State v. Cole, 14036
| Decision Date | 31 March 1986 |
| Docket Number | No. 14036,14036 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Russell L. COLE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Sharon M. Busch, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
A jury has found defendant Russell L. Cole guilty of selling marihuana in violation of § 195.020, RSMo 1978, and has assessed his punishment at imprisonment for a term of 5 years. He now appeals, contending that his right to cross-examine witness Ernest Arrasmith was unduly abridged. We affirm.
The State, having had a verdict, is entitled to have this court consider the evidence and the reasonable inferences to be drawn therefrom considered in that light most favorable to the State, rejecting all evidence and inferences which do not support the verdict. State v. Franks, 688 S.W.2d 787, 788 (Mo.App.1985); State v. Netzer, 579 S.W.2d 170, 173 (Mo.App.1979).
So taken and considered the record shows that in March 1984, Ernest Arrasmith began working for the Jasper County Sheriff's Office as a "volunteer undercover" agent. On June 8, 1984, Arrasmith went to the residence of one Peggy Schrader in Carthage. Apparently, the Schrader residence combined living quarters and a beauty shop. Shortly before 11 a.m. Mrs. Schrader was present; a customer was there, "getting her hair fixed." Arrasmith asked about purchasing some marihuana. Schrader thereupon introduced Arrasmith to the defendant. Arrasmith "told [defendant] I was looking for some marijuana to purchase, and [defendant] said that he had some [but] it would take a while to get it." Arrasmith asked to buy a "quarter bag." Defendant fixed the price at $30. Arrasmith gave the defendant $30.
Later the same day, Arrasmith returned to the Schrader residence and the defendant delivered a brown paper sack containing about five grams of a substance later identified as being marihuana. We find this evidence sufficient to sustain the judgment of conviction.
The Public Defender's Office has briefed and argued a single combination point, which as stated, is: "The trial court erred in sustaining the State's motion in limine and sustaining the State's objections to questions asked Ernest Arrasmith because appellant's Sixth Amendment Constitutional right to confront and to effectively cross-examine the witness was thereby denied in that questions such as 'Have you ever been involved in any controversies with police officers in the area regarding your conduct' were proper in order to test the witness' credibility and show possible bias by showing his interest in obtaining employment and his reputation for truth and veracity with other law enforcement officers."
We decline the Public Defender's invitation to discuss the defendant's Sixth Amendment right of confrontation, or to discuss techniques and methods of "impeachment" of a witness generally. In the circumstances, it is sufficient to address the single combined point of error assigned.
On the day of trial but before the trial was commenced the State filed a motion in limine averring that on the previous day, it had been informed that defendant intended to call a Carthage policeman as a witness to testify to an arrest of the State's undercover agent. Citing State v. Lockhart, 507 S.W.2d 395 (Mo.1974), and State v. Brown, 604 S.W.2d 10 (Mo.App.1980), and averring that the only purpose of such evidence would be to prejudice the jury, the State moved the court to instruct the Public Defender not to introduce or attempt to introduce testimony of the prior arrest and not to mention it in his opening statement. The motion was granted. Defendant contends that granting this motion was error.
As carefully noted in Lockhart, 507 S.W.2d at 396, there is an exception to the rule that an arrest or pending charge against a witness may not be shown to attack his credibility, but this exception was not established or even suggested by the Public Defender at the time the motion was presented. The trial court did not err in granting the motion in limine.
Our attention is called to four specific questions put by the Public Defender to which objection was sustained. They are:
"1. When you worked as an undercover agent for the Ottawa City Police Department, how did that employment end?
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* * * 2. Were you ever offered a paid position with McDonald County?
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3. Within the last year, have you engaged in any illegal activity other than in your capacity as a law enforcement officer?
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4. Have you ever been involved in any controversies with police officers in the area regarding your conduct?"
The defendant's contention that the trial court erred in sustaining objections to these four questions is ill taken, for several reasons. In the first place, no contemporaneous offer of proof was made when the objections were sustained. Generally, when an objection to proffered evidence is sustained, the party offering the evidence must demonstrate its relevancy and materiality by making an offer of proof in order to preserve the matter for appellate review. The offer of proof must state facts which are specific and sufficiently detailed to establish the admissibility of the evidence sought to be introduced. Mere statements and conclusions of counsel are not sufficient. State v. Dixon, 655 S.W.2d 547, 557[14, 15] (Mo.App.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984), and see State v. Rinehart, 646 S.W.2d 827, 828 (Mo.App.1982).
In the case at hand, the defendant made no offer of proof, but offered only some conclusory statements which were neither definite nor specific. We stand in doubt that any of the matters assigned as error...
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State v. Burns, WD
...191, 192 (Mo. banc 1987), and did not demonstrate relevancy or materiality to preserve the issue for appellant's review. State v. Cole, 710 S.W.2d 345, 347 (Mo.App.1986). An offer of proof may be narrative through the counsel, but it must be definite, specific and set forth the content of t......