State v. Cobb

• Decision Date: 10 December 1991
• Docket Number: 17290,Nos. 16920,s. 16920
• Citation: State v. Cobb, 820 S.W.2d 704 (Mo. App. 1991)
• Parties: STATE of Missouri, Respondent, v. Larry COBB, Appellant. Larry COBB, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 704

820 S.W.2d 704

STATE of Missouri, Respondent, v.Larry COBB, Appellant.

Larry COBB, Appellant, v.STATE of Missouri, Respondent.

Nos. 16920, 17290.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 10, 1991.

Motion for Rehearing or Transfer to

Supreme Court Denied

Dec. 27, 1991.

J. Gregory Mermelstein, Columbia, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

AppellantLarry Cobb, tried as a prior offender, § 558.016.2, RSMo 1986, was found guilty by a jury of the class B felony of selling more than five grams of marijuana, § 195.211, RSMoCum.Supp.1989.¹The trial court sentenced appellant to ten years' imprisonment.Appellant brings appeal 16920 from that judgment and sentence.

Appellant thereafter filed an action under Rule 29.15² to vacate the conviction.The circuit court conducted an evidentiary hearing, made comprehensive findings of fact and conclusions of law, and entered an order denying relief.Appellant brings appeal 17290 from that order.

We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.

Appeal 16920

Six of the eight points presented by appellant's brief pertain to appeal 16920.We first address point VI.It avers appellant was denied a full panel of veniremen from which to make his peremptory challenges.The point arises from the following facts.

On the morning of trial, before the venire was called into the courtroom, the trial court determined only 26 veniremen had arrived.Appellant's lawyer ("defense counsel") moved orally for a continuance so the court and counsel would not "have to be concerned about the strikes for cause."

The trial court told defense counselthe court would grant every legitimate challenge for cause, and if insufficient jurors remained for peremptory challenges the court would declare a mistrial.

Defense counsel responded, "Okay," and acknowledged the defense was ready to proceed.

After voir dire, defense counsel challenged three veniremen for cause.The trial court granted the challenges, leaving 23 veniremen.The trial court told the prosecutorthe State could give up one of its peremptory challenges ³ or the court could discharge the jury.The court added that appellant would be entitled to his "full six challenges."

The prosecutor stated he would give up a peremptory challenge and "take this jury panel as it is."

Defense counsel voiced no objection to the scheme.The prosecutor exercised peremptory challenges against five members of the venire.Defense counsel thereafter exercised six peremptory challenges, leaving a jury of twelve which tried the case.

Appellant maintains the above procedure was constitutionally defective in that it forced him to make his peremptory strikes from an "incomplete panel."He cites State v. Anderson, 620 S.W.2d 378, 380(Mo.1981), which holds an accused is entitled to a full panel of qualified impartial veniremen before the peremptory challenge process commences.

The State responds that appellant failed to preserve the complaint for appellate review in that he registered no objection when the venire was reduced to 23 and the trial court announced it would allow the State to waive a peremptory challenge and proceed with the trial.In support of this contention, the State cites State v. Lawrence, 791 S.W.2d 729(Mo.App.1990).There, the accused argued on appeal that the prosecutor had improperly exercised peremptory challenges against three black members of the venire.The Eastern District of this Court noted the accused made no objection until after the jury was seated and the trial court had excused the surplus veniremen.The Eastern District held the lack of timely objection waived the right to challenge the jury panel.Id. at 730.

While the circumstances in Lawrence are not identical to those here, the rule that a timely objection is required to preserve an issue for appellate review is equally applicable.Here, voir dire began with more than enough veniremen to allow each side its six peremptory challenges.Had there been no more than two successful challenges for cause, enough veniremen would have remained for six peremptory challenges by each side.It was only when appellant's third challenge for cause was granted that the venire was reduced to 23.It was then that the trial court announced the State could give up a peremptory challenge or the court could discharge the jury.

At that juncture defense counsel said nothing, accepted the jury list after the prosecutor made five peremptory challenges, struck six veniremen peremptorily, and proceeded to trial without objection.Given these circumstances, the trial court could have properly assumed the procedure was acceptable to appellant.

As the State points out, had 24 veniremen remained after the challenges for cause, six peremptory challenges by the State would have reduced the venire to 18 before appellant exercised his peremptory challenges.Here, five peremptory challenges by the State likewise reduced the venire to 18 before appellant exercised his peremptory challenges.Inasmuch as there was no objection by defense counsel to the latter procedure, the trial court obviously inferred appellant was satisfied with it and wanted to proceed with trial.

We hold point VI was not preserved by timely objection at trial.Consequently, it is reviewable only as plain error.

Plain error relief is granted only when an error so substantially affects the accused's rights that a manifest injustice or miscarriage of justice inexorably results if left uncorrected.State v. Burgess, 800 S.W.2d 743, 746(Mo. banc 1990).

That did not occur here.After the prosecutor's peremptory challenges, appellant received a jury list of 18 remaining veniremen, exactly what he would have received had the prosecutor peremptorily challenged six veniremen from a list of 24.While we neither endorse the procedure here nor imply what our holding would have been had the issue been preserved, we find no manifest injustice or miscarriage of justice warranting plain error relief.

We next address point I, which avers the evidence "was insufficient to sustain the jury's finding of guilt beyond a reasonable doubt."On this issue we accept as true all evidence and inferences supporting the verdict and disregard contrary evidence and inferences.State v. Evans, 802 S.W.2d 507, 514(Mo. banc 1991).We determine whether the evidence, so viewed, was sufficient to make a submissible case, id., from which a reasonable juror might have found appellant guilty beyond a reasonable doubt.State v. Dulany, 781 S.W.2d 52, 55(Mo. banc 1989).

The purchaser of the marijuana was Vernon Moss.At the time of the buy, he was awaiting sentencing for two burglaries and a stealing.He was voluntarily assisting law enforcement officers in drug investigations, hoping for leniency.

Moss arranged a marijuana purchase for 7:00 a.m., October 27, 1989, with Terry Tipton and Rhonda Tipton.It was to take place at the latters' residence in Joplin.

About 6:00 a.m., that date (October 27), Moss met with Detective Lance Nichols of the Joplin Police Department and other officers to plan the operation.Nichols obtained $350 "buy money" from a superior officer and photocopied each bill to record its serial number.Moss was searched to confirm he was carrying no drugs.A "body mike" was concealed on him so officers outside the Tiptons' residence could hear what was occurring.The officers' cue to enter was to be when Moss began counting the money aloud before handing it to the seller.

Officer Vic England, carrying the "buy money," rode with Moss in the latter's car to the Tiptons' residence.They arrived about 6:55 a.m. Moss went to the front door alone, knocked, and was admitted inside by Rhonda.Moss' testimony about what occurred next is the basis of appellant's point II (discussed later).Moss testified:

"...I asked them if a person had showed up yet with the quarter pound that I was supposed to buy, and they told me no one had showed--

[Defense counsel]: Objection, Your Honor, that's hearsay.

The Court: Overruled.

Q.Go ahead.

A.Right after I got inside, someone had knocked on the back door, Rhonda went to the back door, she came back.And then Terry went to the back door, he came back up front with the white towel."

Moss avowed Terry Tipton did not have the towel when he went to the back door.Asked whether anything was said about the person at the back door, Moss testified: "He[Terry] just said that the person at the back didn't want to be seen by me."This answer is the basis of appellant's point III (discussed later).

Moss recounted Terry opened the towel, revealing four bags of a substance Moss believed was marijuana.Moss took one bag outside and showed it to England.England examined it and confirmed it was marijuana.England then gave Moss the $350.

Moss returned inside, examined the other three bags, and "agreed to make the deal."Moss counted the money, handed it to Terry, and watched as Terry went to the back door, stuck his arm out, and handed the money and towel to someone outside.Moss did not see whom.

Terry then returned with a paper sack in which Moss could carry the bags of marijuana.At that point, officers entered and arrested the Tiptons.

During the operation, Lieutenant Dale Owen of the Joplin Police Department was positioned near the back of the Tiptons' residence.When he heard Moss counting the money, he(Owen) moved closer and saw one individual leaving the back door.Owen identified himself as an officer and stopped the individual, who turned out to be appellant.Owen arrested appellant, searched him, and discovered currency in one of his pockets.Observing the currency was "tens and twenties," the same denominations as the "buy money," Owen seized it.

Appellant was the only person Owen saw at the back of the Tiptons' residence during the...