Opinion
No. 25003
October 28, 2003
Appeal from the Circuit Court of Iron County, Missouri, Honorable J. Max Price, Judge.
Daniel T. Moore and John M. Albright, for Appellant.
Jeremiah W. (Jay) Nixon Karen L. Kramer, for Respondent.
Before Barney, P.J., Prewitt, J., and Garrison, J.
Billy Lynn Blocker ("Appellant") appeals his conviction and sentence after a jury trial for possession of a controlled substance, § 195.202. The Circuit Court of Iron County sentenced Defendant, as a prior and persistent offender, § 558.016, to ten years' imprisonment.
All statutory references are to RSMo 2000, unless otherwise specified.
The record shows that on August 25, 1999, Appellant and his brother, Cary Ray ("Ray"), were traveling north on U.S. Highway 67. Appellant was driving the vehicle when Ray asked if he could drive. Appellant stopped the car on the travel portion of the highway so the two could switch places.
At the same time, Corporal Michael Carson of the Missouri Highway Patrol was driving southbound on U.S. Highway 67. Corporal Carson observed a white car at a standstill in the highway's northbound lane. As he was approaching the vehicle, the officer witnessed the driver and passenger get out of the car and switch places. Corporal Carson turned his vehicle around, activated his emergency equipment, and stopped the vehicle.
Corporal Carson informed Appellant and Ray that he stopped them because he thought they were having car trouble and inquired as to why they had stopped in the road to switch places. He then asked both men for identification, but Ray, the driver at this point, was unable to produce any. Ray was escorted back to Corporal Carson's cruiser. Initially, Ray gave the officer a false name, but upon further questioning, Ray finally told Corporal Carson his real name. A check revealed an outstanding warrant on Ray, and Corporal Carson arrested Ray pursuant to that warrant. During Ray's arrest, Russell Duckworth, a conservation agent who was driving by, stopped to offer Corporal Carson assistance.
During Ray's interaction with Corporal Carson, Appellant was seated in the passenger seat of the vehicle. Appellant testified that he knew Ray had a pill in the cellophane wrapper of Ray's cigarette package in the center console of the car and that their grandmother had given the pill to Ray earlier to "calm his nerves down." When Appellant realized Ray was being arrested, Appellant removed the pill from his brother's cigarette package and placed it in his own pocket.
After conducting a search of Ray, both officers approached the passenger side of the vehicle. Corporal Carson asked Appellant for permission to search the vehicle, which Appellant granted. Corporal Carson then asked Appellant to exit the vehicle and requested that Appellant empty his pockets. Appellant's right front pants pocket contained a small pinkish-orange tablet. When asked by the officer what it was, Appellant testified that "I don't really recall even saying Xanax, but I possibly maybe did you know. . . ." Corporal Carson then placed Appellant under arrest for possession of a controlled substance. Chemical laboratory tests conducted by the Missouri State Highway Patrol crime laboratory later found the tablet was Diazepam, a schedule IV controlled substance. § 195.017.8(2)(n).
Prior to trial, Appellant filed a motion to suppress the Diazepam tablet, which the trial court denied. At trial, Appellant testified in his own defense. Appellant claimed that although he did not know what the pill was, he put it in his pocket because he knew his brother had prior drug offenses and wanted to keep him out of trouble. The jury found Appellant guilty of possession of a controlled substance.
Appellant raises three points on his appeal, discussed below, which we review out of order for the sake of clarity.
In his second point, Appellant contends the trial court erred in denying his motion for continuance based on an absent witness, whom he had previously subpoenaed. In the argument portion of his brief, Appellant sets out that his witness, Brenda Lunsford, a pharmacist, was ready to testify that Appellant's grandmother had a prescription for Diazepam and that the prescription had been filled by the pharmacist at or near the time of Appellant's arrest. However, because of a family emergency, Ms. Lunsford was unavailable to testify at trial. Appellant contends that the witness's testimony was crucial to his defense that he was in lawful possession of the controlled substance, Diazepan, pursuant to what Appellant terms the "ultimate user" or "household prescription" defense, explained below.
When the trial court overruled Appellant's motion for a continuance, Appellant sought, in the alternative, to submit into evidence Ms. Lunsford's affidavit and the records of the prescriptions mentioned in the affidavit. The State objected to the admission of the affidavit, and the trial court sustained the objection. Appellant made an offer of proof of Ms. Lunsford's affidavit and attendant pharmacy records of his grandmother. Over the objection of the prosecutor, the trial court admitted the offer of proof, but did not furnish it to the jury.
"A decision to grant or deny a continuance is within the trial court's sound discretion, and an appellate court will not interfere with that decision absent a very strong showing of abuse and prejudice." State v. Patton , 84 S.W.3d 554, 556 (Mo.App. 2002). "The party requesting the continuance bears the burden of showing both an abuse of discretion, and prejudice stemming from the court's denial." State v. Schuster , 92 S.W.3d 816, 819 (Mo.App. 2003). "Moreover, the refusal to grant a continuance for a missing witness will not be reversed on appeal unless the witness's testimony would probably result in a different outcome." Patton , 84 S.W.3d at 556. When a request for a continuance is based upon the absence of a witness, Rule 24.10 Missouri Rules of Criminal Procedure (2002) requires, inter alia, the application show the materiality of the potential testimony. Id.
Here, Appellant has failed to show that, had Ms. Lunsford testified, the trial would probably have resulted in a different outcome.
In essence, Appellant's defense was based on a combined reading of sections 195.010(40), RSMo Supp. 2001 and 195.180.1. According to Appellant's interpretation of the statutory sections, set out below, because Appellant was living with his grandmother and his grandmother had a valid prescription for Diazepam, Appellant was able to lawfully possess the controlled substance. However, a careful review of the statute reveals such a defense does not exist in these circumstances.
We first observe that "the primary rule of statutory construction is to determine and give effect to the intent of the legislature. . . ." State v. Withrow , 8 S.W.3d 75, 79-80 (Mo. banc 1999). In so doing, the court should give "the words used in the statute their plain and ordinary meaning." State v. Goebel , 83 S.W.3d 639, 646 (Mo.App. 2002). Further, "the court considers the particular statute together with related statutes which shed light on its meaning. . . ." Withrow , 8 S.W.3d at 80.
Section 195.180.1 provides, in pertinent part, that "[a] person may lawfully possess or have under his control a controlled substance if such person obtained the controlled substance directly from, or pursuant to, a valid prescription or order of a practitioner. . . ." (Emphasis added.) In the present case, Appellant did not obtain the controlled substance directly from, or pursuant to, a valid prescription or order of a practitioner. Rather, he obtained the controlled substance from Ray's cigarette package.
Section 195.010(40), RSMo Supp. 2001 defines an "ultimate user" as "a person who lawfully possesses a controlled substance . . . for his own use or for the use of a member of his household. . . ." Appellant maintains this definition means that because he lived with his grandmother and his grandmother had a valid prescription for Diazepam, Appellant was able to "lawfully possess" the Diazepam. Appellant refers to this as the "'ultimate user' or household prescription defense." We note that Appellant fails to cite any authority supporting this reading of the statute.
We find section 195.180.1 applies, for example, in those circumstances where a father picks up a prescribed medication from the pharmacy for his child or a wife does the same for her husband. A person who goes to the pharmacy to retrieve a prescribed controlled substance "directly from, or pursuant to, a valid prescription or order of a practitioner," therefore, is in legal possession of the controlled substance and does so for "a member of his household." § 195.010(40), RSMo Supp. 2001; § 195.180.1.
While Appellant cites to the "common practice" of family members sharing prescription medications, there is nothing in our reading of section 195.180.1 or related statutes that sanctions this conduct. Section 195.100.3 provides that "[t]he label of a controlled substance in Schedule II, III or IV shall, when dispensed to or for a patient, contain a clear, concise warning that it is a criminal offense to transfer such narcotic or dangerous drug to any person other than the patient." When taken in conjunction with the plain and ordinary meaning of the language used in section 195.010(40), RSMo Supp. 2001 and section 195.180.1, it is clear the legislature did not intend everyone in a household to have free access to a controlled substance prescribed solely to a single member of that household.
In the instant case, the testimony of the unavailable witness would have shown that Appellant's grandmother had a prescription for Diazepam that had been filled at or near the time of Appellant's arrest. However, Appellant has failed to show how such testimony "would probably result in a different outcome" considering the defense for which the testimony was intended to support was not viable. Patton , 84 S.W.3d at 556. We cannot find the trial court abused its discretion in denying Appellant's motion for continuance when the purpose was to secure testimony to bolster an impermissible excuse for possession of a controlled substance. See parallel discussion in State v. Gannaway , 786 S.W.2d 617, 620 (Mo.App. 1990). Point denied.
Likewise, in Appellant's third point relied on he assigns trial court error for its denial of Appellant's offered instructions "A" and "B" wherein he postulates his "affirmative defense" relating to the "ultimate user" or "household prescription" defense. As we have previously established, the "ultimate user" or "household prescription" defense is not a viable defense given the circumstances of this case, and Appellant is not entitled to a jury instruction that fails to properly state the law. See State v. Neely , 979 S.W.2d 552, 557 (Mo.App. 1998) ("In the absence of a pattern instruction, the trial court must instruct the jury consistent with the substantive law.") Point denied.
Appellant's proposed Instruction No. A provides, in pertinent part, that: "One of the issues is whether the controlled substance found on [Appellant] was a prescribed medication for a member of his household. In this state, it is lawful to possess a controlled substance if it has been prescribed for a member of your household."
Appellant's proposed Instruction No. B provides, in pertinent part, that: "If you find and believe from the evidence beyond a reasonable doubt: . . . that the controlled substance was not prescribed to a family member as submitted in Instruction No. A, then you will find [Appellant] guilty of possession of a controlled substance."
Appellant's remaining point, Point One, alleges the trial court erred in admitting evidence seized during a warrantless search of his person. Appellant contends evidence of the Diazepam tablet should have been suppressed because Corporal Carson did not have any reason for stopping the vehicle in question and asking Appellant to empty his pockets.
"'Review of the trial court's denial of Defendant's motion to suppress is based upon the whole record and the totality of the circumstances surrounding its decision and we will affirm the ruling if it is supported by substantial evidence.'" State v. Moore , 99 S.W.3d 579, 582 (Mo.App. 2003) (quoting State v. Potter , 72 S.W.3d 307, 313 (Mo.App. 2002)). In reviewing a trial court's ruling on a motion to suppress, we are limited to determining whether the evidence is sufficient to support the trial court's ruling. See State v. Day , 87 S.W.3d 51, 56 (Mo.App. 2002). We view the facts and all reasonable inferences therefrom in a light most favorable to the ruling of the trial court and disregard any contrary evidence and inferences. Potter , 72 S.W.3d at 313.
Assuming, arguendo, that Appellant did not consent to the search and the trial court erroneously admitted the evidence at trial, we find the reception of the Diazepam tablet into evidence constituted harmless error beyond a reasonable doubt. See State v. Pate , 859 S.W.2d 867, 870 (Mo.App. 1993).
On direct examination, Appellant testified as follows:
Q. And how did that pill get in your pocket?
A. When I, when the trooper took [Ray] back to the vehicle I knew [Ray] had a warrant for his arrest and I, I, so he wouldn't get in no more trouble, he had prior offenses of drug, you know, he had drug problems before and I, I saw the pill in his cigarette cellophane, so I took it out of the cigarette cellophane laying on the console and I just put it in my pocket. And that was all I, that was it.
Regarding other remarks made to the law enforcement officer, Appellant also related in cross examination that, "I'm not sure if I said Xanax or just a nerve pill. I can't be positive about that."
In Pate , the accused was convicted of possession of marijuana. Id. at 868. On appeal, we held that although the marijuana and the accused's statements to law enforcement officers should have been suppressed, their receipt into evidence as part of the State's case was harmless error beyond a reasonable doubt because the accused voluntarily testified in his own behalf and his testimony amounted to a confession to which the challenged evidence was merely cumulative, and the conviction was affirmed. Id. at 870, 873; see also State v. McDaniel , 987 S.W.2d 444, 446 (Mo.App. 1999).
In State v. Patino , 12 S.W.3d 733 (Mo.App. 1999), "Defendant voluntarily testified in both this case and in [a separate] trial, and in each instance admitted knowingly transporting the cocaine found in the vehicle he was driving." Id. at 740. "Under such circumstances, even if the evidence should have been suppressed, its receipt into evidence was harmless error because Defendant's voluntary testimony amounted to a confession to which the challenged evidence was merely cumulative." Id.
Where a defendant voluntarily testifies in his own defense and admits to committing the crime, the testimony amounts to a confession, and the evidence the defendant sought to suppress is cumulative and, thus, harmless beyond a reasonable doubt. Id. ; McDaniel , 987 S.W.2d at 446; Pate , 859 S.W.2d at 870; see also Motes v. United States , 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900).
In Motes , the United States Supreme Court held that testimony of a witness was improperly received because it was violative of Motes' Sixth Amendment right to confront the witnesses against him. However, Motes' conviction was affirmed because his trial testimony amounted to a confession. At 20 S.Ct. 1000 the Court said:
It would be trifling with the administration of the criminal law to award him a new trial because of a particular error committed by the trial court, when in effect he has stated under oath that he was guilty of the charge preferred against him.
For a more extensive analysis of the "harmless error beyond a reasonable doubt" doctrine, see discussion in Pate , 859 S.W.2d at 870, interpreting Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Rose v. Clark , 478 U.S. 570, 576, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460 (1986).
Inasmuch as Appellant's testimony in the case at bar amounted to a confession of possession of a controlled substance, we hold that the admission of the pill into evidence complained of by Appellant was harmless beyond a reasonable doubt. Patino , 12 S.W.3d at 740; Pate , 859 S.W.2d at 870. Point denied.
The judgment is affirmed.