State v. Anderson, s. 15489

• Decision Date: 05 March 1990
• Docket Number: Nos. 15489,s. 15489
• Citation: 785 S.W.2d 299
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Woodrow ANDERSON, Defendant-Appellant. (Three Cases) Woodrow ANDERSON, Movant-Appellant, v. STATE of Missouri, Respondent. to 15491 and 16312.
• Court: Missouri Court of Appeals

Page 299

785 S.W.2d 299

STATE of Missouri, Plaintiff-Respondent, v. Woodrow ANDERSON, Defendant-Appellant. (Three Cases)

Woodrow ANDERSON, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 15489 to 15491 and 16312.

Missouri Court of Appeals,

Southern District,

Division Two.

March 5, 1990.

Susan L. Hogan, Columbia, for defendant-appellant and movant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent and plaintiff-respondent.

HOGAN, Judge.

By information filed in the Circuit Court of Mississippi County, defendant Woodrow Anderson was charged with selling cocaine to one A.R. Riney in violation of § 195.020.1, RSMo Supp.1984. By a second information filed in the same court, defendant was charged with selling cocaine to one Joseph G. Crump in violation of § 195.020.1, RSMo Supp.1984. In a third information, defendant was charged with selling marihuana to Crump in violation of § 195.020.1, RSMo Supp.1984. All three informations charged that defendant was a prior offender within the intent of § 558.016.2, RSMo Supp.1984. Over the defendant's objection, the court ordered that the three informations be "consolidated" and tried together. A jury found the defendant guilty of each offense charged. His punishment for each offense was assessed at imprisonment for a term of 20 years. It was ordered that the sentences be served concurrently. The defendant appeals. We affirm.

In reviewing the record on a criminal appeal, this court accepts as true all evidence tending to prove the defendant's guilt together with all reasonable inferences to be drawn therefrom, disregarding all evidence and inferences to the contrary. State v. Brown, 660 S.W.2d 694, 698-99 (Mo. banc 1983); State v. Porter, 640 S.W.2d 125, 126[1, 2] (Mo.1982). So taken and considered the evidence was that in March and April 1985, Alvin Riney and Joseph Crump, both members of the Missouri State Highway Patrol, were engaged in an undercover investigation of the sale of drugs in southeast Missouri. They were working with one Ernestine (or Earnestine) Jones. The capacity in which Ms. Jones acted is not clear. She assisted Troopers Riney and Crump by arranging purchases of controlled substances, but it does not appear that she was vested with any authority by any agency of the State.

Testimony concerning the first sale of cocaine came from Trooper Riney. About 3:15 p.m. on March 18, 1985, Riney met the defendant at Ernestine Jones' residence. The defendant was accompanied by one Stephon Peterson. ¹ Peterson produced a cellophane packet which contained a white powder. He told Riney that the packet contained 1/8 ounce of cocaine. Peterson's price for that amount was $360. Riney asked if he could purchase 2 grams of the cocaine. Peterson said that would be fine and the price for 2 grams would be $220. Peterson made up two 1-gram packets of cocaine, gave them to Riney and Riney gave Peterson $220. Riney put the cocaine in an "evidence bag." A sample of the contents of this evidence bag was later tested and found to be cocaine.

The second sale of cocaine took place on April 2, 1985. Trooper Crump testified he contacted the defendant at a place described as "Bruenderman's." Crump told the defendant he would be interested in buying about 1/8 ounce of cocaine. Defendant indicated he would have to contact somebody but would be in touch with Crump later at Ernestine Jones' residence. The defendant did meet Crump in Ernestine's "back room," but stated he was unable to obtain the 1/8 ounce of cocaine. Defendant was able, however, to obtain what he called "$35 bags" of cocaine. Crump bought four such bags of cocaine from the defendant. At Crump's direction, Ernestine made a "street test" of the cocaine. The test was pronounced satisfactory. Crump paid Peterson $140 and put the cocaine in an evidence bag. Trooper Crump's purchase, introduced in evidence as State's exhibit 2, was tested and found to be cocaine.

The defendant was also charged with a sale of marihuana on April 12, 1985. The evidence tending to prove this charge was that on April 12, Crump and Ernestine Jones went to the defendant's house. The defendant and Crump discussed matters not related to cocaine or other controlled substances. Defendant asked Crump if he would be interested in buying some pot. Defendant's price was $250 for a quarter pound. Crump said he would like to have a look at the marihuana. The defendant agreed to contact Crump at Ernestine Jones' residence.

A short time later the defendant and an unidentified man contacted Crump at Ernestine Jones' house, in the back room. When the defendant arrived, he had a clear plastic bag of marihuana with him. Crump paid the defendant $250 for the marihuana. The defendant placed the money in his wallet. It was stipulated that the substance sold on this occasion was marihuana.

An information charging the first sale of cocaine was filed February 4, 1986. An information charging the second sale of cocaine was filed the same day. The information charging the sale of marihuana was also filed February 4, 1987. All three cases were tried together on August 18, 1987. The defendant appealed from each conviction separately. The appeals, Nos. 15489, 15490 and 15491, were consolidated in this court and will be considered together.

The defendant has briefed three assignments of error. His first point, slightly paraphrased, is that the trial court erred in denying his oral application for a continuance to obtain the testimony of Ernestine Jones. The defendant argues that the denial of this application infringed his Sixth Amendment right to have compulsory process for obtaining witnesses in his favor, because "appellant expected Jones to corroborate his defense that Jones had hired appellant to assist her in undercover activities, and Jones was the only person who could corroborate appellant's claim that he was [so] employed...." Defendant further asserts that the denial of his application was prejudicial because Ernestine's testimony would probably have produced a different result. He also argues that "there was no evidence that the State had endeavored to locate Jones, despite the trial court's order to that effect, so there was no indication that Jones' presence could not have been obtained within a reasonable period of time."

The premise of this point is that Ernestine Jones was an undercover agent vested with authority to employ the defendant and grant him immunity from the consequences of his criminal acts. This premise, or assumption, seems to be based on the fact that Ernestine was described in a writing, contained in the State's file, as a "confidential informant." The following remarks were exchanged during a conference immediately preceding the trial:

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"[DEFENSE COUNSEL]: The defense, we would negate the elements of criminal intent due to the fact that Ernestine Jones, if testifying as I have indicated, [the defendant] expects her to indicate, in fact, he was operating with immunity. Whether immunity in fact blessed and declared by the State is irrelevant, but what is relevant is the criminal intent under which [sic] he was working. My understanding is that he was retained, paid, told he would be held in confidence, would not face any charges from this, and, in fact, Ernestine Jones was a duly-sanctioned, as I understand, representative of the State of Missouri in undercover capacity.

THE COURT: How is it you understand that?

[DEFENSE COUNSEL]: From discovery from the State. She is labeled, from information [in the prosecutor's] office, 'Ernestine Jones, confidential informant No. 326, Missouri State Highway Patrol.'

THE COURT: You indicated she was an agent?

[DEFENSE COUNSEL]: An undercover agent.

THE COURT: I think there is a big difference in undercover agent and informant. An agent is one thing and--

[DEFENSE COUNSEL]: I would say she was being used in an undercover capacity.

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THE COURT: The Court notes the State has advised this Court that they have sought this woman almost two years.

[THE PROSECUTOR]: That's correct, Your Honor, over two years now.

THE COURT: That the warrants are out in the NCIC and the MULE system, so, therefore, every resource, as I understand it, available to the State has been utilized for almost two years to determine the whereabouts of this woman. In fact, her presence for criminal charges [is] being sought by the county directly south of us...."

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The defendant testified that he had made an agreement with Ernestine "that [he] didn't have to talk to nobody else but her, that she would hire [him] to work for her." There is, however, no basis in the record to support the conclusion that Ernestine was vested with any authority by any agency of the State, or that she had any authority to grant the defendant immunity from his criminal acts. The whole argument that defendant was denied his Sixth Amendment right to compulsory process is based on trial counsel's speculation that Ernestine was an undercover agent with authority to recruit other agents and grant them immunity from criminal liability simply because she was described as "confidential informant No. 326, Missouri State Highway Patrol."

The State suggests that the point is without merit because the application for continuance was made orally on the day of trial and did not comply with the requirements of Rules 24.09 and 24.10. We agree that the defendant's failure to request the continuance by a written motion accompanied by an affidavit is a sufficient ground for this court to affirm the trial court's ruling. State v. Tettamble, 746 S.W.2d 433, 439 (Mo.App.1988); State v. Merrick, 677 S.W.2d 339, 342 n. 2 (Mo.App.1984); State v. Diamond, 647 S.W.2d 806, 808 (Mo.App.1982). More important, in our view, is the improbability that the personal presence of the witness could have been obtained. One of the important issues to be considered in ruling on an...