State v. Burr

• Decision Date: 06 October 1976
• Docket Number: No. 9712,9712
• Citation: 542 S.W.2d 527
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Dennis William BURR, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 527

542 S.W.2d 527

STATE of Missouri, Plaintiff-Respondent, v. Dennis William BURR, Defendant-Appellant.

No. 9712.

Missouri Court of Appeals, Springfield District.

Oct. 6, 1976.

Kenneth W. Johnson, Johnson & Sweeney, Springfield, for defendant-appellant.

John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before HOGAN, P.J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.

BEN F. PYLE, Special Judge.

Appellant, Dennis William Burr, hereinafter referred to as defendant, was charged with selling a controlled substance (marihuana) under the Habitual Criminal Act in an information substituted for an indictment. The jury found defendant guilty and the court sentenced him under the Habitual Criminal Act to five years' imprisonment in the Missouri Department of Corrections.

D. W. Lipp, an undercover narcotics agent for the Missouri Highway Patrol, testified that while working undercover in Springfield, Missouri, on January 11, 1973, he first met and became acquainted with the defendant at the Quest Lounge in Springfield. They struck up a general conversation which ultimately got around to the subject of drugs. The defendant who had introduced himself as Dennis asked Lipp if he was interested in anything. Lipp indicated he was and inquired of defendant what he has access to. Defendant replied, 'Anything you want.' When asked by Lipp if he could obtain any chemicals, the defendant stated he could, however it would take a couple of days. Defendant then advised Lipp that he knew where he could get some marihuana. Lipp and the defendant then went their separate ways. The first meeting lasted about fifteen to twenty minutes.

Later that same evening, Agent Lipp again saw the defendant at the Esquire Lounge in Springfield. Defendant approached Lipp and told him he could get some marihuana but it would take a few days. Defendant gave Lipp a phone number and told him to call him in a couple of days and to ask for Dennis Burr or 'Peanuts'.

Agent Lipp was then allowed to testify, over the objection of the defendant, that he then inquired of the defendant if he had anything with him at that time. Defendant stated that he had some 'speed' and quoted a price of thirty cents a tablet. They retired to the restroom of the Esquire Lounge where Lipp testified he purchased ten tablets from the defendant for three dollars. Lipp placed the tablets in his coat pocket and they again went their separate ways. Later that evening Lipp noticed his jacket, along with the pills, was missing. No claim was made that the defendant was involved in the loss of the jacket and its contents. This second meeting that night at the Esquire Lounge lasted about ten minutes.

Agent Lipp then testified that sometime between January 11 and January 26 he placed a phone call to the defendant at the number given him and asked for either Dennis or Peanuts. Lipp stated that he talked to someone whom he could not identify. They talked about fifteen to thirty seconds and Lipp told him he would contact him the next time he (Lipp) was in town.

On January 26 Lipp again saw the defendant in the Esquire Lounge. They spoke and Lipp asked him if he had any marihuana. Defendant indicated that he did and it was fifteen dollars a lid. He and Lipp went out to the parking lot where the defendant gave Lipp two plastic bags containing marihuana. Lipp in return gave him thirty dollars. This contact lasted about ten minutes. This sale was the basis for the present charge against the defendant.

Agent Lipp made positive identification of the defendant as the man whom he had met on January 11 and who had sold him the marihuana on the 26th. He further stated that, in all, he had seen the defendant for a total of about forty minutes. The defendant testified that he had never seen or talked to Agent Lipp before his arrest and did not sell him any marihuana on January 26, 1973. Defendant in addition introduced other evidence tending to discredit Lipp's identification testimony.

The defendant lists nine separate allegations of error which, because of their similarity, he has grouped under three points in his brief.

Basically, the defendant's main contention under the first point is that the trial court erred in allowing the State, over defendant's objection, to introduce evidence of the alleged prior sale of 'speed' by the defendant to Agent Lipp on January 11. This the defendant claims constituted evidence of another crime which is inadmissible and prejudicial. The State contends that because of the evidence introduced by the defendant tending to discredit Lipp's identification testimony and because the identity of the defendant was the main issue, such evidence of the prior sale of pills was proper in order to substantiate Lipp's identification of the defendant.

It is well-settled that proof of the commission of a separate and distinct crime by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant's guilt of the charge for which he is on trial. State v. Selle, 367 S.W.2d 522, 529(18) (Mo.1963); State v. Shilkett, 356 Mo. 1081, 1086, 204 S.W.2d 920, 922--923(1, 2) (1947). Generally, evidence of other crimes is competent to prove the specific crime charged when it tends to establish: 1) motive; 2) intent; 3) the absence of mistake or accident; 4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; 5) the identity of the person charged with the commission of the crime on trial. State v. Reed, 447 S.W.2d 533, 534(1) (Mo.1969).

The test of whether evidence of other distinct crimes falls within any of these exceptions was aptly stated in State v. Reed, supra, 447 S.W.2d at 534(1):

"The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime.' State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307.'

The cases of State v. Reed, supra, and State v. Carter, 475 S.W.2d 85 (Mo.1972), neither of which was cited by the defendant, are markedly similar and appear to be controlling of the issue involved here. In the Reed case, the defendant was charged with the unlawful sale of marihuana to James Pollard, a police informer, on July 12, 1967. Pollard testified that an agent supplied him with money, he went to the defendant's apartment and purchased a bag of marihuana from him. Pollard was further allowed to testify, over the objection of the defendant, that a month earlier, on June 14, 1967, he had gone to the defendant's apartment and purchased two ten-dollar bags of marihuana from him. The State argued that the evidence of the prior sale was admissible on various grounds, and further it showed positive identification of the defendant. The Supreme Court of Missouri, in reversing the conviction, said, 447 S.W.2d at 534(2):

'We can find no justifiable reason for the admission in evidence of the separate and distinct sale of marijuana by defendant to James Pollard on June 14, 1967. . . . Proof of the separate and distinct sale on June 14 did not tend to prove any material fact in issue concerning the sale on July 12th. It was not relevant to prove the identity of defendant.'

Likewise, the case of State v. Carter, supra, 475 S.W.2d 85, is on all fours with the issues in this case. There the defendant was charged and convicted of the offense of unlawfully selling a controlled substance on April 28, 1967. Robert Cutright, a narcotics agent, testified that he purchased two hundred 'pep pills' from the defendant at a tavern called 'The Place' on April 28. The defendant testified that he had never seen or talked to Cutright prior to his arrest on May 16, and was not at 'The Place' on that date but was, in fact, somewhere else. This alibi testimony was coupled with other evidence in an effort to cast doubt on the credibility of Cutright's identification. In rebuttal, the State recalled Cutright who was allowed to testify, over defendant's objection, that he had previously seen the defendant on March 16 at 'The Place' and had had a conversation with him, wherein defendant stated that he had previously dealt in drugs and had sold ten to fifteen thousand pills per week but had quit dealing some three weeks prior to March 16. The State sought, as here, to justify the admission of this conversation on the basis that it helped establish the identity of the defendant as the person who later sold the 'pep pills' to Agent Cutright. Our Supreme Court reversed the conviction, holding that the proof of the sale of pills prior to March 16 did not tend to prove that defendant sold the pills to Cutright on April 28, and was not relevant to prove the identity of the defendant with respect to the charged sale of April 28. The court stated, 475 S.W.2d at 89:

'The issue with respect to whether the defendant was the person who committed the act charged is, except where admitted, an issue in every criminal case. The existence of this issue does not, in and of itself, authorize evidence of other crimes. The fact that here defendant testified and denied the April 28th sale and also denied he had met or known agent...