State v. Campbell

• Citation: 122 S.W.3d 736
• Decision Date: 05 January 2004
• Docket Number: No. 25601.,25601.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Terry D. CAMPBELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

122 S.W.3d 736

STATE of Missouri, Plaintiff-Respondent, v. Terry D. CAMPBELL, Defendant-Appellant.

No. 25601.

Missouri Court of Appeals, Southern District, Division Two.

January 5, 2004.

Nancy A. McKerrow, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General; Patrick T. Morgan, Assistant Attorney General, Jefferson City, for Respondent.

JEFFREY W. BATES, Judge.

Terry Campbell ("Defendant") was charged by amended information with the class B felony of sale of a controlled substance in violation of § 195.211.¹ After a jury trial, Defendant was convicted of this offense and sentenced by the trial court to a term of 12 years imprisonment pursuant to the jury's recommendation. Defendant appeals from the judgment, presenting a single point relied on for decision. He contends that the trial court committed plain error by admitting hearsay testimony in violation of the confrontation clauses contained in the Sixth Amendment of the United States Constitution and Article I, § 18(a) of the Missouri Constitution of 1945. We affirm the trial court's judgment.

Defendant does not challenge the sufficiency of the evidence to support his conviction. We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences. State v. Rush, 949 S.W.2d 251, 252 (Mo.App.1997). So viewed, the evidence reveals the following facts.

In December 2000, Jill Wieneke ("Officer Wieneke") was a task force officer for the Lake Area Narcotics Enforcement Group ("LANEG"). LANEG is a multi-jurisdictional task force that is supervised by the Missouri State Highway Patrol. Officer Wieneke primarily worked undercover, buying narcotics and obtaining information.

On December 18, 2000, Officer Wieneke was conducting an undercover narcotics investigation in Rolla, Missouri. At approximately 6:30 p.m., she went to the residence of a confidential informant, Tabitha Brinkley ("Brinkley"). Officer Wieneke was told by Brinkley that she knew the address of a person in Rolla to contact about buying narcotics.

Brinkley took Officer Wieneke to the residence of Sherry Watson ("Watson"), which was located at 1200 Arkansas in Rolla. Officer Wieneke and Brinkley arrived there around 8:00 p.m. and were invited into the living room of Watson's home. After introducing Officer Wieneke to Watson, Brinkley asked Watson if she had any cocaine. Watson replied that she did not have any, but she could make some telephone calls and contact someone that she knew would have some. In return, Watson wanted to be given a part of the narcotics that were purchased. After that discussion occurred, Watson started making telephone calls.

While Watson was making these calls, a black male came to the Watson home and knocked on the front door. After he entered the house, Brinkley introduced him to Officer Wieneke as "T." Officer Wieneke had not previously met this individual, but, by reviewing reports and photographs maintained by the Rolla Police Department, she later determined that his name was Terry Campbell.² At trial, Officer Wieneke identified Defendant for the jury as the person she met at Watson's home. She testified that there was no doubt in her mind Defendant was the person with whom she dealt on December 18, 2000.

After Defendant arrived, Brinkley asked him if he had any powder cocaine. He replied that he had only "rock," which meant crack cocaine. Brinkley said that would do. Officer Wieneke, Brinkley, Watson and Defendant then moved to the kitchen area of Watson's home, which was located in the back of the residence, to discuss the transaction. Officer Wieneke had a brief conversation with Defendant about purchasing narcotics from him. He told Officer Wieneke that he could get crack or cocaine, and he could get more of it later if she wanted it. The price for the drugs was $125. Defendant, however, was unsure about whether he wanted to sell drugs to Officer Wieneke. She was wearing a loose sweatshirt which covered a large belt buckle on her pants. Defendant felt around Officer Wieneke's waistband and became concerned. She raised her sweatshirt above her waist to show him that what he felt was just her belt. He said that he was still a bit leery about the deal, so he left the kitchen and went to the front part of the residence. At this point, Watson became agitated because she was concerned the sale would not occur, thereby depriving her of a share of the drugs. Watson snatched the $125 in cash from Officer Wieneke's hands and took it to the front of the house. Watson returned in about one minute, and Officer Wieneke took the cash back from her. Defendant returned to the kitchen area and said that "everything was cool and we could do the deal." He offered to get more drugs if Officer Wieneke wanted them. She gave Defendant $125 in cash. Defendant laid five individually wrapped rocks of crack cocaine on top of a dresser so Officer Wieneke could examine them and check the weight. Each rock was fairly small, off-white to tan in color and individually packaged in the tied-off corner of a Zip-Lock bag. Officer Wieneke had previously seen this type of substance in her training and during her experience doing undercover narcotics work.³ At that point, Watson came over and wanted her portion of the drugs. In order for Officer Wieneke to maintain her undercover status, she let Watson keep one of the rocks of crack cocaine for making telephone calls and allowing her residence to be used for the transaction. In Wieneke's presence, Watson dissolved the rock cocaine in some vinegar, drew the liquid into a syringe and injected herself with the solution.

Officer Wieneke always carried a locked briefcase to which only she had the combination. KShe placed the remaining four packages of crack cocaine in her briefcase and kept them there, undisturbed, until December 27, 2000. On that date, she put the bags of rock cocaine in a properly-labeled evidence bag and placed the bag in the locked Troop F Highway Patrol evidence box. On January 5, 2001, the evidence bag was moved from the evidence box to Troop F's evidence room and logged into its computerized evidence system. Thereafter, the four rocks contained in the evidence bag were analyzed by the Missouri State Highway Patrol Crime Lab, and a laboratory report containing the results of that analysis was generated. This lab report, which the Prosecuting Attorney and Defendant's attorney stipulated was admissible and conclusive on the issue, confirmed that the rocks were cocaine base, a controlled substance with a combined weight of .41 grams.⁴ During the trial, the lab report was admitted in evidence as State's Exhibit 3 and passed to the jury for its examination.

Defendant presented no evidence at trial. At the close of the evidence, the jury found Defendant guilty as charged. At a subsequent hearing, he was sentenced by the trial court to the prison term noted above. Thereafter, Defendant filed a timely notice of appeal.

In Defendant's sole point relied on, he contends that the trial court committed plain error by admitting hearsay testimony during Officer Wieneke's testimony from Brinkley, Watson and an unnamed Rolla police officer. Defendant contends that the admission of this alleged hearsay testimony violated his right to confront the witnesses against him as guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 18(a), of the Missouri Constitution. As Defendant forthrightly concedes in his brief, he neither objected to the admission of this testimony at trial nor complained about its admission in his motion for new trial. Consequently, this claim of trial court error is not preserved for appellate review. State v. Kelley, 953 S.W.2d 73, 86 (Mo.App. 1997). Defendant requests that we review for plain error review pursuant to Rule 30.20.⁵

At the outset, we note that Rule 30.20 is no panacea which a criminal defendant can use to obtain appellate review of any alleged error that is unpreserved. "The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review." State v. White, 92 S.W.3d 183, 189 (Mo. App.2002). Rather, plain error is limited to "error that is evident, obvious and clear." Id. The proper parameters of plain error review are established by the text of Rule 30.20 itself. It states, in pertinent part, that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Id. The extent of appellate review authorized by this rule is limited in two important respects. First, an appellate court is not required to engage in plain error review; the decision whether to grant or deny such a request is left to the court's discretion. State v. Thurston, 104 S.W.3d 839, 841 (Mo.App. 2003); State v. Smith, 33 S.W.3d 648, 652 (Mo.App.2000). Second, as this Court observed in State v. Deckard, 18 S.W.3d 495 (Mo.App.2000):

We initially observe that an assertion of plain error under Rule 30.20 places a much greater burden on a defendant than an assertion of prejudicial error. A defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant's rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected.

(Citations and footnote omitted.) Id. at 497. The burden of proving the existence of such a manifest injustice or miscarriage of justice rests on Defendant. State v. Cole, 844 S.W.2d 493, 500 (Mo.App.1992); State v. Lewis, 809 S.W.2d 878, 879 (Mo. App.1991). The determination of whether plain error exists must be based on a consideration of the individual facts and circumstances of each case. State v. Robinson, 44 S.W.3d 870, 872 (Mo.App.2001). In...