[y]es.” The
purpose of this line of questioning was to establish that Mehrle could remember so many
details of the events at issue because “this kind of experience” was unique for her.
After hearing argument from both parties, the trial court ruled that the situation
involving Mehrle’s detention for shoplifting shared enough similarity to “being stopped
and being interrogated by the police and have your boy friend [sic] hauled off to jail” to
render her shoplifting violation admissible. The trial court’s ruling is neither clearly
against the logic of the circumstances nor so unreasonable as to indicate a lack of careful
consideration. The trial court did not abuse its discretion in determining that the two
situations shared enough similarity to allow evidence of Mehrle’s municipal shoplifting
violation.
We next consider the revelation of the details of Mehrle’s municipal violation.
This issue is not preserved for our review because the defendant failed to specifically
object to the reference to pseudoephedrine at trial. Accordingly, we can review this issue
only for plain error. We have the authority and the discretion to review plain errors
affecting substantial rights if we determine that manifest injustice or miscarriage of
justice has occurred. Rule 30.20. Plain error is error that is evident, obvious, and clear,
and we determine whether such errors exist based on the facts and circumstances of each
case. State v. Moore, 411 S.W.3d 848, 858 (Mo. App. E.D. 2013). The alleged error must
11 have a decisive effect on the jury’s determination. Id. We will find a decisive effect if
there exists a reasonable probability the verdict would have been different but for the
alleged error. Id.
The plain-error rule is to be applied sparingly and does not justify review of every
point that has not been properly preserved. State v. Irby, 254 S.W.3d 181, 192 (Mo. App.
E.D. 2008). Plain-error review involves a two-step analysis. Id. The first step is to
determine whether the asserted claim of plain error facially establishes substantial
grounds to believe that a manifest injustice or miscarriage of justice has occurred. Id. If
facially substantial grounds are found to exist, we then move to the second step of the
analysis, and engage in plain-error review to determine whether manifest injustice or a
miscarriage of justice actually occurred. Id.
When evidence of prior convictions is admissible for purposes of impeachment,
the scope of cross-examination is limited to prevent the cross-examiner from delving into
the details of the crime leading to the prior conviction. State v. Aye, 927 S.W.2d 951, 955
(Mo. App. E.D. 1996). The cross-examiner may elicit the nature, date, and place of each
prior crime and the resulting sentence. Id.
By injecting the details of Mehrle’s shoplifting violation, the State exceeded the
scope of proper cross-examination. It was unnecessary to delve into the details of the
items involved in the municipal shoplifting violation in order to impeach Mehrle’s
credibility. The existence of the municipal shoplifting conviction and related detention
and interrogation themselves could have accomplished the same goal. Furthermore,
Mehrle disclosed on direct examination that she had had a DWI prior to the events of
March 9, 2010 and that she also had a conviction for misdemeanor trespassing.
12 Therefore, even absent further questioning by the State about these two matters, the jury
could have reasonably inferred that Mehrle had, in fact, been stopped and interrogated by
police on another occasion. Thus, the State did not need to adduce evidence of the
municipal shoplifting violation to impeach Mehrle’s credibility in this regard.
We are also troubled by the State’s mention of pseudoephedrine, and we do not
believe it occurred by happenstance. The record suggests that the State was eager to
adduce evidence of Mehrle’s municipal shoplifting violation precisely so that it could
adduce evidence that one of the items purloined in that violation was purportedly
pseudoephedrine. The fact that the witness had shoplifted was of minimal value to the
State; the fact that she had shoplifted pseudoephedrine was far more damning. Even
though the door may have been opened to the existence of the municipal ordinance
violation, that opening did not extend to the details of that offense.
And here the details of the offense implicated the witness, who was also the
defendant’s girlfriend, in a prior theft of pseudoephedrine. Pseudoephedrine is commonly
understood to be needed for one method of manufacturing methamphetamine. And the
State highlighted this as the one item missing from the shopping list found during the
traffic stop of the defendant. The jury may have inferred that the defendant’s girlfriend
and the only defense witness was herself involved in the manufacture of
methamphetamine—both previously and at the time of the traffic stop. As such, the
evidence that the State presented as impeachment evidence may have also been adduced
to demonstrate the propensity of the defendant’s girlfriend to commit the charged
offenses. And, of course, demonstrating the propensity of the defendant’s companion to
13 commit the charged offense could reflect on the defendant’s propensity. Generally, such
evidence is inadmissible. State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011).
Although the asserted claim of plain error facially establishes substantial grounds
to believe that a manifest injustice or miscarriage of justice has occurred, based on the
circumstances of this case, we find no manifest injustice or miscarriage of justice actually
occurred. Irby, 254 S.W.3d at 192. First, the evidence against the defendant, including
his admissions, was overwhelming. In addition, the State made only one reference to
pseudoephedrine in its cross-examination of Mehrle. Finally, the defendant has not
provided us with a transcript of the State’s closing argument, but the record reflects the
State agreed in advance that it would not mention the pseudoephedrine in closing. The
appellant has the duty to ensure that the record on appeal includes all of the evidence and
proceedings necessary for us to determine the questions presented. State v. Simino, 397
S.W.3d 11, 15 n.2 (Mo. App. S.D. 2013); see also Rule 30.04(a). Because the defendant
did not file a transcript of the State’s closing argument with this Court, we will infer that
the closing argument was favorable to the trial court’s ruling and unfavorable to the
defendant’s argument. Simino, 397 S.W.3d at 15 n.2. It does not appear that the State
unduly emphasized the details of the violation with its single reference to
pseudoephedrine.
Because of the overwhelming evidence of the defendant’s guilt and the fact that
the reference to pseudoephedrine was not overemphasized, we find the error alleged did
not have a decisive effect on the jury’s determination and no reasonable probability exists
the verdict would have been different but for the alleged error. We deny the defendant’s
second point.