State v. Destefano

• Decision Date: 10 January 2007
• Docket Number: No. 27387.,27387.
• Citation: 211 S.W.3d 173
• Parties: STATE of Missouri, Respondent, v. James J. DESTEFANO, Appellant.
• Court: Missouri Court of Appeals

211 S.W.3d 173

STATE of Missouri, Respondent, v. James J. DESTEFANO, Appellant.

No. 27387.

Missouri Court of Appeals, Southern District, Division Two.

January 10, 2007.

Margaret M. Johnston, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen. & Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for respondent.

Before GARRISON, J., BARNEY, J., and LYNCH, J.

PER CURIAM.

James J. Destefano ("Appellant") was convicted of two counts of the Class B felony of distributing a controlled substance, violations of section 195.211.¹ Following a jury trial, Appellant was sentenced by the trial court to fifteen years in the Missouri Department of Corrections on each count with the sentences to run concurrently.² Appellant alleges two points of trial court error. He first takes umbrage with the trial court's admission of the entirety of an audio recording of a drug transaction which he contends included evidence of his bad character and irrelevant statements regarding prior incarceration and drug use. Second, he contends the trial court abused its discretion in excluding a witness from testifying at trial as a sanction for the witness's late endorsement by defense counsel.

Appellant does not challenge the sufficiency of the evidence to support his convictions. "Viewing the evidence in the light most favorable to the jury's verdict," State v. Smith, 185 S.W.3d 747, 751 (Mo. App.2006), the record reveals that Newton County Sheriff's Department Detective William Pike ("Detective Pike") recruited a confidential informant to introduce an undercover police officer, Christina Krogen ("Officer Krogen"), to Appellant so that Officer Krogen could attempt to buy drugs from Appellant. The confidential informant introduced Officer Krogen to Appellant in February of 2005. On March 3, 2005, Officer Krogen returned to Appellant's house alone and purchased half a gram of methamphetamine from Appellant for $50.00. Immediately after purchasing the drugs from Appellant, Officer Krogen gave the drugs to Detective Pike and the drugs field-tested positive for methamphetamine and amphetamine.

The following week, on March 9, 2005, Officer Krogen again purchased half a gram of methamphetamine from Appellant at his home.³ The second drugs purchased also tested positive for methamphetamine. Both times Officer Krogen purchased drugs from Appellant she wore a recording device.

Appellant did not testify at trial nor present any evidence. At the close of all the evidence, the jury found Appellant guilty of two counts of distributing methamphetamine and he was later sentenced to two concurrent terms of fifteen years in the Missouri Department of Corrections. This appeal followed.

Appellant's first point relied on maintains the trial court abused its discretion in admitting over his objection the entirety of audio tapes of his drug transactions with an undercover police officer. He asserts that the "recordings were more prejudicial than probative because they contained minimal cumulative evidence of a drug transaction ..." as well as "evidence of Appellant's bad character, his prior drug use, and his prior prison commitment."

"The decision whether to admit evidence of other crimes largely rests on a determination of whether the probative effect of the evidence outweighs its prejudicial impact upon the appellant." State v. Perkins, 753 S.W.2d 567, 574 (Mo.App. 1988).

As previously stated, Officer Krogen made audio tape recordings of the two drug transactions at issue. Prior to trial, Appellant filed a motion in limine in which he sought to exclude certain portions of the audio recordings which he contended were unrelated to the drug sales because they were highly prejudicial and outweighed any probative value.⁴ At the hearing on Appellant's motion, the trial court ruled that the entirety of the audio recordings would be admissible at trial as long as the State was able to lay a proper foundation for the admission of the recordings. In making this ruling, the trial court implicitly denied Appellant's request to redact the audio recordings so as to excise the purported, prejudicial language.⁵

During the State's direct examination of Officer Krogen, the State moved to play the audio recordings for the jury. At that time, defense counsel renewed his objection to the introduction of the entirety of the audio recordings into evidence. The trial court overruled the objection and the audio recordings were played for the jury.

In the first audio recording, made on March 3, 2005, the confidential informant asked Appellant if Officer Krogen could purchase methamphetamine and Appellant noted he had to put the drugs in a cupcake wrapper because he did not have any baggies. Appellant then provided Officer Krogen with the requested methamphetamine.

During the course of the presentation of the second audio recording, made on March 9, 2005, Appellant warned Officer Krogen that the methamphetamine he was selling her was "more intense" than the previous methamphetamine she had purchased from him and that she should use less than she normally used because of its potency. The recording then recited how Appellant informed Officer Krogen that methamphetamine was an "aphrodisiac" and that she should use it in moderation because it would make her want to "f___ all night." The recording also recited that Appellant told Officer Krogen that when he and a female friend use methamphetamine together "she'll f___ ... wow, man, her eyes will go and she'll spin like a mother f___er." Appellant also stated that his friend will "do a 20 and [he will] do a 30 ... and it ain't like five minutes ... when the rushing starts to slow down, she's pull her clothes off and it's time to f___. It's time to get it on." The recording also set out Appellant informed Officer Krogen that he had been using methamphetamine for 35 years and had "done" methamphetamine the previous night. He stated he did not like to sell it to strangers because he did not want to go back to prison. He told her he had been arrested previously because of "snitches and bitches," and that he did not make a lot of money selling methamphetamine, but he "like[d] getting high." He also told her he had given her a little extra methamphetamine "to make [her] tits hard" and told her that she should call him later for a "moustache ride."

As a general rule the "trial court has broad discretion in considering the admission of tape recordings; its determinations will not be disturbed on appeal absent a clear abuse of discretion." State v. Isa, 850 S.W.2d 876, 893 (Mo. banc 1993). "`To establish an abuse of discretion, a defendant must show that reasonable persons could not differ as to the propriety of the trial court's ruling.'" State v. Teague, 64 S.W.3d 917, 922 (Mo. App.2002) (quoting State v. Gateley, 907 S.W.2d 212, 221 (Mo.App.1995)). "We review for prejudice and not mere error, and will affirm the trial court's ruling unless it was so prejudicial as to deprive the appellant of a fair trial." State v. Charlton, 114 S.W.3d 378, 383 (Mo.App.2003).

"The admissibility of a tape recording will, however, depend on the particular circumstances of each case." Isa, 850 S.W.2d at 893. "[I]t is within the trial court's discretion to decide whether potentially inflammatory evidence should be admitted." State v. Knese, 985 S.W.2d 759, 768 (Mo. banc 1999).

We note that it is generally recognized that a criminal defendant has a right to be tried only for the offense for which he is charged. State v. Pennington, 24 S.W.3d 185, 189 (Mo.App.2000). "The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is not admissible for the purpose of showing the propensity of the defendant to commit such crimes." State v. Burns, 978 S.W.2d 759, 761 (Mo. banc 1998). "Propensity to commit a crime is not a proper purpose for admission of evidence because it `may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.'" Pennington, 24 S.W.3d at 189 (quoting State v. Bernard, 849 S.W.2d 10, 16 (Mo. banc 1993)). "`Proffered evidence will run afoul of th[is] rule ... if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes.'" State v. Wallace, 952 S.W.2d 395, 397 (Mo.App.1997) (quoting State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989)).

"To be admissible, evidence of prior bad acts must be `both logically and legally relevant.'" State v. Taylor, 166 S.W.3d 599, 606 (Mo.App.2005) (quoting State v. Roberts, 948 S.W.2d 577, 591 (Mo. banc 1997)). "`Evidence is logically relevant in that it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial' and such evidence `is legally relevant, in that its probative value outweighs its prejudicial effect.'" Id. (quoting Bernard, 849 S.W.2d at 13).

Courts of this State have recognized six exceptions to the general rule prohibiting admission of evidence of uncharged misconduct. It has been held that

`[s]uch evidence is admissible if it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial; or (6) a signature modus operandi.'

Taylor, 166 S.W.3d at 605-06 (quoting Roberts, 948 S.W.2d at 591). "The defendant bears the burden of showing that the challenged testimony constituted evidence of other crimes." Wallace, 952 S.W.2d at 397.

In the present matter, the statements pointed out by Appellant, while no doubt offensive to many listeners, constituted part of the "sales pitch" to the prospective purchaser of his methamphetamine, Officer...