State v. Brooks, 62495

• Citation: 618 S.W.2d 22
• Decision Date: 08 June 1981
• Docket Number: No. 62495,62495
• Parties: STATE of Missouri, Respondent, v. Paul James BROOKS, Appellant.
• Court: United States State Supreme Court of Missouri

Page 22

618 S.W.2d 22

STATE of Missouri, Respondent, v. Paul James BROOKS, Appellant.

No. 62495.

Supreme Court of Missouri, En Banc.

June 8, 1981.

Rehearing Denied July 14, 1981.

Leslie D. Edwards, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Mark W. Comley, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted on two counts of illegal sale of heroin, defendant was sentenced as a Second Offender to concurrent terms of 13 years on each count. Following affirmance in the Court of Appeals, Eastern District, the cause was transferred under Rule 83.03 to examine for possible conflict in that decision with State v. Kirkland, 471 S.W.2d 191 (Mo.1971). We review the cause as though here on original appeal. Art. V, Sec. 10, Mo.Const.; Rule 83.09.

Defendant's assignments of error include: (1) insufficient identification evidence to sustain his conviction; (2) abuse of discretion by the trial court in refusing to strike the prosecutor's remark during opening statement, relating to an informant's "tip" constituting inadmissible hearsay. ¹

A review of the record is necessary to meet defendant's contention concerning sufficiency of the evidence. In so doing we accept as true all evidence whether circumstantial or direct, tending to prove defendant guilty together with all reasonable inferences supportive of the verdict. Further, we disregard those portions of the record contrary to the verdict, mindful that our function is not to weigh the evidence but to determine "whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged." State v. Kelly, 539 S.W.2d 106, 109 (Mo.banc 1976), quoting from State v. Johnson, 510 S.W.2d 485, 487 (Mo.App.1974).

The state's principal witness was Officer Patrick Dickens, assigned to the Narcotics Division of the St. Louis Police Department. Following a "tip", two undercover narcotics agents, Dickens and Bates, armed with a photograph of defendant commenced surveillance of a residence at 2918 Sheridan in the City of St. Louis. These officers witnessed a swirl of activity about the entrance of the house including people exchanging currency for something else through a mail slot next to the front door. Observing a continuing flow of traffic at the front door and into the house during the two days that followed, the officers decided to approach the house at about 9:30 p. m. on February 21, 1978, in an attempt to purchase heroin. As they neared the house, a person resembling defendant, whose photograph they had, motioned from the window for them to come to the front door. Bates remained on the sidewalk but Dickens approached the front porch and saw a man who "appeared to be Brooks" through the openings of the venetian blinds on the window. Reaching the front door Dickens was able to clearly observe defendant through the blinds on the door, and in response to defendant's inquiry, Dickens stated that he wanted "two things", street vernacular for two capsules of heroin. Dickens then slipped 20 dollars through the mail slot and received in return two pink capsules containing the requested drug.

The following evening the Officers returned to the house, making another purchase of heroin in the manner of the previous night. Dickens testified that he and Bates were again able to see defendant through the front window of the house. Defendant was arrested at the house several weeks later.

Although Bates did not testify, Dickens unequivocally identified defendant as the man who sold him the drugs on each occasion.

Jessie Clark, owner of the residence at 2918 Sheridan, testified he had rented the downstairs to defendant and had personally collected rental payments from him. Though defendant testified he was not living at the house when arrested but merely drinking there that night, Dickens in rebuttal testified that when arrested, defendant gave his address as 2918 Sheridan. A submissible case was made and the evidence was sufficient to support the jury's conclusion that defendant sold heroin to Officer Dickens, accordingly defendant's first assignment of error must be denied.

Defendant next contends the trial court abused its discretion in permitting the prosecutor to remark during opening statement, "(the police) work through informants.... they received information that narcotics were being sold heroin was being sold at 2918 Sheridan by Paul Brooks." Defendant's motion to strike was denied, and he asserts this statement constituted inadmissible hearsay, resulting in denial of his right to confront witnesses against him.

When measuring the trial court's ruling for possible error, we must remember the scope and manner of opening statement is largely within the discretion of the court which necessarily must rely upon the good faith of counsel in making opening statements to a jury as to material facts they intend to prove. The objective of an opening statement is to introduce the jury to the nature of the cause before them, and it may be utilized by both sides for such purpose. State v. Thomas, 526 S.W.2d 893, 896 (Mo.App.1975). The question of whether the trial court abused its discretion in limiting opening statement is examined against a standard different from that employed in a search for error stemming from evidentiary rulings during trial. When the issue concerns the trial court's exercise of discretion relative to opening statements, no error requiring reversal will be found if a challenged statement refers to arguably admissible evidence and the reference was made in good faith with a reasonable expectation the evidence will be produced. State v. Browner, 587 S.W.2d 948, 952-53 (Mo.App.1979); State v. Hodges, 586 S.W.2d 420, 426 (Mo.App.1979); State v. Thomas, 526 S.W.2d 893, 896 (Mo.App.1975).

Here evidence as to the informant's observations was "arguably admissible", as the officer's testimony was offered not to prove that the information received was true but rather to explain his surveillance of the house. State v. Harris, 571 S.W.2d 443, 446 (Mo.App.1978). It is well established that such testimony is admissible to explain the officers' conduct, supplying relevant background and continuity to the action. State v. McRoberts, 485 S.W.2d 70, 73 (Mo.1972); State v. Barnes, 345 S.W.2d 130, 131-32 (Mo.1961); State v. Bright, 269 S.W.2d 615, 623 (Mo.1954); State v. Lewis, 576 S.W.2d 564, 566-67 (Mo.App.1978). Under this rule the triers of fact can be provided a portrayal of the events in question, more likely to serve the ends of justice in that the jury is not called upon to speculate on the cause or reasons for the officers' subsequent activities. Hence, the statement was relevant and, at the very least, arguably admissible to explain the sudden commencement of police investigation at that particular residence. As previously noted, no testimony of the informant's statements came into evidence as defendant's objections were sustained. However, that ruling by the trial court, though favorable to defendant, was erroneous and cannot, as defendant urges, somehow serve as a basis for declaring reversible error in the prior decision of the court during opening statement. Instead, the prosecutor's going forward with the evidence demonstrates a good faith effort to adduce proof of the matters referred to in opening statement.

Defendant cites the recent decision of State v. Wandix, 590 S.W.2d 82 (Mo.banc 1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1665, 64 L.Ed.2d 248 (1980), as authority for his present contention; however, Wandix has no application to the issue before us. There, quite unlike the case at bar, testimony of police officers concerning an informant's "tip" went into evidence and no issue was presented challenging such testimony as to "relevance" or "inadmissible hearsay." Indeed, defendant sought to press the matter further and demanded to know the identity of the informant, so he could interview and perhaps elicit favorable alibi testimony from him. The question was simply, whether the trial court erred in failing to force disclosure of the informant's identity. Neither the ruling nor analysis in Wandix are apposite in the issue now before us. Nevertheless, it is worth noting that if the prosecutor's remark and evidence concerning the informant had been admitted unchallenged (as in Wandix ) the facts here concerning the informant's role were so spatially and temporally removed, no serious contention could be urged that the trial court if requested (which it was not) would have been required to force disclosure of the informant's identity. Here the informant gave his tip sometime prior to and remote from the house ultimately placed under surveillance. The "tipster" was not present and of course neither participated in nor witnessed the two days of activity prior to commission of the crimes nor the events on the nights the crimes were committed. On the other hand, in Wandix, unlike the instant case, the defendant had endorsed alibi witnesses to testify in his behalf. The informant was the only lay witness available who might corroborate the testimony offered by the alibi witnesses. The informant in Wandix was involved in the drug sales transaction, and it was he who introduced one of the officers to the defendant as his partner and identified defendant, Wandix, as the seller of drugs. The informant was there in the presence of defendant and the officer, and followed defendant to the residence where the drugs were sold. No evidence of such participation in the incident or identification of defendant by an informant occurs in this case, and therefore the informant was not in a position to offer relevant identification testimony. The defendant in Wandix moved for disclosure during the trial and again on appeal. Such is simply not our case.

It has been suggested that State v. Kirkland, 471 S.W.2d 191 (Mo.1971), is controlling. We find it is not. In Kirkland, this Court found reversible error in...