State v. Burke

896 S.W.2d 33, 1994 Mo. App. LEXIS 1134, 1994 WL 328581
CourtMissouri Court of Appeals
DecidedJuly 8, 1994
DocketNos. 18181, 18947
StatusPublished
Cited by1 cases

This text of 896 S.W.2d 33 (State v. Burke) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burke, 896 S.W.2d 33, 1994 Mo. App. LEXIS 1134, 1994 WL 328581 (Mo. Ct. App. 1994).

Opinion

FLANIGAN, Presiding Judge.

A jury found defendant John Burke guilty of possessing more than 35 grams of marijuana, and he was sentenced to seven years’ imprisonment and a $5,000 fine. Defendant appeals, and that appeal is Case No. 18181. After the jury trial, defendant filed a motion under Rule 29.15,1 seeking relief from the conviction. That motion was denied without evidentiary hearing. Defendant appeals from that denial, and that appeal is Case No. 18947. The appeals have been consolidated and will be dealt with separately in this opinion.

Case No. 18181

Defendant does not challenge the sufficiency of the evidence to support the verdict. In addition to its formal portions, the information charged that on December 14, 1990, in Greene County, the defendant “knowingly possessed more than 35 grams of marijuana, a controlled substance, knowing of its presence and illegal nature.”

[35]*35On December 14, 1990, at approximately 5 p.m., defendant was the driver and sole occupant of a Plymouth van, a rental vehicle, which was traveling east on 1-44 at a speed in excess of the posted speed limit. The van was stopped by Trooper Timothy Russett. In the presence of defendant, and with his consent, Trooper Russett searched the vehicle and recovered approximately 35 pounds of marijuana from its interior.

By pretrial motion to suppress, renewed during the course of the trial, defendant sought to challenge the constitutionality of the search of the van and the seizure of the marijuana. The trial court overruled defendant’s objections and received the challenged items into evidence.

Defendant’s first point is that the trial court erred in denying his motion to suppress “because defendant did not voluntarily consent to the search of his van by Trooper Russett and there was no probable cause for the search in that defendant signed the written consent to search form ‘CF John C. Burke’ meaning his consent was given under protest and not voluntarily; therefore the evidence was not admissible and defendant was prejudiced in that he would not have been convicted if the motion to suppress had been properly sustained by the court.”

Appellate review of a ruling on a motion to suppress is limited to a determination of sufficiency of the evidence to sustain the trial court’s finding. State v. Villa-Perez, 835 S.W.2d 897, 902[9] (Mo. banc 1992). “[I]n so doing, we examine all circumstances and the total atmosphere of the case, and defer to the trial court’s vantage point for assessing the credibility of the witnesses and weighing the evidence.” Id. “Only if the trial court’s judgment is clearly erroneous will an appellate court reverse.” State v. Milliom, 794 S.W.2d 181, 183[5] (Mo. banc 1990). If the trial court’s ruling “is plausible in light of the record viewed in its entirety,” this court “may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 184.

“The Fourth Amendment ... merely proscribes those [searches] which are unreason-able_ Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness— what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Jimeno, 500 U.S. at 250, 111 S.Ct. at 1803^1.

At the hearing on the motion to suppress, Trooper Russett testified that after he had stopped defendant’s vehicle for speeding he observed that it was a rental vehicle. Rus-sett saw that a strip of duct tape concealed a bumper sticker which identified the vehicle as a rental vehicle and concealed the inventory number or “bar code” of the vehicle. Defendant had a New York driver’s license but the vehicle was registered in New Mexico. When Russett explained the speeding violation to defendant, he observed that defendant was unusually nervous, his hands were trembling, and his voice was cracking. Defendant said he had been in New Mexico to visit friends and was returning to his home in New York. Russett thought that was unusual because the Plymouth was a “one-way rental” from New Mexico to New York.

Russett asked defendant whether he would consent to a search of the van and its contents, and defendant told Russett that Rus-sett could do so. Russett produced, and filled out, a “written consent” for defendant to sign. Defendant signed the form and opened the door of the van. Russett’s search uncovered approximately 35 pounds of marijuana.

Testifying in his own behalf, defendant said, “[Trooper Russett] produced the form which I signed with the CF, meaning that it was under protest under the threat of force or under duress.”

Under cross-examination by the prosecutor, defendant gave the following testimony:

Q. Now you indicated when you testified here just a second ago, that you did sign, [36]*36quote CF, before your signature on the consent form, correct?
A. C period F period.
Q. Mm-hmm. And in Latin that means?
A. In Latin that means, let me tell you exactly, coactus feci, meaning—
Q. And you’d agree with me there aren’t that many Latin scholars that you’ve met in your lifetime, fair statement?
A. Well, no.
Q. In fact, you told the trooper at the time—
A. Not many people know that.
Q. Fair enough, and you told the trooper, after you had already been arrested and taken back to Troop D, that not many people know that?
A. That’s true.

Defendant argues that his inclusion of the initials “CF” before his signature on the consent form invalidated his consent. This court rejects that argument. Trooper Russett testified that defendant consented to the search, signed a consent form, and opened the door of the van. Under the Jimeno standard of objective reasonableness, a reasonable person would have understood, by the exchange between the trooper and defendant, that defendant consented to the search. That consent was unaffected by defendant’s conduct in writing two letters, purportedly constituting the initial letters of an obscure Latin phrase, on the consent form and not mentioning same. Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in improperly restricting his voir dire examination of the prospective jurors, “in that it was very difficult for defendant to determine whether [prospective] jurors had bias or prejudice since the court prevented him from asking farther questions.”

“The purpose of voir dire is to enable each party to participate in selection of a fair and impartial jury and to that end, wide latitude is allowed in examination of the panel.

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Bluebook (online)
896 S.W.2d 33, 1994 Mo. App. LEXIS 1134, 1994 WL 328581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burke-moctapp-1994.