State v. Zetina-Torres

400 S.W.3d 343, 2013 WL 791538, 2013 Mo. App. LEXIS 284
CourtMissouri Court of Appeals
DecidedMarch 5, 2013
DocketNo. WD 74441
StatusPublished
Cited by12 cases

This text of 400 S.W.3d 343 (State v. Zetina-Torres) 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. Zetina-Torres, 400 S.W.3d 343, 2013 WL 791538, 2013 Mo. App. LEXIS 284 (Mo. Ct. App. 2013).

Opinion

GARY D. WITT, Judge.

This appeal arises from a jury conviction of trafficking in the second degree. Appellant Luis Enrique Zetina-Torres (“Zeti-na-Torres”) asserts three points of error on appeal. He asserts (1) that the State’s evidence was insufficient to support his conviction because the evidence did not establish beyond a reasonable doubt that he knew or was aware of the presence of methamphetamine or that he acted together with another; (2) that there were several errors relating to late disclosure of evidence and late witness endorsement; and (3) that the trial court erred in allowing the State to elicit an inadmissible hearsay statement from a trooper.

We reverse and remand.

FACTUAL AND PROCEDURAL HISTORY1

Appellant Luis Enrique Zetina-Torres (“Zetina-Torres”) was charged with trafficking in the first degree under section 195.222.9.2 He was convicted by a jury of the lesser-included offense of trafficking in the second degree under section 195.223.9 and received a life sentence.

Zetina-Torres’s arrest

The main witness for the State was Missouri State Highway Patrol Trooper Brooks McGinnis. McGinnis was an eleven-year veteran of the Highway Patrol. He was working with the criminal interdiction unit, meaning he was conducting traffic enforcement with an emphasis on more serious criminal behavior that might be occurring during traffic stops. His experience included 171 hours of classroom instruction and 550 hours of practical training, significant training and experience in methods of drug transportation, and approximately 600 arrests for controlled substance offenses.

On July 16, 2010, McGinnis was working a “ruse checkpoint” at the Route EE and K exit on Interstate 70 in Saline County. The ruse checkpoint is a highway patrol technique that involves placing signs on the interstate advising that there was a drug checkpoint ahead when in fact no such checkpoint exists. There was a second set of signs that stated that a drug dog was in use, and the signs were in Spanish and English. Flares were placed in front of the signs, which were staggered on the shoulder. A patrol car was sitting in the median with its lights activated. McGinnis testified that the signs were positioned on Interstate 70 because it is a known drug corridor. The purpose of the ruse checkpoint was to cause those involved in illegal activity to exit prior to arriving at what they believed to be a drug checkpoint and in doing so draw attention to themselves. The location was chosen because there was an exit that had no services for motorists (e.g., gas stations, restaurants) prior to the ruse checkpoint. Officers watched to see whether motorists would use the exit in an attempt to avoid the ruse checkpoint.

While the ruse checkpoint was in place, a black Nissan pickup truck passed the checkpoint signs and exited the interstate. McGinnis followed the truck. McGinnis conducted a routine computer check of the vehicle and learned it was registered in Kansas City.

Eventually, the vehicle stopped at Highway 20 and remained there for what McGinnis described as “an unusual amount of time.” McGinnis then followed the vehi[347]*347cle east on Highway 20 toward the City of Marshall. After several miles, McGinnis noticed that the vehicle did not slow down when it reached the Marshall city limits, at which point he activated his radar and determined that the vehicle was exceeding the posted speed limit. McGinnis then activated his emergency lights and siren and stopped the vehicle.

The driver, Zetina-Torres, apologized for speeding and said he did not realize the speed limit had decreased. Zetina-Torres did not have a driver’s license but gave McGinnis an identification card from Mexico. Zetina-Torres also gave McGin-nis the vehicle insurance card, which listed Mardonio Benitez and Hugo Rivera as the insured parties. Zetina-Torres was accompanied by one passenger, Roberto Maldonado, who provided a “Mexico consulate card.”

Both men appeared nervous and avoided eye contact with the trooper. As McGin-nis talked with both the driver and the passenger, he noticed a strong odor of cologne-scented air freshener coming from inside the pickup. McGinnis testified that often people transporting drugs will try to mask the odor of the drugs with another odor. McGinnis also noticed that there was a single key in the ignition, and, in McGinnis’s experience, drug traffickers often use only a single key because they do not want their house or personal keys passed off when they deliver the vehicle to another.

McGinnis asked Zetina-Torres to have a seat in his patrol vehicle. While he was talking with Zetina-Torres in the police vehicle, McGinnis conducted a routine computer check of Zetina-Torres and Maldonado. Zetina-Torres told McGinnis that he borrowed the vehicle from his friend, Mardonio, who was from Kansas City. Ze-tina-Torres told McGinnis that he and “Berto” (Maldonado) were traveling to get a Ford pickup from a friend and that they were going to work on its engine. McGin-nis asked which city they were visiting and the name of the friend they were to meet. McGinnis testified that Zetina-Torres paused several moments, mumbled, then stated he was going to Marshall. But Zetina-Torres never identified the name of the friend, even after McGinnis asked a second time.

McGinnis noticed that Zetina-Torres would not make eye contact when he was talking. Also, McGinnis said there seemed to be a delay in Zetina-Torres’s responses even though Zetina-Torres had no trouble understanding and speaking English.3 McGinnis also noticed that Zetina-Torres appeared to be wearing “nicer clothing, not clothing that I would use for working on a vehicle’s engine” and that Maldonado was wearing sandals.

McGinnis’s computer check determined that Maldonado’s license was suspended and that there was a warrant for his arrest. While Zetina-Torres was still in McGinnis’s vehicle, Zetina-Torres said that he had known Maldonado for about a year, but he was not able to tell McGinnis any additional information about Maldonado. He did not even state Maldonado’s last name, referring to him as only as “Berto.” Despite not knowing Maldonado’s last name, Zetina-Torres knew that Maldonado’s license was suspended but stated he nonetheless would not be driving the pickup they were planning to fix because he just came along for the ride.

All during this conversation, Zetina-Tor-res avoided eye contact, continued to look out the window, and had delayed responses to simple questions. McGinnis was suspicious of both suspects and asked Zetina-[348]*348Torres whether he possessed any marijuana, methamphetamine, cocaine, heroin or weapons. Zetina-Torres responded “no, you can check.” McGinnis clarified consent by asking whether he could search the vehicle, and Zetina-Torres answered “yes.”

Before searching the vehicle, McGinnis exited his patrol car and had a conversation with Maldonado. McGinnis told Maldonado that there was a warrant for his arrest and asked where the two were going. Maldonado told McGinnis they were going to Sedalia to see Zetina-Torres’s friends. Maldonado’s answers were inconsistent with Zetina-Torres’s, so McGinnis asked Maldonado whether they were going to Marshall or Sedalia. Maldonado again replied Sedalia. Maldonado did not mention needing to work on or pick up a truck and said he did not know the name of Zetina-Torres’s friends.

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Cite This Page — Counsel Stack

Bluebook (online)
400 S.W.3d 343, 2013 WL 791538, 2013 Mo. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zetina-torres-moctapp-2013.