State v. Cheesebrew
| Citation | 575 S.W.2d 218 |
| Decision Date | 07 November 1978 |
| Docket Number | No. 39149,39149 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James V. CHEESEBREW, Defendant-Appellant. . Louis District, Division Two |
| Court | Court of Appeal of Missouri (US) |
David A. Lang and Thomas E. Shipp, Jr., St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Daniel F. Lyman, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
Defendant was convicted of possession of marijuana, a Schedule I controlled substance, in excess of 35 grams in violation of § 195.020 and sentenced to a term of five years in the custody of the Missouri Department of Corrections to run consecutively with a sentence of five years for sale of a controlled substance.
For reversal defendant contends that the court erred in: (1) overruling a challenge for cause to three veniremen who indicated they would feel defendant was hiding something if he did not testify; (2) admitting testimony that marijuana had been seen in defendant's trailer one week before the raid; (3) admitting testimony that the defendant had told an undercover policeman one week before the raid that he would be in possession of more marijuana in the future; (4) admitting rebuttal testimony that the defendant had sold marijuana to an undercover policeman one week before the raid; (5) admitting a kitchen scale into evidence; (6) denying defendant's motion for a continuance; and (7) overruling defendant's motion to amend the record by changing defendant's sentences from two five-year terms to be served consecutively to two five-year terms to be served concurrently. We affirm.
Defendant, age 31, had been living in a two bedroom trailer located about three miles west of Malden, Missouri. Defendant's girl friend and Homer Carrington, age 19, were also living in the trailer in February and March of 1976.
On the evening of February 25, 1976, Trooper Moses of the Missouri State Highway Patrol, acting undercover, was admitted into defendant's trailer. There were six persons including Moses and defendant in the trailer. Most of them were smoking marijuana. Moses saw a bag of marijuana and was told by defendant that he was going to get a large quantity of marijuana in the near future.
On March 5, 1976, members of the Missouri Highway Patrol and the Dunklin County Sheriff's Department were admitted into defendant's trailer by Carrington pursuant to a search warrant. Approximately 17 lbs. of marijuana were discovered hidden throughout the trailer in the bedrooms, stereo speaker cabinets, a trash can, beer box and briefcase. Marijuana seeds were found in a prescription medicine bottle with Cheesebrew's name on it. A scale and some hashish pipes were also seized.
Cheesebrew was arrested when he returned to the trailer while the search was in progress. An information filed on March 23, 1976 charged defendant and Homer Carrington with possession of a Schedule I controlled substance in excess of 35 grams. 1
Defendant does not question the sufficiency of the evidence to sustain the conviction. Further facts necessary to the disposition of the issues raised will be discussed as the issues arise.
Defendant complains that he was deprived of an impartial panel of veniremen because the court failed to sustain his challenges for cause to three members of the panel who responded by raising their hands to the following question:
He contends that the three jurors "indicated that they would be biased against the defendant if he did not testify."
It is well settled that defendant was entitled to a full panel of qualified veniremen before he made his peremptory challenges. State v. Ransburg, 540 S.W.2d 172 (Mo.App.1976). The determination as to whether a venireman is qualified rests in the discretion of the trial court and will not be disturbed except for an abuse of discretion. It must clearly appear from the evidence that the challenged venireman was in fact prejudiced. State v. Johnson, 534 S.W.2d 844, 846 (Mo.App.1976).
To place the issue in context we set out the paragraph that forms the basis of defendant's complaint and the paragraph immediately preceding:
At this point defendant abandoned this line of questioning.
The paragraph which forms the basis for defendant's complaint contains a dissertation and three separate questions. Three jurors responded by raising their hands. We do not believe that the trial court was required to take this as an indication of bias and prejudice on the part of these jurors. We are unable to determine whether the jurors were responding to one or all of the questions in the affirmative or whether they were seeking further information as to the meaning of defendant's inquiries.
The trial court, as it should, permitted counsel wide latitude to pursue all avenues of inquiry that might establish bias or prejudice on the part of the panel. The obligation is upon defendant to directly and plainly examine the veniremen so as to discover any disqualifying factors. State v. Gaitan, 442 S.W.2d 530 (Mo.1969). If counsel felt that the response of the three veniremen was indicative of bias and prejudice it was his obligation to require specific answers to clear unequivocal questions. See Lemonds v. Holmes, 241 Mo.App. 463, 236 S.W.2d 56, 62 (1951). This, defendant did not do in this case. Defendant committed the venire to the proposition that defendant did not have to prove his innocence; and that they would find him not guilty if there was a reasonable doubt. 2 We cannot say that the court abused its discretion in denying defendant's challenge of the three members of the panel.
If we were to assume that the gesture made by the three members of the panel was an affirmative response to the questions asked they would merely be indicating their "desire to have as much evidence and testimony as possible as an aid to arriving at a verdict" not that they had a closed mind and not that the "failure to testify is an admission of guilt." State v. Ransburg, 540 S.W.2d at page 174.
The case before us is distinguishable from State v. Lovell, 506 S.W.2d 441 (Mo. banc 1974) and State v. Scott, 482 S.W.2d 727 (Mo. banc 1972) relied upon by defendant. Lovell stands only for the proposition that the court must make its own determination of the qualification of a challenged venireman based on the facts elicited during the voir dire and that it may not defer to the venireman's judgment of his qualifications. In Scott one of the members of the panel said she would hold it against defendant if he did not testify. Another stated that in his opinion if the defendant were innocent he would be glad to testify. The voir dire in the case before us did not develop any disqualification of the challenged veniremen.
Defendant next contends that the court erred in permitting Trooper Moses to testify that he saw marijuana in defendant's trailer on February 25, 1976, because it was evidence of the commission of a crime different from that with which the defendant was charged; prior possession was not an issue and the incident was too remote in time; the evidence was so inflammatory and prejudicial as to require its exclusion.
Proof of the commission of a separate crime is not admissible unless it has a legitimate tendency to directly establish the defendant's guilt of the crime of which he is charged. Such evidence is logically relevant 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; or (5) the identity of the person charged with the commission of the crime on trial. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (Mo. banc 1954).
In order to convict one for possession of a controlled substance under § 195.020 RSMo. 1969, it is necessary for the state to prove that the defendant knowingly and intentionally had in his possession the prohibited substance. It must be shown that the defendant was aware of the presence and character of the substance and was intentionally and consciously in possession of it. State v. Polk, 529 S.W.2d 490 (Mo.App.1975).
It was necessary in this case for the state to show that the defendant knew of the character of the substance, and that he was intentionally in possession of it. The fact that there was a quantity of marijuana in defendant's trailer and that it was being used by defendant and others in this trailer on February 25 had a legitimate tendency to prove that he knew of the character of the substance and that his possession on March 5 was...
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State v. Garrett
...with a series of remarks and questions, in the nature of remarks, related to the presumption of innocence. Compare State v. Cheesebrew, 575 S.W.2d 218 (Mo.App.1978). He then asked the jurors who presumed the appellant to be innocent to raise their hands. Only ten did and on that basis the a......
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