State v. Carter, 54264

• Decision Date: 18 January 1972
• Docket Number: No. 54264,No. 1,54264,1
• Citation: 475 S.W.2d 85
• Parties: STATE of Missouri, Respondent, v. Donald Ray CARTER, Appellant
• Court: Missouri Supreme Court

Page 85

475 S.W.2d 85

STATE of Missouri, Respondent, v. Donald Ray CARTER, Appellant.

No. 54264.

Supreme Court of Missouri, Division No. 1.

Jan. 18, 1972.

John C. Danforth, Atty. Gen., James M. Reed, Asst. Atty. Gen., Jefferson City, for respondent.

Clarence E. Godfrey, Clayton, for appellant.

BARDGETT, Judge.

Defendant-appellant, Donald Ray Carter, was charged by indictment with the illegal sale of a stimulant drug, to wit: 200 tablets of dl amphetamine sulfate, under the provisions of § 195.240, RSMo 1969, V.A.M.S. The jury found him guilty and assessed his punishment at nine years' imprisonment. See § 195.270, RSMo 1969, V. A.M.S. ¹ The court entered judgment and sentence in accordance with the verdict and, following an unavailing motion for new trial, defendant appeals.

Robert Cutright, a Federal Bureau of Narcotics Agent, testified in the state's case in chief that while working as an undercover agent on April 28, 1967, between 9:15 and 10 p.m., he purchased 200 'pep from defendant at a tavern called 'The Place' on Park Avenue in St. Louis, Missouri. Defendant owned and operated this tavern. Cutright stated he had seen defendant at 'The Place' earlier on March 16, 1967, and also saw defendant at the time of arrest on May 16, 1967, when Cutright pointed defendant out to the arresting police officer as the man who sold him the pills. The state offered to prove that on the March 16th date Cutright conversed with defendant about defendant furnishing Cutright with 'pills' as evidence that defendant consistently sold drugs. Defendant's objection on the ground of immateriality and irrelevancy was sustained.

The pills were analyzed and the state's evidence showed them to be dl amphetamine sulfate, 'dl' meaning dextro-levo.

The defendant and others testified that defendant was not at 'The Place' on the evening of April 28, 1967, at the time Cutright purchased the pep pills; that defendant was at the home of another person selling insurance when the alleged sale to Cutright occurred and that it was dark in 'The Place'. The defense of alibi was coupled with an effort to depreciate the credibility of Cutright's identification of defendant by showing that it was so dark inside 'The Place' that it would be difficult to clearly see another person. Defendant testified that prior to May 16, 1967, the date of his arrest, he had never seen nor talked to Cutright.

A chemist, called as an expert witness by defendant, testified that dl amphetamine sulfate did not appear on the list of proscribed stimulant drugs.

On rebuttal Cutright was recalled by the state and testified that he had seen defendant at 'The Place' prior to April 28, 1967. At this point the court indicated it would permit Cutright to testify that he had been in the tavern on the earlier occasion and had a conversation with defendant but would not permit the witness to testify to the substance of the conversation. The state's attorney insisted that he be allowed to put the substance of the conversation in evidence as an admission against interest by the defendant, saying that in behalf of the state he would take the chance of a mistrial. Defendant objected further on the grounds that the evidence constituted an attack on the character of defendant when character was not in issue, and that it was immaterial, irrelevant and prejudicial. The trial court questioned the propriety of permitting agent Cutright to testify to the substance of this alleged conversation with defendant but nevertheless overruled defendant's objection.

Cutright then testified that on the evening of March 16, 1967, he first met defendant at 'The Place'; that defendant was tending bar; that two other persons were with Cutright; and that Cutright conversed with defendant at the bar. The state's attorney asked Cutright to tell the jury the conversation that took place, to which the witness responded:

'We questioned Mr. Carter concerning whether or not he knew where we could find drugs, specifically, amphetamine. He commented approximately three weeks prior to this date he had quit dealing because he had accepted a job. . . . He commented approximately three weeks prior to our visit on March 16th he had quit dealing. He stated he accepted a job of selling insurance, which necessitated him being away from the tavern most of the time and he did not have time to check out his customers. He commented his wife was the main person attending the bar in his absence and he was afraid to trust her to sell drugs because she might sell to some cop. He further commented he could spot a cop as soon as he walked in the door, but since he had to be away from the tavern so much he quit dealing. He also commented he was selling from ten to fifteen thousand tablets a week while he was in the bar.'

This concluded the conversation. Cutright and his two companions remained in the tavern for about an hour and Cutright returned on another date prior to April 28, 1967, but had no conversation with defendant at that time.

One of Cutright's companions testified that he was present at 'The Place' on March 16, 1967, and observed defendant and Cutright engaged in conversation.

Defendant contends that agent Cutright's rebuttal testimony of the substance of the conversation of March 16, 1967, introduced into the case evidence that defendant was guilty of committing crimes other than the offense charged; that it constituted an attack on defendant's character and was so prejudicial that it deprived defendant of a fair and impartial jury trial. The state now seeks to justify the questioned evidence on the basis that it was admitted to establish the identity of defendant as the person who subsequently sold the 'pills' to Cutright, citing State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, and State v. Owen, Mo., 457 S.W.2d 799.

At the outset it should be said that the testimony of Cutright, the principal identifying witness, that he had met, conversed with, and was acquainted with defendant at a time prior to April 28, 1967, was admissible as evidence which they jury could consider in assessing the accuracy of Cutright's identification testimony that defendant was the person who sold the pills to Cutright on April 28, 1967. Cf. State v. Rima, Mo., 395 S.W.2d 102, 105. The initial ruling by the court that it would permit Cutright to testify he had been in the tavern and conversed with defendant but would not permit testimony as to the substance of the conversation was correct.

The problem presented in the instant case is that the testimony as to the content of the conversation constituted evidence that defendant had, prior to the date of the conversation (March 16, 1967) sold ten to fifteen thousand amphetamine pills per week and had quit dealing some three weeks prior to March 16. The defendant was being prosecuted for the sale of two hundred amphetamine pills on April 28, 1967, and not for the sale of ten to fifteen thousand per week prior to March 16, 1967. The March 16th conversation did not take place as part of or in connection with the charged sale of April 28, 1967, nor did it constitute any prior or preliminary arrangement for the April 28th sale.

In State v. Reese, 364 Mo. 1221 (Banc) 274 S.W.2d 304, the court considered at length the rule relating to the admissibility of evidence of other crimes and set forth the exceptions to the general rule of inadmissibility. The fifth exception is the one relied on by the state here. It is that, "Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish . . . (5) the identity of the person charged with the commission of the crime on trial." 274 S.W.2d 307. The court recognized that caution must be exercised with respect to this type of evidence and said, "But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt and the evidence should be rejected." loc. cit. 307.

This rule was subsequently applied in State v. Reed, Mo., 447 S.W.2d 533, resulting in a reversal of a conviction for the unlawful sale of marihuana. In Reed the defendant was charged with selling marihuana on July 12, 1967, to one James Pollard. Pollard testified as to the July 12, 1967, sale. Then, over objection, Pollard testified he also purchased marihuana from Reed on June 14, 1967. The state argued the evidence of the June 14th sale was admissible 'to show a course of conduct and to show that this defendant committed this crime with knowledge and intent and shows there is a motive to make the sale on the occasion for which he was charged, (and it) further shows a positive identification of the defendant.' 447 S.W.2d 534.

In State v. Reed, supra, this court followed the rule set forth in State v. Reese, supra, and held that the evidence of the June 14th sale fell within the general exclusionary rule...