State v. Coffman, WD
| Decision Date | 11 January 1983 |
| Docket Number | No. WD,WD |
| Citation | 647 S.W.2d 849 |
| Parties | STATE of Missouri, Respondent, v. Spencer D. COFFMAN, Appellant. 33165. |
| Court | Missouri Court of Appeals |
F. Randall Waltz, III, Barton & Waltz, Jefferson City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.
Spencer Coffman was found guilty of selling marijuana and was sentenced to five years imprisonment. Because Coffman had waived a jury trial, the verdict and sentence were rendered by the trial court. On this appeal, Coffman contends that the court erred in failing to reopen the case to allow the introduction of newly discovered evidence, in denying his application for writ of error coram nobis, and in failing to find that Coffman had been entrapped. Affirmed.
Glenn Beazley testified that he was an undercover agent employed by the Jefferson City police department. Beazley said that he had first met Coffman about two weeks prior to the sale in question. Beazley testified that on May 9, 1980, the day prior to the sale, he asked Coffman if he knew where Beazley could find some "smokes," meaning marijuana. He stated that Coffman told him he had bought a pound of marijuana and would have some of it the following day.
On the next day, May 10, 1980, Beazley saw Coffman at a bar, and Coffman informed him that he had the marijuana. They left the bar and drove in separate cars to a shopping center parking lot. There, Beazley joined Coffman in his car, and Coffman took a brown grocery sack from the back seat and placed it on the front seat. Beazley stated that in the sack there were about fifteen plastic sandwich type bags which each contained a green plant like substance. Coffman told Beazley to pick out the bag he wanted. Beazley did so and paid Coffman forty dollars for it.
Coffman testified that he sold about an ounce of marijuana to Beazley in the shopping center parking lot. Coffman admitted that he frequently smoked marijuana, and further admitted that he and his friends pooled their money to buy substantial quantities of marijuana and then distributed the marijuana among the members of the pool. He said that at times he was the one who obtained the marijuana and then delivered it to each member of the pool.
At the conclusion of all the evidence, Coffman moved for a judgment of acquittal on grounds of insufficient evidence and the failure to show an absence of entrapment. The court overruled this motion on February 11, 1981, finding that there was sufficient evidence to prove beyond a reasonable doubt that Coffman had sold the marijuana, and that there was no evidence of entrapment.
Coffman requested that a pre-sentence investigation be made, and the court ordered one. On April 13, 1981, the pre-sentence report was filed. In this report, the state probation and parole officer stated that Beazley told him that he had attempted to buy marijuana from Coffman on several occasions prior to the actual sale, but that Coffman had always sold his supply before Beazley contacted him. On May 18, 1981, Coffman filed a motion to vacate and set aside the conviction based upon newly discovered evidence. The motion was based entirely upon the one statement in the pre-sentence report that Beazley had tried to buy marijuana from Coffman on several prior occasions. On August 21, 1981, the court overruled that motion. One month later, the court sentenced Coffman to five years.
No new trial motion was filed, but under Rule 29.11(e)(2)(A), none was required. The motion to vacate, however, was filed well after the fifteen days within which Coffman had to file a motion for a new trial. In State v. Turnbough, 604 S.W.2d 742, 745[5, 6] (Mo.App.1980), the court held that a motion to reopen a case on the grounds of newly discovered evidence is subject to the time limits established for the filing of a new trial motion. Even though Coffman's motion was untimely, under Rule 29.13(b) the court, with the consent of the defendant, could have ordered a new trial on its own initative before judgment was entered and a sentence was imposed. In State v. Harris, 428 S.W.2d 497, 500 (Mo.1968), the court stated:
It would be patently unjust for a trial judge to refuse to grant a new trial in any case in which an accused was found guilty of a crime on the basis of false testimony, and the court "if satisfied that perjury had been committed and that an improper verdict or finding was thereby occasioned," Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 521, would be under a duty to grant a new trial. That is to say "[w]here it appears from competent and satisfactory evidence that a witness for the prosecution has deliberately perjured himself and that without his testimony accused...
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