State v. Beard

• Court: Missouri Court of Appeals
• Writing for the Court: DON E. BURRELL, J.
• Citation: State v. Beard, 442 S.W.3d 84 (Mo. App. 2014)
• Decision Date: 16 April 2014
• Docket Number: No. SD 32417.,SD 32417.
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Christopher Ryan BEARD, Defendant–Appellant.

442 S.W.3d 84

STATE of Missouri, Plaintiff–Respondent

v.Christopher Ryan BEARD, Defendant–Appellant.

No. SD 32417.

Missouri Court of Appeals, Southern District, Division Two.

April 16, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 29, 2014.

Application for Transfer Denied June 24, 2014.

Samuel E. Buffaloe, Columbia, MO, for Appellant.

Chris Koster, Attorney, General, Richard A. Starnes, Jefferson City, MO, for Respondent.

Opinion

DON E. BURRELL, J.

In September 2012, a jury found Christopher Ryan Beard (hereafter “Beard” or “Defendant”) guilty of distributing a controlled substance on three separate occasions in February 2011. See section 195.211, RSMo Cum.Supp.2012.¹ The trial court subsequently imposed seven-year sentences on each count to run currently with one another but consecutively to any sentence(s) Defendant might already be serving.

In two points relied on, Defendant asserts the trial court: 1) “abused its discretion in overruling [Defendant]'s motion to compel disclosure of the confidential informant's identity”; and 2) erred in not “interven[ing] sua sponte and declar[ing] a mistrial or issu[ing] a curative instruction when the State elicited testimony from [a police officer] that disclosing the identity of confidential informants is dangerous because of the possibility that the suspect or his friends will retaliate against the informant[.]”

Finding no merit in either point, we affirm.

Facts and Procedural Background

Defendant does not contest the sufficiency of the evidence to support his convictions, and we limit our summary of the facts to those necessary for an understanding and resolution of his points.²

In July 2012, Defendant filed a “MOTION FOR DISCLOSURE OF INFORMANT ” (“the motion”). The motion alleged that a “confidential informant [“CI”] participated in the alleged drug transactions by taking the drugs from [Defendant] and handing them to the police officer.” The motion maintained that “[d]isclosure of [CI]'s identity is necessary ... for [Defendant] to have a fair trial” and “[d]isclosure of [CI] will allow [Defendant] and his counsel to conduct an investigation into the merits of the allegation[s].”

Evidence presented at the motion hearing

Springfield Police officer Bryan Welch testified that on February 22, 2011, CI contacted him and said that he “knew Christopher Beard and that Beard would sell [Officer Welch] $100 worth of marijuana and that [they] would meet Beard at his residence at [a particular house on] East Erie.” Officer Welch testified that he had worked with CI “[p]robably 20” times before, but he was not CI's “controlling officer[.]” A controlling officer handles things like getting payments to confidential informants who are working for money or managing confidential informants who are cooperating with law enforcement because of their own criminal charges.

Officer Welch “checked DOR ^{[ 3 ]} records” for a photograph of Beard before leaving to make the transaction, and he testified that the person's photograph he observed in those records was “consistent” with the person he subsequently dealt with during the transactions in question. Officer Welch also discovered that the utilities for the residence were listed under another man's name, but he said that Beard later indicated that his cousin lived at the residence.

Officer Welch transported CI to the residence on East Erie “around 3:30 in the afternoon,” and he saw Beard come out of the garage. “Beard handed [CI] a bag with what was consistent with marijuana” through the vehicle's window as Officer Welch and CI sat in their vehicle. CI handed the bag to Officer Welch, who then reached over CI to hand Beard $100. “Beard talked about other prices, what [Officer Welch] could get a quarter pound for, what [he] could get an ounce and a half ounce for, and ... he just said that this was good stuff that [Officer Welch] was getting[.]” Officer Welch attempted to record the transaction, which took “[t]wo minutes, maybe[,]” but due to “difficulties with the recorder[,]” no recording was made. Beard's name was not used during the transaction.

On February 28th, Officer Welch interacted with Beard on two separate occasions. On the first, Officer Welch had planned on meeting Beard with CI at the East Erie address, but Beard called CI and asked them to pick him up at a liquor store. Upon arriving at that location “in the early afternoon [,]” around 1:00 or 1:30, Beard got into the rear passenger side of Officer Welch's vehicle, and they drove from the liquor store to the East Erie address. Beard “jumped out and went inside.” After a few minutes, Beard came out of the house and got back into the vehicle. Beard handed CI a “plastic bag consistent with marijuana inside of it.” After CI handed the bag to Officer Welch, Officer Welch handed $100 to Beard. Officer Welch then drove Beard to “a parking lot ... at an apartment complex.” This transaction was not recorded.

Later that night, Officer Welch believed that CI had contacted Beard again and that Beard told CI not to “come to the house” on East Erie this time, but to park north of it. Beard had previously discussed his willingness to sell a gram of cocaine for $60. When Officer Welch and CI went to the location specified by Beard, Beard approached their car and got in. Beard “handed a little bag of white powder to [CI], CI handed it to [Officer Welch,]” and Officer Welch “handed Beard $60 in cash.” Officer Welch then gave Beard a ride back to the same apartment complex where he had taken Beard earlier in the day. This transaction also was not recorded.

After presenting the officer's testimony, defense counsel simply argued that Defendant “maintains that he's not the person that was met, that met Officer Welch. Given the short period of time that [Officer Welch] had an opportunity to view and have contact with the seller ... there needs to be an opportunity to cross-examine [CI] to make sure that the person that they [sic] knew is [Defendant].” The State argued that the evidence at the hearing did not “indicate that there's a reason why [CI] needs to be disclosed in this case [.]” The trial court denied the motion “[s]ince [Officer Welch] was present during the buy[.]”

The evidence at trial

Officer Welch identified Defendant as the person who sold him marijuana and cocaine on the dates in question. He testified that Defendant “had black g [au]ges in his earlobes” on each occasion.⁴ Upon request by the State, the trial court instructed Defendant to walk to the jury rail to give the jury “a chance to look at [his] ears.”

Officer Welch testified that Defendant was in his presence for “[t]hree to five minutes” during the first transaction. During the second transaction, Defendant spent about “35 to 40 minutes” in Officer Welch's vehicle. The third transaction “only took a few minutes[,]” but it then took another “10 to 15 minutes” to give Defendant a ride back to the apartment complex.⁵

Dustin Martin, a member of the police surveillance team that assisted with all three transactions, testified that he was unable “to positively identify” the subject, but “the subject in all three buys was consistent in ... stature, size.”

The prosecutor elicited the following general testimony about confidential informants from Officer Welch without drawing any objection from Defendant:

Q. Let me ask you, why is it important not to disclose the identity of a confidential informant?

A. Confidential informants, they're—we don't want to get them hurt. We don't want their families to get hurt for doing the right thing on trying to help the police out. We take that very seriously. So we try not to disclose their information.

Q. And what types of dangers or risks are associated if a confidential informant's identity is disclosed?

A. The suspect could do retaliation. He could have his buddies do retaliation on the confidential informant, and we don't want that to happen.

Q. Is it fair to say that day to day you are living in a potentially dangerous environment?

A. Yes.

Q. Have you personally been involved in any transaction when things did turn dangerous?

A. No.

In her closing argument, defense counsel did not “dispute that somebody sold drugs to Officer Welch.” She also argued, “We've agreed this whole time that the drugs were sold, that they were controlled substances and that that occurred, but my client, [Defendant], maintains his innocence. He maintains his innocence. He was not the person that [sic] sold the drugs to Officer Welch.”

During the prosecutor's rebuttal, the following argument and objection occurred:

The only dispute that has arisen in this trial is whether [Defendant] was the one who did it.

[Defense counsel] has just gotten up here and she has tried to imply that there is argument against that fact, that there is argument against the fact that [Defendant] was the person who [Officer] Welch met with.

There is no support of [sic] that. There has been no proof of that, there has been no evidence supporting that somebody else may have been involved.

The only thing—evidence that you have heard is support that he was the one—

[Defense Counsel]: Objection, Your Honor. I think that shifts the burden to us trying to—having to prove something that is the State's burden to prove.

[The Trial Court]: The objection is overruled. The [trial court has] given the jury instructions as to who has the burden of proof.

Defendant's motion for new trial alleged error in the denial of “[D]efendant's pre-trial motion to reveal [CI].” Defendant also alleged that “[t]he trial court erred in denying [D]efendant's objection to the State's [rebuttal] argument during closing that [D]efendant did not offer any evidence thereby shifting the burden[.]” The motion for new trial did not include any reference to Officer Welch's testimony that it is generally dangerous to disclose a confidential informant's identity because of the risk of retaliation.

The trial court denied Defendant's motion for new trial, Defendant was sentenced as set out...