State v. Cole, s. 58886

• Decision Date: 10 November 1992
• Docket Number: 60211,Nos. 58886,s. 58886
• Citation: 844 S.W.2d 493
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Johnathan COLE, a/k/a Johnifer Griffin, Defendant-Appellant. Johnathan COLE, a/k/a Johnifer Griffin, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 493

844 S.W.2d 493

STATE of Missouri, Plaintiff-Respondent, v. Johnathan COLE, a/k/a Johnifer Griffin, Defendant-Appellant.

Johnathan COLE, a/k/a Johnifer Griffin, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.

Nos. 58886, 60211.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 10, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Dec. 23, 1992.

Application to Transfer Denied Jan. 26, 1993.

Deborah B. Wafer, St. Louis, for appellant.

William L. Webster, Atty. Gen., Robin H. Grissom, Asst. Atty. Gen., Jefferson City, for respondent.

STEPHAN, Judge.

Johnathan Cole appeals from the judgment of the trial court sentencing him as a prior, persistent and Class X offender to ten years' imprisonment for illegal distribution of a controlled substance within 1,000 feet of a school in violation of Section 195.214, RSMo Cum.Supp.1991, and to a consecutive five year term of imprisonment for illegal possession of a controlled substance in violation of Section 195.202, RSMo Cum.Supp.1991. A jury had found him guilty on both counts. ¹ Cole also appeals from the judgment denying his Rule 29.15 motion after an evidentiary hearing. We have consolidated the two appeals pursuant to Rule 29.15(l ). We affirm both judgments.

Cole raises five points on appeal. He challenges the sufficiency of the evidence, a jury instruction, the State's comments in voir dire and closing argument concerning reasonable doubt, the admission of certain evidence, and the adequacy of his trial counsel's pre-trial investigative efforts.

Defendant's first point states the evidence was insufficient to prove the element of his possession of a controlled substance. When reviewing a claim of insufficiency of the evidence, the role of this court is not to weigh the evidence but to ascertain whether sufficient evidence was adduced at trial so that a reasonable person could conclude that the defendant was guilty as charged. State v. Wallace, 825 S.W.2d 626, 630 (Mo.App.1992). In passing on the sufficiency of the evidence, we must accept as true all evidence and inferences that tend to support the verdict and disregard all adverse evidence and inferences to the contrary. State v. Naucke, 829 S.W.2d 445, 459 (Mo. banc 1992); State v. Kalagian, 833 S.W.2d 431, 435 (Mo.App.1992). We consider the evidence in a light most favorable to the State. State v. Villa-Perez, 835 S.W.2d 897 (Mo. banc 1992).

The evidence at trial, when reviewed against this legal backdrop, established the following facts. On September 8, 1989, Detective William Sibert was assigned as an undercover officer to the Street Corner Apprehension Team ("SCAT"), a unit focusing on drug arrests within certain targeted neighborhoods in the City of St. Louis. While riding a bicycle, the undercover detective approached Johnathan Cole and a woman standing on a street corner in the City of St. Louis. Cole asked the detective if he "was looking." The detective understood this to be an offer to sell cocaine or "a rock." The detective answered that he "wanted a twenty", meaning rock cocaine worth $20.00. Cole directed the woman beside him to give the detective the merchandise. She gave him "the rock of cocaine" and the detective gave her a twenty dollar bill.

The undercover detective had been wired with a KEL transmitter to enable police officers in a surveillance van parked nearby to monitor and tape record his conversations. A television cameraman was also present in the surveillance van. The police officer supervising the SCAT operation was in a separate car accompanied by a television news reporter. As the undercover detective rode away, he notified the police officers in the surveillance van that the deal had been transacted.

The surveillance unit radioed Officers Whitling and Murphy who were waiting in an unmarked police car about one-half block away from the site of the drug sale. Officer Klier who, along with Officer Hylla, had also responded to the call, was in the process of arresting Cole as Officers Whitling and Murphy arrived at the scene. Several of the officers observed Cole drop from his right hand a plastic bag containing a white powdered substance. Later analysis determined the substance to be cocaine. The KMOV-TV cameraman in the police surveillance van videotaped the arrest. The videotape of the arrest which took less than thirty seconds was shown to the jury.

Defendant complains that the evidence was insufficient to prove the element of possession because the videotape "conclusively showed that Johnathan Cole did not possess any cocaine at the time of his arrest." Appellant states that the "videotape does not show a baggie in Johnathan's hand at any time and the videotape cannot lie."

We have reviewed the videotape several times. The videotape clearly depicts the drug sale to Detective Sibert on the bicycle. However, the police officers and their police car block much of the videocamera's recording of subsequent events. The view from the videocamera looks toward the driver's side of the police car; however, Cole was standing on the other side, behind the passenger side of the police car when arrested. The view of the participants is restricted to their upper bodies from about waist high. Officer Murphy freely admitted at trial that the videotape had a limited view and did not depict Cole dropping the plastic bag of cocaine. The jury was free to believe, based upon their own perception of the videotape coupled with Officer Murphy's testimony, that the videotape did not show Cole drop the bag because the police car and the officers blocked the camera's view of the arrest.

Cole further contends that the testimony of the various State's witnesses was so inconsistent and contradictory as to be insubstantial and insufficient. Cole emphasizes differences in each police officer's account of Cole's dropping the bag of cocaine from his right hand. Cole concludes such differences render their eyewitness testimony unbelievable.

Each officer unequivocally testified that he saw Cole drop the bag of cocaine from his right hand. Any questions about the officers' credibility or minor inconsistencies in the testimony of the officers are questions for the jury and do not go to the submissibility of the State's case. State v. Hudson, 822 S.W.2d 477, 480 (Mo.App.1991). Conflicting and inconsistent statements made by witnesses reflect on their memory and the quality of the evidence, not its sufficiency. Id. The discrepancies about the exact location of Johnathan Cole's hands at the time he dropped the bag of cocaine was for the jury to resolve. The reliability and credibility of witnesses is for the jury to decide. State v. Vinson, 833 S.W.2d 399, 403 (Mo.App.1992). We deny Cole's first point.

Defendant's second point focuses on instruction no. 6 to the jury. Instruction No. 6, based on MAI-CR3d 325.02, stated as follows:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on September 8, 1989, in the City of St. Louis, State of Missouri, the defendant possessed cocaine, a controlled substance, and

Second, that defendant was aware of its presence and illegal nature,

then you will find the defendant guilty under Count II of possessing a controlled substance.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

As used in this instruction, the term 'possessed' means either actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who is not in actual possession has constructive possession if he has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons. Possession may also be sole or joint. If one person alone has possession of a substance, possession is sole. If two or more persons share possession of a substance, possession is joint.

If you do find the defendant guilty under Count II of possessing a controlled substance, you will return a verdict finding him guilty of possessing a controlled substance.

(Emphasis supplied.)

Defendant objects to the underlined portions of the instruction and claims that the trial court erred by including those portions in the instruction. At the outset, we note that the instruction's definition of "possession" as used in MAI-CR3d 325.02 and in this instruction is virtually identical to such definition in Section 195.010(33) RSMo Cum.Supp.1991. The sentence in the instruction that begins "[a] person who is not in actual possession has constructive possession if he has the power and intention ..." is drawn verbatim from the pattern instruction. This sentence does not deviate from the proper format of the approved instruction mandated by our Missouri Supreme Court. An appellate court has no authority to declare as erroneous a pattern instruction that has been adopted by the Missouri Supreme Court. State v. Olds, 831 S.W.2d 713, 721 (Mo.App.1992); State v. Turner-Bey, 812 S.W.2d 799, 805 (Mo.App.1991). There was no error by including the above mandatory language in the instruction given.

The remainder of the given instruction beginning with "[p]ossession may also be sole or joint ... If two or more persons share possession of a substance, possession is joint" is also included in the pattern instruction MAI-CR3d 325.02. However, it is shown as a parenthetical addition. The Notes on Use to MAI-CR3d 325.02 contain no guidance to explain under what circumstances the parenthetical phrase should be included when giving an instruction based on MAI-CR3d 325.02.

Defendant argues that use of this parenthetical phrase in the instruction permitted the jury to convict defendant under a theory of constructive possession based on evidence that his...