State v. Davis
| Decision Date | 04 November 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 515 S.W.2d 773 |
| Parties | STATE of Missouri, Respondent, v. Alice L. DAVIS, Appellant. 26958. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Public Defender, Gerald M. Handley, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., C. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.
On August 7, 1973, Alice L. Davis was convicted by a Jackson County jury of possession of heroin, a felony. Thereafter, and on August 30, 1973, appellant was sentenced to three years in the custody of the Missouri Department of Corrections. This is a direct and timely appeal from that judgment and sentence.
The record discloses the following essential facts: On February 28, 1973, Detective Clarence Luther, Patrolman Kuhn, and other members of the Kansas City, Missouri Police Department, went to 2008 East Linwood, Apartment No. 6, in order to execute an arrest warrant for appellant's husband on a charge not related to this case. This apartment was used by appellant, her husband and several other persons, but was not the permanent home of any of them.
Upon knocking on the door and identifying themselves, the officers were voluntarily admitted by appellant, who was alone in the apartment and had been alone therein for several hours. She and her husband had spent the preceding night in a bedroom which appellant described to the officers as 'hers'.
The officers testified that the appellant, upon their entry, hurried to the bedroom, they followed closely, and discovered on a bedside table the paraphernalia which led to the charge of possession of heroin. They stated they immediately placed appellant under arrest.
Appellant testified that she had been in the apartment since the preceding night from about 10:00 p.m., had watched TV until about 2:00--2:30 a.m., and had awakened around 10:30 a.m. At that time, her husband and all other occupants of the apartment had left and she was alone. She remained in bed for about 30 minutes, did some exercises, took a shower, made the bed, straightened up the bedroom, and made a telephone call from a public telephone on the first floor of the apartment before the police appeared. She testified that she had observed no narcotic equipment in the apartment or her bedroom the preceding night nor at any time that morning, and that none was on the bedside table until the officers made a second visit to her apartment.
The officers testified that after their first visit to appellant's apartment and her arrest, she was left in the custody of another officer and they proceeded to an apartment on the floor above to execute another arrest warrant. Other facts pertinent to the determination of this appeal will be stated hereafter.
Appellant presents two points of error on appeal. The first alleges that the court erred in ruling questions posed to the arresting officers concerning their activities after the arrest of the appellant to be irrelevant after the defense had made an offer of proof showing relevancy. In support of this proposition, appellant cites State v. Walden, 490 S.W.2d 391 (Mo.App.1973); State v. Tevis, 340 S.W.2d 415 (Mo.App.1960), and State v. Moore, 435 S.W.2d 8 (Mo. banc 1968). None of appellant's authorities, however, face the determinative principle raised by the respondent, that this point was not preserved for appeal because no proper offer of proof was made.
Although never clearly or positively stated, apparently it was to be the defense's theory that the police left Mrs. Davis' apartment without arresting her, proceeded to an upstairs apartment where they seized the contraband, that they then returned to Mrs. Davis' apartment, planted the paraphernalia, and arrested appellant for a narcotics violation. During the cross-examination of a Patrolman Kihn, defense counsel, Mr. Handley, inquired as follows:
'Q. What did you do, sir, after you finished searching apartment 6? What did you do next?
A. We went out of apartment 6 to another apartment in the building.
Q. And where was that at, sir?
MR. McNEARNEY: At this time, your Honor, I am going to object to this question and this line of questioning as being immaterial and irrelevant to this case.
Respondent correctly contends that defense counsel's offer was not sufficiently specific to preserve this point for review. In Missouri, facts and reasons which are given in an offer of proof must be specific and demonstrate the relevancy of the testimony which is desired. State v. Umfrees, 433 S.W.2d 284, 286(1, 2, 3) (Mo. banc 1968). The Missouri Supreme Court has stated that it must assume that the party making an offer of proof stated it as fully and favorably as he could. Umfrees, supra; Rutledge v. Baldi, 392 S.W.2d 244, 248(3, 4) (Mo.1965). Further, it is not error to exclude evidence, the relevance of which is not apparent, unless the party seeking its admission states the nature of the testimony he seeks to elicit and the purpose for which it is offered. State v. Feltrop, 343 S.W.2d 36, 38(7) (Mo.1961).
In Umfrees, supra, the Supreme Court held that refusal to admit in evidence the testimony of an inmate that the prosecution witness, very shortly after a prison stabbing told them to '(t)ell Tommy that I took care of the deal', was not improper, as the testimony offered was vague and uncertain, as its relevancy and materiality were not demonstrated in the offer, and its admission would, rather than tending to prove or disprove any material issue, tend to create confusion and speculation. As in Umfrees, the offer of proof in the instant case does not apprise the court of defendant's theory of 'planting'. Rather, the defense stated the theory to be that Mrs. Davis was not placed under arrest until after the officers went to the third floor apartment, knocked down a door and came back down, left the building, and then came back and arrested her. Defense counsel stated that this was 'relevant to the theory of possession and arrest'. This offer in no way apprised the court of the defense theory.
In regard to the testimony of Detective Luther, the offer was substantially the same, the court again not feeling that the police activity, after the arrest and in another apartment, would tend to prove or disprove a fact in issue, but would rather tend to draw the jury's attention away from the issue it was called upon to resolve.
As the state points out, there was nothing mentioned in the offer of proof concerning the introduction of evidence which would show that the narcotics paraphernalia found in appellant's apartment had originally been found in the upstairs apartment. As the grounds for error specified in appellant's motion for new trial and in her...
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