Neal v. State

• Decision Date: 03 April 1984
• Docket Number: No. 13117,13117
• Parties: Raymond Dale NEAL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 254

669 S.W.2d 254

Raymond Dale NEAL, Appellant, v. STATE of Missouri, Respondent.

No. 13117.

Missouri Court of Appeals,

Southern District,

Division One.

April 3, 1984.

Motion for Rehearing or Transfer Denied

April 16, 1984.

Raymond Dale Neal, pro se.

John Ashcroft, Atty. Gen., Dan Crawford, Asst. Atty. Gen., Jefferson, for respondent.

PER CURIAM.

Appellant ("Neal") appeals from a judgment denying his motion under Rule 27.26 ¹ to vacate his conviction of selling marihuana, § 195.020, RSMo 1978, for which he was sentenced to 45 years' imprisonment.

The conviction--a result of trial by jury--was affirmed on direct appeal. State v. Neal, 624 S.W.2d 182 (Mo.App.1981).

In the instant appeal, Neal briefs seven points. As appears infra, we are unable to rule on one of them (point IV) because of the lack of a finding by the trial court on an essential issue. This necessitates remand for that limited purpose. Hamilton v. State, 490 S.W.2d 363, 364 (Mo.App.1973). In order to narrow the issues on remand, we dispose of the other six points on this appeal.

Four of the six (I, II, III and V) belong in the category of trial error. There is no apparent reason why they could not have been decided on direct appeal, had they been preserved for review. None of the four, however, appeared in the motion for new trial, and none were briefed, either as plain error ² or otherwise, on direct appeal. Were they presented to us now as mere trial errors, they would not be cognizable. Garrett v. State, 486 S.W.2d 272, 273 (Mo.1972); Nicolosi v. State, 632 S.W.2d 260, 261 (Mo.App.1981).

However, Neal, obviously mindful of Rule 27.26(b)(3), ³ asserts that each of the assigned errors in those four points violated one or more rights guaranteed him by sundry amendments to the Constitution of the United States, thus ostensibly qualifying them for consideration here.

We note, though, that the Supreme Court of Missouri has declined to review trial errors of alleged constitutional dimension under Rule 27.26 in certain instances where, by reason of procedural default, the issue was not preserved for review on direct appeal. In Schleicher v. State, 483 S.W.2d 393 (Mo. banc 1972), a contention that the movant's fingerprints were inadmissible because they were obtained as a result of his alleged unlawful arrest was held not reviewable where no motion to suppress was filed, no objection was made at trial, and the point was not mentioned in the motion for new trial or briefed on direct appeal. In Fields v. State, 468 S.W.2d 31 (Mo.1971), a contention that certain State's evidence was inadmissible because it was obtained by unlawful search and seizure was held not reviewable where the movant filed no motion to suppress, made no objection on constitutional grounds when the evidence was offered at trial, and failed to mention the point in his motion for new trial.

The Western District of this Court took the same approach in Benson v. State, 611 S.W.2d 538 (Mo.App.1980), saying it is settled law in Missouri that in our post-conviction relief practice under Rule 27.26, a procedural default bars review of even a constitutional claim. Id. at 541. There, the movant had been convicted in a jury trial during the period between Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). He failed to make a timely objection to the venire at trial, then later sought relief under Rule 27.26 on the ground that the panel was constitutionally defective by reason of underrepresentation of women. Benson held that the absence of a timely objection precluded consideration of the issue. Id. at 542.

Schleicher, Fields and Benson are in harmony with the principle that to preserve a constitutional issue for appellate review in Missouri, it must be raised at the earliest time consistent with good pleading and orderly procedure, and must be kept alive during the course of the proceedings. State v. Wickizer, 583 S.W.2d 519, 523 (Mo. banc 1979); State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975).

As noted earlier, none of the issues in points I, II, III and V were preserved in Neal's motion for new trial or briefed on direct appeal. Thus, even if they present issues of constitutional magnitude, it seems Neal has waited too long to assert them.

We recognize, however, that the extent to which a procedural default will bar collateral attack on a state criminal conviction, when the attack is based on federal constitutional grounds, is still a developing area of the law, though the trend is unmistakably toward denying review. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Having carefully considered the current posture of the law on the subject, and having weighed the fact that Neal's sentence is 45 years, we have concluded that justice is better served in this particular case by reviewing points I, II, III and V for merit, rather than rejecting them outright on procedural grounds. We do so ex gratia, being unpersuaded that review on the merits is compelled.

As Neal does not rely on any provision of the Constitution of Missouri, all constitutional amendments mentioned herein pertain to the Constitution of the United States.

The main witness against Neal at trial was Miles Copher, who testified he bought 10 pounds of marihuana from Neal on Sunday, February 10, 1980, in Jasper County. Copher explained that he and his wife smoked three cigarettes from the marihuana, and that he replaced what they smoked with other marihuana he already had. According to Copher, he sold the same 10 pounds to Leo Owens the next day, February 11.

Copher was arrested two days later, February 13, in a police "undercover operation." Seeking "leniency," Copher decided to "become an informant," and, on February 15, 1980, told authorities about buying the marihuana from Neal five days earlier.

Copher testified at Neal's trial pursuant to a plea bargain. ⁴

Neal asserts in point I that his conviction was obtained in violation of his constitutional rights under Amendments 5, 6 and 14, in that Copher, an "admitted drug dealer," destroyed or transferred the alleged marihuana, thereby depriving Neal of his rights of cross-examination, confrontation, and "compulsory process," and his right to test the alleged marihuana.

There was, of course, no denial of confrontation or cross-examination of Copher. The intendment of the point, as we understand it, is that because the alleged marihuana was never in the hands of law enforcement authorities, there was no opportunity to subject it to laboratory analysis, either by the State or the defense, and no means of presenting, or refuting, any scientific testimony.

Proof that the substance was marihuana rested on Copher's testimony. Because of Copher's familiarity and experience with marihuana, the trial court, over Neal's objection, allowed Copher to express his opinion that the substance he bought from Neal was marihuana. This was assigned as error on direct appeal, but ruled adversely to Neal. Neal, 624 S.W.2d at 183-84[1-4].

In support of his attack here, Neal cites four federal cases. ⁵ All are inapposite. In those cases, the prosecuting authorities withheld or destroyed physical evidence, statements, or reports of experts that might have proved helpful to the defense. That did not occur here. Copher was not an agent of, or informant for, the State when he bought the marihuana from Neal and sold it to Owens. Neal does not suggest there was any way for the State to have retrieved the marihuana when the transactions came to the attention of the authorities, and nothing in the record indicates the State could have done so.

Neal also cites two Missouri cases in support of Point I ⁶ but neither is pertinent. We find no merit, constitutional or otherwise, in point I.

In point II, Neal asserts his conviction was based on the uncorroborated testimony of a "co-conspirator" (Copher), in violation of Amendments 5 and 14. He relies on three cases, ⁷ none of which apply.

In Missouri, a defendant may be convicted upon the uncorroborated testimony of an accomplice, ⁸ State v. Lang, 515 S.W.2d 507, 509 (Mo.1974), unless that testimony is so lacking in probative force as to preclude it from constituting substantial evidence, State v. Dick, 636 S.W.2d 425, 427 (Mo.App.1982). We have studied Copher's trial testimony, and do not find it so lacking in probative force as to preclude it from constituting substantial evidence. Moreover, Copher's testimony was buttressed by his wife. She testified that on the Sunday in question, Neal, accompanied by his wife, carried a laundry basket "with some clothes on top" into the Copher home. Copher and Neal went to a "back room," taking the basket with them. After Neal and his wife departed, Mrs. Copher went to the back room and saw 10 pounds of marihuana that had not been there before. Point II is denied.

Neal contends in point III that his conviction was based on insufficient evidence, in violation of Amendments 5, 6 and 14. The gist of the point, as we read it, is that Copher was not a credible witness, and his testimony was uncorroborated. The only authority Neal cites in support of point III is Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which holds, as we understand it, that in a challenge to a state criminal conviction brought in a federal court under 28 U.S.C. § 2254, if the settled procedural requisites for such a claim have otherwise been satisfied, the petitioner is entitled to habeas corpus relief if the federal judge finds that upon the record evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 323-25, 99 S.Ct. at 2791-92, 61 L.Ed.2d at 576-77. Neal fails to explain how that principle applies to the...