State v. Adams, s. WD

• Decision Date: 27 October 1992
• Docket Number: Nos. WD,s. WD
• Citation: 839 S.W.2d 740
• Parties: STATE of Missouri, Respondent, v. Alphonzo ADAMS, Appellant. Alphonzo ADAMS, Appellant, v. STATE of Missouri, Respondent. 42944, WD 44937.
• Court: Missouri Court of Appeals

Page 740

839 S.W.2d 740

STATE of Missouri, Respondent, v. Alphonzo ADAMS, Appellant.

Alphonzo ADAMS, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 42944, WD 44937.

Missouri Court of Appeals Western District.

Oct. 27, 1992.

John Klosterman, St. Louis, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before ULRICH, P.J., and SHANGLER and FENNER, JJ.

ULRICH, Presiding Judge.

Alphonzo Adams was convicted by a jury on October 24, 1989 of four counts of selling a controlled substance in violation of § 195.200, RSMo 1986. The Circuit Court of Cole County sentenced Mr. Adams as a prior offender to four concurrent ten-year terms of imprisonment on January 16, 1990. Mr. Adams subsequently filed a Rule 29.15 motion for postconviction relief which was denied following an evidentiary hearing. Mr. Adams appeals both his convictions and the denial of his postconviction relief motion, and his appeals are consolidated. The circuit court's judgment of conviction is affirmed. The motion court's judgment denying his Rule 29.15 postconviction motion is affirmed.

Mr. Adams raises four points in his consolidated appeal. Mr. Adams contends that (1) the trial court erred in denying his motion to dismiss the charges against him because the state entrapped him and engaged in outrageous conduct in violation of his constitutional right to due process of law; (2) the motion court erred in denying as untimely his Rule 29.15 motion because the absolute filing deadline imposed by Rule 29.15 operated to deny his constitutional right to due process of law; (3) the motion court erred in finding that he filed his amended Rule 29.15 motion out of time because the court violated Rule 29.15(f); and (4) the motion court erred in denying his Rule 29.15 motion and finding as fact that he had received effective assistance of counsel because his counsel had a duty to pursue his claim that Cole County jury selection procedures violated his right to a fair cross section of the community.

Around June 1988, Mr. Adams began renting an apartment managed by Leonard Scott Stone. Mr. Adams and Mr. Stone had apartments in the same building. They became friends and occasionally shared drugs.

Around November 28, 1988, Mr. Adams received a letter from the apartment landlord stating that his rent was in arrears for part of October and all of November. The letter threatened eviction if payment was not made. Mr. Adams discussed this matter with Mr. Stone, who had collected the rent monies. Mr. Stone assured Mr. Adams that the arrearage was due to secretarial error.

In late November or early December of 1988, the landlord contacted the Jefferson City police department and asked for assistance in a civil investigation involving Mr. Stone, who had been stealing rent money to buy drugs. The landlord and Detective Stephen R. Lochhead, a narcotics officer with the Jefferson City police department, confronted Mr. Stone. In exchange for the landlord's promise not to prosecute, Mr. Stone agreed to pay back the stolen money and to work as an informant for the Jefferson City police department. An investigation quickly focused on Mr. Adams because Mr. Stone identified him as his source for narcotics. Mr. Adams had previously been convicted for possession and sale of drugs.

Under police direction, Mr. Stone arranged four drug transactions with Mr. Adams. These sales occurred December 11, 1988, December 21, 1988, January 15, 1989, and January 20, 1989. Prior to each transaction, Mr. Stone was fitted by police with a wiring harness, a microphone, and an antenna to wear underneath his clothing for the purpose of recording the transaction. During each transaction, the voices of the participants in the drug transaction were transmitted by the device worn by Mr. Stone to a receiver in a vehicle occupied by Detective Lochhead who heard the voices.

Mr. Stone contacted Mr. Adams in his apartment and asked him if he could obtain cocaine. Mr. Stone stated he had the money to pay for the drugs. During each of the four transactions, Mr. Adams left the apartment building for a while and returned with cocaine. The cocaine was weighed on a jeweler's scale, tested for impurities, and handed to Mr. Stone. Mr. Stone then paid for the cocaine.

Immediately after each sale, Mr. Stone met with Detective Lochhead at a predetermined location. Detective Lochhead field-tested the cocaine, placed it in an evidence bag, and marked it with the time and date. Later, Detective Lochhead delivered the drug to a laboratory, which tested and identified the drug as cocaine.

Following a jury trial, Mr. Adams was convicted on October 24, 1989 of four counts of selling cocaine. The trial court sentenced him to four concurrent terms of 10 years confinement. Mr. Adams filed his notice of appeal on January 25, 1990.

On April 27, 1990, the transcript on appeal was filed with this Court. On May 31, 1990, Mr. Adams filed his pro se Rule 29.15 postconviction motion seeking to set aside his convictions and sentences.

On June 18, 1990, the appellant was granted an additional 30 days in which to file an amended motion. The amended motion was not filed until August 10, 1990.

On April 23, 1991, an evidentiary hearing was held in connection with Mr. Adams' Rule 29.15 motion. The motion court entered findings of fact and conclusions of law, together with an order overruling Mr. Adams' motion. The motion court found that: (1) Mr. Adams' pro se Rule 29.15 motion was filed more than 30 days from the filing of the transcript on appeal and was therefore time-barred and procedurally waived under Rule 29.15(b); (2) Mr. Adams' amended Rule 29.15 motion was not filed within the 30 days provided for in Rule 29.15(f) or within the additional period of time granted by the court under Rule 29.15(f) and, therefore, was also time-barred and procedurally waived; and (3) even if the motions had been timely filed, the issues in those motions were without merit.

I. DIRECT APPEAL

Mr. Adams contends as point (1) that the trial court erred in denying his motion to dismiss the charges against him because the state entrapped him and engaged in outrageous conduct in violation of his right to due process of law as guaranteed by the fourteenth amendment of the United States Constitution and article I, section 10 of the Missouri Constitution, in that the State's evidence established entrapment as a matter of law. Mr. Adams maintains he was an unwilling participant in each of the four drug transactions. Mr. Adams claims he sold controlled substances to Mr. Stone only after repeated requests by Mr. Stone, which Mr. Adams consistently refused, and only under the threat of eviction from his apartment.

The defense of entrapment has been legislatively codified in Missouri in § 562.066.2, RSMo 1986, which provides:

An "entrapment" is perpetuated if a law enforcement officer or a person acting in cooperation with such an officer, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct when he was not ready and willing to engage in such conduct.

To prove entrapment, the statute requires proof of both (1) inducement to engage in unlawful conduct and (2) an absence of willingness to engage in such conduct. Section 562.066.2, RSMo 1986, State v. Willis, 662 S.W.2d 252, 255 (Mo. banc 1983).

The defendant has the initial burden of going forward with evidence showing both unlawful governmental inducement and the defendant's lack of predisposition. Section 562.066.4, RSMo 1986; Willis, 662 S.W.2d at 255. The State then has the burden of proving lack of entrapment beyond a reasonable doubt. Willis, 662 S.W.2d at 255. The State may do so either by rebutting the defendant's evidence of inducement or by showing his or her predisposition. Id.

If the defendant has injected the issue of entrapment into the case and the State's case contains no evidence of entrapment, entrapment is not established as a matter of law. Id. at 257. The fact finder is free to reject the defendant's allegations and conclude he was not unlawfully entrapped. Id.

Mr. Adams asserted entrapment as a defense in his jury trial. He claimed he was induced to participate in the drug transactions by Mr. Stone's repeated solicitations and by the implicit threat of eviction from his residence. The State introduced no evidence confirming Mr. Adams' version of events. To the contrary, the State contended Mr. Adams was not motivated by the fear of losing his apartment and that Mr. Adams was ready and willing to supply Mr. Stone with drugs on request.

The State further rebutted Mr. Adams' allegation of entrapment by introducing evidence of Mr. Adams' predisposition to engage in the sales. Evidence of a defendant's prior use, possession, or sale of drugs, or ability to supply drugs upon request constitutes evidence of predisposition sufficient to negate a defense of entrapment. State v. Hauck, 804 S.W.2d 811, 813 (Mo.App.1991); State v. King, 708 S.W.2d 364, 367 (Mo.App.1986); State v. Coffman, 647 S.W.2d 849, 852 (Mo.App.1983); State v. Horton, 607 S.W.2d 764, 766 (Mo.App.1980). Mr. Adams' admissions that he intravenously used drugs, his prior convictions for the possession and sale of drugs, testimony that he was Mr. Stone's drug source, and his ability to procure the drugs Mr. Stone requested all constitute evidence that Mr. Adams was predisposed to sell controlled substances and that he was not entrapped as a matter of law.

Because the State's case contained no evidence that Mr. Adams was entrapped, entrapment is not established as a matter of law. The jury was instructed on entrapment and rejected this defense, which it was...