The Missouri Supreme Court in Jefferson City is considering a challenge to a drug possession conviction over the admissibility of evidence. The seven judges heard arguments last week over a claim that the state’s use of a jailhouse phone call was fundamentally unfair to the defendant.
Foristell police in eastern Missouri arrested Danielle Zuroweste after finding a plastic baggie containing a white powdery residue in her vehicle in September 2015. Five days after being incarcerated, Zuroweste made a phone call to a friend from jail where she used phrases such as “I learned my lesson,” “I knew it was bad,” and “I knew it was wrong.” At trial, the state characterized the call as Zuroweste confessing to her friend that she knew she had a problem with methamphetamine. The state then used the call to argue that she was aware of the presence of a trace amount of methamphetamine found in the baggie.
A jury convicted her of possession of a controlled substance and a trial court sentenced her to 7 years in prison and recommended she be placed in a 120-day institutional treatment program, which if successful, would allow for her release to serve a probation sentence.
Zuroweste had claimed that the jailhouse telephone call violated her right to a fair trial because she wasn’t informed until just before the trial that the prosecution planned to use it as evidence.
In June 2016, she had requested any written or recorded statements the state would be using against her. Then in November, the prosecution informed her on the Thursday before a three-day Veterans Day holiday weekend that it intended to introduce the jailhouse call at the trial which was to begin the following Monday.
Zuroweste claimed the state violated a rule requiring it to disclose any written or recorded statements in its possession and diligently search for materials from other government personnel, and then respond to the request for the information from the defense within 10 days. The state’s disclosure of the call came five months after Zuroweste’s request for the information.
During Wednesday’s Supreme Court hearing, Judge Brent Powell joined several other members of the bench in questioning the state’s lawyer, Assistant Attorney General Evan Buchheim, on why the prosecutor wouldn’t track down jailhouse phone calls that are a regular occurrence.
“These happen all the time on all these cases, all these cases,” said Judge Powell. “So, it’s real hard for me to grasp how using diligence and good faith, that the prosecutor of the state shouldn’t be requesting this on a routine basis.”
The state argued that the attorney for Zuroweste had four days to review the call and that its late disclosure was not unfair because it was only a portion of the “consciousness of guilt” evidence against her which also included video showing her making secretive movements during her traffic stop.
Zuroweste contended the untimely disclosure of the telephone call left her without adequate time to investigate the call or place it in context and did not allow her sufficient time to decide whether she might plead guilty or testify in her own defense. The State had offered her a plea agreement for a program through treatment court, in which the successful completion would result in the withdrawal of her guilty plea and dismissal of the felony drug charge.
Court records show that before the judge, Zuroweste was conflicted but declined the plea deal, saying she couldn’t fulfill the treatment court obligation because she was a single mother of two who lived hours away in southeast Missouri’s Imperial.
The attorney for the state then suggested that Zuroweste would likely not receive a conviction at trial because she didn’t have a criminal history.
The court denied Zuroweste’s motion before the trial to exclude the jailhouse call and later overruled her motion for a new trial after she was convicted.
Before the Supreme Court last week, Assistant Attorney General Buchheim claimed the defense’s attempt to exclude the call was an effort to suppress incriminating evidence against Zuroweste.
“I think they wanted to use, and rightly so, they have the right to operate under the rules, to use the rules to try to exclude what they viewed as inculpatory statements,” said Buchheim.
Attorney Carol Jansen argued on behalf of Zuroweste before the high court, where she claimed the state willfully and intentionally violated the rules of disclosure in order to best accommodate its own schedule to review the jailhouse telephone calls.
“The prosecutor had the duty to diligently search for them and basically just delayed that, basically said, ‘I have a really busy schedule. And so, I may have five months to prepare for this case but I’m going to delay requesting these records, to the extent that I’m only going to give defense counsel three days when her office is closed,” said Jansen.
In her written briefs for the Supreme Court, Jansen pointed out that the state had known that the defense counsel’s strategy at trial was to argue that the state failed to prove that Zuroweste knew about the baggy of methamphetamine residue that an officer found on the floorboard of her vehicle. She claimed the state knew that the late disclosure of the jailhouse call would be “damning” evidence against the defense’s case.
In court last week, Jansen said the state should be sanctioned for its failure to follow the rules and be forced to retry Zuroweste’s case without the jailhouse phone call as evidence.
“I think we need to send a message that there needs to be a fair playing field by the state and by the defense and that you can’t just ignore the rules,” Jansen said.
Jansen is asking the Supreme Court to return Zuroweste’s case to the circuit court in eastern Missouri’s Warren County for a new trial with an order to exclude jailhouse phone calls.
The high court will render its decision where it finishes deliberating, which could occur at any time.
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