State v. Burrow
| Citation | 514 S.W.2d 585 |
| Decision Date | 14 October 1974 |
| Docket Number | No. 58405,No. 1,58405,1 |
| Parties | STATE of Missouri, Respondent, v. Donald Ernest BURROW, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
Jerry L. Reynolds, Donald E. Bonacker, Springfield, for defendant-appellant.
Appeal from judgment and sentence of five years' imprisonment on jury verdict of guilty to charge of selling marihuana. § 195.200, subd. 1(4), RSMo Supp.1973, V.A.M.S.
On January 25, 1973, a 15-year-old Springfield girl did not attend school and did not return home following school. The girl was 'going with' the then 17-year-old appellant, Donald Ernest Burrow. The girl's father began a search for his daughter, believing that she was with Burrow. He obtained the assistance of a nephew, Tommy Lewis. The two drove around the Springfield area but failed to locate the girl.
At about 11:30 P.M., Officer Smart of the Greene County Narcotics Bureau, in response to a call from the father, called the father and was told of the daughter's running away with Burrow. He told the officer that Tommy Lewis knew that Burrow was dealing in marihuana and was about to make a sale in the vicinity of the Sycamore Inn. Officer Smart and Officer Hobson met the father and Lewis, accompanied by a third person, Jackie Coy, in the vicinity of the restaurant, but Burrow did not appear.
A discussion among the officers, the father and Lewis resulted in a plan by which Lewis would try to buy marihuana from Burrow, and, if he succeeded, Lewis and Burrow would be arrested and jailed together and Lewis would try to find where the girl was. Because the father 'didn't look the part' only the officers and Lewis and Coy went forward with the plan.
The four in one auto left the vicinity of the Sycamore at around 2:00 A.M. and drove around looking for Burrow's car. Eventually, at around 3:00 A.M., they parked near the residence of Burrow's mother. Lewis went to the door and knocked. Burrow's mother answered the door and Lewis told her that if Donnie wanted to stay out of trouble, he'd better come talk to him. The mother awakened Donnie and he came to the door.
According to Lewis, he told Burrow that he was 'in a lot of trouble' over the girl and asked whether he could help locate her. Burrow said no and the matter was dropped. Lewis told Burrow that he had some 'cool people' with him and that they needed some 'lids.' Burrow went in the house, dressed and returned to the car with Lewis.
Burrow got in the car and said 'You guys want four lids?' Officer Smart said, 'Yeah, we'll take four lids.' Burrow said, 'Well, you'll have to drive me to my stash.' The five drove a few blocks and stopped. Burrow got out of the auto and was gone three to five minutes. He returned with four plastic bags containing marihuana ('lids'). The officers paid Burrow $60 and then informed him that they were officers and placed Burrow and Lewis under arrest. Lewis was released and no charge filed against him.
At the trial of Burrow on a charge of selling marihuana, a chemist identified the substance in the bags as marihuana. The jury returned a verdict of guilty and fixed the punishment at five years' imprisonment. Four grounds of error are asserted on this appeal.
Lewis was endorsed as a witness for the state, but the state did not call him. The defendant then called Lewis. Before interrogation of the witness, the transcript here shows the following:
'MR. REYNOLDS (attorney for defendant): Your Honor, this witness, Tommy Lewis, is a witness that was endorsed by the state and is one who I thought would be called up by the state and they did not call him, so I call him myself and because it is my belief he will be hostile to me, I intend to cross examine him, and I realize, Ted, that I will not impeach the witness, but that I will cross examine him.
Lewis then testified, in response to defendant's counsel's interrogation, that the agents had proposed the plan whereby a purchase of marihuana would be made by Lewis from Burrow and that Lewis would be arrested and jailed with Burrow to find out where the girl was and the agents 'would be able to make a bust of Donnie.'
After such statement, defense counsel asked:
Defendant counsel addressed no remark to the court following the ruling, but proceeded to examine the witness in detail concerning the plan and the agents' part in it. Some time later the following occurred in the course of defense counsel's interrogation:
Again, following the trial court's ruling, no request was addressed to the court and the interrogation continued.
On this state of the record, there simply is no basis for a claim of error based on the trial court's refusal to permit the cross-examination or impeachment of the witness. The trial court correctly ruled that cross-examination of the witness would be permitted if the witness was in fact hostile. When objection was made to two questions on the grounds that they were leading and sustained by the court, defense counsel did nothing to advise the court that he believed the hostility of the witness required that he be permitted to interrogate him as if on cross-examination. In such circumstances, the ruling of the trial court cannot be held error.
As for impeachment, defense counsel at the outset stated that he would not impeach the witness and at no time was there any offer of what, if any, evidence might have been available for impeachment purposes. Again, the trial court's ruling on this question cannot be held error.
Instruction
The verdict-directing instruction read:
'If you find and believe from the evidence beyond a reasonable doubt, that on or about the 26th day of January, 1973, the defendant, Donald Ernest Burrow, did wilfully, unlawfully and feloniously sell Marihuana to Jim Smart and the defendant was not unlawfully entrapped into doing so as submitted in Instruction No. 5, then you will find the defendant guilty of sale of a controlled substance as charged in the information and assess his punishment at confinement in the Missouri Department of Corrections for not less than five years nor more than life, and unless you find the facts so to be you will find the defendant not guilty.'
Appellant attacks the underscored portion of the instruction on numerous grounds, but the assignment of error here must be limited to the grounds specified in the motion for new trial, to-wit, that the instruction was confusing and misleading.
The information did not charge the sale of a 'controlled substance.' It charged simply the sale of marihuana. The verdict-form instruction referred to the offense as 'selling marihuana.' Appellant contends that, since the term 'controlled substance' was not used either in the information or at the trial, its appearance in the verdict-directing instruction and nonuse in other instructions made the instruction misleading and confusing.
Although the information did not employ the term 'controlled substance,' the offense charged is denominated sale of a 'controlled substance.' § 195.200, subd. 1(5), RSMo Supp.1973, V.A.M.S. That marihuana is a controlled substance under Schedule I (§ 195.017, subd. 2(4)(j), RSMo Supp.1973, V.A.M.S.) is determinable as a matter of law. State v. Carter,475 S.W.2d 85, 90(5) (Mo.1972). The fact issue to be determined by the jury was whether or not the defendant illegally sold marihuana and the jury was required by the instruction to make such determination. Although the instruction employed the hitherto unused term 'controlled substance,' the basic factual issue was clearly submitted. The contention that the instruction was confusing and misleading is without merit.
Appellant contends that the verdict is unsupported by the evidence because there was no competent evidence that the narcotics agents had reasonable grounds to believe the appellant was engaged in the sale of marihuana. Appellant's contention that such evidence was an essential element of the state's case is based primarily upon the giving of an entrapment instruction in the language used in State v. Hammond, 447 S.W.2d 253 (Mo.1969). The language of the instruction approved in that case and here given included the following:
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