State v. Davenport, s. 66505
| Decision Date | 07 May 1996 |
| Docket Number | Nos. 66505,68533,s. 66505 |
| Citation | 924 S.W.2d 6 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Gerald DAVENPORT, Defendant/Appellant. Gerald DAVENPORT, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Barbara Hoppe, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted of two counts of selling a controlled substance, crack cocaine. Defendant argues five points of error: (1) error by the trial court in admitting the seized drugs because the state failed to sufficiently trace the chain of custody; (2) error in permitting hearsay statements identifying defendant as the person who sold the drugs; (3) error in overruling defendant's objections to remarks in the state's closing argument which allegedly shifted the burden of proof to him; (4) error in conducting the voir dire; and (5) error in denying defendant's 29.15 motion. We affirm.
In December 1992, Officer David Williams (Williams), was working in the Audrain County area as an undercover agent for a task force assigned to investigate narcotics activity. On December 1, 1992, Williams met an informant and Michael Herbert (Herbert), Williams' control officer, in Mexico, Missouri. Informant and Williams traveled in informant's car through various housing projects on Trinity Street in Mexico, Missouri. Informant identified people the task force suspected of selling and possessing narcotics. Williams made three drug purchases that evening from two suspects, one being defendant.
Williams' first purchase was from a person identified as Sandy Nunnelly. The officer successfully purchased what was believed to be a controlled substance and placed the bag in his right front trouser pocket. Williams then encountered defendant sitting in a full size yellow van on Trinity Street. Williams got into defendant's van where the two discussed the purchase of crack cocaine. Defendant agreed to sell a rock of cocaine to Williams for twenty dollars. Defendant then produced a bag containing several pieces of what appeared to be crack cocaine. Defendant removed a piece and handed it to Williams in exchange for twenty dollars. Williams placed the substance in his left front trouser pocket. Williams then met up with Nunnelly again and made another purchase of crack cocaine. He placed this evidence in his right front jacket pocket.
Around 9:00 p.m. Williams met Herbert at Lakeview Park in Mexico, Missouri, and gave him the drugs he had purchased that evening, one at a time and in the same order he had received them. The drug from defendant was placed in an evidence bag sealed and initialed by Herbert. Herbert recorded the case number and location of the buy (Mexico, Missouri) on the bag. Herbert also recorded the name Jerry Nickens on the bag. This was the name of the suspect given to Williams by informant. Later, the license plate on the van was checked and it revealed the van was registered to Gerald Davenport. Herbert placed that name on the bag as well.
On December 10, 1992, Williams returned to the housing project again accompanied by informant. Williams spotted defendant in the same van. Williams approached the van again and asked the occupant if he remembered him from the last buy on December 1, 1992. Defendant responded "yes." Williams again asked defendant if he had any drugs for sale and defendant said "yes." He invited Williams into the van, produced a bag of what appeared to be crack cocaine and sold Williams a piece for twenty dollars. Williams put this piece in a cellophane wrapper from a cigarette pack and placed it in his right trouser pocket.
Williams met Herbert at a vacant lot in Kingdom City around 1:00 a.m. and turned over the substance purchased from defendant. The substance was still inside the cellophane wrapper. Herbert placed the cellophane wrapper into an evidence bag, sealed it, initialed it and labeled it Gerald Davenport. Herbert took the substance to the evidence locker at the sheriff's department in Fulton. The evidence was later taken to the Highway Patrol Lab, tested and returned to the evidence locker.
Sid Popejoy, a chemist for the Missouri Highway Patrol, testified at trial that he performed the tests on the substances purchased from defendant and both were determined to be crack cocaine. He also testified that state's exhibits 1 and 2 were in the same condition at trial as they were after he examined and tested them.
Defendant did not present any evidence at trial and was found guilty of two counts of selling a controlled substance. Defendant filed a pro se motion alleging ineffective assistance of counsel pursuant to Rule 29.15. Counsel was appointed and an evidentiary hearing was held. The motions were denied. This appeal followed.
In point one, defendant argues the court abused its discretion in overruling defendant's objections to admitting the substances allegedly purchased from defendant (exhibits 1 and 2) because the state failed to sufficiently trace the chain of custody. We find no error. The sufficiency of the evidence establishing a valid chain of custody for a given exhibit is a matter addressed to the sound discretion of the trial court. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). The chain of custody must provide reasonable assurance that the exhibit offered is the same evidence seized and is in substantially the same condition as when seized. State v. Taylor, 804 S.W.2d 59, 61 (Mo.App. W.D.1991). The chain of custody must also provide reasonable assurance the evidence seized has not been tampered with or substituted. State v. Huff, 789 S.W.2d 71, 78 (Mo.App. W.D.1990). The reasonable assurance standard does not require the exclusion of every possibility that the evidence has not been disturbed. Id.
The testimony on the chain of custody was sufficient to provide reasonable assurance the evidence admitted was the cocaine purchased from defendant and was in substantially the same condition as when seized. As to exhibit 1, Officer Williams testified that on the evening of December 1, 1992, he made three drug purchases and kept them separate. The evidence was delivered to his control officer, Herbert. Williams testified that he witnessed Herbert immediately bag the evidence, mark it with the name informant supplied as that of the seller, his initials, the date, the town where the purchase occurred and the time of the purchase. At trial, Williams was able to identify the evidence bag as the one marked on December 1, 1992. Herbert testified that he took the evidence purchased that night one at a time, marked and sealed the bags and took the three bags to the police evidence locker at the police station. He testified that the bag containing the purchase from defendant was then taken to the lab for testing. Herbert identified the evidence bag at trial. The police chemist further testified establishing the chain of custody. He stated the bag was brought to him sealed. It was opened and tested by him and the bag was resealed and returned to the police locker. These facts are more than sufficient to establish the chain of custody for exhibit 1, the drugs sold on December 1, 1992.
Defendant argues that at trial Williams could not identify the drug as the item received on December 1, 1992. Defendant misconstrues the objective of chain of custody evidence. As defendant himself aptly pointed out, if evidence can be identified at trial there is no need to establish chain of custody. State v. Watts, 813 S.W.2d 940, 944 (Mo.App. E.D.1991). The chain of custody is only necessary when evidence is not distinguishable as is the case where items such as drugs are seized. Id. The testimony clearly established the chain of custody of the drugs purchased from defendant in 1992. Therefore, it is irrelevant whether Williams could identify the rocks of cocaine admitted at trial.
The evidence offered to establish the chain of custody for exhibit 2 was also sufficient to establish reasonable assurance that the drugs purchased on December 10, 1992, were the drugs offered into evidence. The officers both testified to the hand to hand delivery from the purchaser, Williams, to the evidence bag marked and sealed by Herbert. Herbert testified the evidence was taken to the police locker then to the lab and back to the police locker.
Defendant argues Herbert did not record the time of the sale and marked an incorrect transaction number on the evidence bag containing exhibit 2. Therefore, defendant contends it was inadmissible. We disagree. There is no requirement that this information be listed on the evidence bag. The bag contained defendant's name and the date of the transaction and the testimony was sufficient to establish that the drug offered into evidence was the evidence purchased from defendant on December 10, 1992. Defendant's point one is denied.
In point two, defendant argues the trial court erred in allowing Officer Williams to testify to inadmissible hearsay statements made by informant. We disagree. A hearsay statement is an out-of-court statement offered to prove the truth of the matter asserted. State v. Parker, 886 S.W.2d 908, 925 (Mo. banc 1994). If an out-of-court statement is not offered to prove the truth of the matter asserted but instead is offered to prove relevant background, then the statement is not inadmissible hearsay. State v. Jones, 863 S.W.2d 353, 357 (Mo.App. W.D.1993). Statements made by an out-of-court declarant that explain subsequent conduct are admissible as supplying relevant background and continuity. State v. Dunn, 817 S.W.2d 241, 243 (Mo. banc 1991).
Defendant complains of two out-of-court statements offered by Williams but neither of them was offered for the truth of the matter asserted and, therefore, we find no...
To continue reading
Request your trial
-
State v. McBenge
...that the exhibit offered is the same evidence seized and is in substantially the same condition as when seized." State v. Davenport , 924 S.W.2d 6, 9 (Mo. App. E.D. 1996). The purpose of this rule is to prevent an exhibit from being altered, substituted, or tampered with—all issues which th......
-
State v. Sammons
...sufficient to establish a valid chain of custody for a given exhibit is within the sound discretion of the trial court. State v. Davenport, 924 S.W.2d 6, 9 (Mo.App.1996). Missouri law requires that the State provide "reasonable assurance" that an exhibit sought to be introduced is received ......
-
State v. Sullivan, s. 19834
...the motion court's findings and conclusions are clearly erroneous. State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995); State v. Davenport, 924 S.W.2d 6, 13 (Mo.App.1996). Findings and conclusions are deemed clearly erroneous only if a review of the entire record leaves this Court with a def......
-
State v. McBenge
...that the exhibit offered is the same evidence seized and is in substantially the same condition as when seized." State v. Davenport , 924 S.W.2d 6, 9 (Mo. App. E.D. 1996). The purpose of this rule is to prevent an exhibit from being altered, substituted, or tampered with—all issues which th......